query. But when you reread that thing to express what it means it will read this way, page 12 of my brief, "that as to each item of relief asked the court shall refuse relief where the advantage gained by the doers of the unlawful acts would be greater than the loss sustained by the victim of the unlawful acts."

Now, that proposed reward for unlawful acts is something entirely new. If the wrongdoer under this bill can so conduct himself as to make his crimes more profitable to himself than injurious to his victim, he goes scott free, at liberty to pursue his criminal course until he makes the fatal mistake of injuring another more than he helps himself.

- Now, when I have to wait until unlawful acts have been done, I can not go into a court of equity and ask that wrongs be prevented and damages be prevented, and if when I do go I must show that not withstanding the character and the unlawfulness of the act I am not hurt as badly as the other fellow is helped, then, gentlemen, I am deprived of all redress, because I could not hope-I could not hope in a court of law-to recover damages where a court of equity is powerless to prevent such wrongs.

The CHAIRMAN. You have occupied 18 minutes.

Mr. GREEVER. Thanks. I am going to give way to Mr. Thom. The CHAIRMAN. Mr. Thom, you have 10 minutes.

STATEMENT OF ALFRED P. THOM, REPRESENTING ASSOCIATION OF RAILWAY EXECUTIVES, WASHINGTON, D. C.

Mr. THOм. Mr. Chairman and gentlemen, these are briefs I will file and I would like to have them distributed to the committee.

To earnest students of our jurisprudence, such as compose this committee, it must be a subject of profound concern to be confronted with serious proposals

Mr. BACHMANN. I do not want to interrupt, but will the gentleman please give his name and state whom he represents.

Mr. THOм. Oh, pardon me; I will go back. My name is Alfred P. Thom. I am general counsel for the Association of Railway Executives and also general counsel for the American Railway Association, and I appear here in behalf of the Association of Railway Executives. As I was saying, to earnest students of our jurisprudence, such as compose this committee, it must be a subject of profound concern to be confronted with serious proposals for fundamental changes in the principles of preventive justice, which have been evolved by the thought of good men throughout the ages.

This concern must be increased and emphasized when the soundness of these principles is conceded and are left applicable by the pending bill to all members of our society except a single class, and their abandonment is demanded only as to that single class.

In the time at my disposal, Mr. Chairman and gentlemen, it will be impossible for me to make anything like a thorough discussion of the proposals in this bill, but it is submitted that the effect of the bill, if valid, is to impair the judicial power of the Federal court to so substantial an extent as to make organized labor before the law a special and unduly privileged class. As illustrative, reference is made to the following:

Section 3 of the bill seeks to render unenforceable, either at law or in equity, certain contracts in respect to employment, although heretofore declared valid by the courts.

Deterred, perhaps, by constitutional provisions in respect to freedom of contract, the authors of the bill do not undertake to declare in express terms that such contracts shall be void, but provide that they shall be unenforceable, thus attacking them through an effort to impair the powers of the courts, and creating the situation when valid contracts made by other classes can be enforced, but not such contracts with this specially favored class.

It is pertinent to consider whether the legislation can thus escape constitutional limitations by simply taking away from the courts the power to enforce valid contracts.

(2) Under section 4, the Federal courts are prohibited, in a labor dispute, from preventing the infliction of an injury by means of threats and intimidation and from preventing the carrying into effect of threats of injury, no matter how real the danger. Under the bill, the courts could not give relief or protection in such cases, either at the suit of an employer or at the suit of another employee or individual worker seeking employment or at the suit of the United States itself seeking to protect a governmental function. Under the proposal, in the respects referred to, things done which involve "fraud or violence" may be prevented by a court, but injuries inflicted by threats or intimidation can not be.

Section 5 accords to those engaged in a labor dispute immunity from the principle, applicable in all cases, that they may not do, by conspiracy or in concert, for an unlawful purpose, acts which it may be lawful for an individual to do when not in conspiracy or concert with others.

Under section 6, no officer or member of a labor organization and no labor organization, participating or interested in a labor dispute, can be held liable in any court of the United States for the unlawful acts of individual members, except on clear proof of actual participation in, or actual authorization of, such acts, or of ratification of them after actual knowledge thereof. In other words, no presumption is to be permitted from the character of the acts or from the general purpose in which the organization is engaged. Before there is any liability, the person injured must perform the task-practically impossible in most, if not in all, cases of pentrating into the secret councils, and of clearly proving the secrets, of the conspiracy and the individual conduct of the conspirators.

Under section 7, no injunction may be issued in a labor dispute: Except after hearing the testimony of witnesses in open court, a thing not required in other classes of equitable controversies or in respect to other classes of litigants; and

Except after finding that unlawful acts have already been committed-in other words, a court must wait for an injury to be actually inflicted without power to prevent it, before issuing an injunction to prevent its continuance or further injury. It will, of course, be noted that if the first injury can not be prevented, those intent upon the success of their purpose will be at liberty to make that first injury severe enough to accomplish it without doing anything else.

Thus, the principle is sought to be established that those engaged in labor disputes can not be prevented from inflicting the first injury,

no matter how severe, and this is a power not accorded to other persons. This amounts to a very substantial privilege or immunity to a class; and

Except after a finding that, as to each item of the relief sought, greater injury will be inflicted upon the complainant by the denial of the relief than will be inflicted on the defendants by the granting of relief.

As has been shown by counsel who just preceded me, that simply means that the only meaning the bill can have in this regard is to require the court to weigh the extent of the unlawful injury to the complainant against the disadvantage to the wrongdoers in their labor controversy of being deprived of the power to inflict unlawful injury, a conception repugnant to every principle of law and justice. Inasmuch as, in contemplation of law, there can be no injury inflicted upon a person by preventing him from inflicting an unlawful injury to another, this means that before a person can be protected by a Federal court from unlawful injury, in the way, for example, of damage to his property or destruction of his business, the disadvantage involved in the prevention of it to those who are seeking to inflict this unlawful injury must be weighed and, if found greater, the unlawful injury to the victim of the unlawful act must be permitted.

It is understood that this unlawful principle is sought to be justified by the doctrine of the comparative negligence in personal injury suits. A moment's reflection will make it clear that there is no similarity whatever between the two cases and that there is no justification for the attempted parallel. In the case supposed of an accident resulting in a personal injury, both sides are at fault in bringing about the injury, and the question of who shall be liable for it is determined, in some jurisdictions by a comparison of the fault of each.

That principle can not be appealed to for the justification of an unlawful injury to a person inflicted by a combination in a labor dispute, in cases where the effect of preventing the unlawful injury and the committing of the unlawful act, would be to entail practically upon the combination as great an injury. In view of the fact, as above stated, that, in contemplation of the law, no injury whatever can be inflicted upon a person by preventing him from inflicting an unlawful injury on another, it results that there are no two injuries in such a case to compare one with the other, thus fundamentally differentiating this case from the case of comparative negligence, where there are two degrees of negligence to compare. Bearing this in mind, the only meaning this bill can have, in this regard, is to require the court to weigh the extent of the unlawful injury to the complainant against the disadvantage to the wrongdoers, in their labor controversy, of being deprived of the power to inflict the unlawful injurya conception repugnant to every principle of law and justice.

In the law as it has stood for ages, and in all civilized countries, there can be found no principle which would authorize or justify one person to inflict an unlawful injury voluntarily upon another because to refrain from the unlawful act would inflict an injury, great or small, upon himself.

A combination may be at a controversial disadvantage in not being able to inflict an unlawful injury upon its opponent, but that fact constitutes no right to inflict the unlawful injury; and

Except after a finding that the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection.

There are a number of other matters evident throughout the bill, the effect of which is to erect certain members of the community, namely, employees in labor controversies, into a distinct and privileged class, entitled to rights which other members of the community are not entitled to, and depriving their employers of protection which every other member of our society is entitled to receive.

I shall not go at length into all of the provisions of the bill. It has the effect to which I have alluded. I merely want to emphasize the fact that you can not read this bill without appreciating that the effect of it is to establish a privileged class, giving them rights before the court of protecting them from courts' intervention which are denied to every other member of our society.

This is a requirement not made, in respect to a controversy involving equitable relief, as to any class of litigants other than those engaged in a labor dispute, and makes the latter a highly privileged class before the law, where sound principle requires that all litigants should be equal.

Moreover, in labor disputes this requirement as to a finding of the delinquency of public officers imposes a practically impossible task on complainants seeking to have an unlawful injury prevented. There is no definition as to who these public officers are. A great number may be said to be charged with the duty of proper protection, and to make the necessary proof to pick them out and show their delinquency creates a substantial and unnecessary barrier in the way of obtaining protection from the wrongful injury. The fact that an unlawful injury is about to be perpetrated and that the officers have not prevented this situation, should, in the future as it has in the past, be sufficient to entitle the complainant to protection in the courts; and to deny equitable relief in such cases only to those engaged in a labor dispute, while granting it against all other classes of wrongdoers, again confers a very high privilege upon combinations seeking to inflict unlawful injury in labor disputes.

Moreover, it is the interest of orderly justice that, in a highly controversial matter, the method of dealing with it should be in a court, where both sides can be heard and the rights of each considered, and should not be left to executive officers who might or might not be able to dispense impartial justice and whose acts might at any moment be inadequate or unjust and oppressive to one party or the other. Our Government was created, and has thus far been maintained, in confident reliance on the belief that even-handed justice can best be administered in the courts and not by force exercised by officials, civil or military.

Section 7 likewise provides that in case of labor disputes a temporary restraining order shall be effective for no longer than five days and shall become void at the expiration of that time.

No matter how long the hearing on the application for an injunction, provided for in the first part of the section, including the testimony of witnesses in open court and their cross-examination, even though it much exceeds the five days, and while the justification that originally caused the issue of the temporary restraining order is still in existence, and no matter how great the injury that may be inflicted

after the expiration of the five days, and before an injunction is per mitted to issue, nothing can be done after the expiration of five days and before the injunction case can be fully heard and the injunction issued to protect a person against the infliction of an unlawful act.

This is applicable only in cases involving labor disputes and gives to those involved in such a dispute a controversial advantage which is withheld from all other litigants, thus again making of those engaged in labor disputes a very highly privileged class.

Section 8 provides that no restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question 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 arbitration.

This means that if any person has failed to comply with an obligation imposed by law which is involved in the labor dispute in question, he may be unlawfully injured with impunity, and there shall be no power in the Federal courts to prevent it. No matter what the degree of his failure to comply with the obligation is, no matter how much difference of opinion there may be as to whether there is any obligation at all or as to whether he has failed to comply, the court must withhold its hand, and allow him to be injured unlawfully with impunity under such circumstances.

Moreover, there is frequently much controversy as to whether one party or the other has failed to make every reasonable effort to settle a dispute by negotiation or has failed to avail itself of the aid of available governmental machinery in the premises. This bill provides that no matter how much controversy there may be over such matters, the court must enter into and determine the facts before it will have power, in these special cases, to prevent the unlawful injury of one person by another.

These provisions are not made in favor of any other class of litigants. They are unreasonable in themselves and constitute another respect in which participants in labor disputes are created into a highly privileged class.

Without going further into the provisions of the bill and citing other objectionable features of the proposed legislation, enough has already been said to justify the statement that the bill proposes to make organized labor a special and unduly privileged class before the law. Even if Congress has the power thus to create privileged classes, it is submitted that it can not be justified as a measure of sound public policy.

While all men have been created equal, as stated in our Declaration of Independence, they will not, if this bill is passed and is valid, remain equal before the law, for those engaged in labor disputes will, in controversies before the courts and in respect to rights and immunities under the law, possess privileges of the most substantial extent, and character which destroy all pretense of equality with others and make them, in respect to these important matters, a class favored over all their fellow citizens.

Now let us see what their status already is.

Outside of the provisions in this bill above enumerated and others of like character, which undertake, we submit, to confer upon one class special privileges and immunities which can not be justified or