THE RAILWAY STRIKE AND THE FEDERAL INJUNCTION
NATURALLY, great commotion has been caused in labor circles by the issuance of the sweeping injunction by Judge Wilkerson, of the Federal District Court in Chicago. It restrains the striking railway shopmen, their unions, and the labor unions affiliated with them in the American Federation of Labor, from interfering directly or indirectly with the operation of the railways. This of course is a temporary injunction, and arguments to make it permanent are to be held this week. This action of the Government, taken at the instance of the Attorney-General, brings up anew the often-debated question of the application of court injunctions to labor questions, or, as the labor leaders call it, “government by injunction.”
There is no question that there have been acts of lawlessness and violence against railway property, and therefore against interstate commerce, and it is probably true that acts of intimidation, violence, and threats have been used against railway workers who would not strike or others who have taken the places of strikers.
It might be said that the criminal law should be sufficient to restrain and punish these acts, but it has been well established that where such acts amount to conspiracy the use of injunctions is lawful and right. This was clearly shown in the Chicago railway trouble of 1894 by President Cleveland, who declared that abundant proof had been found that there had been resistance to Governmental functions both as regards the transportation of mail and the operation of inter-State commerce and that “conspiracy existed against commerce between the States!’ The conviction of Debs for disobeying a Federal injunction issued on just these grounds was unanimously sustained by the United States Supreme Court.
The present injunction is attacked by the labor leaders, not merely because they are bitterly opposed to the application of the injunction to strikes, but also because, as they allege, it forbids things that are not illegal. They would argue that where the acts forbidden are criminal under the law the restraint should come through the ordinary criminal procedure, so that this injunction would duplicate existing powers to deal with crime. They would further argue that, if things not now illegal are forbidden by the injunction as illegal, we should have what they call judge-made law. In this case their complaint rests chiefly on the fact that, in addition to forbidding violence, intimidation, and the like, the injunction practically forbids strikers and unions to induce others to strike or to refrain from taking strikers’ places by “entreaties,” “arguments,” and what is generally known as “peaceful picketing!’ Whether this exceeds the proper function of injunctions remains to be seen when the matter goes before the higher courts.
Broadly stated, the argument against excessive use of the injunction is that it puts the power in the hands of individual judges to define what is illegal and to inflict punishment under the guise of penalties for contempt of court and without the intervention of district attorneys or juries. Under this view it is declared that in cases of acts committed outside the court-room the accused should have a jury trial. The sound view of this matter seems to be that injunctions have their proper uses in criminal as well as in civil cases, but that by their nature they are also subject to abuses and should be carefully guarded by definition and law. Years ago, when this question was under active discussion, The Outlook stated editorially: “It is an abuse of the injunction to use it for the purpose of preventing a body of workingmen from doing an act which they have a legal right to do, such as to unite in leaving their employer’s employment or to persuade by peaceful means others from entering that employment.” And in another instance The Outlook remarked: “Power should not be denied to the courts to prohibit and prevent wrong-doing; that power should be rather increased than diminished; but it ought not to be exercised without previous notice and hearing, save in very exceptional cases!’
What the practical effect of the injunction will be on the present strike is a matter of some doubt. So far as it tends to prevent intimidation, interference with the mails, attacks on any employees (strike-breakers or not), or threats of any kind, it will receive the approval of all good citizens. It has lately been claimed by the railway executives that the places of the strikers were being filled and that many of the strikers were coming back to work. If this is so, the injunction may prove a hindrance to an early settlement rather than otherwise. At all events, the country at large is practically unanimous in believing that the shopmen should have followed the example of the maintenance of way men and have shown a willingness to resubmit the questions involved to the Railroad Labor Board. And it is equally true that such steps should be taken by Congress and the Government as would make it impossible for the country to face every little while the threat of a general railway strike which would tie up the business of the country and produce almost inconceivable conditions of liv-ing, traveling, and carrying on of work.
Source: The Outlook, 13 September 1922