83j (Dopman
PORTLAND. OUCON.
Entered at Portland. Oregon, Paatofflee aa
8acond-Ciaaa Matter.
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PORTLAND. WIBNISDAY. OCT. M. WS.
MF.RELT A HATTY" CAMPAIGN EX.
PEDIKXT.
A country might, doubtless, convert
every important activity of Its citl
gens into a public function, but it
doesn't. That, however, is what the
Socialists contend for. Tet soma
things ars accepted as public func
tions. Government undertakes trans
portation and delivery of the mails.
Jt controls and directs and pass for
maintenance of the public schools. It
"creates and supports courts of law
end of Justice, through which you may
establish and maintain your rights. It
makes general rules for control of fire
and life Insurance companies, but
doesn't require you to insure. You
may Insure your crop of grain if you
want to, cither in the field, in the
barn or in the warehouse; but Gov
ernment does not require your crop to
be insured. Tet if a man wantonly
burns it in the field or barn, or fails
to account for It after he receives It
in warehouse. Government has pro
vided you with a remedy at law. Not
otherwise with your money in bank.
If you don't get It on demand. Gov
ernment will support your claim for it
at law. But it will not make other
bankers (or warehousemen) pay your
loss. That, however. Is what the de
mand for insurance of bank deposits
means.
The lino here is perfectly distinct
and clear. To insure bank deposits,
or to require them to be Insured, is
not a function of Government, any
more -than to insure your wheat. If
you are wronged, the law is at your
service, and Government will assist
you to obtain redress. But it will
neither pay your losses, nor compel
sound warehouses or banks to pay
your losses, suffered through unsound
ones. In fact, it could not do so, if it
tried. It doesn't attempt to compel
Are insurance or life Insurance com
panies, carefully conducted, to con
tribute to payment of losses through
those Improperly conducted. The
same, precisely, as to insurance of
bank deposits. You must judge for
yourself where you will deposit your
wheat or your money.
The Bryan babble about this matter
Is exceedingly tiresome. The proposi
tion Is not an economic one: it Is
simply a shallow political expedient
for the purposes of an election. Find
ing it impossible to promote the silver
folly any further. Bryan has taken up
this bank deposit scheme as one of
his expedients for a political cam
paign. It never will be adopted nor
even tried; because it is not possible
to compel good banks to Insure bad
ones.
THE SALOON MAN'S ERROR.
' If the better element in the saloon
business were gifted with a sense of
humor, they would smile whenever any
of their disreputable companions ex
press surprise at the increasing publlc
scntlrnent against the traffic. Two of
ficials of the local Retail Liquor Deal
ers" Association appeared before the
license committee of the City Council
Monday, and. without the privilege of
the floor being granted them, poured
out a tirade of profane and abusive
language against Councilman Driscoll.
who failed to accede to their wishes.
Incidents of this nature, together with,
repeated violation of the Uya, is one
most powerful Influence now aiding
the prohibitionists. Arrogant attempts
of liquor dealers to override the law
and intrude their presence where it Is
not wanted are steadily lessening the
territory In which they will be per
mitted to do business.
The saloon that will not close and
remain closed in accordance with the
reasonable laws provided will soon bo
permanently closed by local option or
soma other form of prohibition. So
forcibly has this fact been driven
home in the minds of the better ele
ment of the saloon fraternity that in
most places they are actually aiding
the authorities in prosecuting the law
breakers. This effort to stay the
march of prohibition by demanding
reform in the liquor traffic and a strict
obedience of the law has become a
National Issue among the better class
of saloon men. and they are giving
general circulation to a very sensible
address by President Gilmore. of the
National Model License League, in
which he says, among other things:
Th edict baa sone forth that saloona
muat obey all laws; that they must nut sell
to Intoxicated men. nor to habitual drunk
' ards, nor to minora; that they must not ex
hibit improper pictures nor connect them
selves with gambling resorts; in a word,
that the saloon must not ba a nuisance.
The preen of the country bas so declared,
the ministers have ao declared, the law and
order leaguea have ao declared, the great
conservative element In society has ao de
clared These forcea for good are all
powerful In society, and our trade cannot
. afford to oppose them.
President Gilmore concludes his re
markably clear summary of the situa
tion with- the statement - that - "our
trade needs a housecleanlng, and we
should aid the good work along. The
saloon that Is run in violation of the.
law, or of decency should be put out
of business, and the better element in
; the. trade should continue to lead in
the reform." These plain facts, so
tersely stated by Mr. Gllmore. have
been understood by the more Intelli
gent liquor men for a long time; but
the Ignorant and disreputable element
have not yet learned the lesson, nor
will they be convrnced of their error
until aatill larger area throughout the
country becomes "dry."
Portland's regulations of the liquor
traffic as provided by law are not un
reasonable, and when they are subject
to continued and flagrant violation the
effect la to drlva into the prohibition
forcea at election time large numbers
of broad-minded people who under
other conditions would have refused
to vote with the temperance people.
If the, saloon men do not wish to have
their privileges still further curtailed
and their territory still more reetrict-
ed. they will do well to adopt the sug
gestions made by Mr. Gllmore and Join
forces with the authorities In the pros
ecution of every lawbreaker in the
business.-
SUPREME COI RT AJTD IN OMK TAX.
We have from Kalama (Wash.) an
Inquiry as to the decision of the Su
preme Court of the United States on
. v.. ir.nr.Tno fa- and S tO the Political
or party association of the Judges who
divided on it. .
There were nine Judges. Chief Jus
tice Fuller delivered the opinion
against the constitutionality of the tax.
-. Field, Gray, Brewer and Shiras coin-
j cided.
' The dissenting Judges, who stood for
I the constitutionality of the tax, wera
1 Harlan, Brown. Jackson and White.
Chief Justice Fuller, who delivered
the opinion, was and is a Democrat.
He was appointed by President Cleve
land. Justice Field, of California,
also a Democrat, was appointed by
President Lincoln. Field's opinions,
throughout his whole career, were
among the clearest and ablest ever de
livered from the Supreme Bench.
Grav, Brewer and Shiras. whoso opin
ions" agreed with those of Fuller and
Field on this question, were Republi
cans. Of the dissenting judges, Harlan
and Brown were Republicans and
Jackson and White were Democrats.
Observe that of the five who turned
the Income tax down two were Demo
crats. One of the two (the Chief Jus
tice) WTOto the opinion. Hencer the,
assertion of several eminent Demo
cratic campaigners ' in Oregon and
Washington, including that of our" dis
tinguished friend, Alex Sweek, Jurist,
chairman also, and right-hand man
of the great Governor of Oregon, and
prospective Senator. that the decis
ion against the Income tax-was made
by a Supreme Court whose members
divided on party lines the Republi
cans pronouncing against the tax and
the Democrats upholding it is only
just about as erroneous as everything
else in Bryan campaign literature and
effort. yet perhaps not more so.
It might be stated that the minority
dissented only on unimportant and
secondary points. But it is not neces
sary to go into this detail.
DISTRIST, AND THE REASON.
Much indignation Is manifested by
supporters of Mr. Bryan against those
citizens who express apprehension of
unfavorable consequences to the busi
ness of the country, should Bryan be
elected. There is no need of any dis
trust whatever, they exclaim, for Mr.
Bryan will earnestly desire a success
ful administration, which will be Im
possible except in a period of pros
perity. And besides, who can imagine
that he would wish to sea the prosper
ity of the country arrested?
This does not meet the point of dis
trust. They who have the apprehen
sion about Mr. Bryan do not suppose
him an intentional wrecker. They
think he has defects of judgment and
of temperament that unfit him for the
great office. It Is known that he has
advocated doctrines dangerous to the
Nation; and distrust of his qualities
for the Presidency cannot be answered
nor removed by assertion of his good
Intentions.
The remembrance of Mr.e Bryan's
assaults on the gold standard, as "a
conspiracy against the human race,"
and the fact that he has not aban
doned his "bimptallsm," would alone
explain, as the Chicago Tribune Justly
puts it. "the profound distrust of him
among business men. Investors, and all
voters who sufficiently realize their In
terest In the restoration of confidence."
Again, as the same journal remarks,
the dangerous character of Mr. Bry
an's political judgment is not revealed
by his financial heresy alone. His
declarations on the subject of Gov
ernment ownership of railroads are
also kept- in mind.
On this socialistic doctrine, as on
the money standard, ha is silent for
the present, but the remembrance cre
ates apprehension, which is not re
lieved by the features of his present
platform, which more or less threaten
business stability and cause men to
say. "Wait till w know whether
Bryan Is to be President, or not."
Nobody supposes the country will
sink in any event- But Bryan's can
didacy Is a source of fear and distrust
throughout the country. Nobody, how
ever, has apprehension of any ill con
sequences to business, industry and In
vestments from the election of Taft.
Bryan has made himself known, dur
ing many years, as a revolutionary
radical. Herein Is the reason of the
distrust.
THE RET CRN OF PROSPERITY.
The surplus revenues of the New
York Clearing-House banks for the
week ending last Saturday were 132.
880,000 in excess of legal require
ments, and had reached a total of
$387,413,000. The statement was par
ticularly Interesting, as it is the last to
appear before the anniversary of the
rich man's panic, which played such
havoc in financial circles one
year ago. The marvelous recupera
tive powe'rs of the country are no
where shown to better advantage than
in the figures for last week as com
pared with those for a year ago. The
big slump In reserves came in the last
week in October, and between Octo
ber 26 and November 2 the reserves
shrank from ,254,000,000 to ,224,000,
000, the figures being nearly J39.000,
009 below the legal requirements. -
This shortage In the surplus reserve
reached J52.000.000 at the end of the
week of November 9, and on Novem
ber 23 touched high-water mark with
a shortage of 154,000,000 below the
legal requirements. That date marked
the turn of the tide, and between Jan
uary 4 and January 11 there was a
sudden Jump in the reserves from
nearly $12, 000, 000 under legal re
quirements to more than $6,000,000 in
excess of those requirements. From
that date the financial condition began
to improve, and the last week in June,
before- the crop-moving demands be
came very heavy; the surplus above le
gal requirements had reached the
great total of $66,000,000. Since that
date the demands for crop-moving and
other purposes have reduced the size
of this surplusabout one-half. It still
remains far enough above the
amount required to indicate a great
plethora of money, and, as the de
mand for crop-moving funds is about
over, it is hardly probable that it
will be reduced. The prosperity of
New York, which in degree always
reflects the prosperity of other parts
of the country. Is shown in deposits in
the clearing-house banks and other
banks and trust companies of more
than $2,600,000,000.
The trust companies, being exempt
from the regulation of the clearing
house banks, are not carrying such
large stocks of cash on hand, but the
total cash held by all of the New York
banks Is in excess of $500,000,000.
There will be no material reduction in
the six of this surplus reserve that
remains Inactive and comparatively
useless until after the election of Mr.
Taft. It will then get back Into the
channels of trade, where It can be
earning something. There is an abun
dance of money in the country, and
all that Is lacking to get it to work Is
the possibility dally becoming more
faint, but still a possibility of Bryan's
election. With that uncertainty re
moved, the last vestige of the rich
man's panic of a year ago will speedily
vanish.
ROOSEVELT'S BIRTHDAY.
Mr. Roosevelt at 50 may reasonably
expect to enjoy thirty years more of
life and work. Tn all essentials he is
still a young man. His physical vigor
Is unimpaired. Mentally it Is- quite
likely that he has not yet reached the
acme of his attainments. We may ex
pect his mind to grow for some years
yet and his character to gain In judi
cial poise though not In decision or
conviction. Thus far it Is the militant
side of Mr. Roosevelt's being which
has been most conspicuous. As the
years pass the philosophic, reflective
side will appear. His conduct has
been guided in the past more by sound
instincts and innate principles of Jus
tice than by deep study or wide In
formation. Leisure will give him an
opportunity which he haa never- seen
since the day of his boyhood to read,
to ponder, to theorize.
What will be the fruit of the medi
tations of that wonderful brain upon
the problems of life as they present
themselves to our generation? Will
his mature philosophizing confirm his
instinctive convictions? Will he re
main 1n his riper years the same pro
tagonist of the square deal which he
became in his youthful enthusiasm?
Or will age bring to him that same
chilling of the sympathies and harden
ing of the heart which it has brought
to so many others? Roosevelt cham
pioning the rights of money against
the rights of man would be a startling
spectacle, but one not by any means
unheard-of. Still it Is more likely that
he will develop as Gladstone did, be
coming more, and more liberal with
advancing years and deeper study.
Gladstone died the revered leader of
the Radicals, whom in his youth he
abhorred. Roosevelt has had much
to say against the most radical of our
great parties. Would It not be Inter
esting if his 80th year found him their
leader?
MK- TAFT'S RECORD.
There is an article In the September
McClure's by George W. Alger which
'the President advises Mr. Gompers to
read. It gives an account of Mr.
Taft's labor decisions with some in
structive comment upon them. Other
people besides Mr. Gompers might
find the article edifying, since it clears
up much misrepresentation and pre
sents the respective rights and duties
of both labor and capital with admir
able temper and clearness.' The Ore
gonlan reprints this morning enough
of Mr. Alger's essay to give a con
nected understanding of his train of
thought, but it will be well for the
reader to turn to the magazine and go
over the omitted sections also.
Mr. Alger Is not a partisan. He has
written much on social topics and in
everything he has published there Is
a deep sympathy with the trials of the
worklngman and an unmistakable de
sire to see his condition bettered. No
writer of recent times has more
clearly perceived the shortcomings of
the courts in their "labor" decisions
or has criticised .unjust judges more
boldly. In this very article Mr. Alger
pillories the West Virginia Judge,
who, in 1902, calumniated the Miners'
Union and forbade the striking men to
assemble on the highways. This bit
terly biased jurist declared when he
made his order that no injunction had
ever issued in a labor case which was
not Justified by the facts. Mr. Taft
says this statement is not true. He
knows of many injunctions which
were never Justified, and some of them
he has himself dissolved. "J agree,"
he says, "that there has been abuse
in this regard."
Mr. Alger points out that the coun
try could not be well governed under
an administration which represented
a class, whether this class consisted
of the laborers or the capitalists. The
President must stand for all sections
of the Nation and all ranks of the peo
ple. In Mr. Alger's estimation, Taft's
greatest merit is his universally repre
sentative character. In his decisions
when he was a Judge he held the
balance even between the workmen
and their employers. Neither side re
ceived any special favors from him,
and to both he meted out the same
unwavering Justice. Surely this was
all that a fair-minded man could have
asked of him. Is it honest or patriotic
to expect Judge on the bench to
load the scales of Justice? If one
Judge loads them for the advantage
of labor, who can complain if his col
leagues do the same for capital? We
have had enough of bias and shiftiness
In the courts. Let us do away with
it altogether. Let our Judges be ap
pointed not upon the recommendation
of Mr. Archbold, of the railroads or
of the labor unions, but solely because
they are great lawyers and courageous
men of unblemished integrity, and
then all the courts will begin to meas
ure up to the standard which Mr. Taft
set long ago when he was on the Fed
eral bench.
In the .current number of The In
dependent there is a significant article
entitled "The Issue Behind the Is
sues." Mr. Taft is singularly qualified
for the chief magistracy of the Nation
just at this time because there Is much
reason to believe that he understands
the issue behind the Issues. He recog
nizes the struggle of the people to cast
off the entanglement of false repre
sentation which thwarts and baffles
their best efforts. Roosevelt is im
measurably popular because he has
aided the voters to escape from the
enchantment of delusive politics and
come face to face with pvbllc ques
tions. Taft would do the same thing.
He would work Just as vigorously and
perhaps even more wisely than his
predecessor to emancipate the Nation
from the thralldom of dishonest rep
resentation. He would labor just as
earnestly to save us from that slavery
to precedent and forms which the
privileged interests have sought ' to
Impose. Mr. Taft Is a man of reali
ties. Dead technicalities which mock
the substance of Justice mean nothing
to him. If he is elected President, he
will be'a great reforming power in the
Government. No laboring man need
fear that Mr. Taft will not hold the
balance of Justice perfectly even be
tween him who works and him who
employs the worker.
The German steamship Dieke Rick
mers, carrying 7000 tons of wheat and
drawing twenty-five feet of water,
crossed out of the Columbia Sunday
without feeling the ground or experi
encing the slightest difficulty. The
gasoline schooner Delia, drawing
about seven feet of water and carrying
about twenty tons of produce, while
.w.ciMa- intA th river a. dav later
struck on the sands at the lower end
of Sand Island and narrowly escaped
destruction on Clatsop Spit. These
two Hems pair off to excellent advan
tage, and are referred to some of the
Columbia River "knockers" who have
a tendency to magnify the mishaps
that are occasionally noted at the
entrance of the Columbia as well as
in all other ports where there is a
considerable tonnage moving. When
a twenty-ton schooner grounds near
a channel through which a 7000-ton
steamer passes In safety without dif
ficulty, the odium of the disaster can
not be placed on the channel.
Governor Patterson,, of Tennessee,
seems determined to make night rid
ing, arson and murder very unpleasant
In his state. He has already succeed
ed in rounding up more than sixty
of the cowardly assassins who partici
pated In the lynching of an unarmed
man, whose only offense was his re
fusal to allow trespassers on his prem
ises. It is, of course, quite plain that
any man who would, under cover of
darkness and behind a mask, commit
a dastardly crime, is a physical as well
as a moral coward. Fear of punish
ment maintained by the actual inflic
tion of a penalty Is the only deterrent
from a general epidemic of outrages
of the Tennessee type, and the dark
hues which the night riders have given
this blot on our civilization will be
brightened a little if punishment swift
and ample, is inflicted on every guilty
man In any way . connecteij with the
outrage.
Negotiations for the purchase by
Miss Elkins. of Virginia, of the Duke
of Abruzzl have apparently been com
pleted, and the transfer will take
place at Baltimore In the near future.
The reported reluctance of the King
of Italy to giving his consent, to the
marriage has all vanished, and the
American millions which go with Miss
Elkins will be received with a hearty
welcome. The previous hitch in the
negotiations was probably caused by
desire on the part of Italy to get more
of a bonus. While this country Is, of
course, a gainer by the removal of
such snobocracy as the Elkins trash,
from an economic standpoint Italy
gets far the best of the transaction.
Italy "getta da mon," while we. get
nothing but the disagreeable reputa
tion for trading our cash and females
for moth-eaten European titles.
Weyerhaeuser, the timber king, is
said to contemplate following the ex
ample of Mr. Harriman by building a
Summer resort In the Klamath region.
The lumber king, like the railroad
king, will be welcome, and if he does
as much "boosting" for the scenic
beauties and hunting and fishing pre
serves of Oregon as Mr. Harriman has
done, we shall eventually have a large
colony of Eastern millionaires spend
ing their Summers and some of their
money with us. Localities In which
the natural surrounding and the fish
ing and hunting possibilities are ideal
are by no means confined to the
Klamath region, for the entire coast
country from the Columbia River
south abounds In undeveloped Sum
mer resorts of wondrous beauty.
Democratic organs declare that Re
publicans everywhere who have voted
nothing but the Republican ticket for
thirty years are now open and pro
nounced advocates of the election of
Bryan. Well, publish a few of their
names. In 1896 and in 1900 The Ore
gonian published the names of scores
of Democrats who were openly advo
cating the election of the Republican
candidates. And they were the names
of prominent men, too. If there is
such a slump of Republicans to Bryan,
surely there are some whose names
would be recognized by the voters of
Oregon.
sntleSan's i
The "gentleTfian's agreement, which
ha3 become quite a feature In modern
trusts, has resulted in the conviction
at Seattle of a milkman who had ef
fected a combination with other milk
men by which the price was lifted
from 8 cents to 10 cents per quart.
SThe unfortunate man who was thus
caught in the attempt to "milk" the
publio was fined $500 and sentenced
to ten days in Jail. The case should
serve as a warning, and if any other
Seattle milkmen have a hankering for
Increased profits, they will probably
secure them from the old, reliable
method of dilution.
' Those Who do not like The Orego
nian's estimate of the vote of Oregon
next month are at liberty to compile
and publish estimates of their own.
But it is likely that they will not get
much credit unless they happen to
conform to The Oregonian's figures.
The unlawful trusts are all support
ing Taft, remarks Candidate Kern.
Then the lawful trusts are doubtless
all supporting Bryan.. That will
make It easy for Bryan to separate the
sheep from the goats when he is Pres
ident. The Mayor of Seattle is horrified to
learn that gambling has been going on
there right under the nose of the po
lice. If the Mayor will look around a
bit, he will find out that that is where
gambling usually is done.
Mr. Archbold didn't expect those
Judges ever to do anything for Stand
ard Oil and never asked them to. Mr.
Archbold would have the country
think he is "easy," but the public isn't
as easy-as that.
There is no way to account for the
persistent refusal of the Elkins family
to acknowledge the engagement of
their daughter to a foreign Duke ex
cept on the ground that they are
ashamed.
Astoria denies it and says It treated
Cap. Hobson well. We believe it. But
why did they send Hobson here, where
the Japs might "git" him? Though
perhaps that is the reason they did
send him.
Bryan narrowly missed running into
Taft "in a New York town Monday.
But there should be room enough in
New York for both before Novem
ber 3.
Two women publicly kissed Mr.
Bryan right on his fair young cheek.
And Hobson four thousand miles
away, where the women know better,
it 1 -
When Mr. Bryan is through here, ha
might go to Russia and run for Czar.
He would have Count Leo Tolstoi's
support
There are a few more questions Mr.
Chanler would like to ask Governor
Hughes, but he can't think of them
now. . .
Rights of a Neutral Public During Labor Strikes
Attitude of Judge Taft in Three Famous Injunction Cases, Toward Organized Labor His Decisions Now Quoted
on Behalf of Union Labor. "
This is the artic.e that President
Roosevelt honestly wished Mr. Gompers
to read,' as stated in yesterday's dis
patches. It Is by George W. Alger,
another of "Moral Overstrain." and was
published in McClure's Magazine for
September: ,
It happens that all the so-called
labor decisions which Judge Taft made
when on the bench involve directly and
primarily the rights of the general
! public and of outsiders having no di
rect part In any industrial quarrel,
who against their will have been
drawn into the warfare between capi
tal and labor. In deciding these cases
It has been necessary not only to con
sider the rights of labor in industrial
disputes, but to paaa upon tlie right
of tfie general public and of disinter
ested ontatdera to ba let aleae.
Veto to Economic Excommunication.
The first of these cases was one
decided by Judge Taft In 1890. when
he was a Judge of the Superior Court
of Cincinnati. A bricklayers' union in
Cincinnati, haviflg about 400 members,
had a dispute with the firm of Parker
Broe.. contracting bricklayers. The
union wanted Parker Bros, to pay a
fine it had Imposed, upon one of their
employes who was a member of the
union, to reinstate an apprentice who
had left them, and to discharge another
apprentice. Parker Brothers refused V
do so. A strike was accordingly called.
The union also declared a boycott
against Parker Bros., and its business
agent issued a circular to material
men, contractors' and owners, which
concluded with this announcement:
"Any firm dealing in building materials
who ignores this request is hereby
.notified that we will not work his ma
terial upon any building nor for any
contractor by whom we are employed.
(Signed) - Bricklayers' Union No. 1."
One of the contractors to whom this
notice was sent was the Moore Lime
Company, engaged in selling lime In
Cincinnati. Parker Bros, were cus
tomers of the Moores and the Moores
continued selling lime to them, not
withstanding the notice.. Another cir
cular was then sent out by the union
to Its members, which read as follows:
"Bricklayers Union No. 1, Ohio. We,
the members of the bricklayers' union,
will not use material supplied by the
following dealers until further notice."
And in the list they put Moore & Com
pany. The effect of the circular was
to interfere with Moore & Company's
business and to cause loss to thelp cus
tomers, who feared a similar fate. On
these facts, the Moores sued the union
for damages, which they claimed had
been done to their business by a
wrongful and malicious conspiracy.
The case was tried by a Jury, which
gave the Moores $2250 damages. . An
appeal was taken by the union to the
Superior Cojurt of Cincinnati, where
Judge Taft presided.
The facts just related show the Issue
Involved. The. Moores' employes had
no grievance against them. The- only
grievance which the brickjayers had
against them was that they refused to
permit themselves to be used as a battering-ram
in an assault on Parker
Bros. The union insisted on the right
to boycott Moore's Lime Company be
cause Moore's Lime Company would not
assist them in injuring the Parkers.
Judge Taft decided, as other Judges
have decided in many cases, that such
a combination to - Injure the Moores
was without Jnat cause or legal excuse
and was Illegal. This, so far as the
Moores ' were concerned, was not a
strike case, but a boycott, and In his
decision Taft was very en refill to draw
the distinction and so ezpreis hlroaelf
that the lesal rights of labor In a law
ful strike ahould not be Impaired.
The doctrine of excommunication, the
great engine of the church in the Mid
dle Ages, has not been revived and
transferred from the Pope to the labor
unions. "
Engine-era' Famous "Rale 12." '
The next decision of Taft's in a labor
dispute came after his elevation to the
Federal bench, and again involved the
same principle the extent to which the
rights of a third party against whom
neither labor nor capital has any griev
ance, can be impaired by involving him
against his will In labor disputes. 'Jhis
case arose out of a strike of locomotive
engineers on the Toledo-Ann Arbor
Railroad In 189S. The. strike had been
called after numerous conferences be
tween the railroad officials and Mr.
Arthur, the representative of the
Brotherhood of Locomotive Engineers.
It was a legitimate strike, as against
the Toledo-Ann Alrbor Railroad, for
higher wages. The phase of the con
troversy which came into court for
Judge Taft's consideration, however,
was not the strike itself, but gvw out
of an attempt by the union to compel
other railroads to refuse to receive
freight from the Toledo Road and
thereby paralyze that road and coerce
it into granting the demands of the
engineers.
Some of these railroads thereafter
notified the management of the Toledo
Railroad that, in view of the threat
ened actions of their own engineers,
they would be obliged to discontinue
receiving or forwarding freight for the
road. The Toledo thereupon obtained
from Judge Taft, in the United States
Circuit Court, an injunction against the
Pennsylvania Railroad and other rail
road companies, enjoining them from
refusing to handle its freight and com
manding them to perform their rail
road functions as required by the In
terstate Commerce act, which made It
criminal offenae for connecting rail
roads) to refnae to receive or tranaport
freight from- one another's linea. Mr.
Arthur was made a party, and the in
junction Issued, and sustained after
hearing, directed him to rescind his
order putting into effect rule 12 Of his
organization. The decree did not re
quire the employes of these other rail
roads to continue to work for the rail
roada if they saw lit to atriker but It
did require them, as long as they were
in the employ of those railroads, to
handle the freight of the Toledo Rail
road as they would the freight of any
other road.
The opinion which Judge Taft wrote
In this case is a long one. He quotes
the provisions of the Interstate com
merce act. which clearly made it a
criminal offense for the officers, agents,
or employes of any of these connecting
roads wilfully to refuse to receive and
transmit , the freight of the Toledo
Road, and' declares that the attempt ef
the locomotive engineers to eempel the
railroads to commit this criminal of
fense thrasgk thla rule 131 waa unlaw
ful. As to the rule Itself, he says,
after an exhaustive examination of It
in connection with the provisions of
the Interstate commerce law:
We have thus considered with some care
the criminal character ot Rule 12 and Us
enforcement, not only, as will presently be
seen, because Jt assists In determlnlne the
civil liabilities which grow out of them, but
also because we wish to make It plain, if
we can. to the intelligent and generally
law-abiding men who compote the Brother
hood of Locomotive Engineers, as well aa
to their usually conservative chief officer,
what wa cannot believe they appreciate,
that notwlthatandlng their perfect organiza
tion and their charitable, temperance and
other elevated and useful purposes, the ex
istence of Rule 12 under their organic law
makes the Brotherhood a criminal con
spiracy against the lawa of their country.
The Brotherhood of l,cmotlve r.n
arlnerra ncunleaced In the criticism of
thia section of their lawa and removed
It. The fact that this organization is
in existence today, unimpaired In pow
er and authority throughout the Amer
ican railroad world, la an Indication of
Its wllllnjtneaa to reeoarnlae and obey
the law of the land. Its conduct in sub
sequently withdrawing the rule shows
that Judge Taft was Justified in set
ting forth with such painstaking clear
ness the illegality of the rule, with the
expectation that its illegality would be
recognized and the rule abolished a
confidence which was Justified by its
results.
Phelan Sentence in Pullman Strike.
The next labor decision made by
Judge Taft was in the well-known
Phelan case, in the great Pullman
strike of 1894. The organization with
which he was then called upon to deal
was of a totally different character
from that of the locomotive engineers.
It waa one managed In entire disregard
of the law, the courts and the public.
Eugene V. Debs, the chief agent of
that organization, the American Rail
way Union, is today the Socialist can
didate for the Presidency. In the Pull
man strike of 1894 Judge Taft sent one
of Debs' chief assistants Phelan to
Jail for six months. If his judicial con
duct in this matter merit criticism,
here are the facts on which that criti
cism must be based:
Some of us have fairly hazy notions
today as to the Pullman strike and
what it was all about. . It began in
May, 1894. The employes cf the Pull
man Company, engaged in making cars
at Pullman. 111., went on a strike be
cause of the refusal of the compacy
to restore wages which had been re
duced in the preceding year. The
American Railway Union, which then
comprised some 250,000 railway em
ployes which Debs had organized and
over which he was master in control,
later indorsed this strike and started
in actively to make it a success. The
principal means by which that success
was sought was by declaring a boycott
on Pullman care.
Phelan came to Cincinnati to carry
on this warfare against the Pullman
Company by paralyzing. If he could, all
the railroads centering there. He did
not stop even with the railroads using
Pullman cars, but ordered a strike
against the Big Four, which used none
of these cars. On the day Phelan called
the strike In Cincinnati, Debs tele
graphed to him to let the Big Four
alone if it was not using Pullman cars,
to which Phelan answered: "I cannot
keep others out if Big Four is except
ed. The rest are emphatic on all to
gether or none. The tie-up Is success
ful." Debs replied: "About 25 lines
are paralyzed. More following. Tre
mendous blockade." A fow days later
Debs telegraphed: "Advices from all
points show our position strengthened.
Baltimore & Ohio, Panhandle, Big Four,
Lake Shore, Erie. Grand Trunk, and
Michigan Central are now in the fight.
Take measure to paralyze all those
which enter Cincinnati. Not a wheel
turning between here and the Canadian
line."
"Starvation of a Nation" Illegal.
On the day that Debs telegraphed
Phelan to take measures to paralyze
all those lines which entered Cincin
nati work which was already well
under way at the very crisis of the
strike, on the application of the receiv
er of the Cincinnati, New Orleans &
Texas Pacific Railway Company, and on
a petition which alleged a malicious
conspiracy to prevent the receiver from
operating, that road, Phelan was ar
rested by an order of Judge Taft for
inciting the employes of the receiver
to quit their emploj-ment and for urg
ing them to prevent others from taking
their places, by persuasion if possible,
by clubbing If necessary. The receiver
asked for the commitment of Phelan
for contempt, alleging that the whole
boycott waa an unlawful and criminal
conspiracy, and that, 'for his acts in
maliciously inciting the employes of
the receiver, who was operating the
railroad under order of the United
States Court, to leave his employ in
pursuance of that unlawful combina
tion, Phelan was in contempt of court.
Was the combination of Debs and his
associates illegal? Judge Taft said
that It was, not only because boycotts
are Illegal under the law of every state
in the Union, where the question has
arisen; with one possible exception,
but because this combination of men,
in their efforts to gain their own per
sonal ends, had trampled upon the
rights of the public.
After a protracted and exciting trial,
in which many witnesses were "Called
and Phelan was fully heard in his own
defense, Taft sent Phelan- to Jail for
six months. Those whp believe that
the atarvation of a nation la within the
rlghta of labor engaged in a private
quarrel muat tell u wherein thla Judge
did wronar. -
These three 'cases are legal land
marks showing the limitations of in
dustrial warfare. They are what the
lawyers call "leading cases." They lay
down clearly and dispassionately the
law vrhlch marka the rlghta of the
public to remain unmolested by the
conflict of labor and capital at war.
Such decisions are in American law
what the Treaty of Paris Is in the law
of nations a declaration of the rights
of neutrals.
If, as a candidate for the Presidency,
Mr. Taft is to suffer from unpopularity
created in any quarter by these de
cisions which he made as Judge, he
must endure it, for the search for pop
ularity Is not a part of the functions of
a Judge.
The two qualities which make a
great Judge are wisdom and moral
courage. No great Judge ever lived
who did not possess them both. When
the Phelan case was on trial before
Judge Taft, It was a time of tremen
dous excitement. It was the very crisis
of a great strike. - The friends of the
Judge feared for his life and asked
him not to read his decision from the
bench. He read It. The last sentence
Of that decision directed the Marshal
safely to convey Phelan to the Warren
County Jail. When he read that final
sentence he turned to the packed court
room and looking squarely into the an
gry faces before him, said: "If there
Is any power in the Army of the Unit
ed States to run those trains, the trains
will be run." To thoae who honor Judi
cial courage no leaa than Judicial wla
dom, aach occasions deaerve to be re
called and remembered, for they are
part of the great traditions of the
bench.
But these decisions are not solely
declarations of public risrhts. They con
tain statements of the lesal rlchts of
I labor organizations in strikes, statod so
clearly that the decisions have been
rlted time and again In anhaequent liti
gation by labor organisations them
selves aa precedents In their favor.
They afflrm unequivocally the right of
labor organisation to atrlke to better
the condition of their members, and the
right to use peaceable persuasion to
prevent other employes from taking the
place of the strikers, a risht which in
some Jurisdictions, particularly Penn
sylvania, has heen denied.
The Right to Strike.
Quite apart from his judicial de
cisions, Taft's position on the strike
question is clearly stated In public ad
dresses. Last January, at Cooper In
stitute, he said to an audience of work
inginen: ."Now what Is the right ot
labor unions with respect to the strike?
I know that there has been at times a
suggestion in the law that no strike
can be legal. I deny this. Men have
the right to leave the employ of their
employer In a body in order to Impose,
on him as great an Inconvenience aa
poaalble to Induce Mm to come to their
terms. They have the-right in their
labor unions to delegate to a leader
power to say when to strike. They
have the right in advance to accumu
late by contributions of all members of
the labor union a fund which shall en
able them to live during the strike.
They have .the right to use persuasion
with all other employes who are invit
ed to take their places in order to con
vince them of the advantage to labor
of united action. It Is the htiainesa of
the courts and the police to respect
these rights with the same degree of
care that they respect the owners of
capital In the protecilou of their prop
erty and business."
Ko public man has placed himself
more clearly on record on the so-called
injunction queetion. In his Cooper
Union address lie said:
But it to said that the writ of Injunction
has been abused In this country In labor
disputes snd that a number of injunctions
have heen iessued whii-h oueht never to
have been issued. I arce that there has
been abuse In thie regard. President Roose
velt referred to it In his laet message. I
think It has grown largely from tha practice
of I isulng Injunctions ex parte, that Is.
without giving noticf or hearing to the de
fendants . . . 1'nder" the original Fed
eral Judiciary act It was not permissible for
the Federal courts to Issue an Injunction
without notice. There had to be notice, and.
of course, a hearing. I think It would ha
entirely right In this class ot caacs to amen.1
th law and provide that no temporary
restraining order ahould loupe until afler
notice and a hearing.
He at the same time expressed him
self In favor of having contempt pro
ceedings for violations of injunctions
heard by a judge other than the one
who Issued the injunction. But to the
proposal that in such cases the ancient
power of the courts to protect their
own dignity and authority be taken
from them and turned over to juries of
laymen selected by Interested parties
and subject to ail the passions and
prejudices Inevitable In such trials to
this he is opposed.
The Laborer's Right to Protection.
The interests of labor in the law
are not confined to strike questions.
Its rights in peace are no loss impor
tant than In war. The working people
fere deeply interested in the enforce
ment of laws which protect them
against unnecessary dangers In em
ployment. The position of Judge Taft
on this Important question is best
shown by the contrast made by ofrs of
his decisions (Narramore vs. C, C C.
& St. Louis Railroad Oo.) with the lead
ing case in New York on the same sub
ject. Both of these cases involve stat
utes directing employers to furnish
certain specific protection for the safe
ty of employes. In both cases the em
ployer failed to obey the law which re
quired the furnishing of that protec
tion. The New York Court of Appeals
decided that notwithstanding the stat
ute, if the employe stayed at work
knowing that the employer had not
obeyed the law, and knowing the dan
ger created by the employer's failure
to obey the law, by the mere fact of
his remaining at work, the employe as
sumed as a matter of law the risks of
being Injured and could have no claims
against the employer for injufles so
sustained. This construction obviously
makes the protective statute a dead
letter and absolutely worthless.
Judge Taft, in a case In which this
same reasoning was advanced, and in
which the decision of this New York
Court of Appeals was cited as an au
thority, refused to follow it and ren
dered a deciaion which leaves full vital
ity to protective legialation. The case
was one in which a railroad company
had failed to obey the law which re
quired to fill or block frogs and fur
nish guard rails on their tracks. The
plaintiff, a railway employe, kept at
work knowing that 'the frogs were not
blocked, and was hurt through the ab
sence of the protection which the stat
ute required the railroad to furnish
him. He had a verdict from the jury,
the railroad appealed, and its lawyer,
Judson Harmon, argued that the ver
dict should be set aside . because the
man had kept at. work knowing the
railroad's violation of the law, and had
therefore, by legal implication con
tracted with the railroad to take all
the chances of being hurt- Judge Taft
refused to follow the New York . case,
declaring:
The only ground for passing auch a stat
ute la found In the Inequality of terms upot
which the railroad company and its ser
vants deal in regard to the dangers of their
employment. The manifest legislative pur
pose was to protect the servant by positive
law, because he had not previously shown
himself capable of protecting himself by
contract, and It wa-uld entirely defeat its
purpose thus to permit, the servant to con
tract the master out of the statute.
This case has been cited all over the
United States by counsel for workmen
injured through the failure of their
employers to furnish the protection
required by statute for their safety.
Judge Taft decided that when a law
is made applying to a dangerous busi
ness. In which 4000. men are killed and
65,000 are injured every year, the in
tention was that the railroads should
obey thnt law, and It should not be nulli
fied by construction.' In this conclu
sion he does not lack judicial support
of high character.
This, in substance, is Taft's labor
record so far as his judicial career is
concerned. Its consideration by the
general public can be useful but tor
one purpose, which Is this: A country
like oura cannot a fiord to elect a claas
President. It cannot afford to elect a
President in whose mind the distinc
tion between lawlessness and personal
rlghta la not clear and distinct who
to please one class will weaken the
foundations of the liberty and peace of
a whole nation. It can still less afford
to elect a President to whom the work
ing people are but pawns on the chess
board, and to whom prosperity means
peace at any price by the sacrifice of
the rights of the working people, so
long as the mills are at work and prop
erty Is secure In the possessions which
It has somehow acquired. The enemies
of our democracy are at both extremes.
We need for President a man who
will recognise and protect the just
rights of both rich and poor and there
by protect American democracy agalast
Its clasa enemies. By theae standards .
Mr. Taft must be Judged.