is a violation of the most fundamental principle of due process of law, which is that no man shall be condemned or have an order issued against him except after notice and opportunity to be heard. If you are going to violate that fundamental principle for the sake of expediency, in order to permit an order to be issued by a court before the claimed injury can take place, then the person procuring such an order should be required in the shortest possible time to present before that court evidence upon which he claims to be entitled to such an order, when the other side is present, to be heard, and with the right to cross-examine witnesses. That period should be limited to the very shortest possible time within which the other side can be brought in and heard.

I think it is very significant, and probably known to very few members of the bar, that in the original judicial act it was provided that no injunction should be issued without notice. That is the historic policy of the United States, that men shall not be condemned without notice, that orders shall not be issued without notice. As late as 1908, in his address accepting the nomination for President, Mr. Taft, later Chief Justice of the United States, suggested as a remedy for abuse of the injunctive power that it might be well to return to the historic position of this Government, as laid down in the first judicial act, providing that no injunction should be issued without notice. So I want to present to you very clearly the fact that there is nothing radical, nothing strange, nothing arbitrary, about the requirements that an injunction issued without notice, or a restraining notice issued without notice can only be enforced for five days, and then the parties must come in open court and present their evidence. It is simply a return to the historic American principle of fair play and due process of law.

The CHAIRMAN. Your time is up.

STATEMENT OF JAMES A. EMERY, COUNSEL NATIONAL ASSOCIATION OF MANUFACTURERS

Mr. EMERY. My name is James A. Emery. I am counsel for the National Association of Manufacturers and the signatory associations which the committee will find printed at the end of the brief.

Mr. Chairman and gentlemen, I beg in behalf of those whom I have the honor to represent and my associates to thank you for the opportunity to present this very important matter for your consideration. We think, as the inquiry progresses, you will recognize that you are confronted with propositions among the most serious that have ever confronted the Judiciary Committee of the House of Representatives. They cover the entire structure of equity as it is practiced in the courts of the United States, and the propositions before you will present revolutionary suggestions in respect to substantive law and procedure.

Before entering upon an immediate discussion of the bill itself, I beg for a moment to presume that there are certain facts of which you will take judicial notice lying behind this discussion. You will note the growth of combinations of all kinds, and their influence upon the social life of our country. The combination itself is not a mere aggregation of numbers, but it subordinates the will and judgment of many to the attainment of a common objective by

common means, and that gives to them a power which no aggregate of numbers can obtain.

And that condition is recognized throughout our law and in all the social conditions that accompany the development of our society. It is found again and again in the statutes of the States and of the Nation, in the control which we undertake to assert over combinations in business competition, through the railway labor act, through the transportation act, through all that mass of legislation that recognizes the control of competition in interstate commerce and necessary control of all forms of combination, either by private individuals for their protection through recognized remedies, or by the Government interposing in behalf of the public interest. And the cases in which capital, as well as private individuals, have been compelled to act are spread upon the records of our courts and of the Supreme Court, and I assume that you take judicial notice of conditions in that respect.

In

I presume you will recognize there is no such thing as a moral or any law of conduct which, under all circumstances, is privileged, or that there is any act that in itself is of such a nature that it may, under no circumstances, either by the intent of the actor or the object he seeks to attain, be legally wrong or morally wrong. fact, I challenge the gentlemen to name any act a human being can do that in itself is of such a nature that, under no circumstances, it may be a step in the performance of illegal or criminal act. Mr. Justice Holmes put it well in the famous case of Aikens v. Wisconsin (194 U. S. 195) when he said:

No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omission, may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law.

Finally, I assume that the committee will recognize that of the two forms of justice with which society is familiar, preventive and compensatory justice, it is universally recognized that prevention is by far the most important, far more important than to attempt to compensate for the harm done. That applies to the prevention of disease, the maintenance of health, the exercise of all the acts that lie in the untrammeled forces of nature or in human conduct. To prevent a threatened wrong is far more important to modern society than to attempt to compensate for the injury that has been done after its accomplishment. These are fundamental principles that lie behind this whole discussion, and I will eventually call them to your attention, because they apply to this remarkable legislation.

Let me say as I approach it that, much as I regret to disagree with the distinguished gentleman who just addressed you, we utterly deny that it is universally recognized or that there is evidence of what he terms the abuse of injunction by Federal judges. I assume he means by that that there is a deliberate abuse of judicial power to such an extent that it is notorious, familiar to you and familiar to the country.

On the contrary, in the long discussions that have taken place before this committee and before the Senate committee, we have examined the particular cases that have been brought to our attention, and we deny that the cases examined sustain such a contention. We call to your attention as lawyers the fact that it is utterly impossible to determine the effect or justification from the language of an

injunction until you are familiar with the controlling fact upon which the order was issued. Until that is done, it is impossible to say, merely by the reading of any particular injunction, that it is upon the face of it one that should never have been issued. I submit that no lawyer would form such a conclusion or assert orders to be erroneously or improvidently or improperly issued until he familiarized himself with the controlling circumstances presented to the judge, because then and then alone could he form such a judgment.

Referring to the bill before you gentlemen, and in behalf of my associates, I undertake to call your attention to its history. It is the lineal descendent of S. 1482, introduced in the Seventieth Congress by Mr. Shipstead, introduced identically in the House by Mr. LaGuardia, and in the Seventy-first Congress followed by substitute legislation; and in the Seventy-second Congress represented, with some modification and amendment by the bill now before you, identical with S. 935 in the Senate, as presented by Senator Norris, but since modified in the Senate and now before that body.

What does this bill undertake to do? Is it, as has been suggested in the discussion a mere change in procedure? Is it merely an attempt to control the conditions under which orders are to be issued, so as to insure the proper protection of the parties to each litigation? If it were, there could be no dispute about it. We should be as ready to join in an attempt to procure such a result as the proponents of the legislation themselves.

What does the bill do? First of all, it undertakes in the first of its 15 sections to make a declaration of public policy to the effect that the individual unorganized worker is commonly helpless to exercise actual liberty of contract and protect his freedom of labor. It undertakes to assure his protection from interference, restraint, or coercion by employers or their agents in full treedom of association, self-organization and designation of representatives in all concerted activities for collective bargaining or other mutual aid or protection. In execution of this policy, it then outlines in section 3 all agreements, written or oral, express or implied, by which any party agrees not to become or remain a member of a labor or an employers' organization, and such agreements are declared to be neither enforceable in law or equity, nor to be the basis for legal or equitable relief.

I call attention to the two conditions in relation to this statement of policy. I join with the distinguished gentlemen who preceded me in recognizing the unquestioned right of Congress to declare the public of the United States in respect to those matters upon which it may exert its power, but I absolutely deny the right of Congress, and I never heard of anyone before asserting or making any suggestion to the effect that it could declare a policy for the States of the Union, or assert that it could determine the terms and conditions which should control the protection of employees, wherein the various States of the Union are brought to the attention of Federal courts in diverse citizenship cases and other cases before the Federal courts.

The bill then recites-and this is one of the most important portions of it-in sections 4 and 5 nine groups of acts with respect to which all courts of the United States are denied jurisdiction to issue injunctions to restrain the doing of the same, by any person, whether singly or in combination, in cases involving or growing out of labor disputes,

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unless accompanied by actual fraud or violence, thus denying any equitable intervention on the basis of threatened frauds or violence. Yet I know of no principle of equity more readily recognized by England and America, since the beginning of our judicial system, than the fact that threatened injury or damage is present in the mind of the court in such cases. It means, therefore, that before the jurisdiction can be invoked, there must be present with the judge, not the threat of injury, but the actual commission of it. It can not be exercised until it has been actually committed. Until it has been proved the law of equitable intervention can not operate, although if thereafter it becomes evident that the injury will continue to threaten irreparable damage. Thus our distinction between individual and combined action in the doing of such acts is especially extinguished as the basis of restraint when done by persons participating or interested in a labor dispute. That is the basis upon which equitable intervention is to be denied any litigant in the court of the United States under such circumstances.

But section 6 effects a revolution in the substantive law of agency. By that section no officer or member of any organization, participating in a labor dispute, and this applies equally to employers, is to be held liable in any court of the United States for the unlawful act of agents acting in such dispute, unless there be clear proof of actual participation, authorization, or ratification of the agents' acts after actual knowledge. The general law of agency is thus repealed or restricted to a labor dispute, and it applies equally to employers and employees. It applies to men who by collusion enter into agreements which may harmfully affect the public interests, and which in some instances might be violations of the antitrust act, although they may be the result, or grow out of, or involve terms of a labor dispute.

In sections 7 and 8 we come to the real procedural section. I call attention to the fact that in the first section of the bill, you can see at once by the very terms that they involve not mere changes in substantive law, but revolutionary changes in substantive law; not merely with respect to equitable processes, but in section 6, in respect to the law of agency, they involve a change in substantive law and a change in the doctrine of respondeat superior, by providing that in these disputes and in these disputes alone the general rule that a man is responsible for his agent and employs him at his peril is set aside. He must specifically authorize those acts or specifically ratify them after they are done.

In sections 7 and 8, remembering all the time that the threat of actual fraud or violence is never enjoinable under this bill, and that the nine groups of acts referred to are not enjoinable, whatever the purpose and intent of the actors may have been, unless accompanied by actual fraud or violence, you find the procedure requires that it must be shown, that unlawful acts, other than those which the courts have no jurisdiction to restrain, have actually been committed and will continue and will cause substantial and irreparable injury to complainant's property. In addition, it must be shown that greater injury will be done by denying relief than will be inflicted upon the defendant by granting it; that public officers obligated to protect plaintiff's property or are unable or unwilling to give adequate protection; and that the complainant has complied with every obligation imposed by law in the labor disputes in question and has

made every reasonable effort to settle such disputes by negotiation and the use of all available Governmental machinery.

Finally, before a hearing upon such an application for limited relief may be had, due and personal notice must be given not only to those whom relief is sought, but to all public officers charged with the duty of protecting complainant's property, as the court may direct. That is in section 7.

That means the party must ascertain who is charged with the duty of protecting his property. He must hunt them up and serve notice upon all of them. Then if, upon the hearing, it is established that, unless a temporary restraining order be issued, irreparable injury to the plaintiff's property is unavoidable, the court may issue such temporary order, without notice. But such restraint becomes void after five days and is not renewable under any circumstances. under such limitations, neither a restraining order nor a temporary injunction, after hearing, may be issued until the plaintiff files an undertaking, with adequate security to insure those enjoined from any loss, expense, or damage caused by an improvident or erroneous issuance of such injunction.

Even

The 5-day restraining order is, under the circumstances assuming that to be a valid exercise of power, not renewable, no matter what conditions are presented to the court. Assume that you are unable to conclude the trial within that period. Mr. Richberg represented the railroad employees in the injunction proceedings in Chicago in 1922, and it took three weeks to try it. If such an order had been issued in that case, it would have expired during the trial. Again and again, every one of you, as a lawyer, is familiar with the fact that in all forms of litigation, it frequently becomes essential to protect the subject matter until the court can exercise the power conferred upon it. That would destroy the power of the court to protect the subject matter of litigation until it could exercise the judicial power. It is the most remarkable proposition I have ever heard advanced in an attempt to control a court of equity, and we insist that it plainly, upon its face, trespasses upon the inherent power of the court as a part of the judicial power to protect the subject matter before it until it, adequately takes care of the situation. Without that power, it is utterly impossible to administer justice. If it could not protect the subject matter in this way, it is powerless.

Sections 9 and 10 are procedural and provide for findings of fact which the court must make and the preparation of a record for the Court of Appeals.

Sections 11 and 12 differ from the remainder of the bill in that they are general provisions, not confined to labor disputes, but apply to all cases in which the Federal courts have jurisdiction. They provide that all persons charged with indirect criminal contempt, or "criminal" contempt, as I understand Mr. LaGuardia proposes to amend the section, for the violation of the order of a United States court are to have a speedy and public trial before an impartial jury of the State and district where the alleged contempt was committed. This provision does not apply to contempt committed in the presence of the courts, or so near thereto, in the language of the bill, as to directly obstruct the administration of justice. I call attention to this latter phrase, because since the judicial act of March 2, 1931, the language has been "so near thereto as to obstruct the administration of justice."