Page images

But as


act as




make answer to the following questions lowing reply to the questions submitted relating thereto, and in addition make

by you: such comment that may occur to you 1. If this bill should become a law it as to its effect upon railroad employés would, in my opinion, grant no new engaged in interstate commerce or to authority or power to Federal judges. labor in general:

a matter of abundant caution “If this bill were enacted into law, I would suggest that to avoid the possiwould it grant Federal judges any new

bility of such construction being authority or power to issue restraining given to the act, there should be added orders or injunctions in cases involving a proviso negativing such an inference. or growing out of labor disputes?

2. The foregoing answers your sec“Would the passage of such an act

ond question, which is, whether the imply the affirmative power of courts

passage of such an act would imply the to issue injunctions in labor disputes?

affirmative power of courts to issue in

junctions in labor disputes. "In your opinion, would it be uncon

3. As to whether such an stitutional because it applies only to

this would be constitutional, because cases growing out of labor disputes ?

it applies only to cases growing out of “What general objection if any would

“labor disputes," it is impossible, I there be to having its provisions apply think, in the present state of the judiin all cases, not confining them to cases cial decisions in the Supreme Court of growing out of labor disputes ?

the United States, to give a positive “If it were amended so as to provide

All the cases in that court that a court should not issue an

which determine what is and what is not traordinary writ without giving the ad

objectionable “class legislation,” verse party an opportunity to be heard,

grow out of controversies as to the conwould a labor injunction be considered

stitutionality of State statutes. The 'an extraordinary writ'?

14th amendment to the Constitution of “If it became a law could state courts the United States provides that no issue injunctions and restraining orders State shall “deny to any person within against employés engaged in interstate

its jurisdiction the equal protection of commerce without giving them an op the laws." There is no express proportunity to be heard?

vision of the Constitution which, in “If so, could it be amended so as to

terms or in substance, applies the same prevent this?

restrictions to legislation by Congress. “Would its passage mean that where

The same question arises here which employers have heretofore applied to

arose under the contract clause of the Federal Courts for injunctions they Constitution—the States are forbidden would in the future apply to the state

to pass any law impairing the obligation courts?

of contracts; but there is no prohibition “If this became a law could it be

against the United States doing so. technically evaded by issuing a writ of

And yet, in various cases, there have mandamus or other process before a been intimations by the Supreme Court hearing was had which might operate of the United States, or by some memagainst the employés to the same effect

bers of it, that the dictates of natural as if an injunction had been issued?”

justice might be held to forbid the Under date of February 2nd, 1905, Mr. United States from passing any law Worthington answered these inquiries which would have the effect of abrogatas follows:

ing existing contracts. There has never, DEAR SIR:

however, been any express adjudication Referring to your letter of January by the Court to that effect. 28, 1905, enclosing a copy of H. R. In the case in the Supreme Court in18327, being a bill entitled “To Regu- volving State statutes claimed to be late the Granting of Restraining Or invalid because they are class legislation, ders in Certain Cases,” I make the fol the Supreme Court has said that to


sustain such statutes the differences inquiry, it would be so objectionable between the cases which are covered by that it would be impossible to have it it and those which are excluded must be passed or to obtain for it any substantial such, as in the nature of things would support in either house of Congress. furnish a reasonable basis for separate 5. As to whether, if the bill were laws and regulations. In other words, amended so as to make it apply to exthe question is whether the discrimi traordinary writs in general, it would nation is purely arbitrary or has some apply to labor injunctions, is simply to basis in that which has a reasonable ask whether the writ of injunction is an relation to the object sought to be ac extraordinary writ. I think the word complished.

“extraordinary” in that connection To defeat your proposed bill on the would be so ambiguous that it would ground of unconstitutionality as class be highly injudicious to use it. Technilegislation would require, therefore, that cally, I believe that the writ of init should be held that class legislation junction is an extraordinary writ like by Congress is invalid because of some that of mandamus, certiorari, etc.; but implied prohibition on that subject and it is so much more commonly used than that “labor disputes” can not be reas the other writs which are classed as onably distinguished from disputes in extraordinary that a Judge who wished general which come before courts for to issue an injunction might very well adjudication. In my opinion the Su say that if Congress had intended to preme Court would not so hold.

include so common a writ as the writ It occurs to me,

however, that the of injunction it would have designated object which the organizations you it by name and not by the use of the represent have in view might be ac adjective "extraordinary.” complished by amending the bill

6 and 7. As to whether, if this bill that it will refer only to “labor disputes” should become a law, the State Courts affecting interstate commerce, since could issue injunctions against the Constitution of the United States ployes engaged in interstate commerce, itself makes clear distinction be without giving them an opportunity tween interstate commerce

and in to be heard, it is clear I think that the trastate commerce by giving jurisdiction bill as it stands would not affect proin the first case to the General Govern ceedings in the State courts; nor do I ment and in the second to the separate think it could be amended, so long as States.

it applies to labor disputes in general, 4. I think there would be grave ob so as to affect proceedings in the State jection to amending the bill so that its courts. Congress has

power to provisions would apply to every case in direct how proceedings in the which a Federal Court is asked to grant courts shall be conducted except in an injunction or temporary

matters over which jurisdiction is given straining order. There are many cases in Congress by the Constitution of the which the requirements of notice would United States. There are many labor defeat the very object of the proceed disputes as to which the States have ing. Take one illustration out of a absolute control. hundred that would occur to any practic This leads me again to the suggestion ing lawer: Money is about to be paid that if the bill were amended so as to and the object of the bill is to prevent apply only to labor disputes affecting the payment and protect the rights of interstate commerce it could be made the complaining party. If a notice of much stronger, because, in my opinion, even one day should be required the Congress, as to labor disputes involving money could be paid before the matter interstate commerce, would have the would come before the court and the right to direct that not even in the complainant would have no remedy. State courts should an injunction or

I should say that if the bill restraining order be granted without amended, as suggested in this fourth, notice to the parties affected.








8. As to whether, if this bill should be passed as it stands, employers would resort for injunctions to the State courts instead of to the Federal courts, I should say that the bill would probably have that tendency. If it were amended, as I have suggested, in answer to the preceding questions, it would not, of course, have that effect, because the bill would apply then to proceedings in any court, State or Federal.

9. I see no reason to suppose that such a bill as this could be evaded by the courts issuing a writ of mandamus or other process before hearing was had. A mandamus is never issued until an opportunity has been given to the respondent to be heard; and I cannot conceive how any other writ could be used in the way suggested by this question

As to your further request that I shall make any suggestions which occur to me in this regard that would be of benefit to those whom you represent, whether they are called for by the specific questions asked or not, I would

only say that I think the bill might be more effective if amended in accordance with the suggestions I have made above. I think this could have been done by inserting after the words “labor disputes, the words “affecting interstate commerce, and by adding to the bill the words: “Provided, that nothing herein contained shall be held to authorize the issuing of a restraining order or an injunction in any case in which the same is not authorized by existing law."

There can be no argument as to the effect of the amendments suggested by Mr. Worthington of confining the operation of this measure to disputes affecting interstate commerce but it is not railway employes alone who have believed they had causes of complaint on account of the issuance of injunctions and it would seem desirable to have a law which would apply in all labor disputes rather than one which would apply only to railway employes and companies engaged in interstate com




The determination of the adminisstration to strictly enforce existing statutes is shown by the action of Attorney General Moody in recent letter of instructions to all United States Attorneys, requiring a strict enforcement of the safety-appliance laws enacted for the promotion of the safety of the traveling public as well as for the protection of railway employes.

In the circular letter of the Attorney General mention is made of the decision of the United States Supreme Court in Johnson against the Southern Pacific Company, involving the construction of the ‘Automatic Car Coupler Act," and attention is called to the rulings of the court that locomotives prised within the term “any car” as used in the Act; that the Act forbids the use of cars which can not be coupled together automatically by impact, the object being to obviate the necessity of

men going between the ends of cars to couple or uncouple them; that the Act applies to cars used in interstate commerce, whether empty or loaded; that the primary object of the Act was to promote public welfare, and that it falls within the rule of liberal construction applicable to statutes to prevent fraud upon the revenue, and for the collection of customs.

The letter of instructions is as follows:

TO UNITED STATES ATTORNEYS: In the recent decision in the case of W. O. Johnson vs. Southern Pacific Co. involving the construction of the "Automatic Car Coupler Act,” the Supreme Court of the United States held that:

1. Locomotives are comprised within the term “any car" used in the act, and are subject to the provisions thereof.

2. The act forbade the use of cars



[blocks in formation]


It seems that in this curious old world of ours there are some things so coldly or severely logical as to interfere with the various points of justice involved. As for instance in our subject, the cold logic of the open shop is so absolute and incontrovertible that its uncompromising advocates simply call it an axiomit is the straight line between two points, and as there can be but one straight line between two points there is nothing more to be said_right is right and that's the end of it. Mitigating circumstances are not admitted into the realm of this kind of logic by those who openly advocate it. The conscience of such logicians must have its "pound of flesh," and the fact that the “debt with full interest" might otherwise be paid makes no difference to these Shylocks. Almost every consideration outside of cold logic may impel toward the closed shop side of the proposition, and still there be employers and journalists who refuse to depart from their position. Even sin

The government is determined upon a strict enforcement of these statutes, which were enacted for the promotion of the safety of the traveling public in general, as well as for the protection of railway employes. Therefore, any case of violation which is brought to your attention by the Interstate Commerce Commission or its inspectors, or by other parties, must be promptly and carefully investigated, and suit for the statutory penalty be instituted and earnestly pressed, if in your judgment the facts justify that course.

You are instructed accordingly; and you are expected to be vigilant and active in the matter, and make prompt and full report to me of any such cases (particularly of any cases now pending in your district,) and of your action, with your reasons therefor.


W. H. Moody, Attorney-General.

cerity and honesty of purpose by the closed-shop advocates is twisted and distorted so as to make its possessors appear dangerous. That is to say, the man or men who advocate the closed shop side of the controversy, from a belief in its greater good or justice, are accounted dangerous, even as are those who advocate it from selfish or bad motives. And that we may not be accused of drawing upon our imagination for taking the above position, note what “Public Policy," January 21, 1905, says: “We claim that more damage has been done to the cause of humanity by sincere and honest persons ill informed, or not informed at all, than by willful rascality. Many persons mislead themselves and others by assuming, because they know they are sincere and honest, they must as a logical sequence be right. Of this kind of stuff the witch-burners were made. It is necessary for highly sympathetic persons to guard themselves against the delusion that sincerity and




honesty make right. They do not. Because they do not, a too high appreciation of them is dangerous.' This is a kind of argument that proves too much; or at least if the argument is considered conclusive as a primary proposition, then the converse of it is just as absolutely proven—that is, admitting that honesty and sincerity of purpose actuated the witch-burners, must admit, versely, that those who were burned certainly had some very firm convictions. In fact, this converse proposition takes us straight into the society of martyrs, and heroes—Washington, Lincoln, Alexander Stephens, and the pioneers of our country certainly were actuated by the most sublime sincerity and honesty of purpose, and had they not been, that history would have been written in a vastly different waya way in keeping with a full “appreciation of the dangers” of sincerity and honesty of purpose.

We recognize, of course, that labor leaders and followers may be honestly misguided and mislead, at least for a time, but certainly no man would be justified for a moment in the assertion that organized labor in this country has been led by men not thoroughly alive to the involved questions of rectitudeand rectitude of a very exalted standard. Nay a sincerity and honesty of purpose that has made organized labor the mighty force for good that it is today-not only that, but it has shown the unscrupulous employer and capitalist that in no small degree has the just condemnation of their own acts been meted out to them, The self-evident sincerity and honesty of purpose of organized labor speaks volumes in confirmation of the generally accepted idea that labor organizations are here to stay, and that they had their origin in necessity and their growth in the continued inhumanity of man to man-much as unjust treatment was at the root of the determination of the original thirteen colonies or states to rebel and throw off the yoke of English oppression.

Certainly we recognize the rectitude of the position of the “open shop” advocates-that perfect freedom carries with it the right of every and any man

to sell his labor to whomsoever he can and for whatsoever he can get, but we should remember also that our personal rights and liberties are so only as they do not interfere with the rights and liberties of others. “The trade unionist holds, and it is generally admitted, that the trade union, as an organization, is a necessary quantity in our industrial life today, and only a glance at the history of our industrial development is necessary show us, unmistakably, that organization of working men in their labor unions has benefited and improved their condition throughout those crafts, in every manner, to an extent beyond estimate." Wages, environment, sanitation, and conditions of work have all been brought up to a higher plane of work by devotion to his fellows, and his family by the trade unionist. Does it seem just the right thing then for a few men, who have persistently refused to join in this work of general uplifting, to step in and get all the advantages of it? Are they not reaping where they have not sown? They know of all the advantages which have been brought about by the unions, and their attitude in not joining them tends to retard and impede their progress. Can any one really blame men for not seeing the cold, delicate logic of the “open shop” controversy when the living, palpable facts of its operation are shown. "In union there is strength" is an axiom entirely within the mental grasp of any man who has sense enough to get a job and keep it, and when men do not join thə union of their craft, the reasons for so doing are certainly selfish or worse.

Absolute honesty of intentand straightforwardness in execution by both employers and the unions would soon settle the "open" or "closed" shop controversy forever.

We quote from an editorial in the Wall Street Journal that shows what may be called the essence of the controversy, or at least, how the extremes of the controversy are gravitating toward each other.

“In his statement addressed to the annual convention of the federation, Samuel Gompers deals interestingly with many matters affecting the inter

« PreviousContinue »