BROTHERHOOD OF RY. AND SS CLERKS, ETC. v. Texas & NOR Co.

• Decision Date: 06 February 1928
• Docket Number: No. 314.,314.
• Parties: BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, SOUTHERN PAC. LINES IN TEXAS AND LOUISIANA, et al. v. TEXAS & N. O. R. CO. et al.
• Court: U.S. District Court — Southern District of Texas

24 F.2d 426 (1928)

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, SOUTHERN PAC. LINES IN TEXAS AND LOUISIANA, et al. v. TEXAS & N. O. R. CO. et al.

No. 314.

District Court, S. D. Texas.

February 6, 1928.

Fulbright, Crooker & Freeman, of Houston, Tex. (C. G. Stearns and J. H. Crooker, both of Houston, Tex., of counsel), for plaintiffs.

Baker, Botts, Parker & Garwood, of Houston, Tex. (J. H. Tallichet and Calvin Garwood, both of Houston, Tex., of counsel), for defendants.

HUTCHESON, District Judge.

This is a contempt proceeding, brought against the Texas & New Orleans Railroad Company and certain of its officials, upon information that they have violated a temporary injunction issued by this court on August 3, 1927, restraining the defendant, its servants and agents, from violating the third paragraph of section 2 of the Railway Labor Act (44 Stat. 577 45 USCA § 152). That section provides:

"Representatives, for the purposes of this act, shall be designated by the respective parties in such manner as may be provided in their corporate organization, or unincorporated association, or by other means of collective action, without interference, influence, or coercion exercised by either party over the self-organization or designation of representatives by the other."

The terms of the injunction, entered after a full hearing, followed closely the language of the act. At that hearing the company did not assert the invalidity of the act. It merely denied that it had infringed it.¹

At this hearing, however, the defendants, while defending mainly on the ground that they had not violated the order, also raised by suggestion the question of the power of Congress to so legislate, citing Coppage v. Kansas, 236 U. S. 1, 35 S. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960, and Adair v. United States, 208 U. S. 161, 28 S. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764.

It is fundamental that "a person proceeded against" in a contempt case "for disobeying an injunction can never set up as a defense that the court erred in issuing it. * * * Errors must be corrected by appeal, and not by disobedience." Brougham v. Oceanic Steam Navigation Co. (C. C. A.) 205 F. 857. And "that a respondent in a contempt case may question the order which he is charged with refusing to obey only in so far as he can show it to be absolutely void." 6 R. C. L. 505; O'Brien v. People, 216 Ill. 354, 75 N. E. 108, 108 Am. St. Rep. 219, 3 Ann. Cas. 966; People v. McWeeney, 259 Ill. 161, 102 N. E. 233, Ann. Cas. 1916B, 36; Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 43 S. Ct. 458, 67 L. Ed. 719; Barnes v. Chicago, 232 Ill. 403, 83 N. E. 932, 14 L. R. A. (N. S.) 1150, 122 Am. St. Rep. 129.

In view, however, of the long-continued, persistent, and at times bitterly rancorous assertion that noncontractual relations of employer and employee do not present justiciable matters, that injunctions in labor disputes are political and not judicial, and that a proceeding of this kind is not the exercise of judicial power, but merely an essay in usurped and tyrannical "government by injunction," it seems desirable to here briefly set down the reasons which support the conclusions of the preliminary opinion that Congress had full authority to make justiciable a controversy of this kind.²

For the purposes of this opinion it may be roughly stated that all justiciable matters are made so by law derived from two sources, that ascertained and declared by the judges as founded in and springing from the customs of the people, and that enacted by the Legislatures; or, again roughly, common law and statutory law. Statutory law may be either declaratory or in derogation of the common law. In the former case, it makes more clear or gives more sanction to established customs. In the latter, while it may in rare cases run counter to established custom, it usually is declaratory of customs which, though existent as such, have not yet become established as law, so as to make actions in defiance of them justiciable.

Customs, then, being the basis and spring of the law, changing as they must with changed conditions, judges and Legislatures from time to time, in declaring the law, will make innovations upon it, and new adaptations of it to conform to these changes; and so, slowly through judicial decisions, and often with great rapidity through legislative action, the law modifies and grows, and, growing, lives.

Innovations in the case of judge-made law, the growth of new categories for justiciable matters, again roughly come by two processes: First, the slow interstitial process referred to by Mr. Justice Holmes;³ and, second, the more rapid one of disapproving and overruling principles, either erroneous when announced, or become erroneous through changing customs, referred to by Mr. Justice Brandeis.⁴

It has been said that decisions go by established categories, and that if, for a particular state of facts, no existing legal category may be found, the matter is not justiciable. Such statement, when taken in the light of the history of the law and in recognition of the indubitable fact that the living principle of modification and growth inheres in it, is sound, for legal categories are in this meaning constantly rearranging themselves to admit the newly established customs, which through their articulation by courts and legislatures have become law.

Such being the origins of the law, it is plain that, in the absence of some limitation upon it, whatever a particular court or Legislature might think to be the custom could be declared to be the law, and laws might change with uncomfortable rapidity. Against this danger two stabilizing influences, maintaining equilibrium and preserving old customs until outgrown, are constantly opposed. In the courts, it is that of stare decisis; in the Legislatures, it is that of the Fifth and Fourteenth Amendments, which so operate. These amendments, providing as they do for the preservation of due process — that is, established custom — prevent arbitrary and unreasonable departures from established law, and are constantly being invoked in judicial controversies, where it is maintained that statutes, national and state, have sought to make justiciable matters which by reason of their prohibitions cannot be made so.

One school of thinkers has maintained, and for a while with apparent success, that the custom guaranteed by these amendments is fixed and static, and not subject, like other phases of the law, to change and growth.⁵ Another school, declaring that a true decision depends as well upon induction as upon deduction, has declared, in the language of Mr. Justice Holmes: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." Lochner v. New York, 198 U. S. 75, 25 S. Ct. 546, 49 L. Ed. 937, 3 Ann. Cas. 1133.⁶

While in Euclid Valley v. Ambler, 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, Mr. Justice Sutherland, for the court, declares: "Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. * * * And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are possibly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise."⁷

When, therefore, on either side of a dispute between an employer engaged in interstate commerce, a recognized subject of federal legislation, and its employees, one asserts, in the face of a statute which puts conditions upon its exercise, that that particular form of liberty, the liberty of contract, the right of the employer to hire and fire, and of the employee to serve or quit, in the absence of contract (the most stubbornly asserted of all the particular liberties), is unrestrainable, he must be prepared, not only to give learned dissertations on the freedom of contract, but to show in the light of established practices employed in the course of this long controversy, and of the judicial and legislative pronouncements on it, that it has not behind it a sufficient force of general public opinion to create an established custom which may be articulated into law.

If, in a study of the matter, a student of the law, employing in his research induction and deduction, should upon examination find that, rising at first slowly, and then, through the full realization of a common plight, a common cause and a common remedy (the achievement of group solidarity and power through unionization), rushing on tides of feeling, the demand for collective bargaining became a passion with workingmen, and that, begun more than a half century ago, this demand has been asserted and opposed with equal fierceness, and at the cost not only of the blood and treasure of the combatants, but of disturbances of the public peace and prosperity, and that for the greater part of this time this asserted right of collective bargaining has been enjoyed, he would be an ignorant man indeed who would not at once conclude that such a pregnant struggle could not have been so long waged without giving birth to customs, both capable of and in the interest of the public peace, requiring judicature.

He would not have been surprised to find the history of the origin, growth, and change of such customs replete with legislative and judicial pronouncements. He would find that, beginning more than 40 years ago, six times has Congress legislated directly upon the subject;⁸ that in cases without number the courts have issued their injunctions declaring and vindicating judicial power to protect the commerce of the country from the anarchy and disruption arising out of these fierce labor...