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your attention last year, was decided Commission to perform the duty imby the Supreme Court of the United posed upon it with the earnest coStates on the 19th day of last December. operation of many railroad managers This decision fully sustained the con and members of your association, have tention of the Government and firmly resulted in a vastly better condition of established the status of the law in all equipment the country over. of its essential features. It is now To illustrate the improvement that settled rule of law that, for the protec has recently taken place, I shall not tion of their employes, railroad com mention names, but will give you the panies are required to equip their cars results of some recent comparisons made with couplers that can be both coupled by us from the reports of our inspectors, and uncoupled without the necessity covering two of the largest systems in for men to go between the cars, and to the country For the six months endmaintain such couplers in an operative ing December 31, 1904, reports covering condition. As stated by Chief Justice these two systems show that of the cars Fuller, who wrote the opinion in the inspected 38% and 21%, respectively, Johnson case, “the object was to pro were found to be defective, while for the tect the lives and limbs of railroad em period from January 1, 1905, to date, ployes by rendering it unnecessary for a the defective cars

were but 8% and man operating the couplers to go be 2%, respectively, on approximately an tween the ends of the cars." That is equal number of cars. This is a very the real test of compliance with the gratifying result, the more so as it is law.

an indication of a general improvement Following the Johnson decision came that has taken place in the past six the decision of Judge Humphrey of the months, and I have no doubt that the Southern District of Illinois, in the case result of this improvement will make of the U. S. vs. the Southern Railway. itself manifest in a vastly decreased This decision further fortified the law number of casualties to employes when by holding that to use car at all

our accident statistics for the year make when its safety appliances are in such their appearance. a defective condition as to compel men One question that has been brought to go between the cars is in itself a dis to a head is the acceptance of defective regard of law. It was also decided that

cars in interchange, with the underreasonable

due diligence to standing that the receiving road will keep equipment in order is no defense repair them. This has been the rule in

an action brought to recover the many places, as you are aware, but since penalty prescribed by law; also the use the Johnson and Humphrey decisions of an M. C. B. defect card to cover de have been rendered it is rapidly being fects to safety appliances does


done away with so far as safety applianrelieve a carrier from responsibility for ces are concerned. The rule now comaccepting a car in a defective condition ing to be most commonly observed is from one of its connections.

that no road will receive cars in interThere were a number of cases that change unless safety appliances are in hinged upon this decision and it was at

perfect order.

This is the only pracone time stated that the railroads con ticable method whereby receiving roads templated an appeal, but after thor may protect themselves from the conoughly investigating the subject this sequences of violation of the law, and idea was abandoned (if it had ever been the Commission has exerted its influence entertained), and all the roads involved to secure general adoption of the rule. have paid the statutory penalty for In some

cases this rule has entailed violation. The law has, therefore, met hardship, as it has led to the detention the most sanguine hopes of its friends, of live stock and perishable freight, and and with a President and Attorney Gen has necessitated the hauling of defective eral both determined to see that it is cars for considerable distances in order enforced to the letter, the efforts of the that they might be repaired, but such





results were only to be expected as a consequence of the changed condition, and make it all the more imperative for delivering roads to pay proper attention to the inspection and repair of cars at interchange points. The natural result is bound to be that each road will pay proper attention to its own repairs instead of passing the burden on to its connections, and the number of defective cars at interchange points will be reduced to the minimum. In other words, each road will do its part and no road will be unduly burdened. It is confidently predicted that before a year is over a railroad will no more think of accepting a freight car that is out of order than it would think of accepting a passenger car in improper condition. And this is as it should be. It lessens the number of accidents, reduces the number of damage suits, and leads to rigid inspection and an ideal condition of equipment.

The commission has repeatedly been requested to interpret the law in certain particulars, and has been asked whether this thing or that thing can be permitted; or whether this device or that device can be used. Such questions are idle, as the Commission can give but one answer to them, and that is to furnish copies of the law and the decisions of the courts interpreting it. Interested parties should familiarize themselves with the state of the law, and decide for themselves what is and what is not a violation. If in doubt on any point, they should ask the legal department of their road for a ruling, and not the Commission. On the Commission is imposed the duty of seeing that the law is enforced, and it is entirely out of place to ask an officer charged with the enforcement of a law whether in some particular instance he intends to perform his duty or not. If an accident happens to cars in transit; if a sudden jerk breaks an uncoupling chain or pulls out a drawbar, the best answer as to what the Commission would do about enforcing the law under such conditions is for one to apply the rules of ordinary common sense. The law does not require impossibilities, nor does it

aim to impose burdens that cannot be met, and even a Government inspector or prosecuting officer must be given credit for the possession of ordinary judgment and the ability possessed by ordinary men.

It is most gratifying to be able to state that in most instances railroad officials have heartily co-operated with the Commission in its efforts to secure compliance with the law, and I embrace this opportunity to extend the thanks of the Commission to the members of your association who have so faithfully and earnestly labored in harmony with the Commission, in the face of many difficulties, to bring about the pleasing results that now obtain. The Commission's rules of inspection, which are based upon your standards and recommended practice as well as the law, are being generally accepted and recognized as the criterion of proper conditions. When this becomes fully the rule of action, the necessity for prosecutions, or for further legislation covering these matters will be entirely done away with. In this connection I desire to reiterate what I have before stated at these conventions, that I hope to see the time when the standards and recommended practices of your association shall be the law of the land, and I think you will agree with me that events of the past few months have given your standards and practices a quasi-legal standing, in so far as they are covered by the rules of the Commission,

I desire to call your attention, with special approval, to the various orders and rules that have been recently issued by carriers with regard to the acceptance of foreign cars in interchange, and methods of inspection; and particularly do I wish to commend the circular of instructions issued by the Baltimore & Ohio Railroad. These rules foreshadow the ideal condition of equipment which the members of your association and the Commission have so long hoped and worked for.

I have no doubt that the pleasant relations that have always existed between the Master Car Builders and the Commission and its corps of inspectors

will be maintained in the future. We to thank you for the uniform courtesy have sought to impress our inspectors and good wil manifested towards us with the idea that the Master Car Build by the members of your association, ers and ourselves are working to a com and for myself I thank you for the opmon end, and have insisted that they portunity you have given me, by your shall be familiar with your rules and kind invitation, to be present standards, such familiarity, in fact, this convention. I congratulate you being one of the prerequisites of ap upon the grand work you have accompointment to the position of inspector. plished and thank you for your atFor our inspectors and myself I desire tention.




Dean of the College of Law of the University of North Dakota.

Reprinted from The Commons."


Much as

we may deplore the fact, to control capital, have been so conthere can be no question that there is in strued as to control

Salutary the rank and file of the community an also and necessary as the injunctions ever present willingness to sneer at the which were issued and the proceedings courts and at the lawyer and an all too for contempt which were had during constant repetition of the protest, “that the so-called Debs strike and which may be the law, but it is neither sense have followed in such great numbers nor justice.” Especially is this true in since that time may have appeared to the ranks of organized labor. There the general public, their justice has the judge, and particularly the federal never been conceded by the laboring judge, is generally looked upon as one classes nor the jurisdiction and right of who though not necessarily dishonest interference of the judiciary in the or corrupt, is usually narrow in his premises. And this lack of confidence sympathies and prejudiced in his decis in the judiciary is not confined to the ions and dealings as between capital laboringman. Even among the trading and labor, the employer and the em and professional classes, there is everyploye.

where to be found the conviction that THE CHARGE OF PREJUDICE.

our lawyers and our judges are behind Organized labor does not perhaps the age; that they fail to recognize the always impute corruption, but it con basic needs of a growing civilization; stantly argues prejudice. It

that they are shrouded in formalism; stantly asserts that in the courts of law that the letter of the law killeth and the laboringman and the union have no that it is the bench and the bar who standing; that no matter what the work are responsible for this letter. ingman may do, the courts will decide against him; no matter what statutes The unhealthy idea is also quite genermay be passed in his favor, the courts ally prevalent, that vast accumulations will declare them invalid. It frequent of capital are unduly favored by the ly declares that the fourteenth amend courts. When the author of a recent ment to the federal constitution, which series of articles included in a list of prewas adopted for the purpose of guar cepts supposed by him to guide the conanteeing freedom to the negro, has been duct of the Standard Oil Company and so construed by the courts as to enslave of its employes, one to, “Never forget free labor; that the anti-pooling and that our legal department is paid by the anti-trust measures, which were passed year, and our land is full of courts and







judges,” he voiced a sentiment which tion. But it is still true that the ultiunfortunately is only too prevalent. mate sovereignty rests in the people, It is in fact more than a conicidence and it is the general belief in this fact that almost contemporaneously with the that in Americà makes a government publication of the first of the articles by the judiciary a possibility. Among referred to, Mr. Bryan began his agi- the rank and file of the people, however, tation for an elective federal judiciary the belief is general that the powers and the labor unions of Chicago entered conceded to the judiciary are already the political arena for the avowed pur- great enough and there unquestionably pose of removing from the bench those exists a deep rooted determination that judges whose decisions and actions had no more shall be conceded, that they appeared inimical to their interest. shall go no further. It is indeed more ILLEGAL REDRESS.

than probable that to further extend the Whenever a legal remedy has not judicial control would result in a class been afforded, the lack of confidence revolt. in the law and in its administration, wherever found among Anglo-Saxon Like so many of its kind, the doctrine peoples, has resulted in conspiracies, in that for every evil there is a remedy at bloodshed, in machine breaking, in the polls, for a long time meant nothing arson, in Wat Tyler rebellions. Where, so far as what is known as the labor however, legal methods of redress have movement was concerned. It could be been obtainable—that is to say, wher- safely urged even by those who were ever a semblance of a popular suffrage most antagonistic to the interest of the

a popular control has been afford- American workingman. The reason ed—they have resulted in strikes and in lay in the fact, that, until quite recently,

or less turbulent agitation. All the great conservative farmer class has this has been in the main within the everywhere controlled elections. bounds of the law and has involved These small employers of labor, whose political agitation and activity rather own interest have lain in small wages than muscular revolution. Especially and in long hours of toil and whose has this been the case in America, habit it has always been to exaggerate

Here, perhaps nowhere else, the purchasing value of the wages paid has the idea of popular sovereignty in cities, have never as a class looked taken root. Here, more persistently with favor on the demands of the city than anywhere else, has the potency of laboring man or of the wage the ballot been suggested. The labor- generally. With the growth of the ingman and the discontented of all American city, however, a change has classes have, in America, for a long time been everywhere taught the doc- LABOR's

INFLUENCE. trine that in a democracy every wrong The Chicago delegation in the state can be righted at the polls and that, of Illinois, and

the city delegawhere this remedy exists, there is no tions in the state of New York have excuse for anarchy, no justification for for a long time possessed a controlling a resort to violence. There can be no influence in the legislature of their doubt of the fact that since the time of respective states, and the members of Chief Justice Marshall

have, these delegations have found it necesmore than any other nation, been gov- sary to consider the wishes of the labor erned in the last resort by our courts vote in their several districts, if they and not by our legislature, and that cared to retain their seats at all. So, in America the struggle between the too, vast bodies of at least partially orjudicial and the legislative departments ganized workingmen have begun to cenof government, which has so long been ter in our mining districts and on carried on among the Anglo-Saxon peo- railroads, all of whom have the suffrage ples, has reached its most extreme point and whose votes are,

within limited and has resulted in a judicial domina- areas at any rate, more or less control









ing. The appeal to the ballot can therefore now be made, and it is made.

LABOR STATUTES ENACTED. Its first manifestation was the enactment by a number of the state legislatures of statutes which limited the hours of labor in factories and in mines, forbade the payment of wages in commodities or in orders upon company stores or “truck shops," regulated the method of weighing and screening coal, where the wages paid were dependent upon the amount of coal mined, and which forbade the refusing of work to men because of their membership in labor unions or their discharge for the same reason. These statutes, in short, sought to determine by legislative enactment and in favor of labor the main questions in controversy between organized capital and organized labor. With but few exceptions, however, these statutes met with judicial disapproval and were declared invalid, some on account of their basic unreasonableness, some account of a latent individualism in the courts which seemed ever fearful that legislative interference would stagnate industry and which considered the protection of the business interests the paramount duty of the hour. So strong a position was indeed, taken upon the subject in a number of the states, especially in Illinois and in Colorado, that it is now taken as axiom by organized labor in the country generally, that whatever law is advocated by it, that law will be declared to be unconstitutional and refused forcement by the judiciary.

GOVERNMENT BY JUDICIARY. Organized labor has not however on this account ceased its efforts, and the result of the decisions has merely been to prolong the class struggle and to force the attack along different lines. At first, there was a return to former methods and an attempt to secure by strikes, boycotts and by threatening demonstrations the relief which the legislatures were precluded by the courts from affording

The McCormick strike which preceded the Haymarket riot, was pre-eminently an eight hour labor day demonstration, and the more recent

sirikes in the anthracite coal field of Pennsylvania and in the Leiter mines at Zeigler, Illinois, have also been attempted to secure by strikes and by

indirect exhibition of force, privileges which at one time it was fondly believed the legislatures could and would concede. Here, how ever, the opposition of the couris was again encountered and the appeal to the injunction proved as effectual for the employer as had formerly been the appeal to the constitution. As a result, the pendulum is now slowly but naturally swinging once more in the direction of the ballot and the “unfair judge” has become the object of electoral attack. Slowly, indeed, but thoroughly has organized labor come to realize that we, as a nation, are governed by our judiciary and not by our leg. islatures, and that it is the judge in America who dictates our social and industrial policies. Its efforts therefore are coming to be more and more directed toward obtaining a judiciary which shall be in touch with popular movements and responsive to their demands.


JUDICIARY So far the writer of this article has attempted to set forth the claims and the attitude of one side in this great industrial and governmental controversy. The answer of the other party now remains to be considered, and that answer is not a mere negation but a taking up of the gauntlet and an affirmative challenge. It has assumed the form of an imperative demand for a life-term judiciary, state and national, removable only for misbehavior in office. It was voiced as clearly by Mr. Justice Brewer of the Supreme Court of the United States, as by any other speaker or writer. In a recent address he said:

“There are to-day ten thousand millions of dollars invested in railroad property, whose owners in this country number less than two million persons, Can it be that whether this immense sum shall earn a dollar, or bring the slightest recompense to those who have







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