persons participating or interested in a labor dispute constitute or are engaged in an unlawful combination or conspiracy because of the doing in concert of the acts enumerated in section 4 of this act.

SEC. 6. No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.

SEC. 7. No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court, to the effect

(a) That unlawful acts have been committed and will be continued unless restrained; (b) That substantial and irreparable injury to complainant's property will follow;

(c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief;

(d) That complainant has no adequate remedy at law; and

(e) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection.

Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to those public officers charged with the duty to protect complainant's property: Provided, however, That if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant's property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing after notice. Such a temporary restraining order shall be effective for no longer than five days, and shall become void at the expiration of said five days. No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney's fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.

The undertaking herein mentioned shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against said complainant and surety, the said complainant and surety submitting themselves to the jurisdiction of the court for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity.

SEC. 8. 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 voluntary arbitration. Sec. 9. No restraining order or temporary or permanent injunction shall be granted in a case involving or growing out of a labor dispute, except on the basis of findings of fact made and filed by the court in the record of the case prior to the issuance of such restraining order or injunction; and every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint or petition filed in such case and as shall be expressly included in said findings of fact made and filed by the court as provided herein.

SEC. 10. Whenever any court of the United States shall issue or deny any temporary injunction in a case involving or growing out of a labor dispute, the court shall, upon the request of any party to the proceedings, forthwith certify the entire record of the case, including a transcript of the evidence taken, to the

circuit court of appeals for its review. Upon the filing of such record in the circuit court of appeals, the appeal shall be heard and the temporary injunctive order affirmed, modified, or set aside with the greatest possible expedition, giving the proceeding precedence over all other matters except older matters of the same character.

SEC. 11. In all cases where a person shall be charged with indirect criminal contempt for violation of a restraining order or injunction issued by a court of the United States (as herein defined), the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed: Provided, That this requirement shall not be construed to apply to contempts committed in the presence of the court or so near thereto as to interfere directly with the administration of justice or to apply to the misbehavior, misconduct, or disobedience of any officer of the court in respect to the writs, orders, or process of the court.

SEC. 12. The defendant in any proceeding for contempt of court is authorized to file with the court a demand for the retirement of the judge sitting in the proceeding, if the contempt arises from an attack upon the character or conduct of such judge and if the attack occurred otherwise than in open court. Upon the filing of any such demand the judge shall thereupon proceed no further, but another judge shall be designated in the same manner as provided in case of the approval of an affidavit of personal bias or prejudice under section 21 of the Judicial Code. The demand shall be filed prior to the hearing in the contempt

proceeding.

SEC. 13. When used in this act, and for the purpose of this act

(1) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a "labor dispute" (as hereinafter defined) of "persons participating or interested" therein (as hereinafter defined).

(b) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft, or occupation.

(c) The term "labor dispute" includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms and conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee.

(d) The term "court of the United States" means any court of the United States whose jurisdiction has been or may be conferred or defined or limited by act of Congress, including the courts of the District of Columbia.

SEC. 14. If any provisions of this act or the application thereof to any person or circumstances is held invalid, the remainder of the act and the application of such provisions to other persons or circumstances shall not be affected thereby. SEC. 15. All acts and parts of acts in conflict with the provisions of this act are hereby repealed.

The CHAIRMAN. I understand the opponents to the bill have two hours, and the proponents two hours, the opponents to open. Is that the understanding?

Mr. EMERY. We did not understand the opponents were to open. We assumed the burden of proof was upon those who proposed the legislation.

The CHAIRMAN. I think ordinarily the proponents could open, but I understood there was a different understanding in regard to this.

Mr. LAGUARDIA. It is quite true that the proponents have the burden, and that is the reason why the proponents close, just like the district attorney sums up last before the jury.

The CHAIRMAN. They both open and close in those cases.

Mr. LAGUARDIA. I understand the opponents asked for the hearing, and I think they should proceed first.

Mr. MICHENER. What was the agreement at the meeting of the committee?

The CHAIRMAN. Two hours on each side.

Mr. EMERY. Would the committee permit a suggestion?

The CHAIRMAN. Yes.

Mr. EMERY. Would it be agreeable for the proponents to open for an hour, we take the following two hours, and they close in an hour? The CHAIRMAN. I should think so. Do you have any objection to that?

Mr. RICHBERG. Might I make a slight modification in that, and suggest that the proponents shall not open for an hour, but shall open for a shorter time, to be followed for two hours by the opponents, and the proponents consume the remaining time in closing.

Mr. EMERY. We are willing to divide the time that way.

Mr. LAGUARDIA. So that the opposition may be advised, I want to inform them that at the proper time I shall offer an amendment to section 11, page 9, line 6, to strike out the word "where" and insert in lieu thereof the words "in which"; in line 7 to strike out the word "indirect"; in lines 7 and 8 to strike out the words "for violation of a restraining order or injunction issued by," and insert in lieu thereof the word "of." The purpose of that is to protect the press against abuse and tyranny of the courts. The Senate amendments will be offered at the proper time.

Mr. EMERY. Do I understand you offered the amendment to strike out the words "indirect criminal" or only the word "indirect"? Mr. LAGUARDIA. Only the word "indirect."

Mr. TUCKER. It has been suggested to me that interruptions and questions asked of the gentlemen who present this case should not be deducted from their time. I thought I would bring that to the attention of the committee.

Mr. LAGUARDIA. Let us not interrupt untilthey have finished their statements.

Mr. MICHENER. I move there be no interruptions until the arguments are completed.

Mr. TUCKER. But that questions may be asked after the parties have concluded their arguments, the time not to be taken out of the time allotted.

The CHAIRMAN. Do you understand the motion? Are there any objections? It is so ordered.

How much time would you like to take in opening?

Mr. RICHBERG. I would suggest that we take perhaps half an hour, if we can keep within that time, to present an outline of the purposes and intent of the bill and its constitutionality, reserving for Colonel Easby-Smith and myself the remaining time to reply to the opposition. The reason I suggest that division is that I understand the main question this committee will be interested in will be the legal questions involved here, rather than the issue of the need for injunction legislation.

The CHAIRMAN. Is that agreeable to the gentlemen on the other side?

Mr..EMERY. Yes.

The CHAIRMAN. Let me suggest for the consideration of the committee that possibly some things may occur to members about which they might wish to ask questions, but which would be cleared up in the statements of some of the following speakers.

What do you gentlemen think of the plan to have the arguments completed, and then you gentlemen stand by while members of the committee ask you questions?

Mr. RICHBERG. I think that is very desirable. I think it might be helpful to the committee if, after the close of the argument, members of the committee interrogate any counsel in regard to any matters that have been brought out. By that time a good many questions might have been answered.

The CHAIRMAN. Gentlemen, it is understood that the Chair will try to apply the rule to himself and members of the committee. The Chair has more difficulty with himself than any other member of the committee. We will wait until the four hours shall have been consumed, and then the gentlemen will submit themsleves for questions by members of the committee.

Mr. SPARKS. Mr. Chairman, I would suggest that each witness give his full name, occupation and whom he represents in the beginning, so we will know for whom they appear.

The CHAIRMAN. That will be done. If any of the members of the committee feel an uncontrollable desire to ask any questions, he may write them out and pass them up to the Chair.

You may proceed.

STATEMENT OF DONALD R. RICHBERG, CHICAGO, ILL., REPRESENTING THE RAILWAY LABOR EXECUTIVES' ASSOCIATION

Mr. RICHBERG. If the committee please, in response to the suggestion made, I will state first that my name is Donald R. Richberg. I am a lawyer, residing in Chicago, Ill. My address is 333 North Michigan Avenue. I am here representing the Railway Labor Executives' Assoication, which is an association of the chief executives of the 21 standard railway labor organizations.

The next speaker in favor of the bill is Col. James S. Easby-Smith, who will introduce himself.

Mr. EASBY-SMITH. My name is James S. Easby-Smith. I am a practicing lawyer in Washington. I appear for the American Federation of Labor.

The CHAIRMAN. You may introduce yourselves as you are about to speak.

You may proceed, Mr. Richberg.

Mr. RICHBERG. Mr. Chairman and gentlemen of the committee, in opening this matter I will say that, were it not for the suggestion of the committee as to saving time, I would rather welcome questions; but in view of the desire to proceed as rapidly as possible I will try to take up those points in which we conceive the committee is particularly interested.

I believe that I may assume that the evils which have brought forth a demand for injunction legislation are familiar with all the

members of the committee. I assume also that it is not necessary to go into an extensive review of the various cases in the Supreme Court and in the lower Federal courts which evidence what the proponents of the bill regard as an abuse of the injunctive power. In other words, it seems to be conceded at the present time by all concerned that legislation limiting the powers of the Federal courts in the issuance of injunctions is highly desirable and, in fact, is necessary. But I am making the assumption here that what this committee is particularly interested in is whether the proposed legislation goes too far in the direction of what might be a proper limitation upon the powers of the court, and whether it goes too far in recognition of the limitations on the power of Congress. I am going to address myself first to this second proposition, and that is the power of Congress to enact such legislation as is now before you. it is not necessary to go into an extensive review of the various cases in the Supreme Court and in the lower Federal courts which evidence what the proponents of the bill regard as an abuse of the injunctive power. In other words, it seems to be conceded at the present time by all concerned that legislation limiting the powers of the Federal courts in the issuance of injunctions is highly desirable and, in fact, is necessary. But I am making the assumption here that what this committee is particularly interested in is whether the proposed legislation goes too far in the direction of what might be a proper limitation upon the powers of the court, and whether it goes too far in recognition of the limitations on the power of Congress. I am going to address myself first to this second proposition, and that is the power of Congress to enact such legislation as is now before you. It seems to me, in view of the rulings of the Supreme Court, there should not be very much controversy over the complete power of Congress to determine the amount of jurisdiction with which the Federal courts shall be invested, the limitations upon their powers. From the passage of the judicial act the question has been raised at different times in our history as to the exact extent of the powers of the Federal courts and control by Congress of the Federal courts; but year by year the questions which have been raised have been cleared up until now, I think, without quoting other cases, I might simply cite one or two brief extracts from very recent decisions of the Supreme Court of the United States, as representing the well-settled law on this question.

In Kline v. Burke Construction Co. (260 U. S. 226) the court held as follows:

The right of a litigant to maintain an action in a Federal court on this ground is not one derived from the Constitution of the United States, unless in a very indirect sense.

Then the court continued:

Certainly it is not a right granted by the Constitution. The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it. A right which thus comes into existence only by virtue of an act of Congress, and which may be withdrawn by an act of Congress after its exercise has begun cannot well be described as a constitutional right.

In the case of Myers v. United States (272 U. S. 52) the opinion of the court by Chief Justice Taft, the court said:

It is clear that the mere establishment of a Federal inferior court does not vest that court with all the judicial power of the United States as conferred in