Page:The Green Bag (1889–1914), Volume 20.pdf/776

 THE SHERMAN ANTI-TRUST LAW That was specifically and distinctly a case where the employees were seeking to obtain from their employers, "peaceably," satis factory terms, and so forth. There can be no question, in my judg ment, but that the language of section 3 of the substitute was deliberately intended to legalize and authorize an interstate boycott in the teeth of the decision of the court in the Danbury hat case. I called the atten tion of Mr. Jenks to what I believe to be the obvious construction, and he suggested that their attorneys insisted that such was not the proper construction. In answer to that suggestion he was requested to furnish to the committee the opinion of the counsel for the gentlemen responsible for the pro motion of the legislation, differentiating the language used in section 3 from the con ditions involved in the Danbury hat case and the Bucks Stove and Range case, or what would be more satisfactory to the committee, to have their counsel present, so that they could be examined and the matter discussed for the purpose of ascer taining what were the true construction, effect, and intent of this ingenious language in section 3. Not only did he fail to present his counsel before the committee, but he utterly failed to present from his counsel, whoever they may be, the slightest suggestion or dis cussion undertaking in any way to differen tiate the language criticised from the facts passed upon by the court in these two cases. And, in the absence of this, after the chairman of the committee specifically insisted that the language was so intended and susceptible of no other construction, I think I am entirely safe in saying that sec tion 3 discloses a deliberate purpose to exempt labor organizations from the oper ations of the Sherman anti-trust law, and to defeat the effect of the decision in the Danbury hat case. The labor organizations are not entirely satisfied with this construction that has been placed on this language, and they

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insisted, through Mr. Gompers, that what is known as the "Wilson bill" should be made an amendment to the substitute in order to protect, as they said, the rights of labor organizations. The express purpose of the Wilson bill was to exempt labor organiza tions and persons engaged in agriculture and horticulture from the operation of the Sherman anti trust law. That the legislation proposed, without this amendment, would be, to the last degree, unsatisfactory to the labor organi zations is, perhaps, too obvious for discus sion. This amendment would make what is now criminal conduct in all persons law ful for an arbitrarily selected class of per sons though acting under the same con ditions and producing the same results, a proposition that ought to be abhorrent to every right thinking person. It would make it perfectly possible to duplicate without limit conspiracies that in the lan guage of Secretary Taft in the Phelan case (62 F. R. 803) would "stagger the imagina tion." This amendment is in my judgment unconstitutional as a deprivation of the "equal protection of the law." This raises the extremely and vitally important ques tion whether the Congress of the United States is subject to the same constitutional inhibition in enacting legislation as now applies without question, by virtue of the specific provisions of the fourteenth amend ment, to the states. There can be no question under the pro visions of the fourteenth amendment to the Constitution of the United States — which provides that no state shall "deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws" — that legislation of this char acter would be clearly unconstitutional if enacted by a state. If a state legislature undertook to con trol the judicial power of a court of equity so that it could exercise its protecting power to conserve the safety of persons and