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] may 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] contempt occurred elsewhere than in the presence of the court or so near thereto as to interfere directly with the administration of justice. 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] is provided by law. demand shall be filed prior to the hearing in the contempt proceeding. SEC. 13. When used in this act, and for the purposes of this act

The

(a) 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] or 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] provision of this act [or the application thereof to any person or circumstance] is held unconstitutional or otherwise invalid, the [remainder] remaining provisions 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.

SCOPE OF SUBSTITUTE BILL

The 15 sections of the proposed substitute bill deal, under one guise or another, with the jurisdiction and procedure of the Federal courts. In section 2 the proposal announces a public policy of the United States. In section 3 it defines certain classes of contracts as being contrary to such public policy and provides that any promise falling within the definition shall not be enforceable and shall not afford any basis for the granting of legal or equitable relief by any court of the United States.

Section 4 defines nine acts or classes of acts which the courts may not enjoin whether done singly or in concert. Section 5 provides that the courts of the United States shall not have jurisdiction to issue any temporary or permanent injunction in labor disputes upon the ground of unlawful combination or conspiracy because of the doing

in concert of any of the acts enumerated in section 4. Section 6, in a narrow sense, has no relation to the jurisdiction of the courts or to the subject of injunction, but deals entirely with the liability of certain associations and the officers thereof for unlawful acts of individual officers, members, etc.

Section 7 denies jurisdiction to the courts of the United States in injunction cases in labor disputes except upon certain conditions and the following of certain procedure therein enumerated. Section 8 limits injunctive relief to those who have complied with the law and who have made "every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery." Section 9 further defines the procedure in granting restraining orders or temporary or permanent injunctions. Section 10 provides the procedure in connection with appeals in injunction cases. Section 11 deals with what is referred to as "indirect criminal contempt" cases and provides that the accused shall enjoy, upon demand, the right of trial by jury. The right provided by this section is applicable in labor disputes and apparently is also applicable in every other contempt case falling within the scope of said section. Section 12 authorizes trial by a judge other than the sitting judge where contempt arises from an attack upon the character or conduct of such judge. This section is not limited to contempts in labor disputes. Section 13 defines the terms used in the act. Section 14 provides a rule for determination of the validity of the act, and section 15 repeals all other acts and parts of acts in conflict with the provisions of the proposed substitute.

POLICY STATED IN SECTION 2 BASED ON ERRONEOUS PREMISES Section 2 states:

Whereas under prevailing economic conditions developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association

The natural inference to be gained from a reading of this language in the bill is that corporate and other forms of ownership came into being through the enactment of laws by the Congress of the United States, and yet the fact is that practically all corporations are creatures of the several States.

In adopting a public policy which the Government of the United States shall follow in the future, the minority believe that it should be based upon accurate statements of fact, and, above all, it should not be misleading.

While it is true that corporations organized under State laws are in some instances, as for example, when they engage in interstate commerce, subject to certain regulations by Congress, yet these relations with their employees are regulated by State law and it follows that any legislation to provide for liberty of contract for those whom they employ is within the domain of the legislative power of the States and not of Congress.

In our opinion, based upon the experience of recent times, and particularly within the last three years, when labor disputes have been practically unknown, the mutual interests of employers and employees can best be advanced and fostered through a spirit of cooperation and good will, and that many of the provisions of the

bill under consideration will be of little avail. Moreover, it is our belief that the power of Congress to make a valid declaration of policy upon a subject outside the realm of Federal authority is seriously open to question.

ANTIUNION CONTRACTS

Section 3 of the substitute bill provides that any undertaking or contract of employment whereby either party undertakes not to become a member of a labor organization or of an employer organization, or which provides that either party to such contract shall withdraw from such relation upon becoming a member of any labor organization or employer organization, shall not afford any basis for the granting of legal or equitable relief by any court of the United States.

The majority of the committee frankly states in its report that one of the objects of this legislation is to outlaw such contracts because many of the injunctions which have been issued by Federal courts have been based wholly or in part upon them on the assumption that they are valid and not contrary to public policy.

In our opinion, this form of agreement deprives employees of the right of free association with their fellows and takes away from them the opportunity to deal on a basis of equality with those by whom they are employed. But however distasteful they may be to us, and however much we may sympathize with those who believe that the interests of employees will never be properly protected except through legislative enactment, the fact remains that the Supreme Court in three cases has held that there is no legislative power, State or Federal, to inhibit or outlaw employment contracts providing against union membership. (Coppage r. Kansas 1915, 256 U. S. 17 Adair ɛ. United States (1908), 208 U. S. 161; Hitchman Coai & Coke Co. r. Mitchell (1917), 245 U. S. 229.) The courts of last resort of a considerable number of States and inferior Federal courts have reached a similar conclusion. (People r. Western Union Telegraph Co. (1921), 70 Col. 90; Gillespie r. People 1900. 188 Ll. 176; Coffeyville Brick & Tile Co. r. Perry (1904, 69 Kans. 297: State r. Daniels 1912), 118 Minn. 155; State r. Julow (1895), 129 Mo. 163: Goldfield Consolidated Mines Co. r. Goldfield Miners' Union 1908), 159 Fed. 500; People r. Marcus 1906, 185 N. Y. 257: Jackson r. Berger 1915), 92 Ohio St. 130; Bemis r. State (1915), 12 Okla. Cr. 114: Commonwealth . Clark (1900), 14 Pa. Super. Ct. 455: State r. Kreutzberg (1902), 114 Wis. 530; United States r. Scott 126 148 Fed. 401; Order of Railroad Telegraphers r. Louisville & N. F. Co. 1996), 148 Fed. 437, appeal dismissed 1909, 214 U. S. 529; in re Opinion of the Justices Mass., 1930, 171 N. E. 234.

The Supreme Court of the United States has held that the constitutional right to make such contracts is both a right of liberty and a right of property. The contract, when made, is

property right. To provide by legislation that the courts shall not pritet this right is unquestionably a deprivation of property without due process of law. It seems too clear for argument that if the right to make such contracts is constitutionally protected that this constitutional protection can not be destroyed by directing the ecurts to treat such contracts as a nuity. Any statute attempting to socompia this would not only be an unconstitutional encroachment upon the judicial

power of the court having jurisdiction of the subject matter or of the parties, but would be as well a denial of constitutional liberty and property without due process.

This section does not in terms declare such contracts illegal. The reason for this forbearance is obvious. The legislative power with respect to the legality or illegality of labor contracts is reserved to the States. It is not vested in the Congress except with respect to interstate commerce, the Postal Service, and other limited fields over which the Constitution grants Congress specific legislative authority. Nevertheless, while the bill does not in terms frankly attempt to occupy a field of State legislation, it seeks to accomplish the same result by indirection. By the device of the denial of any remedy in the Federal courts, the substitute makes the labor contracts in question of the same effect as if they were a nullity.

It is claimed that such contracts should be held void because they are entered into under coercion, and therefore they should not afford

relief, either legal or equitable. But in pursuance of a public policy which henceforth is to be followed by the Federal courts, if this bill becomes a law, these contracts are to be placed outside the field of remedies which the Constitution guarantees to the parties. entering into them.

It is to be observed that the proponents of the bill seek not so much to deny legal remedies to the parties to such contracts, as to take away the right of injunction to prevent a breach of them.

In the majority report on page 9 the following statement appears: Relief by injunction is an extraordinary and harsh remedy. It should not be resorted to except in cases where such action is imperatively demanded; and yet injunctive relief is often the only adequate and effective relief against many wrongs and to prevent many irreparable injuries in controversies of infinite variety.

Nowhere in the report of the majority upon this bill is there any statement sustaining the provision in it which would deprive parties to such contracts of all legal remedies. It would seem, therefore, that this section of the bill is much more far-reaching in its effects than its proponents desire. If any means can be devised by legislative enactment to carry out the purposes of those who favor this measure so far as injunctive relief is concerned without conflicting with the provisions of the Constitution and the decisions of the courts of last resort, the minority will join in such an enactment and will assist in every way it can to secure the passage of such a measure. But we are not unmindful of the problem which arises and which may be summarized in the following questions:

(1) Can the Congress by indirection through the device of the denial of remedy at law or in equity in the courts of the United States make void a contract which has been held valid by the courts of last resort of the several States and which is beyond the legislative control of Congress?

(2) Will not the denial by Congress of all remedies in the courts of the United States be tantamount to a declaration that such contracts are illegal?

Inasmuch as the general and the most far-reaching effect of the bill is to afford relief from unfair injunctive processes, it seems reasonable. to assume that the provisions of said section would effectuate that purpose quite fully if its provisions did not apply to and deny all

legal remedies, but were to be limited to the extent of affording no ground for injunctive relief. It would then be in harmony with the public policy to be established by other provisions of the bill.

LIMIT OF INJUNCTIVE RELIEF

Sections 4 and 5, among other things, prohibit the issuance of restraining orders or injunctions under certain conditions therein enumerated.

The language of clause (a) of section 4 is as follows:

Ceasing or refusing to perform any work or to remain in any relation of employment.

It is contended by some of those who view the enactment of this measure not without some apprehension as to its validity in law, that the right to cease or refuse to perform any work or to remain in any relation of employment is in no sense an absolute right.

Mr. Justice Holmes said in the case of Aikens v. Wisconsin (1904) (195 U. S. 194, 206):

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 omissions 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.

Our reading of paragraph (a) of section 4 leads us to the conclusion that, fairly interpreted, an employee might continue in his relation of employment and while in that relation refuse to perform any work. To our minds, this involves a breach of contract which the law has never condoned. That an employee might cease to remain in any relation of employment seems to us to be reasonable because it involves the freedom of contract which is guaranteed to every citizen of our country, assuming, of course, that there is no condition imposed upon the parties whereby they have agreed for a valid consideration to continue in such employment.

But to expressly provide that an employee may refuse to perform any work and yet continue in an employment relation, in other words to place the stamp of approval by legislative enactment upon a breach of contract, and yet provide that the employee shall remain in the full enjoyment of the benefits that may accrue under such contract, is to our minds beyond and outside of the law of contractural relations.

The remaining provisions of section 4 might with some modifications clarify the law as it affects the relations of employees with one another, limit the scope of injunctions, which in some instances have gone beyond reasonable limits, and afford the workingmen that freedom of association, self-organization and mutual help and protection which all of us want to make secure.

Act

Section 5 would leave unprotected by injunction those rights of property which are safeguarded by the provisions of the Clayton In our opinion, what the sponsors of this measure have sought to accomplish by the language of section 5 is to remove from the field of restraining orders and injunctions those acts which when done by individuals are declared not to be unlawful by the provisions of section 4 and to permit the doing of them by any of the persons par