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“THERE IS NO FOUNDATION, THEREFORE, FOR THE
SUGGESTION THAT THE DECISIONS OF JUDGE TAFT
WERE IN ANY SENSE UNFRIENDLY TO LABOR.”—Fred-
erick N. Judson, Attorney for the Railroad Brotherhoods in
the Wabash Case. *
T H E
Labor Decisions
... OF...
JUDGE TAFT
... BY...
FREDERICK sºon of St. Louis, Mo.
*
sº
Reprinted from THE REVIEW OF REVIEWS, for August, 1907,
by permission of the Editor.
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7834
. Jas

The Labor Decisions of
Judge Taft
By FREDERICK N. JUDSON
The present Secretary of War, Hon. William Howard Taft,
has had the exceptional experience of beginning his distinguished
public career with judicial service on the State and thereafter serv-
ing on the federal bench. He was justice of the Superior Court
of Cincinnati from 1887 to 1890, and among his immediate pre-
decessors in that court were Hon. Judson Harmon, ex-Attorney
General of the United States; Hon. Joseph B. Foraker, ex-Gov-
ernor and now United States Senator. After some two years'
service as Solicitor-General, under President Harrison, Mr. Taft
was appointed judge of the Circuit Court of the United States,
holding that position until 1900, when he resigned to accept the
appointment of Governor of the Philippines.
It has been intimated from time to time, though not very defin-
itely that certain decisions of Judge Taft while on the bench were un-
friendly to organized labor. Such a suggestion, analyzed in view of
the position of the judiciary in our political and judicial system, is
really an imputation upon the intelligence of the electorate. A judge
does not make the law, nor does he decide cases according to his
- private judgment of what the law ought to be; but he declares and
applies the rules of law to the facts presented as he finds them in the
wº N.
• ANS
R*S*
sº
3 D S C 9.3
4.
- statutes or adjudged precedents, the recorded depositories of the law.
It is true that our unwritten and non-statutory law has been
termed judge-made law. But it is only in a very limited sense, if
at all, that this expression is applicable to the case of an indi-
vidual judge. His personality may be impressed upon the de-
velopment of the law, as that of Judge Taft was doubtless im-
pressed, by the clearness of his grasp of the fundamental principles
of the law in their application to new conditions; but his opinions
must be in harmony with the current trend of judicial authority,
and, in the last analysis, with the advance of an enlightened public
opinion. We have had frequent instances in this country where
judges, after leaving the bench, have become candidates for public
office, but very rarely have the judicial decisions of a judge ever
been discussed with reference to his availability for a public office.
The reason is obvious. The high intelligence of our American
electorate recognizes that the judges do not speak their individual
judgments, but, in the words of Blackstone, “are the living
oracles of the law,' who declare and apply the laws of the land.
It is to be assumed, therefore, that Judge Taft decided cases
involving the rights and duties of labor and capital, as he decided
other cases which came before him, according to the law and facts
as presented for determination. It has not been intimated that
he did not declare the law correctly, or that his decisions were
bad law in any legal sense. What, therefore, is really meant by
the suggestion is that the law as declared in certain decisions of
Judge Taft was unsatisfactory to certain class interests. While
this impersonal position of a judge is clearly recognized, there
is so much public interest in questions relating to the legal rights
and duties of combinations, both of capital and labor, that the
decisions of Judge Taft in this class of cases should be clearly
understood, and therefore will be briefly reviewed from a legal
and not from a partisan point of view.
5
MooRES vs. BRICKLAYERS’ UNION ET AL.
The first of these opinions was delivered by Judge Taft while
on the Superior Court bench of Cincinnati, in 1890, in the case
of Moores vs. Bricklayers’ Union et al. (23 Weekly Law Bulletin,
48). This case is interesting as involving the application of the
law to what is known as a secondary boycott, that is, a boycott
not against an employer but against a third party dealing with an
employer, who is a stranger to the controversy between the em-
ployer and employee.
This was not an injunction suit, nor did it involve any issue
between the employees and their employer, either directly or
through any refusal to handle in other places the so-called “struck
work” from the shop of the employer. It was a secondary boy-
cott pure and simple, in the form of a suit for damages incurred
by the plaintiff through a boycott by the Bricklayers’ Union,
declared on account of the plaintiff’s selling lime to the employer,
Parker Bros., who had been boycotted by the union. This pri-
mary boycott had been declared against Parker Bros. by the
Bricklayers’ Union because of their (Parker Bros.') refusal to
pay a fine imposed upon one of their employes, a member of the
union, and to reinstate a discharged apprentice.
Parker Bros. had brought suit and had recovered damages
before a jury in another court against the same deefndants on ac-
count of this same boycott (2I Weekly Law Bulletin, 223). Moore
Bros., the plaintiffs, had been awarded $2250 damages by the
jury on account of this secondary boycott, and it was this judg-
ment which was affirmed on appeal in an opinion by Judge Taft.
This case has become a leading one on the law of boycotting. The
right of legitimate competition in business with the incidental in-
juries resulting therefrom, as illustrated in the then recently de-
cided Mogul Steamship case in England, was distinguished by
Judge Taft from the case then at bar, where the immediate motive
6
of injuring plaintiff was to inflict punishment for refusing to join
in the boycott of a third party. Such a motive made the act
malicious and legally actionable in the case of an individual and
a fortiori in the case of a combination. It was said, after review-
ing the English cases: “We do not conceive that in this State
or country a combination by workingmen to raise their wages
or obtain any material advantage is contrary to the law, provided
they do not use such indirect means as obscure their original
intent, and make their combination one merely malicious, to op-
press and injure individuals.”
It was further said that a labor union could provide for and
impose a penalty against any of their members who refused to
comply with such regulations as the association made. They
could unite in withdrawing from the employ of any person whose
terms of employment might not be satisfactory to them, or whose
action in regard to apprentices was not to their liking, but they
could not coerce their employer by boycotting him and those
who dealt with him ; that even if acts of this character,
and with the intent are not actionable when done by in-
dividuals, they become so when they are the result of com-
bination, because it is clear that the terrorizing of the community
by threats of exclusive dealing in order to deprive one obnoxious
member of means of sustenance would become both dangerous
and offensive.
This decision, subsequently affirmed by the Supreme Court of
Ohio without opinion, has been accepted as the correct exposition of
the law, and the secondary boycott, so-called, that is, a boycott against
a stranger to the trade dispute, has been practically discontinued and
abandoned by intelligent labor unionists as an unwise and unreason-
able weapon in such controversies.
7
TOLEDO AND ANN ARBOR ENGINEERS’ STRIKE OF 1893.
The so-called labor decisions of Judge Taft while on the
federal bench related directly and primarily to the federal char-
acter of such controversies, in that they involved the supremacy
of the federal power in the protection of interstate commerce.
Though there were only two such cases decided by him, the
decisions attracted general attention on account of the wide-
spread industrial disturbances of 1893-4.
The first of these cases was decided April 3, 1893, in the
matter of the strike of the engineers on the Toledo and Ann Arbor
Railroad (54 Fed. Rep., 730). The engineers on strike were
members of the Brotherhod of Locomotive Engineers, of which
P. M. Arthur was the chief. Under the then rule of the brother-
hood, known as rule twelve, the engineers in the employ of the
connecting railroad companies, members of the brotherhood, re-
fused to handle and deliver any cars of freight from complainant's
road as long as the strike of the engineers of that road, who were
members of the brotherhood, was unsettled. It is obvious that
this involved practically a paralysis of the business of interstate
commerce between the complainant and the defendant railroads.
The Toledo road thereupon applied for an injunction against
the connecting roads, alleging the existence of a combination
violative of the Interstate Commerce act, preventing the perform-
ance of their duties in regard to interstate commerce in the ex-
change of traffic, and asked the court to enjoin this unlawful in-
terference. A motion was filed by the complainant for a temporary
injunction against Mr. Arthur to restrain him from enforcing rule
twelve, whereunder the employees of the defendant companies
were refusing to handle the cars of the complainant company.
The opinion of the court by Judge Taft was notable in its
clear exposition of the power of a court of equity in the issuance
of a mandatory preliminary injunction where necessary to pre-
8
vent irreparable injury. “The normal condition,” it was said,
“The status quo, between connecting common carriers under
the Interstate Commerce law is a continuous passage of freight
backward and forward between them, which each carrier has a
right to enjoy without interruption, exactly as riparian owners
have a right to the continuous flow of the stream without ob-
y
struction.” Usually the status quo in the injunction can be pre-
served until final hearing by an injunction prohibitory in form,
but where the status quo is not a condition of rest, but of action,
the condition of rest, that is, the stoppage of traffic, will inflict
irreparable injury not only upon the complainant but the public.
In such cases it is only a mandatory injunction compelling the
traffic to flow as it is wont to flow, which will protect the com-
plainant from injury. The form of the remedy must be adapted
to the emergency, and where the continuity of interstate traffic
is threatened an injunction mandatory in term is often the only
effective remedy.
Still more important was the opinion in its clear analysis
of the position of employees of railroads engaged in interstate
traffic, and their rights and duties as such employees under the
Interstate Commerce act. The relation of such employees to their
railroad companies is one of free contract, and is not analogous
to that of seamen in the maritime service, who, to a certain extent,
surrender their liberty in their employment, and are punishable
for desertion. The employment, therefore, in the case of rail-
road employees, was terminable by either party. The court could
not compel the enforcement of personal service as against either
the employer or the employed against the will of either. The
court said especially was this true in the case of railroad engineers,
where nothing but the most painstaking and devoted attention
on the part of the employed will secure a proper discharge of
his responsible duties; and it would even seem to be against
9
public policy to expose the lives of the traveling public and the
property of the shipping public to the danger which might arise
from the enforced and unwilling performance of so delicate a
service. While a court of equity could not specifically compel
the performance of a contract for personal service, it did not
follow that there were no limitations upon the right of em-
ployees to abandon their employment, that is, as to the time
and place of the exercise of such right (see remarks of Supreme
Court in Lemon case, 166 U. S.), so as to avoid imperiling life
or property.
Though the relation of railroad employer and employed was
one of free contract, the court also held that while the relation
continues they were bound to obey the statute compelling the inter-
change of interstate traffic, and also bound by orders of the court
enjoining their employer corporation from refusing such inter-
change. A combination of the employees to refuse, while still
holding their positions, to perform any of the duties enjoined by
law or by the court upon their employer, would be a conspiracy
against the United States and punishable as such.
The court therefore held that the mandatory injunction was
properly issued against Arthur, compelling him to rescind the
order to the engineers in the employ of the defendant directing
them not to handle complainant's freight.
The engineers of the defendant companies had no grievances
against their own employing companies; and their refusal to
handle freight of complainant company was in no sense a strike
for the betterment of their own conditions of service, and was
therefore not a strike, but a boycott, and this would necessarily
paralyze the movement of interstate traffic.
The effect of this decision was far-reaching. It was the first ju-
dicial declaration of the duties of railroad employees in interstate com-
merce. It was followed in other circuits and was not only approved
IO
by the general public, but was accepted by the railroad brotherhoods
as a fair statement of the law under the peculiar conditions of the rail-
road service. The result was the abrogation of rule twelve by the
brotherhood of the engineers, and since that time, as was signally
shown in the extensive railroad strike of the following year, the rail-
road brotherhoods, not only the egineers, but the conductors, firemen
and trainmen, have been conspicuous for their conservatism in the ad-
justment of differences with the management of their respective com-
panies.
THE PHELAN CONTEMPT CASE..
In the following year, 1894, came the great railroad strike
inspired by the American Railway Union, growing out of the
strike of the Pullman employees at Pullman, Ill. The officials
of the union demanded all the railroads to boycott the Pullman
cars, and declared a strike of the employees on any railroad on
their refusal to declare such a boycott. The Cincinnati Southern,
an interstate railway, was in the hands of a receiver, who had
been theretofore appointed by the U. S. Court of Ohio, and the re-
ceiver applied to the court for protection against one Phelan, an
official of the American Union, who was engaged in inciting
a strike among the employees of the railroad. There was no
complaint by the employees of this road, as there had been none
by the employees in the Arthur case, for the betterment of their
conditon of service. The demand was that all traffic should be
suspended and business paralyzed until all the roads should con-
sent not to carry Pullman cars. In the words of the court, the
purpose was to starve the railroad companies and the public
into compelling the Pullman Company to do something which
they had no lawful right to compel it to do.
It seems that a restraining order had been issued by the
court prohibiting any interference with the management of the
II
receiver in the operation of the road, and Phelan had used lan-
guage defying this order. He was thereupon attached for con-
tempt, and after a hearing was adjudged guilty of contempt in
an opinion by Judge Taft (62 Fed. Rep., 803). The opinion
emphasized the same distinction which had been pointed out in
the Arthur case in the preceding year. The employees had the
right to quit their employment, but they had no right to combine
to injure their employer, in order to compel him to withdraw
from a mutually profitable relation with a third party for the pur-
pose of injurying the third party, when the relation thus sought
to be broken had no effect whatever upon the character or re-
ward of their services. As the purpose of the combination was
to tie up interstate railroads, not as an incidental result of a lawful
strike for the betterment of the employees’ own conditions, but
as a means of injuring a third party, it was an unlawful combin-
ation, violative of the anti-trust act of 1890. It was also a direct
interference with interstate commerce.
Thus, if Phelan had come to Cincinnati and had urged a
strike for higher wages, or to prevent lowering of wages, he
would not have been liable for contempt, but he had no right
to incite the men to quit, when they had no grievances of their
own to redress, as it was then essentially a boycott and not a
strike.
It was in this Phelan case that Judge Taft, in determining the
limits of the rights of labor organizations, made this lucid and notable
statement of the extent of their rights, which as been frequently
quoted:
The employees of the receiver had the right to organize into or
join a labor union which would take action as to the terms of their
employment. It is a benefit to them and to the public that laborers
should unite for their common interest and for lawful purposes. They
have labor to sell. If they stand together they are often able, all of
I2
them, to obtain better prices for their labor than dealing singly with
rich employers, because the necessities of the single employee may
compel him to accept any price that is offered. The accumulation of
a fund for those who feel that the wages offered are below the legiti-
mate market value of such labor is desirable. They have the right to
appoint officers, who shall advise them as to the course to be taken
in relations with their employers. They may unite with other unions.
The officers they appoint, or any other person they choose to listen
to, may advise them as to the proper course to be taken, both in regard
to their common employment; or if they choose to appoint any one,
he may order them on pain of expulsion from the union peaceably to
leave the employ of their employer because any of the terms of the
employment are unsatisfactory.
This declaration of the right of organization and representation
of labor unions has been often cited and quoted in support of the
unions, and was applied, as will be seen, most effectively in their behalf
in the Wabash strike of 1903.
The jurisdiction of the United States courts in the protection
of interstate commerce, and the supremacy of the federal power
in such questions, were thereafter fully sustained by the Supreme
Court of the United States (see in re Debs case, 158 U. S., 564;
also in re Lemon, 160 U. S. 548).
The reason of the prompt acceptance of this application of
the law by Judge Taft was the universal recognition that a boy-
cott by railroad employees in interstate commerce, as distinguished
from a strike, was impracticable and inadmissible, in view of the
paramount public interest concerned. It is true that in ordinary
trade disputes the public convenience and even the public necessi-
ties are not always given the weight they should have. But
wherever interstate or foreign commerce are involved the public
interest is made paramount by the laws of the United States.
All classes of the community, workingmen as well as capitalists,
I3
are interested in the prompt transmission of the mails and in the
uninterrupted passage of person and freight. This principle of
the protection of commerce against interruption has become firmly
intrenched in our jurisprudence. Under the law declared in these
cases, our commerce is subject to be interrupted only by the in-
cidental injury resulting from cessation of service, and not by
boycotts or sympathetic strikes not related to the bettering of the
conditions of the employees’ service. That this principle is firmly
established is primarily owing to the clear and courageous enun-
ciation of the law by Judge Taft.
THE ADDYSTON PIPE AND STEEL COMPANY CASE.
The same principle of the freedom of interstate commerce
from illegal restraint declared in the Arthur and Phelan cases was
also held by Judge Taft to apply to a business combination, or a
“trust,” in the Addyston Pipe and Steel Company case (85 Fed.
Rep., 271). In this case there was an allotment of territory,
comprising a large part of the United States, among a number
of companies engaged in the manufacture of iron pipes, and in
that territory competition was eliminated through this allotment
of territory, and through a system of pretended bidding, giving
an appearance of competition, at public lettings, when in fact
there was no competition. The decision of the Court of Appeals,
rendered by Judge Taft, was afterward affirmed by the Supreme
Court of the United States. His opinion is a notable contribu-
tion to the law, in its masterly analysis of the essential distinction
between the legitimate contracts in restraint of trade, which are
merely ancillary, or incidental, to some lawful contract, and nec-
essary to protect the enjoyment of the legitimate fruits of that con-
tract, and the agreements where the sole object is a direct restraint
of competition, and to enhance and maintain prices. These latter
I4
agreements are unenforceable at common law, and are violative
of the anti-trust act when made with reference to interstate com-
InerCe.
The distinction here so clearly pointed out has been the basis of
the construction of the anti-trust act by the United States Supreme
Court in all its subsequent decisions.
JUDGE TAFT's OPINION SUPPORTS THE UNIONS IN WABASH STRIKE
CASE.
The words of Judge Taft in the Phelan case quoted above, setting
forth the rights of labor organizations under the law, were directly
invoked and applied on behalf of the labor unions in a notable case,
that of the threatened strike on the Wabash Railroad by the Brother-
hoods of Railroad Trainmen and Firemen in 1903 (121 Fed. Rep., 563).
In this case, the representatives of these two brotherhoods, after
failing to secure the advance of wages and betterment of condi-
tions demanded by the brotherhoods, had been forced to call a
strike as their last resort, and thereupon an injunction was filed
by the railroad company, in the United States Circuit Court in
St. Louis, against the officers of these brotherhoods, enjoining
them from calling a strike on the Wabash, as an interstate rail-
road, on the ground, among others, that the officials of the
brotherhoods were not employees of the railroad, and that their
action in combining in calling a strike would be a direct inter-
ference with interstate commerce, and was, therefore, an unlawful
conspiracy.
The rights of organization and the rights of representation, as set
forth by Judge Taft, were thus directly involved. The writer repre-
sented those brotherhoods in the hearing on the motion to dissolve
the injunction granted in this case, and used the above quoted state-
I5
ment of Judge Taft as the most lucid and effective defense of the
action of the brotherhoods and their officials.
The Court (Judge Adams) found from the evidence that
there was an existing dispute about the conditions of service on
the railroad, and that the officials of the brotherhoods had been
directed by the members of the brotherhood to call a strike; that
they had a right to be represented in such matters by their own
officials, and that the two unions had a right to act in unison in
their effort to secure the betterment of the conditions of their
members, that an agreement to strike under those circumstances
was not an unlawful conspiracy, and the injunction was there-
upon dissolved.
It was said in the opinion that on the subject of the organization
of labor, and the right of labor unions no one had spoken more
clearly and acceptably than Judge Taft, in this language above quoted.
(After the dissolution of the injunction, the differences be-
tween the railroad and its employees were amicably adjusted, and
the threatened strike was averted.)
Thus, while the law was declared by Judge Taft as
to the limitations upon the lawful action of labor unions,
the essential principles involved in the right of organization were
also announced by him in the same opinion. This right of organization
of workingmen in the unions would be futile without the right of rep-
resentation by their own officials in the effort to secure the better-
ment of their conditions.
The remedies adopted by workingmen, sometimes mistaken
remedies for the enforcement of their rights, such as the closed
shop and the boycott, are only weapons for the enforcement of
the fundamental right of collective bargaining for the common
benefit.
*
I6
*
There is no foundation, therefore, for the suggestion that the deci-
sions of Judge Taft were in any sense unfriendly to labor, and it is
clear that through his lucid declarations of the rights of labor the rail-
road brotherhoods secured the judicial vindication of their right of
combination and of representation in their demands for the betterment
of their conditions.
While these important decisions were rendered by Judge.
Taft, declaring the freedom of interstate commerce from illegal
combination both of labor and capital, the limitations upon the
rights of organized labor, as well as the essential principles in-
volved in the right of organization for the betterment of their
conditions, it would be an imputation upon the brilliant judicial
record of Judge Taft to suggest that in any of these opinions
he declared the law as a friend of any class, or that he made any
judicial utterance in any of the cases other than as a living oracle
of the law, bound to declare, in every case brought before him,
not his own private judgment, but the judgment of the law.
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