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5 to 4 on Slavery.

HE decision of the U. S. Supreme Court in the Adamson law is extraordinary-in strange contrast to its usual careful observance of the etiquette of precedence. The court justifies the Adamson law by what it assumes would have happened had Congress not enacted the law.

The justification thus rests not upon principles but upon a hypothetical emergency. In addition to reversing its usual method of reasoning, the court emerges from the judicial domain to lend a helping hand to legislation under consideration by Congress. All of the forces of reaction united in the Sixty-fourth Congress to enact compulsory legislation to render workers helpless-by one form of law or other, to compel the toilers to compulsory service-involuntary servitude. They failed. Congress considered the proposed legislation contrary to the spirit and the principles of our free republic.

The Supreme Court attempts to influence the legislative situation by giving in advance an unsolicited opinion upon a question not before it the constitutionality of compulsory arbitration:

"We are of opinion that the reasons stated conclusively establish that from the point of view of inherent power the act which is before us was clearly within the legislative power of Congress to adopt, and that in substance and effect it amounted to an exertion of its authority under the circumstances disclosed to compulsorily arbitrate the dispute between the parties by establishing, as to the subject-matter of that dispute, a legislative standard of wages operative and binding as a matter of law upon the parties-a power none the less efficaciously exerted because exercised by direct legislative act instead of the enactment of other and appropriate means providing for the bringing about of such result."

Not satisfied with this gratuitous assistance and suggestion to the legislative representatives of reaction, the Chief Justice interpolated the following denial of the right to strike in public service:

"That right is necessarily surrendered when the men are engaged in public service. They are comparable to soldiers in the ranks who, in the presence of the enemies of their country, may not desert."

This opinion of our Chief Justice is in vivid contrast to the declaration of the Russian government that replaced the old despotism; a declaration which Russia enunciated in a time of great stress, when the country was confronted by the exigencies of a world war. It is

"Liberty of speech and of the press, freedom for alliances, unions and strikes, with the extension of these liberties to military officials within the limits admitted by military requirements."

That the court's decision is open to criticism is manifest from the fact that only five out of the nine justices concurred in it. The other four criticise it without reserve.

The situation presents a very serious problem for the nation to consider. Five men out of our one hundred million have interpolated into our political institutions a principle destructive of the fundamentals of freedom. The Supreme Court has provided the way for establishment of industrial slavery and a fugitive slave law, and if followed out by the government or enacted into law the Supreme Court's decision by a vote of 5 to 4, the working people of the United States may be compelled to work at the command of their employers or go to prison.

The court's decision came as an anticlimax too long delayed to be helpful in the purpose for which the law was enacted. Has the court permanently abandoned the field of justice, to play in the hands of the employing class, the wealth-possessors of our country, by taking away from the working people the only effective power they possess to compel a decent regard for their rights, their freedom, the American standard of life?

Would it not be well for the nation to consider the necessity of curbing the assumption of power by the Supreme Court rather than to supinely permit the court to "curb" the freedom of the masses-the workers?

5 to 4 on Compensation. On March 6, 1917, the Supreme Court of the United States rendered a decision in the Mountain Timber Company vs. State of Washington, a case which involved the con

stitutionality of compensation legislation. On March 14, 1911, there was approved the compensation law for the state of Washington providing compulsory compensation for employes in specified hazardous occupations. In those occupations not specifically enumerated employers may elect to come under the provisions of the act.

According to the law compensation became the exclusive remedy for accidents to employes in hazardous industries regardless of questions at fault, thus the principle of compensation was substituted for the recourse to civil action for personal injuries.

One of the striking developments of the past decade has been the thought that industry should bear responsibility for the life and safety of those employed in the industry. This conception has developed out of the provisions of common law and liability laws which gave the injured worker a right to action. However, civil action had been developed under a system in which the employer or the property-holder was the dominating control. Action was hindered by the common-law defensive, which placed employes upon an inequitable footing with employers before the law.

The three well-known common law defenses are contributory negligence, fellowservant rule and assumption of risk. Under the rights of civil action a large amount of damages might be obtained by the injured worker, but more frequently this course brought no remedial results.

The thought which actuated advocates of workmen's compensation was that the industry should bear the financial burden of all industrial accidents instead of the weight falling upon the individual workers. It was proposed that the employer should compute as costs human losses due to accidents.

Various slightly different forms of compensation have been adopted by the federal government and the several states. The compulsory law adopted in the state of Washington provided for an industrial insurance department to administer the law and the insurance fund to which all employers in hazardous industries must contribute and to which other employers might elect to contribute.

When the Supreme Court of Washington passed upon the case of Mountain Timber Company vs. State of Washington, it upheld

the constitutionality of the law. The decision of the United States Supreme Court in this case upholds legislation substituting in hazardous industries a compulsory system of compensation for injured workmen and their dependents out of a public fund established and maintained by contributions of employers in proportion to the hazard of each class of occupation and abolishes the right of employes to private action.

In regard to the provision requiring payment to a state insurance fund instead of permitting the employer an option to secure compensation either through state insurance, insurance with an authorized insurance corporation, or by deposit of securities with the State Commission, the court held that there was no ground for distinction unfavorable to the Washington law.

Upon the issue raised by the opponents of the law, under the due process of law and equal protection clauses of the Fourteenth Amendment, the court held that:

"There remains, therefore, only the contention that it is inconsistent with the due process and equal protection clauses of the Fourteenth Amendment to impose the entire cost of accident loss upon the industries in which the losses arise. But if, as the legislature of Washington has declared in the first section of the act, injuries in such employments have become frequent and inevitable and if, as we have held in N. Y. Central R. R. Co. vs. White, the state is at liberty, notwithstanding the Fourteenth Amendment, to disregard questions of fault in arranging a system of compensation for such injuries, we are unable to discern any ground in natural justice or fundamental right that prevents the state from imposing the entire burden upon the industries that occasion the losses. The act in effect puts these hazardous occupations in the category of dangerous agencies, and requires that the losses shall be reckoned as a part of the cost of the industry, just like the pay-roll, the repair account, or any other item of cost. The plan of assessment insurance is closely followed, and none more just has been suggested as a means of distributing the risk and burden of losses that inevitably must occur, in spite of any care that may be taken to prevent them.

"We are clearly of the opinion that a state, in the exercise of its power to pass such legislation as reasonably is deemed to be necessary to promote the health, safety, and general welfare of its people, may regulate the carrying on of industrial occupations that frequently and inevitably produce personal injuries and disability with consequent loss of earning power among the men and women employed, and, occasionally, loss of life of those who

have wives and children or other relations dependent upon them for support, and may require that these human losses shall be charged against the industry, either directly, as is done in the case of the act sustained in N. Y. Central R. R. Co. vs. White, supra, or by publicly administering the compensation, and distributing the cost among the industries affected by means of a reasonable system of occupation taxes. The act cannot be deemed oppressive to any class of occupation, provided the scale of compensation is reasonable, unless the loss of human life and limb is found in experience to be so great that if charged to the industry it leaves no sufficient margin for reasonable profits. But certainly, if any industry involves so great a human wastage as to leave no fair profit beyond it, the state is at liberty, in the interest of the safety and welfare of its people, to prohibit such an industry altogether.

"To the criticism that carefully managed plants are in effect required to contribute to make good the losses arising through the negligence of their competitors, it is sufficient to say that the act recognizes that no management, however careful, can afford immunity from personal injuries to employes in the hazardous occupations, and prescribes that negligence is not to be determinative of the question of the responsibility of the employer or the industry. Taking the fact that accidental injuries are inevitable, in connection with the impossibility of foreseeing when, or in what particular plant or industry they will occur, we deem that the state acted within its power in declaring that no employer should conduct such an industry without making stated and fairly apportioned contributions adequate to maintain a public fund for indemnifying injured employes and the dependents of those killed, irrespective of the particular plant in which the accident might happen to occur. In short, it cannot be deemed arbitrary or unreasonable for the state, instead of imposing upon the particular employer entire responsibility for losses occurring in his own plant or work, to impose the burden upon the industry through a system of occupation taxes limited to the actual losses occurring in the respective classes of occupation."

In discussing whether the legislation could be sustained as legitimate exercise of police power, the court decided that it would be proper to consider the following points:

"(1) Whether the main object of the legislation is, or reasonably may be deemed to be, of general and public moment, rather than of private and particular interest, so as to furnish a just occasion for such interference with personal liberty and the right of acquiring property as necessarily must result from carrying it into effect. (2) Whether the charges imposed unpon employers are reasonable in amount, or, on the other hand, so burdensome as to be manifestly oppressive. And (3)

whether the burden is fairly distributed, having regard to the causes that give rise to the need for the legislation.

"As to the first point: The authority of the state to enact such laws as reasonably are deemed to be necessary to promote the health, safety and general welfare of their people, carries with it a wide range of judgment and discretion as to what matters are of sufficiently general importance to be subjected to state regulation and administration. Lawton vs. Steele, 152 U. S., 133, 136. The police power of a state is as broad and plenary as its taxing power,' Kidd vs. Pearson, 128 U. S., 1, 26. In Barbier vs. Connolly, H3 U. S., 27, 31, the court, by Mr. Justice Field, said: 'Neither the (fourteenth) amendment-broad and comprehensive as it is-nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits-for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon any one, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.' It seems to us that the considerations to which we have adverted in N. Y. Central R. R. Co. vs. White, supra, as showing that the Workmen's Compensation Law of New York is not to be deemed arbitrary and unreasonable from the standpoint of natural justice, are sufficient to support the State of Washington in concluding that the matter of compensation for accidental injuries with resulting loss of life or earning capacity of men employed in hazardous occupations is of sufficient public moment to justify making the entire matter of compensation a public concern, to be administered through state agencies. Certainly the operation of industrial establishments that in the ordinary course of things frequently and inevitably produce disabling or mortal injuries

to the human beings employed is not a matter of wholly private concern. It hardly would be questioned that the state might expend public moneys to provide hospital treatment, artificial limbs, or other like aid to persons injured in industry, and homes or support for the widows and orphans of those killed. Does direct compensation stand on a less secure ground? A familiar exercise of state power is the grant of pensions to disabled soldiers and to the widows and dependents of those killed in war. Such legislation usually is justified as fulfilling a moral obligation or as tending to encourage the performance of the public duty of defense. But is the state powerless to compensate, with pension or otherwise, those who are disabled, or the dependents of those whose lives are lost, in the industrial occupations that are so necessary to develop the resources and add to the wealth and prosperity of the state A machine as well as a bullet may produce a wound, and the disabling effect may be the same. recent case, the Supreme Court of Washington said: 'Under our statutes the workman is the soldier of organized industry accepting a kind of pension in exchange for absolute insurance on his master's premises.' Stertz vs. Industrial Insurance Commission, 158 Pac., 256, 263. It is said that the compensation or pension under this law is not confined to those who are left without means of support. That is true. But is the state powerless to succor the wounded except they be reduced to the last extremity? Is it debarred from compensating an injured man until his own resources are first exhausted? This would be to discriminate against the thrifty and in favor of the improvident. The power and discretion of the state are not thus circumscribed by the Fourteenth Amendment.

In a

"Secondly, is the tax or imposition so clearly excessive as to be a deprivation of liberty or property without due process of law? If not warranted by any just occasion, the least imposition is oppressive. But that point is covered by what has been said. Taking the law, therefore, to be justified by the public nature of the object, whether as a tax or as a regulation, the question whether the charges are excessive remains. Upon this point no particular contention is made that the compensation allowed is unduly large; and it is evident that unless it be so the corresponding burden upon the industry cannot be regarded as excessive if the state is at liberty to impose the entire burden upon the industry. With respect to the scale of compensation, we repeat what we have said in N. Y. Central R. R. Co. vs. White, that in sustaining the law we do not intend to say that any scale of compensation, however insignificant on the one hand or onerous on the other, would be supportable, and that any question of that kind may be met when it arises.

"Upon the third question-the distribution of the burden-there is no criticism upon the act in its details. As we have seen, its fourth

section prescribes the schedule of contribution, dividing the various occupations into groups, and imposing various percentages evidently intended to be proportioned to the hazard of the occupations in the respective groups. Certainly the application of a proper percentage to the pay-roll of the industry cannot be deemed an arbitrary adjustment, in view of the legislative declaration that it is 'deemed the most accurate method of equitable distribution of burden in proportion to relative hazard.' It is a matter of common knowledge that in the practice of insurers the pay-roll frequently is adopted as the basis for computing the premium. The percentages seem to be high; but when these are taken in connection with the provisions requiring accounts to be kept with each industry in accordance with the classification, and declaring. that no class shall be liable for the depletion of the accident fund from accidents happening in any other class, and that any class having sufficient funds to its credit at the end of the first three months or any month thereafter is not to be called upon, it is plain that, after the initial payment, which may be regarded as a temporary reserve, the assessments will be limited to the amounts necessary to meet actual losses. As further rebutting the suggestion that the imposition is exorbitant or arbitrary, we should accept the declaration of intent that the fund shall ultimately become neither more nor less than self-supporting, and that the rates are subject to future adjustment by the legislature and the classifications to rearrangement according to experience, as plain evidence of an intelligent effort to limit the burden to the requirements of each industry.".

The decision of the court, five to four, is in accord with the conviction of the masses of the people and the general feeling that industry cannot be operated solely for profits but must bear its responsibility in the effort to work out social relations that contribute to better living.

The decision of the court will be of material assistance in securing the enactment of more and better compensation laws in the various states.

Labor's Right Judicially Upheld.

The recent decision of the Minnesota Supreme Court in the case of Grant Construction Company vs. St. Paul Building Trades Council has written into the judicial practice of the state the fundamental injunction principles for which organized labor has contended. Under that decision wage-earners of Minnesota enjoy the rights and liberties that would come to

them under a law enacted in conformity to the model bill recommended by the American Federation of Labor to regulate and limit the use of writ of injunction.

This decision is of tremendous interest to the organized labor movement of the country, and ought to be used with effect in sustaining demands for this necessary, fundamental legislation.

The St. Paul Building Trades Council declared the George J. Grant Construction Company unfair to organized labor and urged working men to refuse to work for it or any person or firm holding subcontracts from or under it. The George J. Grant Construction Company obtained in the District Court a temporary restraining order against the Building Trades Council, its officers and unions affiliated with the Council. Following the issuance of the temporary injunction the company applied for an injunction against the defendants pendente lite. The application was made before judge Frederick M. Dickson. Walter G. Merritt, chief attorney for the American Anti-Boycott Association, together with local St. Paul attorneys representing the Minnesota Manufacturers' Association, appeared for the Grant Construction Company and made an exhaustive presentation in favor of the issuance of the injunction. On June 27, 1916, Judge Dickson refused to grant the injunction and dismissed the temporary restraining order. The company then appealed to the Minnesota State Supreme Court from the ruling of Judge Dickson. On February 23, 1917, the Supreme Court rendered its opinion, Associate Justice Hallam presenting the decision of the court and affirming the ruling of District Judge Dickson.

In rendering the opinion the. Minnesota State Supreme Court sustains the contentions iterated and reiterated by the A. F. of L. with reference to the inherent rights of workmen in pursuing their activities in the protection of their interests by normal collective action. Upon the points involved in the case the Minnesota State Supreme Court discusses them as follows:

"On the argument in this court counsel for the plaintiff admitted that no single act done was claimed to be unlawful. His claim was that the entire set of acts taken together and in connection with the purpose with which they were done were unlawful on the theory that they constituted what he termed organ

ized economic oppression. The restraining power of the courts of equity has usually been evoked to enjoin some tangible or specific acts. It is not easy to frame an injunction to restrain organized economic oppression. It is not easy to forbid a course of conduct based upon acts lawful when taken alone, on the theory that they are unlawful when taken as a whole. Some courts have held that an act lawful if done by one person may be unlawful if co-operated in by many, but we are not aware that it has ever been held that many lawful acts done by the same person or body of persons can constitute an unlawful whole."

In briefing the established facts brought out in the trial of this case, the Supreme Court summarizes them as follows:

"A labor dispute exists between plaintiff and the defendant unions and their members. Defendants are not employes of plaintiff. The dispute has arisen mainly from the fact that plaintiff runs what is termed an open shopthat is, it employs non-union men-and it is claimed plaintiff has at some times dealt unfairly with union men and has in some cases refused them employment. It would seem to be a bona fide dispute on both sides. The unions of building trades and their members have agreed among themselves that until these controversies are adjusted they will not work for plaintiff or for any sub-contractor on any contract plaintiff may have on hand. We think the lawfulness of this conduct is the one question before the court."

In regard to relations between employer and employe, the court goes on to say:

"The determination of the questions here involved is not difficult. Plaintiff may employ whom it pleases. It may maintain an open shop if it pleases. It should not be coerced into doing otherwise. Defendants have the right to work for whom they please. It is best that we give both employer and employe a broad field of action. As said by Judge Cooley, 'It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern.' (Cooley on Torts, 2nd Ed., P. 328.) ‘Defendants may if no contract is involved refuse to work in an open shop.. They may agree among themselves not to do so.'

"May the respondents, because plaintiff employs non-union labor in construction of a building, agree not to work for a sub-contractor of part of the work who does employ only union men. It seems to us this question was answered by this court in Gray vs. Building Trades Council, 91 Minn., 171. There, as here, the controversy arose out of the effort of the defendant unions to compel the plaintiffs to