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Mr. DAVENPORT. It was an injury to business sustained by reason of the violation of the Sherman law. The idea that we are confined to suit for damages under the seventh section is one
The CHAIRMAN. What I am trying to get at is, the injunction was issued irrespective of the Sherman act.
Mr. DAVENPORT. The facts alleged brought it within that act, and also within the common law; and the injunction was granted. It was found in that case that this act, as Mr. Walker says, was in violation of the common law and also of the Sherman law. I call the attention of the committee to the language of Judge Taft in the case of Addyston Pipe Co. v. The United States, which was afterwards approved by the Supreme Court of the United States.
Senator CHILTON. What I was inquiring about was: Whether or not there was any case wherein the Sherman law and the acts done under it were stated as jurisdictional facts, upon which to get into the Federal court as a Federal court, or into a court of equity as a court of equity. That was the point.
Mr. DAVENPORT. I have not in mind any case where the very things that are forbidden by the Sherman act are not forbidden by the common law. That was the fact in the Debs case.
The CHAIRMAN. Perhaps I did not make myself clear. The point of my inquiry was whether or not any private person, no matter whether his business or property was injured, could maintain an action under the Sherman Act to restrain an interference with the free flow of commerce among the States upon that ground; not upon the ground that it was an injury to his business, but upon the ground that it interfered with the commerce among the States?
Mr. DAVENPORT. In the case of the State of Minnesota v. The Northern Securities Co. (194 U. S.) it is stated that unless the party can show that he sustained some injury over and above what the public generally sustained he can not go into equity; and the implication from that statement is that where à party has sustained such injury he can sue in equity. I also call attention to the fact that the same justice who wrote that opinion, Justice Harlan, concurred with Judges Taft and Lurton in the Addyston Pipe case.
The CHAIRMAN. But upon the ground that it interferes with his business, and not upon the ground that it merely interferes with the interchange of commodities.
Mr. DAVENPORT. Of course it is interstate commerce.
Mr. WALKER. The Sherman law in its first section, as I said awhile ago, provides for criminal proceedings, which may be instituted by the Government. The fourth section provides that the Attorney General of the United States may bring equity proceedings. The seventh section provides that injured parties may bring actions at law to recover damages for injuries inflicted. The Sherman law does not expressly provide that private parties may sue in equity and get injunctions to restrain violations of that law. The observations which Mr. Davenport has collected out of the Addyston case were not actually adjudicated in that case.
Mr. DAVENPORT. If the committee will look at the case of Bigelow v. Calumet & Hecla Mining Co., as reported in the 155 Federal Reporter, you will find it is precisely that case.
The CHAIRMAN. Precisely what case?
Mr. DAVENPORT. A case where a party brought an action in equity to restrain a violation of the Sherman Act. The case was heard by Judge Knappen, and he elaborately considered the authorities and granted the injunction. On appeal to the circuit court of appeals Judge Lurton gave the opinion. He held that what was done was not å violation of the Sherman Act, but spoke approvingly of the injunction that was issued as being within the jurisdiction of the court below, apparently having in mind, I suppose, what he and Justice Harlan and Judge Taft said in the Addyston case. However, the circuit court of appeals for the second circuit, when held by Judges Lacombe, Ward, and Noyes, decided the reverse. I think no one can read the opinion of Justice Harlan, in delivering the opinion of the Supreme Court in the case of the State of Minnesota against the Northern Securities Co. in 194 United States, and not conclude that it was the intent of that court to substantially declare that where a person sustains or is threatened with an injury to his business or property by reason of unlawful acts forbidden by the Sherman law he can go into equity.
Mr. WALKER. Whatever may be the weight of conflicting opinions upon that question, this is certain, that boycotting is wrong. And it is wrong not only because it violates the Sherman law, but because it violates the principles of the common law to combine in restraint of interstate trade by means of boycotting, particularly when it includes secondary boycotting. I say of boycotting as Abraham Lincoln said of slavery, “ If boycotting is not wrong, then nothing is wrong."
Among the most powerful public pronouncements that have lately been put forth by anybody were those put forth by Mr. Taft in 1908, when denouncing boycotting, and particularly secondary boycotting. It is not now a good time for the Congress of the United States to legalize boycotting or to do anything in the direction of legalizing boycotting. I stated awhile ago that this bill, as it was introduced into the House of Representatives, legalized boycotting in all its aspects and absolutely prevented any Federal court from doing anything with boycotting, either on its criminal side or in equity, or on the complaint of any party injured by boycotting. That bill was so outrageous that nobody could say anything in favor of it except that he wanted Congress to pass it. The House reduced the objections down to much narrower grounds.
The CHAIRMAN. The bill, as I read it, does not exempt the socalled secondary boycott from injunctions.
Mr. WALKER. I think it does. The CHAIRMAN. Where it says: No such restraining order or injunction shall prohibit any person or persons from ceasing to patronize or to employ any party to such dispute.
Mr. WALKER. But to go to the last few words of the sentence," or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto," that covers secondary boycotting like a blanket and exempts it from injunctions.
The CHAIRMAN. “Or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto." In the absence of a dispute it would not be lawful for parties to combine to break up the business of some person, would it?
Mr. WALKER. Take the case of secondary boycotting in the Danbury hatters' case. In that case, the defendants instituted a primary boycott, and also a secondary boycott, and they instituted the secondary boycott to the extent of withdrawing patronage from merchants in San Francisco, who had some hats which they had bought from Loewe in Danbury. The scheme was to utterly crush Loewe by withdrawing patronage from every clothing merchant throughout the United States who would handle any of his hats. There is not the slightest doubt in my mind but what that last language in section 2660 was artfully drawn for the purpose of forbidding injunctions against boycotting, whether primary or secondary. That is what this bill is largely for. It is hardly possible, in the bill that was presented to the House by Mr. Gompers, that he and those who advised him or assisted him, were so careless as to omit from the proposed statute some effective language adapted to cover the very purpose which they are trying to execute. The scheme of the bill as it was presented last January was to legalize primary boycotting and to legalize secondary boycotting in every aspect. Now the House committee has reported, and the House has passed a much milder bill; but still that milder bill contains remnants of the old poison and the old wrong; and those remnants ought all to be eliminated before the present bill is enacted into law.
I believe that we are, in this country, on the eve of a dangerous conflict between wealth and work. The law, as it now stands, holds its right hand ready to restrain wealth from encroaching upon work and holds its left hand ready to restrain work from encroaching upon wealth; and it is contrary to the public welfare, and contrary to the administration of justice, for the law to drop or disuse either of those hands. But this bill proposes to weaken the grasp of the law upon work while not weakening it upon wealth. Work, being representative of an enormous power in respect of numbers and physical force, requires at times to be restrained, and the laws that exist now do not restrain work more than it ought to be restrained in the interest of general public justice. Legislation which would enact that conduct which is wrong when done by capitalists is legalized when done by the employees of capitalists would be class legislation, which I should view with regret.
Senator CHILTON. Do you not think the correct theory would be within fixed principles of law; that it is the best thing to take our hands off both of them?
Mr. WALKER. No; certainly not. The powers which result from organizations of capital and the powers which result from organizations of labor are already so great and so growing that strenuous conflicts between those two great classes of organizations must be restrained and regulated by legislation or they will lead to bloody collisions, amounting, perhaps, to civil war.
STATEMENT OF MR. WALKER D. HINES.
Mr. HINES. Mr. Chairman and gentlemen of the committee, I appear here on behalf of a number of railroad companies, including the Atchison; Baltimore & Ohio; Central of Georgia; Chesapeake & Ohio; Chicago & Alton; Rock Island; Chicago, Milwaukee & St. Paul, Delaware & Hudson; Erie; Illinois Central; Missouri Pacific; New York Central; Norfolk & Western; Southern Pacific; Union Pacific; Southern; and Wabash.
While I appear on behalf of these railroad companies, any views I may express on questions of policy involving this legislation are based upon a long direct experience in the railroad business, including a long service with the Louisville & Nashville Railway Co. as assistant chief attorney and afterwards as vice president, and subsequently and at present service with the Atchison, Topeka & Santa Fe Co. as general counsel and as chairman of the executive committee.
Railroads are vital to the people; are held to strictest accountability, and are entitled to adequate protection.
I want to present to you gentlemen the peculiar status of the railway companies as related to this legislation. They occupy a status radically different from that of the ordinary manufacturing institution which would be affected by this legislation. The railway companies are engaged in a public service which is vital to the people of this country. The people of this country are absolutely dependent upon the railroad service of the country for the transportation of the mail, for the transportation of freight, for the transportation of passengers, and, in general, for the ordinary conduct of social and business intercourse. On account of the fact that the railway companies are engaged in this public service they are held to the strictest accountability, and I say because of that fact they are entitled to the adequate protection of the law and the courts in discharging the public duties, to the discharge of which they are so strictly held.
Congress has imposed on the railroads numerous grave duties.
By way of illustration of the accountability to which the railway companies are held, I wish to call attention to a few provisions of acts of Congress.
In the interstate commerce act, section 1, it is made the duty of every railroad company subject to that act to provide and furnish transportation upon reasonable request therefor, to provide reasonable facilities for operating through routes; to establish, observe, and enforce just and reasonable regulations and practices which may be necessary or proper to secure the prompt receipt, handling, transportation, and delivery of property subject to the provisions of this act. It will be observed at once that these statutory duties are the very duties that would be interfered with in the event strikers were guilty of any unlawful conduct toward the railroad company.
Again, section 3 of the act provides that every common carrier subject to the act shall afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith. Those provisions were the very provisions which the railway companies were largely prevented from complying with by the strikes of 1893 and 1894.
By section 6 it is provided that the common carriers must furnish statements of rates, upon request made therefor, to the agent of the common carriers, and that the names of the agents shall be posted in the station. So in this way the station agents are a statutory part of the machinery which the railroad companies must supply
in order to perform these statutory duties, and any interference with the status of these railroad agents by strikers or otherwise would be an interference with its statutory duties.
Again, section 7 of the interstate commerce act provides that it shall be unlawful for any common carrier subject to the provisions of this act to enter into any combination, contract, or agreement, expressed or implied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage, or interruption made by such common carrier, unless such freight, stoppage, or interruption was made in good faith for some necessary purpose and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of the act, shall be permitted. There again is a provision which I take it would have been violated if any railroad company had acquiesced with its employees in the course which was advocated by the strikers in the strikes of 1893 and 1894.
Section 10 of the act to regulate commerce imposes penalties not only upon the common carrier which violates provisions of the act, but also upon agents or persons acting for or employed by such common carriers.
Section 20 of the act requires the common carriers to render full annual reports to the Interstate Commerce Commission, also monthly reports, authorizes the commission to prescribe the forms of accounts, records, and memoranda which the carriers may keep, and requires the carriers to keep these accounts, records, and memoranda, and makes it unlawful for such carriers to keep any other accounts, records, or memoranda than those prescribed or approved by the commission, and declares:
Any person who shall willfully make any false entry in the accounts of any book of accounts or in any record or memoranda kept by a carrier, or who shall willfully destroy, mutilate, alter, or by any other means or device falsify the record of any such account, record, or memoranda, or who shall willfully neglect or fail to make full, true, and correct entries in such accounts, records, or memoranda of all facts and transactions appertaining to the carrier's business, or shall keep any other accounts, records, or memoranda than those prescribed or approved by the commission, shall be deemed guilty of a misdemeanor.
I call attention to the fact that the railroad companies in performing the very important statutory duties which are imposed upon them by section 20 must rely very largely upon their station agents. I call attention also to the fact that the strikers, or those seeking to help them, in some recent cases have found it quite an assistance in obstructing the passage of interstate commerce to persuade agents to falsify those accounts, to tear off records attached to cars, transfer the records and mix up the cars so that nobody would know where they were destined. In other words, they have taken various steps which would directly interfere with the railroad companies complying with these important provisions of section 20 of the act to regulate commerce.
Again, section 20 states every common carrier subject to the act receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading there