Limiting the Right to Strike

IN THE memorable opinion declaring the constitutionality of the Adamson law, Chief Justice White, who is a statesman as well as a jurist, has embodied these significant words:

Whatever would be the right of an employee engaged in a private business to demand such wages as he desires, to leave the employment if he does not get them, and by concert of action to agree with others to leave upon the same condition, such rights are necessarily subject to limitation when employment is accepted in a business charged with a public interest, and as to which the power to regulate commerce possessed by Congress applied, and the resulting right to fix in a case of disagreement and dispute a standard of wages, as we have seen, necessarily obtained. In other words, considering comprehensively the situation of the employer and the employee in the light of the obligation arising from the public interest and of the work in which they are engaged and the degree of regulation which may be lawfully exerted by Congress as to that business, it must follow that the exercise of the lawful governmental right is controlling.

This would seem to imply that workers employed on railways engaged in interstate commerce must not be permitted to bring on a general strike. It indicates that employees of interstate carriers, because of the public character of railroads, are affected with a public interest and have no more right to strike and tie up the commerce of the country than have soldiers and sailors. The public right to avert threatened starvation is distinctly placed above the right to strike by these words of the opinion:

The public right to have interstate commerce uninterrupted is a basic principle paramount to interests of the railroads or of their employees, both in public service, and subject to the supreme, unrestricted power of Congress to take any action necessary to maintain freedom and uninterruption of interstate commerce.

This decision is based upon the power of Congress to regulate interstate commerce. In the exercise of that power it protects the paramount interests of the public. We may now anticipate legislation compelling the submission to arbitration of disputes between interstate railways and their employees, if such disagreement threatens the interruption of the transportation service.

The right of Congress to enact legis

lation to prevent wholesale strikes on the lines of interstate railroad carriers was recently discussed by Sol. H. Kauffman, Esq., of the Tulsa (Oklahoma) Bar, who concludes that it is as much within the power of Congress to pass such legislation as to enact the Safety Appliance Act, the Hours of Service Law, or the Employer's Liability Laws. He states:

"But the first question to be considered is its constitutionality in the face of the 13th Amendment to the Federal Constitution abolishing slavery and involuntary servitude.

"It has been deemed to be elementary, under our Constitution, that no man shall be compelled to labor against his will; and our legislation, as a rule, has avoided such effect being given to it. Indeed, peonage statutes have been enacted to prevent it.

"Cooley, that master of constitutional law, says in his treatise on constitutional law: The general rule is that every person sui juris has a right to choose his own employment, and to devote his labor to any calling, or at his option to hire it out in the service of others. This is one of the first and highest of all civil rights.' 3d ed. page 255. Therefore, a person may, generally speaking, labor or not, as he chooses; but this does not mean that he may contract for a definite period and then voluntarily abandon his work without subjecting himself to some liability, for it is plain that, in such a case and under every system of laws, he lays himself liable to damages.

"But it is contended that that is as far as any liability may be imposed, and that in no event could Congress compel him. to work or subject him to criminal punishment for failure to do so. Generally speaking, and if no qualifications or exceptions were admissible, this would be true. But from an early date in the history of mercantile or commerce-dealing nations, an exception has existed, under every code, with reference to seamen or sailors. This exception has existed by reason of the very nature of the contract, the circumstances surrounding it, and the necessity of the case. The right to compel a seaman, under the pain of criminal liability, to serve out the term

of his contract, was considered in Robertson v. Baldwin, 165 U. S. 275, 282, 41 L. ed. 715, 718, 17 Sup. Ct. Rep. 326, the authorities reviewed, and the conclusion reached that, notwithstanding the 13th Amendment (and the very able dissenting opinion of Justice Harlan), that a seaman could be so compelled to labor. First, the court thought that this exception was valid, because the exception has been recognized since time immemorial. And why have the services of a seaman been regarded as exceptional? Says the court:

From the earliest historical period the contract of the sailor has been treated as an exceptional one and involving, to a certain extent, the surrender of his personal liability during the life of the contract. Indeed, the business of navigation could scarcely be carried on without some authority, beyond the ordinary civil remedies upon contract, that the sailor will not desert the ship at a critical moment, or leave her at some place where seamen are impossible to be obtained-as Malloy forcibly expresses it, "to rot in her neglected brine." Such desertion might involve a long delay of the vessel, while the master is seeking another crew, an abandonment of the voyage, and, in some cases, the safety of the ship itself. Hence, the laws of nearly all maritime nations have made provision for securing the personal attendance of the crew on board, and for their criminal punishment for desertion, or absence without leave during the life of the shipping articles.

"The exception, then, is justified on the principle of necessity. How appropriate is the language quoted above to the case of a general railroad strike? Only, in the case of a railroad strike, how pitifully inadequate it is to depict the more disastrous effect, the far-reaching consequence. But the underlying principle is the same, the protection of

commerce.

"In certain cases, or in a certain sense, Congress has authority over international commerce, but it is not complete. But in the case of interstate commerce, it is almost plenary, whether that commerce be by land or by water.

"That the commerce is by land or by water makes no difference where the principles are the same. The law of shipping or the law applicable in admiralty has often been applied to transportation by rail. For instance, the railroad company is given a lien for its

freight; it is entitled to charge demurrage; the conductor is the master of his train between stations and away from means of communication. There is, of course, a vast difference between rail and water transportation, because the railroad train en route has the means of communication nearly always at hand. But in other respects the duties and obligations of a railroad carrier to-day in the United States are more onerous than those of ship carriers; furthermore, their operation more directly touches the public weal. Summing up the matter, no reason exists for this exception in the case of water navigation that does not apply in the case of railroad transportation in the United States. This much must be conceded by all reasonable men.

As said in Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 9, 24 L. ed. 708, 710:

The powers of Congress in the regulation of interstate commerce and in other matters keep pace with the progress of the country, and adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stagecoach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they related, at all times and under all circumstanAs they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the states and the transmission of intelligence are not obstructed or unnecessarily encumbered.

ces.

Erratum

W. O. HART, Esq., of the New Or

leans Bar, whose valuable article on the "Movement for Uniform State Laws" appeared in the January Case AND COMMENT, desires us to say that he was mistaken in stating therein that the commissioners from Delaware never appeared, because, as a matter of fact, two of its commissioners were present at the Conference held at Montreal in 1913, and Delaware was one of the states represented at the organization of the Conference, though for a long time thereafter its commissioners took no part.

Attachment sale

property of stranger attack. An action was instituted in the district court of Montana against E. H. Thompson, and a horse belonging to C. E. Thompson was attached in said action. C. E. Thompson was a nonresident, and no service of process of any kind was had or attempted on him. The court made an order reciting that an immediate sale of said horse was necessary in order to conserve the interest of the parties to the suit, and directed the sheriff to make sale of said horse after giving two days' notice by posting up notices of the time and place of the said sale in three public places in said county. It is held, in the Oklahoma case of Davies v. Thompson, 160 Pac. 75, that the actual owner of the horse is not bound by said sale, and can attack said proceedings collaterally.

The effect of the attachment and sale of a stranger's property is considered in the note appended to the foregoing case in L.R.A.1917B, 395.

Attorney concealment of evidence

- reprimand. An attorney at law, having in his possession a copy or duplicate of an original contract, the contents of which are material to the determination of the issues in a case, who conceals the same, and replies, when called upon by opposing counsel to produce it, that the

contract is not in his possession or custody or under his control, when, as a matter of fact, the said contract is at that time where it has been concealed by him, is held guilty of unprofessional conduct and subject to a reprimand therefor in the New Mexico case of Re Marron, 160 Pac. 391, annotated in L.R.A.1917B, 378.

Automobile - signal of traffic officer

duty as to care. The signal of a traffic officer to an automobilist to cross a street intersection, it is held in Melville v. Rollwage, 171 Ky. 607, 188 S. W. 638, annotated in L.R.A.1917B, 133, does not absolve him from the duty of sounding a warning, slowing his speed, or otherwise exercising reasonable care for the safety of pedestrians on the opposite foot crossing.

Bills and notes guaranty indorsement. When the payee of a negotiable promissory note transfers it by indorsing thereon, "Payment guaranteed. Protest waived," the purchaser is held in the Oklahoma case of Mangold & G. Bank v. Utterback, 160 Pac. 713, L.R.A. 1917B, 364, to be an "indorsee," within the rule protecting an innocent purchaser of such paper for value and before maturity against defenses good between the original parties.

Commerce collecting and returning laundry. A corporation located and doing business in Missouri as a steam laundry sent an employee with a wagon to gather up the linen of patrons in Kansas City, Kansas, carry it to the laundry, and, when the service was campleted, deliver it to the patrons in Kansas, and collect the charges. The employee, while so engaged, was arrested and fined for the violation of an ordinance of Kansas City, Kansas, imposing a license tax upon each laundry operated within the city, the amount to be determined by the number of wagons employed. It is held in the Kansas case of Kansas City v. Seaman, 160 Pac. 1139, annotated in L.R.A. 1917B, 341, that the conviction is unlawful, first, for the reason that the employee of the laundry company was not conducting a laundry within the city, as contemplated by the ordinance, and, second for the reason that collecting the articles in Kansas, carrying them into Missouri, and returning them to their owners after the service had been performed, is interstate commerce.

Commerce interstate seizure of liquor in possession of carrier. The state, it is held in the South Carolina case of Charleston & W. C. R. Co. v. Gosnell, 90 S. E. 264, L.R.A.1917B, 215, may seize, in possession of the carrier, intoxicating liquor shipped from one state to another, consigned to the consignor, with directions to notify a particular person, who intends it for unlawful use, if it is left in possession of the carrier for an unreasonable time. This question is of less importance than formerly, since the passage of the WebbKenyon Act, the operation of which is not dependent upon the termination of interstate transportation.

Bell Teleph. & Teleg. Co. P.U.R.1917A, 200, by virtue of its general jurisdiction in respect to supervising, regulating, and controlling utilities in all matters relating to rates, charges, service, and facilities, and to compel the production of the books, papers, or accounts, "in order that an examination thereof may be made by the Commission, or under its direction."

Constitutional law amendment — referendum. The Constitution and the statutes of Ohio, it is held in Hockett v. State Liquor Licensing Board, 91 Ohio St. 176, 110 N. E. 485, provide ample and adequate legal machinery for the initiation, submission, and adoption or rejection of any proposed amendment to the Constitution of Ohio by what is known as a referendum vote.

This decision is accompanied in L.R.A. 1917B, 7, by an extensive note on the initiative and referendum.

That a

Constitutional law due process confiscatory natural gas rate. natural gas rate fixed by a state Commission is confiscatory in violation of the Federal Constitution is held in the Kansas case of Landon v. Public Utilities Commission, 234 Fed. 152, P.U.R. 1917A, 120, where the rate will not produce sufficient revenue to provide for extensions to secure gas to replace a failing supply, for a sufficient sum to purchase gas, for depreciation due to the expiring life of the company, and for a return of 8 per cent rather than 6 per cent.

Contempt - criminal rights of accused. A proceeding instituted in the court of chancery for the purpose of having that court adjudge whether or not the defendant in a cause pending therein was guilty of a contemptuous violation of an injunction issued by it is held in Staley v. South Jersey Realty Co. 83 N. J. Eq. 300, 90 Atl. 1042, to be a proceeding at law in a criminal contempt in which the defendant is entitled to all of the substantial rights of a person accused of crime that are consistent with the summary nature of the proceeding and the processes of the tribunal in