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rules. I want the Association to feel that both in those rules and in the acts adopted in different states, the recommendation of the Association has had great weight. For example, in the act adopted in Massachusetts one of the cogent arguments used was that the bill in substance had had the approval of this Association. I do feel that the work we are doing is of great national importance, and that we must, therefore, follow the advice of the Apostle and not be weary in well doing.
Then we deal with the expense of serving process. We ask an amendment to the law, so that the constructive mileage that is now charged by the Marshal in many of the large districts shall no longer be charged, but that the only mileage charged for the service of process shall be from the place where the deputy lives to the place where he serves the defendant. That seems to be obviously just. While the abuse does not exist in all districts, yet in many we are assured it does and that it is serious.
The third recommendation is this. There has been a great deal of legislation proposed in Congress in reference to injunctions, dealing with two classes of cases. The first is injunctions against state officials acting under state laws. It has been proposed that no federal court shall have the right to grant injunctions at all in such cases. We call attention in the report to the fact that this brings about at once a conflict between the federal authorities and the state authorities.
There have been many instances in the history of the country, notably the great case of Gibbons vs. Ogden, 9 Wheaton, where there was such conflict, and where the legislature of New York passed a law prohibiting vessels from entering into New York waters, unless they had a license from Livingston and Fulton. Connecticut, in retaliation, passed a law that no steamboat should enter the waters of that state which had such a license. Then the State of New Jersey passed a law that if any citizen of New Jersey was prevented by Livingston and Fulton from entering upon New York waters, he should recover damages with treble costs. The American way of dealing with such a question is to have it submitted to the court, and the right way to do so
is to have it submitted in advance. Congress has passed one law already. The committee had something to do with the amendment adopted to that law, making reasonable provision on the subject. No one for a moment would ask that injunctions in such cases should be granted hastily. That, let me say, is one of the reforms embodied in these equity rules: that timely notice of motions for injunction should be given, and that no restraining order should be granted except in case of urgent and absolute necessity. Then, furthermore, the Act provides that in these cases where injunctions are sought against state officials, the Attorney-General of the state shall be notified. That is certainly a most proper provision. But, to go further, as some of the bills have done, and to abolish injunction in such cases, is to substitute the rule of force for the rule of law. Andrew Jackson had no injunction available when he defeated the Nullifiers in 1832, but a weak President would not have done it. It is better that we should have a law on the subject, than to leave it to the President to send or not to send federal troops into a district.
The other branch of injunction legislation is in reference to labor disputes. There has been a strong movement to prohibit the courts from granting injunctions in labor matters. The committee has been of the opinion that the rules which govern injunction in disputes between labor unions and capitalists should be just the same as the rules in other cases. That we most earnestly recommend. That is our third recommendation, in reference to all this class of injunctive legislation, that the committee be authorized to urge upon Congress equality of treatment in these controversies. In short, the whole object of injunction proceedings is to have a hearing on the merits before the court at the earliest possible day. That is the great advantage of all injunctive proceedings, that your affidavits are put in, that there is no technical objection, but that the court hears the matter upon the merits, and then if there is an appeal that the Appellate Court hears it upon the merits. The committee is persuaded that if the American people understand it as they should, and as we can instruct them, they will heartily endorse the action which the committee recommends.
I move these resolutions:
"Resolved, That the Special Committee to Suggest Remedies and Formulate Proposed Laws be continued with the powers heretofore conferred upon it, and that it be instructed to take such steps as it shall deem expedient to procure the passage, at the next session of the Congress of the United States, of the bills heretofore recommended by this Association, as the same have been amended in Congress in the form specified in Schedules A, C and D annexed to this report.
Resolved, That the bill to diminish the expenses of service of process in the federal courts recommended by the said committee be approved, and that said committee be instructed to take such steps as it shall deem expedient to procure the introduction and passage of the said bill at the next session of Congress.
Resolved, That the said committee be also instructed to continue the examination of the other subjects dealt with in the report and that in case the bill in reference to injunctions in labor disputes, referred to in the report, should again be introduced, said committee have power to appear before the appropriate committees of Congress and urge that the same be either rejected or amended so as to apply to controversies in labor cases the same rules that are applied in all other cases of injunction."
Abram J. Dittenhofer, of New York:
I am heartily in favor of the suggestion made by the committee, but I desire to state, as a further suggestion, that in many states non-residents have been giving a great deal of trouble, running back and forth between states for the purpose of giving the federal courts jurisdiction. In those cases receivers have been appointed, often by consent, and the receivers have run the public utilities corporations for years. My suggestion is, that in those cases, affecting railroad corporations, either running in cities or through the country, where the federal courts have acquired jurisdiction in consequence of a diversity of residence, for the purpose of giving to the federal court jurisdiction, no injunction and no receiver shall be appointed without first giving notice to the Attorney-General of the state, and allowing him an opportunity to be heard.
An action enjoining a corporation or appointing a receiver of a corporation is really not only an action between the parties
themselves, but is an action in which the public at large is interested. Therefore, I suggest that in addition to the provisions already made there shall be a section providing that in such actions no receiver and no ex-parte injunction shall be granted without giving notice to the Attorney-General of the state and allowing him an opportunity to come in and be heard.
James D. Andrews, of New York:
Is there a pending bill that has already been drawn by the committee which has met with the approval of the Association with reference to the allowance of an appeal where the Supreme Court of the state has held adversely to the constitutionality of an act?
Everett P. Wheeler, of New York:
Yes. Personally I should approve the suggestion made by Judge Dittenhofer, and would be very glad to have it considered by the committee.
Abram J. Dittenhofer, of New York:
That will be quite satisfactory.
Albert D. Early, of Illinois:
Do I understand that it is proposed that the court shall have authority to compel men to work, by injunction?
Everett P. Wheeler, of New York:
The rule laid down by the English Chancellor, perhaps 80 years ago, was that the Court of Chancery had no power to compel specific performance of an agreement to do labor, work-anything that involved personal service. The question came up in the case of an opera singer who refused to sing, and an effort was made to compel her to sing. The rule of practice in England has been that there could be no specific performance in such a case. All we ask is to leave the law as it now stands, and that the committee be authorized to oppose legislation which would create any distinction between controversies affecting other citizens and controversies arising between capitalists and labor
Albert D. Early, of Illinois:
With that generality I agree.
(See Report in Appendix, page 546.)
The Special Committee to Oppose Judicial Recall. The report may go over until this evening's session.
The Special Committee on Compensation for Industrial Accidents.
Hugh V. Mercer, of Minnesota:
In the absence of the Chairman I am asked to submit the report.
The committee believes that a law for compensation for industrial accidents should be enacted in all the states, and that (1) It should be compulsory and exclusive of other remedies for accidental injuries.
(2) It should apply generally to industrial operations or at least to all industrial organizations above a certain limit of size.
(3 It should apply to all accidents arising out of and in the course of such industrial operations regardless of the fault of any one; self-inflicted injuries not being counted as accidents.
(4) The compensation should be adjudged by a prompt, simple and inexpensive procedure.
(5) The compensation should be paid in regular instalments continuing during the disability, or in case of death during reasonable periods of dependency of the beneficiary.
(6) The compensation should be properly proportioned to the wages received before injury, having due regard, however, in proper cases, to prospective wages; and the scale, so far as possible, should divide the wage loss sustained by the employes and their dependents equally between them and their employers.
(7) The compensation should be paid with as near absolute certainty as possible, in the most convenient manner, and there should be adequate security for deferred payments.
I ask that the report be received and filed.