CHAPTER I

INTRODUCTION

To the thoughtful observer of the relations between employers and their employees, the conclusion is inevitable that American courts are taking a more and more active part in labor disputes. The number of cases carried into court for settlement is constantly growing, the variety and complexity of the questions raised for adjudication is becoming ever greater, and the importance of the interests involved is steadily increasing.

Until the end of the first quarter of the nineteenth century a labor dispute was rarely carried to court. Moreover, the few that were brought for adjudication were finally settled in the lower courts without appeal. Consequently, the outcome of these cases and the opinions of the judges who decided them excited little attention. Most of these cases arose under the law against conspiracies, and may now be studied in the recently-published Documentary History of American Industrial Society.

The second and third quarters of the century were somewhat richer in litigation between employers and employees, but even in this period the custom of appealing such cases had not been formed, and consequently the progress of the law was slow. It was only in the last quarter of the century that labor cases became really numerous. Since about 1875 the growth has been rapid. The difficulty in studying the opinions for this last period arises not from the dearth but from the wealth of the material. The perfected

system of reporting brings into print the entire output of our whole court system, federal and state, and makes the study one to which but few can devote the necessary time.

At the present time, neither employer nor employee hesitates to appeal to the courts when he thinks it will be to his advantage. To each of the parties the court becomes a means of furthering its ends. It is probably not overstating the truth to say that while the appeals are made in the name of justice, they are in fact made in the hope of gaining an advantage without particular regard to justice. It will at once appear that the court is, as a result, placed in an exceedingly delicate position. Where two parties are seeking its aid for their own advantage, one of them is sure to be dissatisfied with the outcome. Each possesses its own peculiar political influence, and each is disposed to use that influence in its own cause. But the real importance of the court does not lie primarily in this phase of the situation. The court must stand between the parties and reduce the contest to a basis of justice, but it must also prevent the struggle from becoming one peculiar to the special interests involved and must keep it upon the broad and even level of all social conflict. Society cannot stand by and allow the struggle to become a specialized one. It can not permit the "rules of war" to become effective. This task of regulation must be assigned to the courts, and the courts must accomplish it in accordance with their own established methods of procedure. How are they succeeding in this difficult task? Is any progress evident? If so, along what lines and with what degree of speed? No categorical answers to these questions can be given. The many independent state courts of last resort do not agree. The numerous federal courts present the same situation, and the cases that have been carried up to the federal supreme court are comparatively few in number. This confusion is

recognized by the courts themselves, as is shown by a few citations from their opinions:

Many other illustrations might be given, but the foregoing suffice to show the confusion among different courts. (State ex rel. Zillmer v. Kreutzberg.)

We are not inclined to follow the reasoning of the court in that case, although it is well considered and ably presented. (State v. Buchanan.)

The case is well considered and ably presented, but is, we think, borne down by the weight of authority and sound reason. (State v. Muller.)

While we entertain a profound respect for the courts of our sister states, we do not feel called upon to yield our conviction of right to a blind adherence to precedent; especially when they are, in our opinion, opposed to principle; and the reasoning by which they are endeavored to be supported is by no means satisfactory or convincing. (Ex parte Newman.)

In In re Morgan it is contended by the learned judge.. that the conclusion reached in Commonwealth v. Hamilton Mfg. Co. is in conflict with the later case by the same court in Commonwealth v. Perry. A careful analysis of the Perry Case makes it clearly apparent that there is no such conflict. It neither refers to, nor in any manner criticizes, the correctness of the conclusions reached in the Hamilton Case. (State v. Cantwell.)

The student desires a clear statement of underlying principles, but this the opinions never afford, or only as obiter dicta-the views of the writer of the opinion-having a more or less indirect bearing upon the case at bar. As one judge expresses it, the court is not

called upon to lay down general rules by which labor organizations should be governed in their relations to the business interests of the country and to society. We are to deal alone with the facts presented in this particular case, and the prin

ciples of the law by which they shall be governed. (Jordahl v. Hayda.)

The lawyer insists that such utterances of general principles or discussions of principles, unless they have a very direct bearing on the case at bar, have no weight. Doubtless as law they have none; and recognition of this fact is important to one who seeks to sustain his contention before a court by citing legal authority. The obiter dictu, however, are of great importance for the light they throw upon the development of principles. A suggestion made by one judge, entirely aside, it may be, from the main issue, has its influence upon another judge, who reads the opinion. The obiter may be accepted by him and woven into the fabric of his argument on another case, or it may be noticed only for purposes of refutation. So by degrees it works its way into the general field of discussion and, possibly quite unconsciously, becomes a part of the mental attitude of judges toward similar cases as they arise. At last it may receive recognition as an accepted legal principle. It is because of the possibility of such development that obiter dicta are of consequence. Viewed in this light the animadversions of judges on social, political or economic topics take on a peculiar interest. For this reason they have been inserted in the extracts in addition to the more generally accepted rules of law.

Decided cases are, in some sense, evidence of what the law is. We say in some sense, because it is not so much the decision as it is the reasoning upon which the decision is based, which makes it authority, and requires it to be respected. (Bryan v. Berry.)

But obiters have a value, for they show the drift of the judicial mind, and indicate what the decisions will be when certain questions get fairly before the courts. (Cogley, The Law of Strikes, Lockouts, and Labor Organizations, p. 229.)

When read in this light, the decisions reveal a most interesting variety in points of view, in lines of argument, and in the emphasis assigned to particular considerations. In the midst of such variety there is slowly developing, however, a uniformity of underlying principle, and it is this line of development that is of utmost importance. No concise statement can yet be made of these deep-seated, farreaching principles, for their formulation is not yet perfected. That the principles are being developed, however, through which fundamental ideas of justice may be applied to the ever new and ever more complex conditions of industrial life, no one who studies the opinions will deny. This process will be of increasing importance, for the principles so evolved must prevail; they can be set aside only by a revolution of our form of government and society. These basic principles, newly stated, sum up the political, economic and social philosophy of the past and apply it to the present. Upon the courts then we must rely for the slow but finally satisfactory solution of many of the difficulties involved in our industrial strife.

The following study of the opinions in labor cases reveals three facts of tremendous importance:

(1) The judges of our courts have been too greatly influenced by precedents set in decisions applicable to conditions that have passed away.

(2) There is clearly discernible a tendency on the part of many influential judges distributed rather widely among state courts of final appeal and the federal courts to give more attention to actual present conditions.

(3) The law is being adapted to these new conditions by reading new meaning into the phrases of the constitutions, thus making formal constitutional amendments unnecessary. The second and third tendencies afford ground for congratulation, and it is to be hoped that they may become