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The question of the injunction in labor disputes is of nation-wide interest. It is now in the Senate in the form of a bill reported from the Judiciary Committee adversely with a majority and minority report.

A subcommittee of that committee, consisting of Senators Norris, Blaine, and Walsh of Montana, have during the last three years conducted extensive hearings, have amended the original bill and made the minority report. The gratitude of the Senate is due these Senators for the diligent and earnest work done on this very complicated subject.

In view, however, of the differences of opinion developed, and the radical changes effected in the original S. 2479, a further independent study has been prosecuted at my request, the results of which are presented herewith. After analysis of both majority and minority reports, Mr. Martin and his associates propose an alternative and carefully drawn measure. This proposal is so fundamental and yet

. from an angle so new, with an apparent probable effect so eminently fair and desirable, that it is commended to the serious consideration of those in Congress and in private life who are interested in an effective remedy for the acknowledged evils accumulating from the continued abuse of the writ of injunction in labor disputes.





By WINTER S. MARTIN, Attorney at Law, Seattle, Wash. The subcommittee of the Senate Judiciary Committee rejected Senator Shipstead's antiinjunction bill, which was introduced in the Seventieth Congress. It was the opinion of the committee that the bill would deny to property in many cases the protection properly afforded by injunction, and that it would not do to pass the bill in its original form.

The subcommittee then introduced a bill widely different in its terms and construction, but which had for its purpose and object a drastic curtailment of the powers of Federal equity courts in issuing injunctions in labor disputes.

More than 700 pages of testimony taken during the hearings convinced the subcommittee of the necessity for corrective legislation against the highly oppressive and drastic labor injunction of the present day. It only remains to determine whether the substitute measure will accomplish what those who drew it claim for it. In connection with the substitute bill as originally introduced by the subcommittee in lieu of the original Shipstead bill, we shall call attention also to the amendments made by the committee after the substitute was offered. We thus have in effect a third measure, quite different from the two earlier ones.

This amended substitute bill will come before the Senate for final action some time during the present session. On this amended substitute, viz, the second committee print, bearing date of May 19, 1930—the majority of the committee are against passing the bill. They say:

Whatever there may be of merit in the contention of those who believe that the situation in part of the field of labor demands remedial legislation, the majority of the committee, all of whose members are most friendly to labor and to labor unions, are forced to the conclusion that this substitute bill would give rise to problems much more grievous than those which it seeks to solve. (See p. 15, Report of Judiciary Committee of the Senate.)

We fully agree with this statement, as applied to the substitute bill in its amended form (amended by the committee after its submission by the subcommittee).

In this final amended form drastic changes have been wrought in the text, and much of the merit of the substitute bill as first offered, before the committee amended it, has been by insertion and deletion taken out of the bill. But before discussing the effect of the amendments, let us consider the substitute bill as originally offered by the subcommittee. We believe that the bill was drafted for the bona fide purpose of correcting the evils which, in the judgment of many, had been constantly accumulating in the judicial decisions justifying the use of the injunction in labor disputes.


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In view of what is said in the cases decided in the higher courts in recent years, it is very doubtful whether the substitute bill would accomplish more than the Clayton Act. We recognize its high merit in denying relief in the Federal courts, both at law and in equity, in any case based on the vicious antiunion contract, properly designated "yellow dog.” We truly hope that Mr. Frankfurter may be right when he says (The Labor Injunction, pp. 212–214):

Having regard to the motives behind such agreements and their practical consequences, section 3 withdraws from them the support of the Federal courts by making them unenforceable both at law and in equity.

Such a provision has ample constitutional justification. The fifth amendment, which prohibits Federal legislation from taking liberty or property without due process of law, was utilized by the Supreme Court to invalidate the section of the Erdman Act which made it a criminal offense for interstate carriers to require their employees, as a condition of continuing employment, to enter into contracts for abstention from union membership. That decision is inapplicable to the proposed section 3. Formation of the agreement is not made a criininal offense and the agreement itself is not rendered a nullity, but is simply denied force in the Federal courts. The contracting parties remain free to seek such court relief as may be available in the State tribunals; merely the Federal courts must decline to recognize rights based upon these agreements. Clearly thereby Congress is denying a litigant no constitutional right:

"The right of a litigant to maintain an action in a Federal court on the ground that there is a controversy between citizens of different States is not one derived from the Constitution of the United States, unless in a very indirect sense. Certainly it is not a right granted by the Constitution.

The Constitution simply gives the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it.

A right which thus comes into existence only by virtue of an act of Congress, and which may be withdrawn by an act of Congress after its exercise has begun, can not well be described as a constitutional right.” (Kline v. Burke Construction Co., 260 U. 8. 226, 233.)

But we are not able to find in this argument the support which he claims for his conclusion. What distinction in principle and ultimate effect is found between the Adair case (208 U. S. 161) and the Bedford Cut Stone case (274 U. S. 37)? The Adair case held unconstitutional section 10 of the Erdman Act (30 Stat. 428). The Bedford case justified the issuance of an injunction on the ground that the conduct complained of violated the interstate commerce and Sherman acts. Each case involves the same underlying conception, to wit, that an established business, its good will and organization, and the right to contract and to carry on business without interference from anyone, constitute property rights protected by the fifth amendment.

What assurance have we that the substitute bill will not receive the same treatment in a civil case that the Erdman Act received in the Adair (criminal) case? There is nothing which renders a criminal provision of a statute more susceptible to the influence and paramount effect of the fifth amendment to the Constitution than a provision designed to limit the use of judicial process where the effect is to permit property to be injuriously affected by a withdrawal of protection it had theretofore received. · It all comes back to the definition of property. Give to property the definition adopted during the last two decades by the Supreme Court of the United States where the issuance of injunction in labor disputes has been questioned, and you can not escape the effect of the decisions of the court in such cases as Adair v. United States (208 U. S. 161); Adkins v. Children's Hospital (261 U. S. 525); Coppage v. Kansas (236 U. S. 1); Bedford Co. v. Stonecutters' Assn. (274 U. S. 37); Duplex Co. v. Deering (254

U. S. 443); Truax v. Corrigan, (257 U. S. 312); Hitchman Coal & Coke Co. v. Mitchell (245 U. S. 229); American Foundries v. Tri-City Council (257 U. S. 184). Injunctions will continue to issue as they now do whenever the moving papers base a case for relief upon a showing which invokes the protection of the fifth amendment.

The substitute bill in section 5 attempts to eliminate the criminality or illegality which is declared to exist in concerted action. upon the principle that acts essentially lawful in themselves do not become unlawful when committed by several persons acting in concert. The idea that, when men do in concert that which is not unlawful if committed by one man alone, they are thereby guilty of conspiracy which courts of equity will suppress by the use of injunction, is an innovation which has no historical justification. Such a theory was never recognized except in a few scattered common law cases. The fallacy of this rule and the lack of support or authority for it in the English common law or in the early American cases, is fully explained and exposed in an article by Professor Sayre in Harvard Law Review, volume 35, page 393. Professor Sayre shows how a loose statement made by Hawkins in his Pleas of the Crown, published in 1716, in London, was a few years later seized upon by one of the Judges who said in Rex v. Edwards, 8 Modern 320, that a "bare conspiracy to do a lawful act to an unlawful end, is a crime though no act be done in consequence thereof." This false notion of criminal responsibility was from time to time adopted in a few isolated cases where such conspiracy indictments were sustained even though they failed to charge either a crime or a conspiracy to use means criminal in themselves. These cases nearly all dealt with conspiracies among striking employees, and the English statute of laborers undoubtedly influenced the courts to adopt the Hawkins notion of criminal conspiracy. The idea that combination and concerted action make acts, in themselves lawful, unlawful when committed by more than one person, was made the basis of criminal conspiracy in the case of State v. Burnham, (15 N. H. 396). The court said:

An act may be immoral without being indictable, where the isolated acts of an individual are not so injurious to society as to require the intervention of the law. But when immoral acts are committed by numbers, in furtherance of a common object, and with the advantages and strength which determination and union impart to them, they assume the grave importance of a conspiracy, and the peace and order of society require their repression. * * When it is said in the books that the means must be unlawful, it is not to be understood that those means must amount to indictable offenges in order to make the offense of conspiracy complete. It will be enough if they are corrupt, dishonest, fraudulent, immoral, and in that sense illegal, and it is in the combination to make use of such practices that the dangers of this offense exist.

This early New Hampshire case has since been overruled, and the American cases do not sustain the rule there laid down. A careful consideration of common law cases leads inevitably to the conclusion that to sustain an indictment for criminal conspiracy “either criminal means or a criminal end” must be proved.

While this false doctrine of criminal conspiracy has not developed to any appreciable extent in modern times in the criminal law, it has become the very essence of the law of labor injunction conspiracies,” if we may coin such a term. Under this doctrine, acts entirely lawful in themselves become highly unlawful when committed by a group

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