Now, if that is so, and I see no answer to it, if a man pickets, intimidates, threats, false statements, trailing a man, besetting a man, trespassing on a man's home, or a factory property for the purpose of reaching him and importuning those who do not want to be spoken. to, they are all of them beyond the reach of injunction? And that constitutes acts of the inherent nature which has already been held that by the Supreme Court of the United States. Assuming one murder had been committed and then various other acts which are nonenjoinable have taken place, you can not get an injunction or should not on account of one crime because you do not enjoin murder because there has been one murder committed, or possibly one or two acts of asault, and you have created a wrong connection with industrial disputes and matters, forbidding the carrying on of intimidation and threats to everyone who approaches his home or place of employment in connection with the existence of industrial disputes. Are we going to say that none of these acts so recognized as inherently disorderly and improper shall hereafter be enjoined in connection with the industrial dispute, when if they were being repeatedly performed in any other activity whatsoever they could be enjoined?

In the case of Truax v. Corrigan (257 U. S. 312), by a divided court, Justice Taft speaking for the majority pointed out that to deny an injunction against instances of that character against this class of acts, constitutes a violation of the fourteenth amendment to the Constitution of the United States so far as it was a State enactment, and that to say that one group of people can do those things and another group can not, constitutes a denial of the equal protection of the laws. For instance, one employer here might turn around and want to destroy his retail merchant who was the competitor of another employer, and the competitor would get a union to station pickets and perform acts of intimidation, trespassing, and so forth, which would not be an industrial dispute, he could receive an injunction, while in the case of an industrial dispute, although the acts charged, inherently disorderly in nature, they could not be enjoined as heretofore.

I spoke first of Truax ". Corrigan because it dealt with the fourteenth amendment, because the act was that of a State legislature, but, of course, the inhibitions of the amendment to the Constitution of the United States on the action of Congress are normally in respect to those various matters, particularly to the fifth amendment of the Constitution of the United States.

My next point relates to section 6 of this act on page 5. By that provision it is proposed to set up a separate law or agency for employers' associations as labor unions in connection with industrial disputes. If anybody denies that, I ask him will he accept an amendment at the end of the section to the effect that provided that nothing in this section shall be held to modify the law of agency.

This section states that no labor union and no officer or member shall be held responsible or liable for unlawful acts done except upon clear proof of actual participation, authorization or ratification after actual knowledge.

Now, gentlemen, it is very clear that under the fundamental law of agency which has been the rule of Anglo-Saxon law for some six centuries, that a man is responsible for the acts of his agent within the court of his employment even though he does something he is

actually forbidden to do, or something his employer did not authorize, if it was done in the course of employment, the master is liable and it makes no difference that the master did not authorize or even .know of the servant's act or neglect, or even if he disapproved or forbade it, he is equally liable if done in the course of the servant's employment.

Is there any reason why this rule of law should not apply to those enormous aggregations of capital which form the employer's associations and the aggregations of labor in the form of labor unions when they are engaged in industrial disputes, which is the very exigency which leads up to the perpetration of wrongs against other members of society. Is there not every reason why they should be restricted by the same law of agency which is applicable to every other human being in every other activity of society when they are engaged in such dangerous practices as often grow out of labor disputes. Under the original idea of the law of agency, if I am perfectly innocent I may be liable vicariously for the acts of my servant, growing out of the fact that the servant is often judgment proof, and, therefore, in order to find a full pocketbook you go to the principal. Why should not that apply to an organization of a million men who are represented by a few agents in carrying out a power and effectiveness dependent upon the fact that they represent a million men? Turning now to section 7 which some people call procedural, and which forbids the issuance of injunctions. Under subdivision (c) you can only enjoin unlawful acts if committed. That is, the language of the Clayton Act, in the well accepted rule of equity, is to enjoin when acts are threatened. Under subdivision (c) you have got to show that the injury that you suffer by virtue of these acts of violence when you are the plaintiff is greater than the defendant will suffer by being obliged to stop the acts of violence. I say no more on that point.

Then there is the rule requiring proof. Public officers charged with the duty of protecting the complainant's property must be shown to be unable or unwilling to furnish adequate protection. Several years ago, under the Sherman antitrust law, you have to apply to the Attorney General's office in Washington, not to the local district attorney, before you can get an answer in connection with anything of that kind, and you gentlemen well know that the Attorney General's office can not act immediately in connection with charges of that kind.

My next point relates to section 8, on page 8, where it says:

No injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.

Gentlemen, do you realize what that means? Injunction is directed, according to this bill, against violence and fraud. Violence is being committed against you. You can not enjoin it. You can not secure your usual protection until you have gone out under a white flag and attempted by means of negotiations to get the other people to stop, until you have gone to the governmental machinery of mediation or voluntary arbitration. The very people who may fire whenever they see fit to, you can not protect yourself against them until you have taken all these peace preliminaries. I believe in peace

preliminaries, but I believe it is more important that they should be applied to the aggressor than to the aggrieved, that they should have restrictions upon the right of attack rather than restrictions upon the right of defense.

The contempt provisions that appear in section 11, page 9, I leave where Mr. Emery had left them, except you gentlemen understand that the criminal contempt, that the act in itself must be criminal independent of injunction. It simply means any act of violence, on an injunction, must be construed as an affront to the court. It is the same distinction in the matter of procedure whether you are trying to appeal to the court or whether you are trying to secure something for the future. The provision goes far beyond the decision of the Michaelson case, and in view of the statement of the Michealson case, the fact that Congress had already gone to the verge of power in prescribing a jury trial in connection with cases not of violence per se but criminal independent of injunction, there grows up a doubt whether it is constitutional for Congress to deprive the courts of the power to punish contempts through their own inherent power where the acts themselves were not criminal independent of injunction.

Other provisions provide for undertakings to be given by the party applying for injunction, the undertaking to cover a reasonable attorney's fee. In my opinion, if the provision is to go into the bill providing for a reasonable attorney's fee, that reasonable attorney's fee should go to the successful party. If the injunction is denied the reasonable attorney's fee would go to the defendant, and if the injunction is granted the bond should cover reasonable attorney's fee. to the complainant.

I also want to call your attention to a decision of the justices of the Supreme Court of Massachusetts May 29, 1931, advance sheets: 1151, 1931, which deals with a bill very similar to this in character, and their unanimous decision of the court declares that the bill would, if enacted, be unconstitutional under the State and Federal Constitutions.

STATEMENT OF E. L. GREEVER, ATTORNEY, TAZEWELL, VA., REPRESENTING THE NATIONAL COAL ASSOCIATION

Mr. GREEVER. The National Coal Association is a voluntary association, the membership of which is composed of corporations and individuals engaged in the mining of bituminous coal in every coal-producing State of the Union. This is the only association of the kind national in its scope. You will find in my brief a partial list of the members of this association. In the few moments that I have I can hope to do nothing more than to call your attention to a few fundamental principles, which it seems to me are involved in this bill. I think it is well understood that matters of controversy should always be referred back to first principles, if possible. I know of no better way to test the soundness of any particular proposition than to refer it back to the fundamental principles underlying it. Adopting that method of approach to this subject, I want to call your attention, gentlemen, to the fact that this is class legislation, openly declared and intended to be such. Class legislation has never appealed to the American people so far as I have ever heard. If there

is one proposition to which the American people are committed irrevocably, it is that all men are equal before the law, and any legislation, I care not what its nature or on whose behalf, which provides, sets up, and constitutes a favored class should be scanned with the utmost concern, because it strikes at the foundation stone of our liberties.

It is proposed by this bill to give one party to a labor dispute, as defined in the bill, rights and privileges and immunities which do not belong to any other man in any other controversy, whatever its nature may be. If there is any justification for that preference and for those immunities that justification ought to be proven to you with the utmost certainty. How is it proposed to grant this special privilege and these special immunities? By striking at the fundamental principles upon which courts of equity are founded. Everybody knows that courts of equity came into existence because the common law was too rigid, not resilient, and could not grant complete justice. Everybody knows that one of the chief functions, one of the greatest powers, one of the most salutary powers, of courts of equity, is the prevention of wrong. It is a good thing to compensate for wrongs done but that does not compare to prevention of wrongs. Everybody believes in that doctrine. It has passed into a proverb, “an ounce of prevention is worth a pound of cure."

Now, this bill says that under certain circumstances the hands of the courts of equity shall be tied and they shall not be permitted to grant preventive relief. The most important, the most efficient, the only thoroughly satisfactory remedy that men have is to be taken away. This bill starts out by declaring a public policy. It says that laboring men usually are under the dominance of their employers and are not free to contract, and therefore they should have the right of collective bargaining. Nobody disputes that. I have no objection to collective bargaining. I have no objection to labor unions. But this bill, after laying down the proposition that men individually can not enter into contracts because of the impositions of their employers, then proceeds to take it away from them, then proceeds to say they can not contract individually. You can not get away from that. The right to enter into a labor union is the basis upon which the declaration is made that a man can not work unless he does belong to a union.

Contracts of employment are State matters not Federal matters, so it is undertaken in this bill to do by indirection what can not be done directly, and the courts of the United States are forbidden to enforce such contracts or to protect them. Nevertheless the courts of the United States have jurisdiction, as stated in the brief of one of the gentlemen here, Mr. Easby-Smith, page 13, over contracts, in cases involving diverse citizenship and must pass on the validity of contracts valid in a State, but Congress is asked, after having granted that jurisdiction over the subject matter, to say to the court in a case of that sort, you can not do justice to the parties, you can not enforce the lawful and legal contract between them; you can not protect the people under it.

I think the American people are great believers in individual liberty. I think they believe in the freedom of the individual. I have always thought they did. I know our English forbears did, to go back to Magna Charta, if I recall correctly, one of the declarations.

of individual rights laid down in that great document runs something like this, speaking of individual workers, that "none shall go against him, nor molest him or make him afraid," and that brings up one of the provisions in this bill. There are a lot of them that have to coincide. All must exist before you can get an injunction. Threats, intimidation, making people afraid, are not grounds for the awarding of an injunction under this bill. Why should any man object to being enjoined from threatening and intimidating his neighbors? He either means his threats or he does not. If he does, certainly he should be stopped before there is violence. If he does not mean them, he has no concern in it. But, gentlemen, whenever the courts of equity are frobidden to enjoin where threats or violence and intimidation are involved, whenever the hand of the court of equity is stopped under those conditions, what happens? You have invited anarchy. You can not escape it. You have invited anarchy.

If a man threatens my life, my property, threatens to destroy my property, and I know that he is prepared to carry his threats into execution and I can not go into a court of equity and lay my case before that court and ask for a restraining order, what is there left for me to do? Nothing except to get my gun and hunt him up. The first law of nature is the law of self-defense. Why should a man be objecting to being enjoined from carrying a threat into execution. When he does object he thereby declares his intention of carrying that threat into execution. Otherwise, why does he object? He wantsyou can not escape the conclusion-that he wants license and liberty to carry that threat into execution.

Another one of the provisions in that bill. Let me give you an illustration from my own industry. The coal industry, on this very proposition of violence. You can not get an injunction among other things, unless unlawful acts have been committed and will be continued unless restrained.

Mr. TUCKER. What page is that?

Mr. GREEVER. Page 10. Now, as has often happened in the coal industry, and I am not going into the merits of any disputes, men have gathered in companies for the express purpose of destroying coal tipples, property, whether their quarrel is right or wrong, does not make any difference. Suppose I have a coal plant and information comes to me that that sort of combination has been organized for that purpose, and there is always somebody in a crowd, of that sort who will play traitor. If this bill were inforced and I should go to a court of equity and file my bill and set up those facts and ask for and injunction, what would the court do under this bill? He would say to me, "Wait until the fire is started or the fuse is lighted, and then if you can show that such unlawful acts will be continued I will grant the injunction." Mind you there has never been an unlawful act committed; it is simply this combination for a purpose. That is what the court would have to tell me. But that is not all. I go into the court even under those circumstances and then I must live up to paragraph (c), paragraph 7, page 11 of my brief, that "as to each item of relief granted, greater injury will be inflicted upon the complainant by the denial of relief than will be inflicted upon the defendant by granting the relief."

I read that several times before I got what it really means. My first thought is how can an injury be inflicted upon a man by preventing him from doing a wrong to another? That is the first natural