Miscellaneous Briefs Vol. 1

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IN  T H E

^uprrmr (tort of ttjr luttrb ^tatra
O C T O B E R  T E R M , 1942 

No. 591

T he  W est V irginia State Board of E ducation , composed of 
H onorable W. W. T rent, President, M ary H . D avisson, T h elm a  
B. L oudin, R aym ond  Brewster, L ydia C. H ern , L. V . T hom p­
son, and M rs. D ouglas W. Br o w n , and all other boards, officials, 
teachers and persons subject to the jurisdiction and control of said 
State Board of E ducation ,

Defendants-Appellants, 
vs.

W alter Barnette, Paul Stull, and L ucy M cClure,
Plaintiffs-A ppellees.

ON A PPEAL FROM T H E  DISTRICT COURT OF T H E  U N ITE D  STATES 

FOR T H E  SOU TH ERN  DISTRICT OF W EST V IR G IN IA

BRIEF FOR AM ERICAN CIVIL LIBERTIES UNION, 
AMICUS CURIAE

W illiam  G. F ennell ,
O smond K. Fraenkel,
A rthur Garfield H ays ,

Of the New York Bar,

H oward B. L ee,
Of the West Virginia Bar, 

Attorneys for the American Civil Liberties 
Union, Amicus Curiae

APPEAL PRINTING CO., INC., 130 CEDAR ST., NEW YORK, WO 2-3343





TABLE OF CONTENTS

P reliminary  S t a t e m e n t ................... ......................................  1

T he  I s s u e ......... .................. -.............................—......................... 2

S tatement of t h e  Ca s e ..............:............................. ...... ......— 3

Sum m ary  of A rgument .......... ..................... ....... .................  7

P oint I—The decision of this Court in Miners- 
ville School District v. Gobitis (310 U. S. 586) 
should be reversed........................ ....................... 8-10

PAGE

P oint II—Enforcement of the regulation of the 
State Board, in so far as persons holding a 
religious belief and doctrine against giving 
the flag salute are concerned, deprives such 
persons of religious liberty and violates the 
Fourteenth Amendment to the Constitution of 
the United States ........... .......................................11-14
A. Liberty of religious belief and doctrine 

is protected by the Fourteenth Amend­
ment against impairment by the States 11

B. The belief and doctrine of appellees is
religious in character ..................................  11

C. The State of West Virginia deprives the 
appellees of liberty guaranteed to them 
by the Fourteenth Amendment by requir­
ing them to surrender it as a condition
of attending public schools of that State 13

P oint III— Such deprivation of religious liberty
is without due process of law since the State 
Board’s regulation is not a proper exercise 
of the State’s police power .... ............................14-19
A. The Courts and not the State legislative 

authorities must decide when religious 
liberty must yield to the exercise of a 
State’s police power ..................................  15



11

B. In a case involving minorities, the Courts
should make an even more searching judi­
cial inquiry to see that any abridgement 
of the liberties of such minorities is by 
due process of la w ..................................... .

C. The test to be applied is whether the fail­
ure to salute the flag as required by the 
State Board’s regulation presents such a 
“ clear and present danger to the com­
munity”  as to justify the State’s exercise 
of its police power to the extent of over­
riding appellee’s religious liberty............... 18

P oint IV—Congress having entered the field o f  
legislation by enactment of Section 7 of the 
Act of June 22, 1942 (Public Law 623, 77th 
Cong. Ch. 435, 2nd Sess. Tit. 36 U.S.C.A.
Supp. 1942, Sec. 172), and having expressed 
the national policy in the matter of saluting 
the flag of the United States, the regulation
of the State Board is involved.......................... 20-23

Conclusion ..................... .......... ....................................... 23
A ppendix A  ..................................... ............................................ 24-25

A ppendix B (attached to the brief)

PAGE

16



I l l

Table of Cases Cited

PAGE

Adams Express Co. v. Croninger, 226 U. S. 4 9 ........... 22
Barnette et al. v. "West Virginia State Board of Ed­

ucation et al., 47 F. Supp. 251........ ...2,12,15,16,18,19
Bolling v. Superior Court (Supreme Court of Wash­

ington, No. 28909, filed Jan. 29, 1943, opinion not
yet published) ...........................................................  9,12

Bridges v. California, 314 U. S. 252............................  18
Cantwell v. Connecticut, 310 U. S. 296 ....... ......... 11,12,18
Charleston and Western Carolina Rv. Co. v. Varne-

ville Furniture Co., 237 IT. S. 597-........................22, 23
Chic., B. I. and Pacific By. v. Hardwick Elevator Co.,

226 U. S. 426 .......... ............. ................ ..................... 23
Commonwealth v. Johnson, 309 Mass. 476................. 9
Commonwealth v. Nemchik (unpublished) (Court of

Quarter Sessions, Luzerne County, Penna.)......... 9
Cummings v. State (Supreme Court of Mississippi,

No. 35155, Jan. 25, 1943, opinion not yet pub­
lished) ....................... ............. - ................................. . 15

Davis v. Beason, 133 IT. S. 333........................ .............  18
Hamilton v. Regents, 293 IT. S. 245......................... 14,18
Hering v. State Board, 303 IT. S. 624.........................  6
Herndon v. Lowry, 301 IT. ,S. 242..................................  18
Hines v. Davidowitz, 312 IT. S. 52................................  21
In re Reed, 262 App. Div. (N. Y.) 858......................  9
Johnson v. Deerfield, 306 IT. S. 621................................  6
Jones v. Opelika, 316 IT. S. 584........................ .............. 2, 8
Kansas v. Smith, 155 Kansas 588 ................................  9
Leoles v. Landers, 302 IT. S. 65..................................  6
Lovell v. City of Griffen, 303 IT. S. 444......................  13
Minersville School District v. Grobitis, 310 IT. S. 586

4, 6, 7, 8, 9,10,15,16,17,18,19, 20, 23



IV

Missouri ex rel. Gaines v. Canada, 305 U. S. 337.....13,14
PAGE

Reynolds v. U. S., 98 U. S. 145.... ........ ................... . 18
Southern Ry. v. Indiana R. R. Commission, 236 U. S.

439 ................................ ................................... ............  23
State v. Lefebre, 20A (2d) 185 (N. H. 1941) ........... 8
Terral v. Burke Construction Co., 257 U. S. 529........ 14
U. S. v. Carotene Products Co., 304 II. S. 144........... 16
U. ,S. v. McIntosh, 283 U. S. 605..................................  19

Table of Statutes Cited

Act of June 22, 1942, Section 7, Title 36, U.S.C.A.
Supp. 1942, Sec. 172.......................................7,10,20,22

West Virginia Code of 1937, Sec. 1730, Ch. 18, Art.
2, Sec. 5.................................................... ...................  4,13

West Virginia Code of 1937, Sec. 1734, Ch. 18, Art.
2, Sec. 9........................................................................ 5

West Virginia Code of 1937, 1941 Cumulative Supp.
Sec. 1847,' Ch. 18, Art. 8, Sec. 1..........................  4,14

West Virginia Code of 1937, 1941 Cumulative Supp.
Sec. 1851, Ch. 18, Art.'2, Sec. 5a....... ..................... 5

West Virginia Code of 1937, 1941 Cumulative Supp.
Sec. 4904(4) Ch. 49, Art. 1, Sec. 4..................... 6,14

West Virginia Code of 1937, 1941 Cumulative Supp.
See. 4904 (49) Ch. 49, Art. 5, Sec. 1............... .....  6,14

Miscellaneous

1 Bill of Rights Review, 627....... ............... ..............  8
Resolution of West Virginia State Board of Educa­

tion, adopted Jan. 9, 1942.......................... 2,5,13,15,22



IN THE

SUPREME COURT OF THE UNITED STATES
October T erm , 1942 

No. 591

T he  W est V irginia S tate B oard of E ducation , composed 
of H onorable W. W. T rent , President, M ary H . D avisson, 
T h elm a  B . L oudin, R aymond B rewster, L ydia C. H ern , 
L . V . T hom pson , and M rs. D ouglas W . B row n , and all 
other boards, officials, teachers and persons subject to the 
jurisdiction and control of said State B oard of E ducation ,

Defendants-Appellants,
vs.

W alter B arnette, P au l  S tu ll , and L ucy  M cClure,
Plaintiffs-Appellees.

ON APPEAL FROM  T H E  DISTRICT COURT OF T H E  U N ITED  STATES 

FOR T H E  SO U TH ERN  DISTRICT OF W E ST  VIRG IN IA

BRIEF FOR AM ERICAN CIVIL LIBERTIES UNION, 
AMICUS CURIAE

Preliminary Statement

The American Civil Liberties Union is a non-partisan, 
non-sectarian organization, national in scope, with mem­
bers in the State of West Virginia. The purpose of the



2

American Civil Liberties Union is to defend the funda­
mental liberties guaranteed to all Americans, regardless 
of creed, class or condition, by the Bill of Bights. Because 
the American Civil Liberties Union firmly believes that 
“ our democratic form of government functioning under 
the historic Bill of Bights has a high responsibility to 
accommodate itself to the religious views of minorities 
however unpopular and unorthodox those views may be”  
(cf. dissent of Justices Black, Douglas and Murphy in 
Jones v. City of Opelika, 316 U. S. 584 at 623 (1942)), 
this brief amicus curiae is filed. It is solely in the inter­
ests of religious tolerance and reasonable solutions that 
the undersigned—none of whom are members of Jehovah’s 
Witnesses or subscribers to their view on flag-saluting— 
have subscribed their names to this brief in support of the 
unanimous decision of the District Court for the Southern 
District of West Virginia (sitting as a three-judge court) 
(47 F. Supp. 251) (B. 48-54)*. It is submitted that the 
opinion of Circuit Judge Parker correctly decided the 
case and should be upheld by this Court.

The Issue

The only issue before the Court below, and the only 
issue before this Court on appeal, is whether the regula­
tion of the West Virginia Board of Education**, which 
requires all pupils in public schools to salute the flag in a 
specified manner and provides that failure to salute shall 
be dealt with as “ insubordination” , when applied to the 
appellees, who admittedly have religious scruples about

* References to the Record are indicated “R .”
** The full text of this regulation, adopted Jan. 9, 1942, is set forth 

in Appendix A .



saluting the flag (see opinion below, R. 54, 47 F. Supp. 
251, at 253), is a valid and constitutional regulation?

The Court below held “ that the regulation of the Board 
requiring that school children salute the flag is void in so 
far as it applies to children having conscientious scruples 
against giving such salute and that, as to them, its enforce­
ment should be enjoined”  (47 F. Supp. 251, at 255).

Statement of the Case

The facts are well summarized in the first paragraph 
of the opinion of the Court below as follows (R. 49):

“ This is a suit by three persons belonging to 
the sect known as ‘ Jehovah’s witnesses’, who have 
children attending the public schools of West Vir­
ginia, against the Board of Education of that state. 
It is brought by plaintiffs in behalf of themselves 
and their children and all other persons in the 
State of West Virginia in like situation, and its 
purpose is to procure an injunction restraining the 
State Board of Education from enforcing against 
them a regulation of the Board requiring children 
in the public schools to salute the American flag. 
They allege that they and their children and other 
persons belonging to the sect of ‘ Jehovah’s wit­
nesses’ believe that a flag salute of the kind re­
quired by the Board is a violation of the second 
commandment of the Decalogue, as contained in 
the 20th chapter of the book of Exodus; that because 
of this belief they cannot comply with the regula­
tion of the Board; that, if they fail to comply, the 
children will be expelled from school, and thus be 
deprived of the benefits of the state’s public school 
system; and that plaintiffs, in such event, will have 
to provide them education in private schools at 
great expense or be subjected to prosecution for 
crime for failing to send them to school, as required



4

by the compulsory school attendance law of the 
state. They contended, therefore, that the regula­
tion amounts to a denial of religious liberty and 
is violative of rights which the first amendment to 
the federal Constitution protects against impair­
ment by the federal government and which the 14th 
Amendment protects against impairment by the 
States. ’ ’

The defendants-appellants moved to dismiss the bill on 
the ground that the regulation of the Board was a proper 
exercise of the statutory power vested in it and that under 
the doctrine of Mmersville School District v. Gobitis, 310 
U. S. 586, the flag salute, which the regulation requires, 
cannot be held a violation of the rights of the plaintiffs- 
appellees (R. 43-45). The parties agreed that it be sub­
mitted for final decree on the bill and motion to dismiss. 
The Court denied the motion and issued an injunctive 
order enjoining the Board from enforcing the regulation 
against children having conscientious scruples against giv­
ing such salute (R. 45-46).

The appellants are the acting Board of Education of 
the State of West Virginia and joined with them are all 
other boards, officials and teachers subject to its control. 
This Board has general supervision over all public schools 
in West Virginia and is given power to determine the 
State’s educational policies (except those of the State 
University) and to “ make rules for carrying into effect 
the laws and policies of the State relating to education” .
(The West Virginia Code of 1937, Sec. 1730, Chap. 18, Art. 
2, Sec. 5.) The statutes further provide that minors must 
attend public schools, or obtain equivalent private instruc­
tion, until they reach the age of sixteen. (Op. Cit. 1941 
Cumulative Supplement, Sec. 1847, Chap. 18, Art. 8, Sec. 1.)



5

The instruction to he given in public schools includes 
“ instruction in the history of the United States, in civics, 
and in the constitutions of the United States and of the 
State of West Virginia, for the purpose of teaching, fos­
tering and perpetuating the ideals, principles and spirit 
of Americanism.”  (Op. Cit. Sec. 1734, Chap. 18, Art. 2, 
See. 9.)

On January 9, 1942, The West Virginia State Board 
of Education adopted the regulation here in question. The 
full text of the regulation is set forth in Appendix A. 
It will be noted that the regulation requires all teachers 
and pupils to participate in the “ commonly accepted 
salute to the Flag of the United States”  as a “ regular 
part of the program of activities in the public schools” . 
The prescribed salute as stated in the regulation is as 
follows: ‘ ‘ the right hand is placed upon the breast and 
the following pledge is repeated in unison: ‘ I  pledge
allegiance to the Flag of the United States of America 
and to the Republic for which it stands; One Nation, 
indivisible, and with liberty and justice for all.’ ”

It is not to be overlooked that the regulation provides 
for a penalty for failure to perform the salute (in the 
precise manner prescribed) as follows:

“ provided, however, that the refusal to salute 
the Flag be regarded as an act of insubordination 
and shall be dealt with accordingly.”

The West Virginia Code (1941 Cumulative Supplement, 
Sec. 1851, Chap. 18, Art. 8, Sec. 5a) provides for dealing 
with insubordination of pupils as follows:

“ If a child be dismissed, suspended or expelled 
from school because of refusal of such child to meet 
the legal and lawful requirements of the school and 
the established regulations of the county and/or



6

state board of education, further admission of the 
child to school shall be refused until such require­
ments and regulations be complied with. Any such 
child shall be treated as being unlawfully absent 
from the school during the time he refuses to com­
ply with such requirements and regulations, and 
any person having legal or actual control of such 
child shall be liable to prosecution under the pro­
visions of this article for the absence of such child 
from school.”

By Sec. 1851 and Sec. 1847 of the Code {Op. Cit.) such 
persons would be guilty, if convicted, of a misdemeanor 
and subject to a fine not exceeding $50 and a jail term of 
not exceeding thirty days.

Furthermore the children may be proceeded against as 
delinquents under Chap. 49, Art. 1, Sec. 4 and Art. 5, Sec. 
1 of The West Virginia Code (1941 Cumulative Supple­
ment, Sec. 4904 (4) and 4904 (49)).

The views of Jehovah’s Witnesses on flag-saluting are 
so well known to this Court that it is unnecessary to sum­
marize them here at length. (Cf. Briefs filed in Miners- 
ville School District v. Gobitis, 310 U. S. 586 (1940); 
Johnson v. Deerfield, 306 U. S. 621 (1939); Bering v. 
State Board, 303 U. S. 624 (1938); Leoles v. Landers, 
302 U. S. 65 (1937).) They are sufficiently summarized 
for this appeal in the excerpt from the opinion of the 
Court below quoted at page 3 above. A  full exposition 
may be found in the sole Exhibit introduced in the pro­
ceedings in the Court below (R. 16-43), which is a pam­
phlet entitled “ God and the State” . It should be noted 
that Jehovah’s Witnesses are taught, and in turn teach 
their children, that saluting the flag is idolatrous, that it 
violates the second commandment of the Decalogue 
(Exodus 20:3-5) (R. 49) and that if they salute the flag



7

in violation of that commandment, the penalty is “ death 
everlasting, from which there is no resurrection’ ’ ; while 
if they refuse to salute, “ the most severe punishment the 
State can inflict upon him is death, from which death God 
will resurrect his faithful servants who have been put to 
death by man because of faithfulness to God.”  (Exhibit 
A, R. 41.)

Summary of Argument

In support of the decision of the District Court, argu­
ment is submitted on the following points:

1. The decision of this Court in Minersville 
School District v. Gobitis, 310 U. S. 586, should be 
reversed.

2. Enforcement of the regulation of the State 
Board, in so far as persons holding a religious 
belief and doctrine against giving the flag salute 
are concerned, deprives such persons of religious 
liberty and violates the Fourteenth Amendment to 
the Constitution of the United States.

3. Such deprivation of religious liberty is 'with­
out due process of law since the State Board’s 
regulation is not a proper exercise of the State’s 
police power.

4. Congress having entered the field of legis­
lation by the enactment of Sec. 7 of the Act of June 
22, 1942, and having expressed the national policy 
in the matter of saluting the Flag of the United 
States, the regulation of the State Board is invalid.



8

POINT I

The decision of this Court in Minersville School 
District v. Gobitis (310 U. S. 586) should be reversed.

Affirmance of the decision of the Court below requires 
that this Court reverse its decision in Minersville School 
District v. Gobitis, 310 U. S. 586. The facts in that case 
were in all essential respects the same as in this case 
save for the fact that a regulation of the Minersville 
School District of Pennsylvania, instead of a regulation of 
the West Virginia State Board of Education was in issue.

We urge, first, that the Gobitis case was wrongly de­
cided. This assertion is based, not upon the opinion of 
the legal profession generally (although such opinion has 
been preponderantly unfavorable to the Gobitis decision); 
but upon the expressed opinion of four of the seven jus­
tices, now members of this Court, who participated in 
the Gobitis decision. (Op. Cit., 310 U. S. 586, dissenting 
opinion; Jones v. City of Opelika, 316 U. S. 584, special 
dissenting opinion.)

Only one of the unfortunate effects of the Gobitis 
decision has been the efforts to use it to justify the con­
viction of children refusing to give the salute on the 
ground that they are delinquents, and to take such chil­
dren from their homes and confine them to State Re­
formatories. To the credit of all the higher courts, which 
have considered the question, however, they have “ shrunk 
from so barbaric a result” . (Cf. “ The Gobitis Case in 
Retrospect”  (1941), 1 Bill of Rights Rev. 627.) As the 
Supreme Court of New Hampshire said in such a case 
(State v. Lefebvre, 20 A. (2d) 185, 187 (N. H. 1941):

“ If the order appealed from is executed, these 
three children and their parents will be visited with



9

the breaking up of the family, an institution of 
primary value in our social life. * * * it is im­
possible for us to attribute to the Legislature an 
intent to authorize the breaking up of family life 
for no other reason than because some of its mem­
bers have conscientious religious scruples not 
shared by the majority of the community * *

Other courts have reached the same decision as the 
New Hampshire Supreme Court in refusing to carry the 
implications of the Gobitis decision to such an extreme 
result. Commonwealth v. Johnson, 309 Mass. 476; Kansas 
v. Smith, 155 Kansas 588; Bolling v. Superior Court, 
Washington S. C. No. 28909, Filed Jan. 29, 1943, opinion 
as yet unpublished; In re Reed, 262 App. Div. (N. Y.) 858; 
Commonwealth v. Nemchik (unpublished) (Court of Quar­
ter Sessions, Luzerne Co., Penna.).

The precise question at issue in these cases admittedly 
was not before this Court in the Gobitis case. Now, how­
ever, that this Court has an opportunity to reverse that 
unfortunate decision, the record of attempts to apply it 
so as to make criminals of school children whose only 
“ crime”  is, in obedience to conscience, to refuse to salute 
the flag, cannot be overlooked by this Court.

Chief Justice Stone’s dissent in the Gobitis case has 
impressed us deeply and the following short paragraph 
from his opinion sets forth in moving and succinct fashion 
the doctrine which we hope this Court may now think it 
proper to adopt:

“ The guaranties of civil liberty are but guar­
anties of freedom of the human mind and spirit 
and of reasonable freedom and opportunity to ex­
press them. They presuppose the right of the in­
dividual to hold such opinions as he will and to 
give them reasonable free expression, and his free-



10

dom, and that of the state as well, to teach and 
persuade others by the communication of ideas. 
The very essence of the liberty which they guarantee 
is the freedom of the individual from compulsion 
as to what he shall think and what he shall say, 
at least where the compulsion is to hear false wit­
ness to his religion. If these guaranties are to 
have any meaning they must, I think, be deemed to 
withhold from the state any authority to compel 
belief or the expression of it where that expression 
violates religious convictions, whatever may be the 
legislative view of the desirability of such com­
pulsion.”

Minersville School District, et at. v. Gobitis, 310 
U. S. 586, 604.

We urge as a second ground for reversal the fact that 
Congress, since the Gobitis case was decided, has entered 
“ the field of legislation here under discussion” . (Cf. 
Minersville School District v. Gobitis, 310 U. S. 586, pre­
vailing opinion at 600.) By Act of June 22, 1942 (Title 
36 U. ,S. C. A. Supp. 1942, Sec. 172) Congress has pre­
scribed the manner in which the flag of the United States 
shall be saluted. Since this is a Congressional enactment 
in a field of national cognizance, a statute or regulation 
of any State (especially if it conflicts with the Act of 
Congress) must be invalid.

Our Points II and III, which follow, are directed at 
sustaining the first ground and our Point IV, the second 
ground, for reversal of the Gobitis case, as stated above.



11

POINT II

Enforcement of the regulation of the State Board, 
in so far as persons holding a religious belief and 
doctrine against giving the flag salute are concerned, 
deprives such persons of religious liberty and violates 
the Fourteenth Amendment to the Constitution of the 
United States.

A . Liberty of religious belief and doctrine is pro­
tected by the Fourteenth Amendment against impairment 
by the States.

Since the decision of this Court in Cantwell v. Con­
necticut, 310 U. iS. 296, there is no longer any doubt that 
religious liberty is protected from impairment by the 
States by the Fourteenth Amendment.

In that case (at p. 303) this Court said:

“ The fundamental concept of liberty embodied 
in that amendment (i.e. the Fourteenth Amend­
ment) embraces the liberties guaranteed by the 
First Amendment. The First Amendment declares 
that Congress shall make no law respecting an 
establishment of religion or prohibiting the free 
exercise thereof. The Fourteen Amendment lias 
rendered the legislatures of the states as incompe­
tent as Congress to enact such laws.”

B. The belief and doctrine of appellees is religious in 
character.

The fact that the vast majority of Americans do not 
see in the salute to the national Flag other than a “ cere­
mony calculated to inspire in the pupils a proper love 
of country and reverence for its institutions”  (opinion



12

below) (R. 50-51) does not belie the fact that Jehovah’s 
Witnesses are quite honest and sincere in their belief that 
saluting the flag is idolatrous. The inability of the ma­
jority to comprehend the religious significance of the flag 
salute to which these appellees are opposed should not 
lead the Court to attempt to decide when a belief is a 
religious one.

On this point we quote also the opinion of the Court 
below (R. 51):

“ Courts may decide whether the public welfare 
is jeopardized by acts done or omitted because of 
religious belief; but they have nothing to do with 
determining the reasonableness of the belief. That 
is necessarily a matter of individual conscience. 
There is hardly a group of religious people to be 
found in the world who do not hold to beliefs and 
regard practices as important which seem utterly 
foolish and lacking in reason to others equally wise 
and religious; and for the courts to attempt to 
distinguish between religious beliefs or practices 
on the ground that they are reasonable or unrea­
sonable would be for them to embark upon a hope­
less undertaking and one which would inevitably 
result in the end of religious liberty.”

This Court has forcefully condemned as “ censorship 
of religion”  a State Statute which conferred on a public 
official the power to determine whether or not a cause 
was a religious one. (Cantwell v. Connecticut, 310 U. S. 
296, 305.)

The Supreme Court of Washington in a recent case 
{Bolling v. The Superior Court (opinion as yet unpub­
lished) No. 28909, Filed Jan. 29, 1943) gives an interesting 
historical example of the religious significance of a 
gesture:



13

“ Many examples of the importance of a mere 
gesture may be found in history. In the time of the 
Roman empire it was customary for the people to 
burn a pinch of incense before a statue of the em­
peror. The early Christians, while recognizing the 
sovereignty of the emperor, refused to perform this 
ceremony, deeming it idolatrous. Pliny the Younger, 
a lawyer of distinction, acting as governor of a 
Roman province in Asia Minor, had occasion to 
write to his friend, the Emperor Trajan, describing 
his difficulties in ferreting out and punishing Chris­
tians, as such, residing within his jurisdiction. He 
refers to the fact that an order to offer incense be­
fore the statue of the emperor was one test applied 
to ascertain whether or not a particular individual 
was a, Christian. A  refusal to perform the rite was 
equivalent to an affirmation that the one refusing 
was a Christian, and subject to the severe penalties 
of the Roman law. A  phrase, or the making of a 
gesture, which to most people may seem either 
right or possibly unimportant, may to others appear 
to be of great significance.’ ’

C. The State of W est Virginia deprives the appellees 
of liberty guaranteed to them by the Fourteenth Amend­
ment by requiring them to surrender it as a condition of 
attending public schools of that State.

The West Virginia State Board of Education has been 
constituted by the Legislature of that State to have con­
trol over that State’s public school system. {The West 
Virginia Code, Sec. 1730, Ch. 18, Art. 2, See. 5.) Accord­
ingly action of that Board is state action for the purposes 
of this case. {Lovell v. City of Griffin, 303 U. S. 444; 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337.)

The provisions of the regulation of the State Board 
(App. A) are clear: a child must salute the flag, and if 
he refuses he is guilty of an act of insubordination; he



14

may be expelled and proceeded against as a delinquent. 
(The West Virginia Code, 1941 Cumulative Supplement, 
Sec. 4904 (4) and 4949 (49).) Since every child is re­
quired to attend school until he is sixteen {Op. Cit., Sec. 
1847) the regulation of the State Board, as applied to 
children of these appellees, amounts to withholding from 
them the privileges of public school education unless they 
abjure their religious convictions. This, we submit, is to 
deprive them of their religious liberty. (Terral v. Burke 
Construction Co., 257 U. S. 529; and cf. Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337, and Hamilton v. Regents, 
293 TJ. S. 245.)

The question then arises as to whether they are de­
prived of such liberty by due process of law.

POINT III

Such deprivation of religious liberty is without due 
process of law since the State Board’s regulation is not 
a proper exercise of the State’s police power.

Discussion of this point brings us to the main point 
of dispute in this case. Of the sincerity of the religious 
beliefs of these appellees no question has been raised. 
The State has threatened to deprive them of their re­
ligious liberty and to deprive them of other liberties and 
privileges. In the language of the opinion below, “ Can 
it be said * * * fjiat the requirement that school chil­
dren salute the flag has such a direct relation to the safety 
of the state, that the conscientious objections of plaintiffs 
must give way?”



15

A . The Courts and not the State legislative author­
ities must decide when religious liberty must yield to the 
exercise of a State’s police power.

With due respect it is nevertheless submitted that one 
of the most unfortunate aspects of the Gobitis decision 
was the expressed doctrine that the courts are not free 
to pass judgment upon the legislative opinion that “ the 
country will be better served by conformity than by the 
observance of the religious liberty which the Constitution 
prescribed.”  To say that “ the courtroom is not the 
arena for debating issues of educational policy”  is to 
overlook entirely the religious liberty aspect of the pres­
ent issue. The State Board by its regulation (App. A) 
is not trying to educate the children of the appellees in 
any true sense; it is admittedly trying to compel them to 
perform an act (which their religion forbids them to 
perform). If this Court holds that it will no longer 
scrutinize legislation to determine when constitutional 
rights must yield to the exercise of the police power, then 
it A v ill be abdicating the most important duty which rests 
on it under the Constitution. The effect of any such doc­
trine will be to enhance beyond any previous conception 
the police power of the states and religious liberty will 
be at the mercy of shifting political majorities. “ Con­
stitutional rights are not subject to nullification by refer­
ence to a popularity poll.”  (Alexander, J., dissenting in 
Cummings v. State (Supreme Court of Mississippi, No. 
35155, Jan. 25, 1943, opinion not yet published).) We can­
not believe that this Court has intended to hold—or will 
hold—that religious liberty, or any liberty guaranteed by 
the Bill of Bights, is a “ local question” .

We approve the language of the opinion of Judge 
Parker in the Court below (R. 53):



16

“ This bill of rights is not a mere guide for the 
exercise of legislative discretion. It. is part of 
the fundamental law of the land, and is to be en­
forced as such by the courts. If legislation or 
regulations of boards conflict with it, they must 
give way; for the fundamental law is of superior 
obligation. ’ ’

B. In a case involving minorities, the Courts should 
make an even more searching judicial inquiry to see that 
any abridgment of the liberties of such minorities is by 
due process of law.

The appellees in this case are members of a religious 
minority which has been subjected to persecutions un­
paralleled in this country since the days of the Mormons. 
The whole story of the prejudice against, and persecution 
of, Jehovah’s Witnesses has been told many times else­
where. (Cf. for example, the pamphlet of the American 
Civil Liberties Union, “ Jehovah’s Witnesses and the 
W ar’ ’, Jan. 1943, a copy of which is annexed to this 
brief.) It is even safe to assume that the regulation of 
the .School Board (adopted in January, 1942) (App. A) 
which is involved in this case was conceived in the milieu 
of prejudice which has grown up against these people 
because of their misunderstood attitude on flag-saluting.

It is submitted that this is “ a special condition, which 
tends seriously to curtail the operation of those political 
processes ordinarily to be relied upon to protect minor­
ities” , and calls “ for a correspondingly more searching 
judicial inquiry” , (iUnited States v. Carotene Products 
Co., 304 U. S. 144, 152-153.)

It is not enough that the “ effective means of induc- 
ing political changes are left free from interference” . 
(Minersville School District v. Gobitis, 310 U. S. 586, 600.)



17

In the ease of minorities such as Jehovah’s Witnesses the 
effectiveness of such means may be purely illusory. A 
persecuted minority may suffer long before it can allevi­
ate its burdens by way of the ballot box. It looks, and 
has the right to look under our Constitutional system, to 
the courts, and particularly to.this Court, for redress of 
grievances.

It may be significant that since the Gobitis case was 
decided in 1940 no legislature or school board, so far as 
we know, has repealed or modified a compulsory flag salute 
law or regulation. Indeed some additional states have 
adopted it—including West Virginia, whose regulation is 
at issue in this case. Pragmatically, this does not com­
mend the doctrine that somehow legislative authorities 
will themselves abandon “ foolish legislation”  if “ the 
effective means of inducing political changes are left 
free” .

We maintain that compulsion has never in this coun­
try been the handmaiden to patriotism. Neither the Con­
stitution nor the courts are powerless to exorcise the 
whiplash of tyranny over a religious minority from our 
national scene. In the words of Chief Justice Stone in his 
dissent in the Gobitis case:

“ The Constitution expresses more than the con­
viction of the people that democratic processes must 
be preserved at all costs. It is also an expression 
of faith and a command that freedom of mind and 
spirit must be preserved, which government must 
obey, if it is to adhere to that justice and modera­
tion without whiqh no free government can exist. 
For this reason it would seem that legislation which 
operates to repress the religious freedom of small 
minorities, which is admittedly within the scope of 
the protection of the Bill of Rights, must at least 
be subject to the same judicial scrutiny as legis-



18

lation which we have recently held to infringe the 
constitutional liberty of religious and racial minor­
ities.”

Minersville School District, et al. v. Gobitis, 310 
U. S. 586, 606, 607.

C. The test to be applied is whether the failure to 
salute the flag as required by the State Board’s regulation 
presents such a “clear and present danger to the com­
munity as to justify the State’s exercise of its police power 
to the extent of overriding appellees’ religious liberty.

Freedom of religion implies not only- freedom of belief 
but also freedom to act upon belief, so long as such 
action does not endanger the safety of the State. {Cant­
well v. Connecticut, 310 U. S. 296.) No one contends “ that 
what a man may do or refrain from doing in the name 
of religious liberty is without limitations” . (Opinion be­
low (R. 52).) This Court has held that he may not refuse 
to bear arms (Hamilton v. Regents, 293 IJ. S. 245) and he 
may not engage in polygamy or other practices which 
endanger the public health, morals or safety of the 
community. (Davis v. Beason, 133 U. S. 333.)

In cases involving freedom of speech and the exercise 
of police power this Court has wisely announced and 
applied the “ clear and present danger”  rule. This means 
that freedom of speech is not to be abridged unless its 
exercise presents a clear and present danger to the com­
munity. {Bridges v. California, 314 IT. S. 252; Herndon 
v. Lowry, 301 U. ,S. 242; Cf. Reynolds v. United States, 
98 U. S. 145, 163.) There is every reason to apply this 
same rule to the exercise of religious freedom.

Can it be said that the religious freedom of the ap­
pellees must give way because there is a clear and present 
danger to the State if these school children do not salute 
the flag1? If grown men can advocate doctrines tending



19

to the. overthrow of the government nnder the constitu­
tional guaranty of freedom of speech (so long as their 
advocacy does not present a clear and present danger 
to society), it is absurd to say that the failure of school 
children to salute the flag presents any greater danger 
to public safety.

Indeed the policy implicit in the State Board’s regu­
lation—to compel the child to salute and to punish him 
as a delinquent if he does not—not only has no tendency 
to instruct the children of West Virginia in loyalty to the 
flag and Constitution of the United States, but on the 
contrary, instils hatred and bitterness in such children 
and their parents. As such the conduct of the State Board 
—not the children who fail to salute—is the more “ clear 
and present danger”  to society.

As succinctly stated by Judge Parker in the opinion 
below (B. 54):

“ The salute of the flag is an expression of the 
homage of the soul. To force it upon one who has 
conscientious scruples against giving it, is petty 
tyranny unworthy of the spirit of this Bepublic and 
forbidden, we think, by the fundamental law. This 
court will not countenance such tyranny but will use 
the power at its command to see that rights guar- 
teed by the fundamental law are respected.”

The fact that we have constitutional guaranties re­
quires accommodation of the powers which government 
normally exercises, when no question of civil liberties 
is involved, to the constitutional demand that those liber­
ties be protected against the action of government itself. 
(Minersville School District v. Gobitis, 310 U. S. 586, 603.) 
“ Unnecessary clashes”  between the proper demands of 
the State and the dictates of conscience should be avoided. 
(United States v. McIntosh, 283 U. S. 605.)



20

POINT IV

Congress having entered the field of legislation by 
the enactment of Sec. 7 of the Act of June 22, 1942 
(Public Law 623, 77th Cong. Ch. 435, 2nd Sess., Tit. 
36 U. S. C. A . Supp. 1942, Sec. 172), and having 
expressed the national policy in the matter of saluting 
the flag of the United States, the regulation of the 
State Board is invalid.

At the time that the Gobitis case was decided by this 
Court, Congress had not entered the field of legislation 
and the opinion of the majority in the Gobitis case took 
note of this fact. (310 U. S. 586, 600.) However, on June 
22, 1942, Congress enacted the following as a part of a 
codification of the rules and customs regarding the use of 
and respect due the flag of the United States:

“ Sec. 7. That the pledge of allegiance to the 
flag, ‘ I pledge allegiance to the flag of the United 
States of America and to the Republic for which 
it stands, one Nation indivisible, with liberty and 
justice for all’, be rendered by standing with the 
right hand over the heart; extending the right hand, 
palm upward, toward the flag at the words ‘ to the 
flag’ and holding this position until the end, when 
the hand drops to the side. However, civilians will 
always show full respect to the flag when the pledge 
is given by merely standing at attention, men re­
moving the headdress. Persons in uniform shall 
render the military salute.”

Since it is the purpose of the salute to the flag to pro­
mote “ national cohesion”  and “ national unity”  (Miners- 
ville School District v. Gobitis, 310 U. S. 586, 596-7), the 
subject is of national cognizance and the Act of Congress



21

renders the acts and regulations of State legislative 
authorities invalid, whether or not they conflict with the 
Act of Congress.

Two flags float above the State House of most states—- 
on the left the flag of the state, on the right the flag of the 
United States. Each is the emblem of an independent 
political society organized directly by its citizens. I f  the 
government in Washington should assume to imprison 
West Virginia children for refusing to salute the emblem 
of that state, citizens of West Virginia would feel very 
properly that the representatives of New York and Cali­
fornia were meddling in matters with which they had no 
concern. It is for the citizens of West Virginia to deter­
mine what observance the state demands of children, and 
to decide what laws 'will best support the honor of their 
flag.

Conversely, it is not for West Virginia to put the 
Stars and Stripes in the position where innocent children 
following the dictates of religious training might suffer 
physical injury or impairment of their intellectual develop­
ment because the children do not yield it what West 
Virginia considers suitable respect. This is a matter that 
concerns Maine, and New York, and California. It con­
cerns the unity of a hundred and thirty million people. 
Only the representatives of that hundred and thirty mil­
lion can establish the ceremony for saluting the American 
flag and define and punish the offense of disloyalty to the 
common emblem of the United States.

We submit that the present case is governed, in prin­
ciple, by Hines v. Davidowitz, 312 U. S. 52. There a 
Pennsylvania statute for the registration of aliens was 
held invalid because Congress had dealt with the same 
subject in a national act. There was nothing in the Fed­
eral Constitution to forbid Pennsylvania to register aliens,



22

nor did the Pennsylvania statute conflict with the Act of 
Congress in the sense that it was not perfectly prac­
ticable for aliens to obey both at once. Nevertheless the 
Pennsylvania statute was declared invalid because the 
subject was one of national cognizance and because Con­
gress had indicated by its enactment the policy which it 
had determined to pursue. We submit that the obligation 
of citizens towards the national emblem is even more 
clearly of national cognizance.

Nevertheless in this case the situation is not merely 
that Congress and the State Board ara occupying the 
same field with perfectly consistent legislation. The fact 
is that the State Board’s prescribed method of saluting 
the flag conflicts with that prescribed by Congress. Con­
gress says: “ * * * civilians will always show full
respect to the flag when the pledge is given by merely 
standing at attention * * The West Virginia State
Board orders: “ * * * that the commonly accepted
salute to the Flag of the United States—the right hand 
is placed upon the breast and the following pledge re­
peated * * * and that all teachers * # * and pupils 
* * * shall be required to participate in the salute

If Congress in a field of national cognizance says that 
proper respect for the flag may be shown merely by stand­
ing at attention, it is not proper for West Virginia or 
any other state or local authority to require more and to 
seek to compel a particular form of salute which Congress 
has not seen fit to adopt. (Adams Express Co. v.
Croninger, 226 U. S. 491, 506 ; Charleston & Western Caro­
lina Railway Co. v. Varnville Furniture Co., 237 U. S. 
597.)

Furthermore and of great importance is the fact that 
Congress did not deem it wise, or see fit, to impose any



23

penalties for failure to salute the flag. Obviously West 
Virginia may not create an offense and prescribe a penalty 
as to a matter of national concern, as to which Congress 
has legislated, but for which it has prescribed no penalty.

In Charleston & Western Carolina Railway Co. v. 
Varnville Furniture Co., 237 TJ. S. 597, at 604, Justice 
Holmes said:

“ When Congress has taken the particular sub­
ject matter in hand coincidence is as ineffective as 
opposition, and a state law is not to be declared a 
help because it attempts to go farther than Con­
gress has seen fit to go. Chicago, R. I. & Pacific 
Ry. v. Hardwick Elevator Co., 226 U. S. 426, 435, 
Southern Railway v. Indiana Railroad Commission, 
236 U. S. 439, 446, 447. The legislation is not saved 
by calling it an exercise of the police power * *

Conclusion

The regulation of the State Board is unconstitutional, 
and it is invalid because it is in conflict with an Act of 
Congress legislating in a field of national cognizance. The 
decision in Minersville School District v. Gohitis (310 
U. S. 586) should be reversed and the decision of the 
District Court should be affirmed.

Respectfully submitted,

W illiam ,Gr. F ennell,
Osmond K. F raenkel,
A rthur Barfield Hays,

Of the New York Bar,

H oward B. Lee,
Of 1the West Virginia Bar, 

Attorneys for the American Civil Liberties 
Union, Amicus Curiae.



24

APPENDIX A

Resolution of the W est Virginia State Board of 
Education adopted January 9, 1942

W hereas, The West Virginia State Board of Educa­
tion holds in highest regard those rights and privileges 
guaranteed by the Bill of Rights in the Constitution of 
the United States of America and in the Constitution of 
West Virginia, specifically, the first amendment to the 
Constitution of the United States as restated in the four­
teenth amendment to the same document and in the guar­
antee of religious freedom in Article III of the Consti­
tution of this State, and

W hereas, The West Virginia State Board of Educa­
tion honors the broad principle that one’s convictions 
about the ultimate mystery of the universe and man’s 
relation to it is placed beyond the reach of law; that the 
propagation of belief is protected whether in church or 
chapel, mosque or synagogue, tabernacle or meetinghouse; 
that the Constitution of the United States and of the 
State of West Virginia assure generous immunity to the 
individual from imposition of penalty for offending, in 
the course of his own. religious activities, the religious 
views of others, be they a minority or those who are 
dominant in the government, but

W hereas, The West Virginia State Board of Educa­
tion recognizes that the manifold character of man’s rela­
tions may bring his conception of religious duty into 
conflict with the secular interests of his fellowman; that 
conscientious scruples have not in the course of the long 
struggle for religious toleration relieved the individual 
from obedience to the general law not aimed at the pro­
motion or restriction of the religious beliefs; that the 
mere possession of convictions which contradict the rele­
vant concerns of political society does not relieve the 
citizen from the discharge of political responsibility, and



25

W hereas, The West Virginia State Board of Educa­
tion holds that national unity is the basis of national 
security; that the flag of our Nation is the symbol of our 
National Unity transcending all internal differences, how­
ever large within the framework of the Constitution; 
that the Flag is the symbol of the Nation’s power; the 
emblem of freedom in its truest, best sense;' that it sig­
nifies government resting on the consent of the governed, 
liberty regulated by law, protection of the weak against 
the strong, security against the exercise of arbitrary 
power, and absolute safety for free institutions against 
foreign aggression, and

W hereas, The West Virginia ,State Board of Educa­
tion maintains that the public schools, established by the 
legislature of the State of West Virginia under the au­
thority of the Constitution of the State of West Virginia 
and supported by taxes imposed by legally constituted 
measures, are dealing with the formative period in the 
development in citizenship that the Flag is an allowable 
portion of the program of schools thus publicly supported.

Therefore, be it R esolved, That the West Virginia 
Board of Education does hereby recognize and order that 
the commonly accepted salute to the Flag of the United 
States—the right hand is placed upon the breast and the 
following pledge repeated in unison: “ I pledge allegiance 
to the Flag of the United States of America and to the 
Republic for which it stands; one Nation, indivisible, with 
liberty and justice for all” —now become a regular part 
of the program of activities in the public schools, sup­
ported in whole or in part by public funds, and that all 
teachers as defined by law in West Virginia and pupils 
in such schools shall be required to participate in the 
salute honoring the Nation represented by the Flag; 
provided, however, that refusal to salute the Flag be 
regarded as an act of insubordination, and shall be dealt 
wfith accordingly.





JEHOVAH'S WITNESSES 
AND

THE WAR

"The essence of religion is belief 
in a relation to God involving 
duties superior to those arising 
from any human relations".

Chief Justice Charles
E. Hughes —  U.S. v.
Macintosh

American Civil Liberties Union 
I 70 Fifth Avenue 
New York City

January, 1943



JEHOVAH'S WITNESSES AND THE W AR
Introduction

H T H E  undersigned join in presenting this extraordinary record 
of attacks upon the liberties of a religious organization. The 

attacks constitute a challenge to dem ocratic liberty and religious 
tolerance. They present in new form  the ancient conflict that at 
times arises between m en’s convictions o f their duty to God and 
the commands of the State.

Jehovah’s W itnesses have been subjected to a religious perse­
cution unmatched in our history as a nation save fo r  the violence 
years ago against the M orm ons. M ore than any other minority; 
they are suffering w ar-tim e attack on their freedom  of conscience;! 
yet their only offenses (outside a few  cases of disorderly con­
duct) are their refusal to salute the flag, their insistence upon 
conducting their m inistry in public, the distribution of literature 
in public places and house-to-house— often, it is true, by annoy­
ing m ethods; and the refusal o f their men o f m ilitary age to ac­
cept m ilitary service. Y e t  they do not call themselves pacifists, - 
fo r  they are committed to fight in a w ar for Jehovah— an obvi­
ously academic reservation.

The record in these pages shows that thousands of their chil­
dren have been expelled from  the public schools all over the coun­
try  for refusal to salute the flag ; that several hundred men of 
m ilitary age are imprisoned fo r  refusing compulsory military 
service; that they alone have been the victim s of “ patriotic”  mob 
violence; that hundreds of their members have been arrested for 
distributing literature— and that they have been compelled to 
bring more cases in the courts involving their rights, and thereby 
the rights of all of us, than any other organization in the country.

No amount of persecution im pairs the zeal w ith which Jeho­
vah’s W itnesses serve their faith . Persecution of them is not only 
futile but a reflection upon all those who tolerate it. The degree 
to which our comm unity accords Jehovah’s W itnesses their rights 
measures our own loyalty to the ideals we profess. Protection of 
their freedom  of speech and conscience is the protection of our 
own, regardless of whatever attitude we m ay take to their often 
annoying public conduct.



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 3

Solutions can be found to the conflict between the commands 
of the State and their concept of duty to God which will not sacri­
fice any reasonable requirements of the com m unity. It  is sug­
gested that their children be excused from  flag saluting without 
im pairing patriotic education; their literature could be freely  
distributed constitutionally without violating the rights of house­
holders or otherwise creating disorder ; their men o f m ilitary age 
can be exempted from  compulsory m ilitary service, and given  
civilian service like conscientious objectors.

It  is in the interests of religious tolerance and reasonable solu­
tions that the undersigned— wholly dissociated fro m  any con­
nection with or endorsement of Jehovah’s W itnesses— subscribe 
to the publication of this pamphlet and commend it to the atten­
tion of all liberty-loving Am ericans.

Dr. Henry A. Atkinson (New York)
Bishop James Chamberlain Baker (California)
Harry L. Binsse (New York)
Rev. W. Russell Bowie (New York)
Dr. Henry Sloane Coffin (New York)
Dr. Henry Hitt Crane (Detroit)
Dr. Frederick May Eliot (Boston)
Dr. Harry E merson Fosdick (New York)
Dr. John Haynes Holmes (New York)
Rabbi Morris S. Lazaron (Baltimore)
Rev. Halford E. Luccock (Conn.)
Bishop Francis J. McConnell (New York)
Rev. John Howard Melish (Brooklyn)
Rt. Rev. Walter Mitchell (A rizona)
Dr. Reinhold Niebuhr (New York)
Bishop G. Bromley Oxnam (Boston)
Rt. Rev. Edward L. Parsons (San Francisco)
Rev. Dr. D. de Sola Pool (New York)
Rt. Rev. Msgr. John A . Ryan (W ashington, D .C .)
Rabbi Abba Hillel Silver (Cleveland)
Dean Clarence R. Skinner (Boston)
Rev. Ernest F . Tittle (Illinois)



4 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

I

Organization and Beliefs

T H E  religious association of Jehovah’s W itnesses, who object 
to the use of the word “ sect” to describe them , has expanded 

from  its origin in the United States sixty years ago to many 
lands. Its international headquarters are the W atchtow er Bible 
and Tract Society with a large plant in Brooklyn, N ew  Y ork . Its 
membership in the United States is conservatively estim ated at 
half a million persons. Its international mem bership probably 
runs into several millions. Its largest affiliations are in Canada, 
England, Germany, Australia and South A frica . M em bership has 
been grow ing rapidly in recent years, particularly in English- 
speaking countries. It has of course been suppressed in all coun­
tries under A xis control— and strangely in Canada.

Recruits are secured by the activity of W itnesses in conduct­
ing propaganda on the public streets and house to house, by the 
distribution of literature and the playing o f phonograph records. 
The organization has no clergym en nor churches. A  num ber of 
special representatives charged w ith directional field w ork are 
“ ordained m inisters”  in the fa ith  o f Jehovah. A ssisting  them  are 
regular full-tim e “ publishers”  who devote all their tim e to preach­
ing the gospel and to organization of “ publishing com panies,” 
their local units. There are in addition m any part-tim e “ pub­
lishers.”

Contact between members is maintained by two bi-weekly  
magazines, the W atchtow er  and Consolation, and by m any books 
and pamphlets, published in alm ost incredible num bers reaching  
a total annual output of over 45 ,000 ,000  copies, in tw enty-eight 
languages. M eetings are held in “ K ingdom  H alls”  or in private 
homes, with regional and national conventions annually. Con­
siderable radio tim e is also secured. M em bership and activities 
cover the entire country reaching into the sm allest communities.

Their Religious Beliefs

T H E  cardinal principles of Jehovah’s W itnesses are described 
thus in excerpts from  their literature.

“ Jehovah’s W itnesses are not a sect or a religious organ­
ization. They are in a class of faith ful men mentioned in the



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 5

eleventh chapter o f Hebrews whose sole purpose is to inform  
the people of God’s purpose to establish a righteous govern­
ment on earth, and in obedience to God’s com m andm ent to 
warn the people of the impending disaster upon the nations, 
the Kingdom  of Jehovah God under Christ, which Kingdom  
is the Theocracy.

“ There are unseen powers more powerful than man which  
are responsible for the present march of all nations to de­
struction. These superhuman powers are the devils, of which  
Satan is the chief.

“ A fte r  the final war of Arm ageddon, God creates the new  
earth, the new righteous organization, which God will set up 
for the Government of the survivors of Arm ageddon and 
their righteous offspring. That organization will be carried 
on by the holy men of God of olden tim es prior to Christ who 
were faithful witnesses o f Jehovah even unto death.

“ A ll true and faithful follow ers o f Jesus Christ are indeed 
and m ust be witnesses  to Jehovah by declaring his name and 
his K ingdom  under Jesus Christ. A ll such people m ust preach 
the Gospel of God’s Kingdom  in obedience to the Com mand­
ments.

“ Religion, contrary to  its claim of being Christian, has be­
trayed the peoples right into the powers o f the Dem ons. 
Thereby religion turns mankind away from  God’s Kingdom , 
the Theocracy.”

T H E IR  attitude to God and the State is expressed in the fo l­
low ing quotations.

“ Loyalty means to be obedient to the law .— N ecessarily  
this means that obedience to God’s law and commandments 
is first, and then obedience to the laws of the state which  
are not contrary to God’s law. (R utherford , God and State) 

“ A ll the nations o f the present world are against the 
Theocracy. There are am ongst the nations of earth two  
m ighty factions which claim the right to rule and which  
nations are designated in the prophecy of Daniel as the 
“ king of the north”  and the “ king of the south” and both 
of which are against the rule of the world by Jesus Christ,



6 J e h o v a h ’s W it n e s s e s  a n d  T h e ; W a r

who is Jehovah’s King. The covenant people of God are on 
His side and entirely devoted to his purpose and therefore 
must be and are at all times neutral in all things of con­
troversy between the nations of the evil world.

“The totalitarian ruling powers, composed of Nazis, Fas­
cists and big religious leaders, now stand where they ought 
not to stand, claiming the right to rule the world and de­
manding that Jehovah’s covenant people shall hail and bow 
down to totalitarian rulers, join their armies, fight under 
their banners, and when Jehovah’s covenant people refuse 
to do so they are imprisoned and many put to death. In the 
face of all this God’s covenant people stand firm on the side 
of the Theocracy even though they see their faithful ones 
being imprisoned and sent to death. Although the laws of 
such nations declare that a minister shall not be required to 
do military service, the acting authorities who have to do 
with carrying the law into operation say to these faithful 
covenant people of God: ‘We do not recognize you as a min­
ister, nor that you are a sincere conscientious objector to 
engaging in war; therefore you must join the fighting forces 
and fight under our banner.’

“The Faithful covenant people of God answer: ‘We cannot 
do so. We are in covenant with Almighty God to do His 
will. To obey your commandment we must violate our cov­
enant with God; and if we do so we shall suffer eternal de­
struction at the hands of the Almighty God. We will will­
ingly conform ourselves to every law of the land that does 
not cause us to violate our Covenant with Jehovah.’ ” (Year 
Book, 1942)

' I ' HE general attitude of Jehovah’s Witnesses toward govern- 
ments is therefore to obey every “righteous” law. Unrighteous 

laws are those which they are forbidden by their religious belief 
to obey. They do not commonly vote or serve on juries. Their 
refusal to salute the flag rests on the Biblical injunction:

“Thou shaft have no other Gods before me. Thou shalt not 
make unto thee any graven image, or any likeness of any­
thing that is in the heavens above, or that is in the earth 
beneath, or that is in the water beneath the earth; thou



J e h o v a h ’ s W it n e s s e s  a n d  T h e  W a r 7

shalt not bow down thyself to them  nor serve th em ; fo r  I 
the Lord thy God am  a jealous God visiting- the iniquity of 
the fathers upon the children unto the third and fourth  
generations o f them  that hate m e.”

But though unwilling to salute an “ im age” they are entirely  
willing to take a pledge of respect and allegiance which they have 
thus form ulated and to stand at attention w ith hats o f f :

“ I have pledged m y unqualified allegiance and devotion to 
Jehovah the A lm ighty God and to his K ingdom  fo r  which  
Jesus commands all Christians to pray.

“ I respect the flag of the United States and acknowledge 
it as a symbol of freedom  and justice fo r  all. I pledge alle­
giance and obedience to all the laws of the United States 
that are consistent with God’s law as set forth  in the Bible.”

ON  the issue of m ilitary service, Jehovah’s W itnesses gener­
ally are opposed to participation in w ars, reserving only the 

right to fight in a w ar for Jehovah. But the conduct of individual 
members is not controlled by any discipline, and m em bers take 
varying positions on m ilitary service— some accepting com batant 
or non-com batant posts in the arm y, more taking service as con­
scientious objectors, and even m ore refusing all participation, 
with consequent imprisonment.

One widespread cause of antagonism  to Jehovah’s W itnesses  
is their opposition to other religious bodies on the ground that 
they pervert the purposes of “ A lm igh ty  God as expressed in the 
Bible.”  Their pamphlets attack the Roman Catholic Church, 
Protestants, and Jews. They hold that organized religion is a 
“ racket.”  They have therefore aroused the opposition of strong  
elements in the churches, as they have the defenders o f conven­
tional patriotism  in the Am erican Legion. The zeal o f the W it ­
nesses inevitably makes them provocative. They are insistent: 
they push their m essages into the hands of passers-by, into the 
doors o f homes, into public places. They are difficult to rebuff or 
discourage and when driven away come back fo r  more. The be­
havior o f such zealots results in alienating support of their rights 
and in a general hostility to them  as a public nuisance.



8 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

Persecution

A L T H O U G H  subjected to persecution in peace-tim e, w ar in­
tensifies the conflict between the W itnesses and the require­

m ents o f law and it heightens popular prejudice. In Canada 
shortly after the outbreak of w ar they were declared an illegal 
association. They m ay not publish papers, distribute literature, 
or hold meetings. Some of their leaders who have persisted in 
so doing have been interned w ithout hearing or trial. In Ger­
many, they have been sent by the hundreds to concentration  
camps. One special camp reserved for them  is said to have over 
6,000 inmates. In England, where they enjoy m ore tolerance 
than in other parts of the B ritish Com m onwealth, over 500 of 
their members are in prison for refusing m ilitary or civilian 
service. Reports of their difficulties w ith the law  come also from  
Australia, New  Zealand and South A frica .

In the United States the w ar has brought a conflict w ith con­
scription which has resulted in the im prisonm ent o f over 450 
W itnesses who have refused either m ilitary service or assign­
ment to conscientious objector camps, insisting upon recognition 
as “ m inisters.” Mob violence, which reached a peak in 1940 fol­
low ing the disasters to the Allied cause in Europe, has continued 
sporadically, particularly in the Southwest, and w ith outbreaks 
in cities where the W itnesses were gathered in convention.

A T T O R N E Y  General Francis Biddle has repeatedly warned 
* *  against attacks on the W itnesses. In a speech before the 
National Conference on Social W ork, June 2, 1941, he said :

“ W e all know of the outrages com m itted against the 
members of the sect known as Jehovah’s W itnesses, who, 
with misplaced zeal of m artyrs, openly tem pt retaliation for  
their attacks on the Catholic Church, so that grand juries  
refuse to return indictments. W h ere state officials should 
have been active in preventing this cruel persecution, they 
have in m any instances permitted it to occur, and in some 
have been the leaders o f the mob. A nd this betrayal of the 
rights of citizens is done in the name of patriotism , and fa il­
ure to salute the flag is made an excuse to desecrate the prin­
ciples of which the flag is a symbol. The test o f our ability to 
preserve these principles is alw ays sharper in tim es of crisis.



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 9

H itler’s methods cannot preserve our democracy, which de­
mands justice fo r  all alike.”

A t  the request o f the Attorney General, several U .S . District 
Attorneys have made radio addresses cautioning against attacks 
on W itnesses and upholding their right to carry on propaganda  
without hindrance.

The W itnesses are obliged incessantly to contest in the courts 
the restrictions upon them. They have carried case after case to 
the United States Supreme Court. Their general counsel, Hayden  
Covington, is involved in litigation all over the country, either 
to secure their rights to distribute literature, to contest expul­
sions from  the public schools, or to defend m em bers against crim ­
inal charges. Court decisions on the whole have become increas­
ingly favorable to the contentions o f Jehovah’s W itnesses, as is 
shown by the record in Section V .

It is a reflection upon progressive forces in Am erican life that 
the W itnesses have been aided in their m any court contests by  
only a very few  agencies, chiefly the Am erican Civil Liberties  
Union— w ith incidental help on issues raised in the Supreme 
Court— in one case, by the Am erican B ar Association, involving  
the flag-salute, and in a case involving taxation on the sale of 
literature, by the Am erican N ew spaper Publishers Association  
and the Seventh D ay Adventists. Y e t  the rights which their court 
contests seek to uphold are rights applicable to all persons; and 
their success in establishing them  has been of immense benefit 
to the cause of civil liberties generally.

II

Mob Violence

A CTS of violence against Jehovah’s W itnesses reached a peak 
in 1940 in the feeling aroused by the N azi conquests of 

W estern  Europe. The story has been told in substance in a previ­
ous A .C .L .U . pamphlet, The Persecution  o f Jehovah’s W itnesses. 
Violence declined during 1941 and 1942 but the attacks though  
less frequent have been shocking. The w ar has intensified popular 
antagonism  to their refusal to salute the flag and to participate



10 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

in the w ar. M ost of the attacks in the past tw o years have been 
in the Southwest with scattered outbreaks in alm ost every state  
of the nation, alm ost always in small com m unities where preju ­
dice and action are easily organized, and hard to check.

The annual conventions or “ Theocratic A ssem blies”  of the W it ­
nesses in September 1942 were the occasion fo r  violence in sev­
eral cities. M em bers were gathered to hear the m essage of their 
leader, N . H . K norr, carried to them  by w ire fro m  the m ain con­
vention at Cleveland, Ohio. K n orr’s them e w as “ Peace, Can It 
L ast.”

The Cleveland convention went off without trouble thanks to 
the good sense of the city authorities. 20 ,000  W itnesses gathered  
on Septem ber 20th, the sam e day that an arm y show w as being 
staged in the municipal auditorium. B efore and after the meet­
ings at their convention hall, the W itnesses posted them selves at 
alm ost every street intersection to sell their literature. Tension  
grew. A  serious situation was averted by M ayor F rank Lausche 
who in public announcements upholding freedom  o f speech and 
assemblage, urged the townspeople not to  provoke violence. He 
also announced he would not appear before the convention as 
he had been scheduled to do and urged citizens to give their at­
tention to the arm y show.

But in Little Rock, A rkansas, and K lam ath Falls, Oregon, 
serious outbreaks occurred against m em bers gathered in the local 
conventions.

Little Rock, Arkansas

A N E W S P A P E R  report in the Arkansas Gazette o f Septem­
ber 20th, describes the violence at Little R o ck :

“ Seven members o f the religious cult known as Jehovah’s 
W itnesses were injured, including tw o who were shot in a 
fierce and bloody battle at the form er Brinkley Hospital 
last night.

“ W orkers of Stretch 3 of the W a r  Em ergency Pipeline 
attempted to drive the W itnesses fro m  their quarters in the 
form er hospital building. The battle started when about 100  
of the pipeline workers arm ed w ith guns, sticks, black-jacks



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 11

and pipe swarm ed into the hospital grounds about 8 p.m . 
The khaki-clad workers still covered w ith dust fro m  their 
day’s labors, m et with resistance soon after they entered 
the gate.

“ A bout 10 Jehovah’s W itnesses blocked the road about 
150 yards fro m  the highway and the trouble started when 
the angered pipeliners started through. Six or seven shots 
were fired during the struggle which lasted five minutes. 
A fte r  the fight, the W itnesses fell back tow ard the hospital 
and into the woods. Meanwhile other W itnesses com ing from  
the city in cars were attacked as they turned from  the high­
w ay into the road leading from  the hospital. The pipeliners at 
the gate ordered them  from  their cars or dragged them  out. 
They were attacked and beaten over the head.

“Asked if  they would salute the flag, m any refused to  
answer. One begged for mercy and finally broke aw ay and  
tried to flee. He was captured before he had gone far . A  
woman seated in a parked car across the highw ay, screamed  
encouragement to the attackers, as he was being pursued.
A  husky Little Rock youth, about 19, a spectator, turned  
pale as he watched the beating.

“ Occasionally another automobile would turn into the 
grounds. A  dozen or m ore pipe-liners pounced on each car 
and asked: ‘A re  you a W itn ess? ’ The usual answer came 
back in a firm voice, ‘Y es I am  a W itn ess.’ The driver and 
male occupants were then dragged out and the pum m eling  
began. M any used their fists, but others wielded clubs, long  
heavy screw drivers, and others black-jacks. The beating  
continued until the victim  fell.

“ One victim  was seated on the running board of an auto­
mobile a fter he had been beaten, but a group of men sur­
rounding him  prevented the reporter fro m  seeing w hat had 
happened. The spokesman demanded that the W itness salute  
the flag. Apparently he complied. H e then w as tossed into 
a ditch w ith three other prostrate form s. These four re­
mained in the ditch when the reporter le ft .”

The Departm ent of Justice was urged by the W itnesses to in­
vestigate and act, but no results have yet appeared, possibly due 
to lack of a federal question.



12 J e h o v a h ’ s W it n e s s e s  a n d  T h e  W a r

Klamath Falls, Oregon

A T  Klam ath Falls, over 1,500 men, wom en and children were 
gathered in their convention hall. Outside, according to affi­

davits, a quickly growing mob, which reached 1,000 at its height, 
attempted to break into the m eeting, and subjected m any of the 
W itnesses to physical violence. Stones and stink-bom bs were 
thrown in through the windows, literature w as burned, prop­
erty destroyed, and hundreds of automobiles belonging to the 
W itnesses were disabled. The local police were unable to cope 
with the situation. Only m ilitia called out prom ptly by Governor 
Sprague were able to restore order.

Excerpts from  an affidavit dated Sept. 24, by Edna F . Rogers 
of M edford, Oregon, state :

“ A t one o’clock when Brother K norr came on, everyone 
was inside the hall ready for his speech “ Peace— Can It 
L ast.”  The front section or lobby where the literature was 
kept, had been arranged with chairs fo r  wom en w ith chil­
dren under five years. It  was pretty well filled and the main  
hall also. Soon we heard an Am erican Legion band outside 
the hall. Then we heard the Am erican Legion had put up a 
bond-selling booth across the street and were yelling ‘Come 
on out and buy bonds— w hy don’t you help fight this w ar.’ 
Then they went through a flag-salute ceremony and called 
on us to j oin them. A  few  m inutes after that things began to 
happen— all of a sudden a stone came through a large plate 
glass window. I was sitting w ith the children and as the door 
slid open, we could see fists flying as well as clubs. Then the 
lecture stopped which m eant the enem y had cut the wires.

“ Brother Davis took the lecture ju st w here Brother Knorr  
left off, and tried quieting everybody by telling them  every­
thing was alright. Soon our men returned and I could see 
they had been in a fight as some of their faces and hands 
were cut and bleeding.

“ The crowd outside was getting uglier and uglier. Soon 
they were pitching, rocks, stink-bom bs, and bottles contain­
ing ammonia and acid. Our men proceeded to break up



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 13

benches and as soon as a window was broken, they would 
place parts of the benches in the openings to keep out tear  
gas and stink bombs. They had to stand there with clubs 
made out of the benches to hit those who tried to  climb 
through the broken windows. One of their crowd got hurt at 
one of the doors and our men at great risk to themselves 
opened the door and dragged him  inside, fo r  i f  they left him  
outside he would be tram pled to death. Things were in tur­
moil, children crying and women in hysterics.

“ Later a M arine Sergeant came inside bringing a local 
reporter with him. He said he’d rather fight on our side as 
from  the looks of things the W itnesses were good clean fight­
ers. He stayed with us until the state m ilitia arrived. W hile  
he was inside the mob threw  in a box full o f burning kero­
sene rags. The brethren soon threw  them out. Then they  
broke all the plate glass windows in the front, taking some 
literature from  the shelves. The police told them  that if  
they’d come in a second tim e, they’d use real bullets on 
them. They did have quite a pile of literature on the street 
already setting it on fire.

“ Then the brother announced that the m ilitia had arrived. 
W e were permitted to leave and they had a cordon of depu­
ties around the building and for a few  blocks around.

“ On reaching the parking lot, we saw more destruction. 
A s fa r  as we could see, every Jehovah’s W itness car was 
overturned. And here were some of the cars w ith tires 
missing, stolen, or cut. The cars they couldn’t  turn over, 
they had rammed the engines w ith holes, pulling out con­
necting wires and distributors.”

The A .C .L .U . at once urged the Departm ent of Justice to in­
vestigate, with the result that the U .S . A ttorney at Portland re­
plied that investigation failed to disclose a ground for federal 
intervention. The Union posted a reward of $500 for inform ation  
leading to the arrest and conviction o f any m em bers o f the mob, 
so fa r  without results.



14 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

Volunteer Firemen Lead Mob

A M O N G  hundreds of affidavits received by the Am erican Civil 
Liberties Union, scores attest to the fact that local law  en­

forcem ent authorities and public employees are m em bers, and in 
many instances leaders of the mobs. Follow ing is an account of 
an attack that took place in Im perial, Pa., on July 11, 1942, from  
an affidavit by V . Flandin of Pittsburgh, P a., dated July 22.

“ On Saturday, July 11, 1942, I was engaged in the act of 
preaching the Gospel by means of street corner m agazine  
work. A t  about 8 :1 5 , the fire-siren blew three tim es. Then  
I saw five men coming tow ard me leading a mob. B efore I 
knew it, they were beating me up. M y  shirt was torn off m y  
back along with the magazine bag. I w as pushed against a 
building and thrown to the ground, where I w as kicked in 
the ribs and chest while another one tw isted m y leg tearing  
a ligam ent in m y knee. W hile I w as still there, W alter  
M oschiwsky, W illiam  Comodor, and W illiam  Torso came 
over to help me. B y this tim e tw o hundred or more gathered  
beating up all of us. I m anaged to get on m y feet and to­
gether with W alter M oschiw sky, we headed fo r  the outskirts 
of town which was very difficult in view of w hat they did to 
m y leg. A s we went we were being kicked in the rear. On the 
w ay I saw one of the mobsters hit Joseph V ruck, 54 years 
old, with his glasses on knocking him, to the ground. I also 
saw one of the men hit Charles M eng while he w as sitting  
in his car. They dragged him  from  his car and beat h im .”

(The affidavit continues to tell how the several Witnesses 
attempted to get out of town in their cars. The narrative 
is picked up here with the affidavit of William Torso, of 
McKees Rock, Pa.)

“ W alter Vruck rode with me out of Im perial going east on 
route 22-30 . The mob noticed m y car and they im m ediately  
jum ped into their cars, and into a fire truck, w ith the fire 
chief, Frank Meacci driving. They follow ed us.

“ A s we came to H ood’s tavern, I noticed W alter  M oschiw ­
sky, G. Flick, Joseph V ruck and John Leroy standing there.
I pulled up to let them in m y car. A s  they got in, the fire-



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 15

truck and the rest o f the mob were on top o f us. The fire- 
truck had their red-flashing spot-light going on and off. I 
wound up m y windows and locked the door. The mob broke 
the windows w ith a fire axe. They opened the door and 
dragged me out. Vruck and Le Roy managed to get aw ay by  
running into the woods. Flick ran across the lot. The mob 
chased him , caught him , and smashed his nose, and cut his 
lip, and put a lump on the side of his temple. They lined us 
all up and started to beat us. They grabbed M oschiw sky, put 
him  up against a flag-pole and hit him , telling him  to salute 
the flag. Then they took us over to the flag pole and wanted  
us all to salute it.

“ The mobsters did not know exactly w hat to  do with us. 
The final decision was, ‘let’s take them back to Im perial and 
hang them .’ They then kidnapped us, loaded us on the fire- 
truck and started back through a side road w ith 15 cars fo l­
lowing. H alf-w ay  there, the M otor Police came by, and 
stopped the truck and rescued us.”

E fforts by the Jehovah’s W itnesses to obtain prosecution of 
the assailants failed.

“ Constitution Don’t Apply Here”

A N  affidavit by J. E . Lowe of Columbus, Ohio dated M arch  
25, 1942 tells o f violence that occurred in W est Jefferson, 

Ohio on M arch 21.

“ Previous events leading up to this will show that this 
mob violence had the blessing of Officer Lonnie W o lf and 
M ayor Stone of W est Jefferson. On M arch 7th, Officer W o lfe  
took several W itnesses who were preaching the gospel on 
the street corners by displaying the W atchtow er and Con­
solation magazine, to the M ayor’s office. They were held 
there fo r  an hour and a h alf w ithout any charge being pre­
ferred against them, during which tim e M ayor Stone was 
trying to find some ordinance which he could use against 
them. He told them  he would charge them  with contributing  
to the delinquency of their children, keeping them  out after



16 J e h o v a h ’ s W it n e s s e s  a n d  T h e  W a r

9 o’clock. (The W itnesses were finished w ith their w ork at 
7 p.m. when apprehended.) W hen reminded that the Su­
preme Court had ruled in our favor, W o lfe  replied ‘W e  don’t 
care for the Supreme Court and the Constitution don’t 
apply here.’

“ On M arch 12, another W itness and m yself called at 
M ayor Stone’s office. H e ordered us out o f his office and 
slammed the door. On M arch 14th, the W itnesses returned  
to W est Jefferson. M ayor Stone said he would arrest us as 
soon as he could find Officer W olfe .

“ On M arch 21 three car-loads o f W itnesses returned to 
W est Jefferson. Officer W o lfe  was seen going in and out of 
different places where men generally hang out in small 
towns. Then the town siren blew. A  crowd o f men gathered in 
front o f the barber shop im m ediately began pushing the 
W itnesses and striking them. The five male m em bers tried  
vainly to protect themselves and their wives and children, 
but were so greatly outnumbered that it w as impossible. 
In their viciousness they hit women m em bers and knocked 
them down, one of them  unconscious, and blacked their eyes. 
They were reminded that they were fighting against Chris­
tians and taking the law  into their own hands. They replied 
T hat’s exactly what w e’re doing— taking the law  into our 

own hands.’

“ They started on us again. The W itnesses’ faces were al­
ready bloody. Someone hit me w ith a blunt instrum ent. 
Everything went black. W hile in this condition, they con­
tinued to strike m y head and face cutting another gash in 
the top of m y head. A t  the same tim e they had dragged three 
of the W itnesses out on the highw ay and were pounding, 
beating and kicking them. Such shouts as ‘Kill them ,’ ‘Tar  
and feather them ,’ ‘Make them salute the flag,’ came from  
all directions. And, all this tim e, Officer W olfe  sat in the 
barber shop and watched.

Finally this gory indescribably vicious assault ceased. 
The W itnesses locked arm s and started to walk tow ard their 
car at the fa r  end of town. One tall young, blond fellow  pro­
cured a huge Am erican flag, held it high over our heads



J e h o v a h ’ s W it n e s s e s  a n d  T h e  W a r 17

and marched with us. The same noble flag-bearer had only 
a few  minutes ago twisted the arm s of a young girl W itness  
behind her back until she thought they would break. The  
mobsters were at our heels singing ‘M y country tis o f thee 
sweet land of liberty,’ and shouting, ‘M ake them salute the 
flag.’ ”

Protests were lodged with the Departm ent of Justice against 
the local law enforcem ent authorities, but no prosecution has 
been brought.

Efforts to Combat Violence

IN  an effort to inspire prosecution of those participating in 
such attacks, the A .C .L .U . has recently offered public rewards 

of ?500 on five different occasions; in three Texas tow ns, at 
London, Ohio, and at K lam ath Falls, Oregon.

The effect of these award offers has generally been to restrain  
further outbreaks in the particular town. But they have not re­
sulted in getting inform ation against the offenders. A  letter from  
Curtis A . Sm ith of London, Ohio, illustrates the reason for th is : 
“ I have obtained names of various individuals that committed  
this crime, and have found out the names of several eye w it­
nesses, but they are afraid to turn over their nam es to you.”

In numerous instances, the W itnesses and not the attackers 
have been arrested on one pretext or another. They have found it 
very difficult to retain counsel in their defense, “ because of fear  
to represent the brethren at any price.” Deprived of counsel, they  
have often successfully acted as their own attorneys, guided by  
instructions on court procedure and legal argum ent in pamphlets 
issued by their organization.

It is also their practice to send affidavits to the Civil Rights  
Section of the Justice Departm ent after each instance of violence. 
Investigations are prom ptly and searchingly made but in only 
a few  cases is a federal issue found. Even so, grand juries often  
refuse to indict. In only one instance has a prosecution and convic­
tion resulted. A  federal prosecutor succeeded in M ay 1942 in ob-



18 Je h o v a h ’s W it n e s s e s  a n d  T h e  W a r

tam ing the conviction of two local law  enforcem ent officers in the 
U .S . D istrict Court at Charleston, W est V irgin ia. These officers, 
a police chief and a deputy sheriff o f Nicholas County, W e st V a., 
were found guilty of failing  in 1941 to protect the civil rights of 
a group o f W itnesses and w rongfully  detaining these W itnesses  
in the Richwood City Hall, tying them  w ith ropes, m aking them  
drink large quantities of castor oil, and leading them  out o f town 
at the end of a rope. A n  appeal from  this conviction w as taken 
to the Circuit Court of Appeals in October 1942.

The efforts o f the D epartm ent o f Justice, and the pronounce­
ments o f the Attorney General and his instructions to district 
attorneys have contributed greatly to declining violence. Some 
of the decline is to be attributed also to the restrictions on the 
mobility of propagandists by gasoline rationing.

I ll

The Distribution of Literature
T N  tw o notable cases the United States Suprem e Court has 

sustained the right of Jehovah’s W itnesses, and thereby of all 
others, to distribute literature freely in public places, to  canvass 
house-to-house, and to play phonograph records when objection 
is not made.

Cantwell v. Connecticut put these rights on firm  foundations. 
A n  appeal had been taken by N ew ton Cantwell and his two sons 
from  a decision of the state suprem e court upholding their con­
viction on tw o charges— solicitation of funds fo r  religious pur­
poses without approval o f the secretary o f the w elfare council, 
and playing records attacking the Catholic Church, which, it was 
charged, would incite others to a breach o f the peace.

In reversing the conviction on both counts, the Suprem e Court 
said in an opinion delivered by M r. Justice Roberts on M ay 20, 
1940, th at:

“ W e hold that the statute (regarding solicitation) as con­
strued and applied to the appellants deprives them  o f their



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

liberty without due process o f law  in contravention of the 
14th Am endm ent. The first Am endm ent declares that Con­
gress shall make no law  respecting an establishment o f reli­
gion or prohibiting the free exercise thereof. The 14th  
Am endm ent has rendered the legislatures of the states as 
incompetent as Congress to enact such laws.

“ It will be noted that the A ct requires an application to 
the secretary o f the public w elfare council, who is author­
ized to withhold his approval if he determines that the cause 
is not a religious one. Such a censorship of religion is a 
denial o f the liberty protected by the 1st Am endm ent and in­
cluded in the liberty which is within the protection of the 
14th Am endm ent.”

Right to Play Records

IN regard to playing records, the Court sa id :

“ W hen clear and present danger o f riot, disorder, inter­
ference with traffic upon the public streets, or other im m e­
diate threat to  public safety appears, the power of the 
state to prevent or punish is obvious. Equally obvious is it 
that a state m ay not unduly suppress free comm unication of 
views, religious or other under the guise o f conserving de­
sirable conditions.

“ H aving these considerations in mind, we note that Jesse 
Cantwell was upon a public street where he had the right to 
be, and where he had a right peacefully to im part his view s 
to others. He requested of tw o pedestrians perm ission to 
play them a phonograph record. The perm ission was grant­
ed. It is plain that he wished only to interest them  in his 
propaganda. The sound of the phonograph is not shown to 
have disturbed residents of the street, to have drawn a 
crowd, or to have impeded traffic. Thus fa r  he has invaded 
no right or interest of the public or o f the men accosted. The  
record played by Cantwell embodies an attack on all organ­
ized religious system s. The hearers were in fact highly o f­
fended. One of them  said he fe lt like hitting Cantwell.— ■ 
Cantwell’s conduct, considered apart from  the effect o f his



;20 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

communication upon the hearers, did not am ount to a breach  
of the peace.— W e find in the instant case no assault or 
threatening of bodily harm , no truculent bearing, no per­
sonal abuse. On the contrary we find only an effort to per­
suade a willing listener to buy a book, or contribute money  
in the interest of w hat Cantwell, however m isguided others 
m ay think him, conceived to be true religion.”

To License is to Censor

L OVELL v . City o f Griffin  (G eorgia) was an appeal from  the 
decision of the Court of Appeals o f Georgia, upholding a con­

viction for violating a city ordinance prohibiting the circulation  
■of literature of any kind without first obtaining perm ission from  
the City M anager.

In reversing this conviction, the Suprem e Court said in an 
.opinion handed down in M arch 1938 by C hief Justice H ughes:

“ W e think that the ordinance is invalid on its face. W h a t­
ever the motive which induced its adoption, its character is 
such that it strikes at the very foundation of the freedom  of 
the press by subjecting it to  license and censorship. The 
struggle for the freedom  of the press w as prim arily directed 
against the power of the licensor. The liberty of the press 
became initially a right to publish w ithout a license what 
form erly could be published only w ith o n e ! W hile this free­
dom from  previous restraint upon publication cannot be re­
garded as exhausting the guaranty of liberty, the prevention 
of that restraint was a leading purpose in the adoption of 
the constitutional provision.”

Sale of Literature

I T  T  these decisions, favorable as they were, did not settle the 
issue. For Jehovah’s W itnesses not only distributed liter­

ature free but also asked for contributions to pay fo r  its cost. 
Som etim es they made actual sales, w ithholding distribution if it 
was not paid for . This resulted, after the Suprem e Court deci-



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 2 1

sion, in the passage of ordinances in m any cities taxing the sales 
of literature in public places or in jailin g  W itnesses under ped­
dling ordinances. Contests of these ordinances and arrests re­
sulted in varying decisions, some courts refusing to recognize the 
claim of officials that they were peddlers, other courts sustain­
ing that contention.

The whole issue came before the Supreme Court in cases joined  
from  Opelika, A la b a m a ; F ort Sm ith, A rk a n sa s ; and the State o f  
Arizona. The Court decided the issue in June 1942 by a 5 to 4  
decision, sustaining the right o f cities to tax the sale o f any liter­
ature. The m ajority  opinion delivered by M r. Justice Reed sa id :

“ W hen proponents of religious or social theories use the 
ordinary commercial methods of sales o f articles to raise 
propaganda funds, it is a natural and proper exercise of the 
power o f the state to charge reasonable fees fo r  the priv­
ilege of canvassing. Careful as w e m ay and should be to pro­
tect the freedom s safeguarded by the Bill of R ights, it is 
difficult to see in such enactments a shadow of prohibition  
o f the exercise o f religion or of abridgem ent o f the freedom  
of speech or the press.”

T H E  m inority opinion, delivered by Chief Justice Stone, 
sa id :

“ It seems fa irly  obvious that if the present taxes, laid in 
small communities upon peripatetic religious propagandists 
are to be sustained, a w ay has been found for the effective sup­
pression o f freedom  of speech and press and religion despite 
constitutional guaranties. The very taxes now before us are 
better adapted to that end than were the stam p taxes which  
so successfully curtailed the dissemination o f ideas by 18th  
Century newspapers and pamphleteers and which were a 
m oving cause of the revolution.”

The court went even further, by implication at least, in refus­
ing in October 1942 to review the convictions of three m em bers 
of Jehovah’s W itnesses for violation of a local ordinance in 
Floresville, Texas, prohibiting altogether the sale o f literature



22 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

on the streets. The convictions had been upheld by the Texas 
Supreme Court. Arrangem ents are being made by counsel for  
Jehovah’s W itnesses to bring the cases again before the Supreme 
Court.

Petition for Rehearing

A N  effort is also being made to get the Court to re-hear the 
J A  case decided in June by a m ajority  o f one. The application  
fo r  a re-hearing was supported not only by the Am erican Civil 
Liberties Union, which appeared in the original case, but by the 
Am erican New spaper Publishers Association and the Seventh 
Day Adventists.

In the application for a rehearing the brief for the Jehovah’s 
W itnesses, signed by Hayden Covington, sa id :

“ The m ajority Supreme Court opinion sa y s : ‘So the 
mind and spirit of men remain forever free, while his ac­
tions rest subject to necessary accom modation to the com ­
peting need of his fellow s.’ This is a new  theory grafted  
on to the Constitution and the law . According to precedent, 
the only tim e acts involving freedom  of conscience are sub­
ject to restriction is when the act presents a clear and pres­
ent danger to the nation and to the property rights of o th ers; 
or is contrary to morals, or that public peace will be invaded.

“ ‘The mind and spirit of man rem ain forever free ’ says 
the Court. But he still needs a license! H is mind and spirit 
are free so long as he sits on a porch, or is sound asleep in 
bed. I f  his mind and spirit move him  to get up and go some­
where in the interest of others, there freedom  ends and he 
m ust have a license. The Court has ruled that if you don’t 
use your mind, none m ay interfere w ith you. I f  you do, they 
may.

“ The fee ‘for use of the public streets for business pur­
poses’ is proper fo r  use beyond the common right. B ut it has 
no valid bearing on the common right or use, more especially 
free speech, free press, and worship o f A lm igh ty  God.

“ Under guise of securing public order, decorum and free  
movement of traffic, public expression is suppressed. Taxed



J e h o v a h ’ s W it n e s s e s  a n d  T h e  W a r 23

speech is not free speech. It is silence for persons unable to 
pay the tax. N or is taxed distribution of literature a free  
press. N or is taxed dissem ination of Bible literature free­
dom of w orship.”

Entire Press Endangered

T H E  brief o f the Am erican N ew spaper Publishers A ssocia­
tion signed by E lisha Hanson saw in the court’s decision an 

attack against freedom  of all the press and s a id :

“ The hazards to which the press m ay be exposed as a  re­
sult of upholding of the license taxes in the instant cases are 
readily perceived. I f  the legislature can require a license as 
a condition precedent to the circulation of press inform ation, 
it can impose an identical license as a  condition to engag­
ing in the newspaper publishing business.— If  the state has 
such power, it m ay make the conditions o f the license w hat­
ever it wills, to the extent for instance that only a fe w  new s­
papers can perform  the functions of the press, or even to 
such an extent that none can perform  the functions at all.”

Threat to Speech, Press, Religion

rH E  brief for the Am erican Civil Liberties Union signed by  
Osmond K . Fraenkel charged that the “ decision of the m a­
jority  has greatly curtailed the constitutional protection o f free ­

dom o f speech, of the press and of religion.”  The brief continued:

“ That the decision of the Court will have fa r  reaching and 
disastrous consequences can hardly be denied. W h ile  the 
amounts of the taxes were not challenged in the particular 
cases before the court, in the belief that no such challenge 
was necessary in view of the nature of the ordinances, it 
can hardly be denied that the amounts are substantial and 
burdensome. I f  the opinion of the court stands, then all un­
popular m inority groups will be confronted w ith the neces­
sity of challenging, in each instance, the reasonableness of 
the am ount of the license fee exacted by each particular 
m unicipality. U ntil a number of such cases shall have



24 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

reached the Court no one will know w hat standard will be 
applied. The litigation which will ensue will necessarily  
create a tremendous burden on all such groups. It  m ay in­
deed by itself result in a practical denial o f freedom  of dis­
tribution.

“ It is evident that ordinances o f this kind lend them selves 
to discrimination in enforcem ent. So long as they are con­
fined to purely commercial enterprises, there is little likeli­
hood of discrimination— or at least it can be taken care o f in 
ordinary ways. However, when such licenses can be imposed  
on persons exercising political or religious functions, then 
it is practically certain that such discrim ination will result, 
that unpopular groups will be harrassed fo r  not having paid 
the tax and popular ones never required to pay it. The bur­
den will then be imposed upon the representatives of these 
unpopular groups to prove this discrim ination, a burden 
difficult to sustain.

“ Finally, the decision rendered opens wide the door to the 
harrassing of unpopular groups by dubious testim ony. I f  
these groups now abandon their previous habit o f requesting  
contributions in connection with distribution of literature, 
it is safe to predict that their representatives will be arrested  
throughout the country on the charge that they did request 
such a contribution. In the vital field o f freedom  of ideas, 
no such consequence should be possible.”

R E L IG IO U S  denomination affected directly by the court’s
decision, is the Seventh-Day Adventists whose system  of 

proselytizing through literature distributors known as “ colpor­
teur evangelists” is very sim ilar to that employed by the Jeho­
vah’s W itnesses. A  brief filed for this denomination by Homer 
Cum m ings, form er U .S . A ttorney General said :

“ It is not too much to say that the cum ulative result may  
be the ultimate destruction of the Denom ination, and it must 
necessarily curb drastically the m issionary method it has

Missionary Method Jeopardized



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 25

developed in the United States without official hindrance for  
a century.

“ The colporteur system  is a religious rite, a method of 
carrying the Gospel to otherwise inaccessible places. Y e t  
the court by its decision denies the right to spread the Gospel 
except to those o f substance. The denial of the only practical 
method to carry on this religious work is a denial of the 
right itse lf.”

The Press in Opposition

T H E  reaction of the press to the court’s decision was one of  
widespread opposition. Such national m agazines as Colliers, 

Newsw eek, and Tim e were am ong those expressing dissatisfac­
tion. N o less outspoken were the daily newspapers, am ong them, 
the N ew  Y ork  Tim es, N ew  Y ork  D aily N ew s, N ew  Y ork  Post, 
Chicago Tribune, Chicago D aily N ew s, W ashington Post, St. 
Louis Post Dispatch, Detroit N ew s, A tlanta  Journal, Lexington  
Leader, and Richmond Tim es-D ispatch.

Even the religious journals, organs of denominations which  
the Jehovah’s W itnesses have continuously berated, came out in 
protest. Included am ong them  were, the Tablet (N ew  Y ork , Cath­
o lic), the Commonweal (N ew  Y ork , C atholic), Presbyterian  
Guardian (P h ila .), W atchm an E xam iner (N ew  Y ork , B ap tist), 
Christian Advocate (Chicago, M eth odist), Christian Century  
(Chicago, undenom inational).

IV

The Court Cases Against Them
Sedition and Other Offenses

| E H O V A H ’S W IT N E S S E S  have had to meet in the courts all 
over the country a host of charges ranging from  vagrancy to 

sedition. W hile convictions have been obtained in the lower 
courts, no higher court has yet sustained any conviction for car-



26 Je h o v a h ’s W it n e s s e s  a n d  T h e  W a r

rying on the organization’s activities. Yet scores of Jehovah’s 
Witnesses have been obliged, while the higher courts were delib­
erating, to serve short sentences in prison.

Early in 1942, the Mississippi legislature passed a law penal­
izing “ doctrines and teachings detrimental to the public safety,” 
and making it an offense punishable by confinement to the peni­
tentiary for the duration of the war to “encourage by speech or 
in print disloyalty to the government, or to create an attitude of 
refusal to salute the flag.”

Scores of arrests have already been made under this law. 
The first test case was argued in the Lee County Circuit Court of 
Mississippi in May 1942. The defendants, Otto Mills and his wife 
Roxie, were convicted for distributing a booklet written by the 
late Judge Rutherford setting forth the reasons why Jehovah’s 
Witnesses cannot salute the flag.

Building Up Prejudice

A N examination of the testimony in this case reveals that the 
jury convicted the defendants not for distributing seditious 

literature under the indictment, but for their refusal to salute 
the flag and fight for their country. Excerpts from the examina­
tion of Mills by the prosecuting attorney Coleman:

Q. Mr. Mills, you said a while ago that you would not take 
up arms in defense of your country, neither would you salute 
the American flag, is that correct?

A. Yes, sir.
Q. Mr. Mills, suppose the United States Army was coming 

down the streets of Tupelo, to defend your home, and you were 
standing on the sidewalk when the American Flag passed, you 
tell this court that you would not honor that flag to the extent 
of saluting it?

A. I would not.
Q. You have been teaching others not to salute the flag, 

haven’t you ?
A. I have not.



J e h o v a h ’ s W it n e s s e s  a n d  T h e  W a r 27

Q. Now your counsel asked you what your position was in 
this war, and you say you are neutral.

A. That’s right.
Q. You mean you are going to stay here and are going to 

get all the advantages the Government gives you, but you want 
the other man to do your fighting—then you are just not a 
fighting man when it comes to defending your home, or your 
wife, or your baby or your country?

A. If the American people took the stand I am taking, they 
would not have to fight, Jehovah God would do your fighting.— 
I can give you instances from the Bible where the Lord God 
Jehovah fought for the children of Israel and the people did 
not have to hit a lick in their own defense.

Q. Those were miracles God performed.
A. God can still perform miracles.
Q. Yes but Hie don’t do it very much.

An appeal from the conviction is pending before the Missis­
sippi Supreme Court. The American Civil Liberties Union filed a 
brief as friend of the court charging that the statute denied free­
dom of worship, speech and press and that the conviction was the 
result of prejudice against the defendants’ religious views.

Louisiana followed by adopting a law similar to the Mississippi 
law. No test case under it has yet been reported.

Criminal Syndicalism, Riotous Conspiracy

CRIMINAL syndicalism, a charge designed for radicals, was 
the basis for indictment of seventy-five Jehovah’s Witnesses 

at Connersville, Indiana in 1941. The prosecution considered it 
advocacy of the overthrow of the existing government to preach 
“Theocratic Government by Jehovah,” a basic belief of the asso­
ciation. The Fayette County circuit court, though as yet refusing 
to act on a motion to dismiss the charges, released bail for the 
defendants and the case is therefore virtually dead.

In the same town, a year earlier, two women, one aged seventy 
and the other over fifty were tried for riotous conspiracy. They



28 J e h o v a h ’ s W it n e s s e s  a n d  T h e  W a r

were found guilty and sentenced to two to ten years in Indiana 
State Prison. Although an appeal was taken, the women were 
not released on bond until several months later. The state su­
preme court finally reversed the conviction and freed the de­
fendants.

In Harlan County, Kentucky, in June 1940, six members of the 
Jehovah’s Witnesses were arrested under the state sedition act 
on the ground that they advocated another form of government, 
“theocracy.” They were held in jail for weeks, being finally re­
leased when their counsel applied for an injunction before a 
three-judge federal court to prevent the trial. The court ordered 
the Witnesses freed and advised the state’s attorney to notify 
prosecutors throughout the state not to invoke the sedition sta­
tute against members of the association. The order, in the form 
of an injunction, also prohibited intimidation or threat against 
Witnesses.

In general, the rights of Jehovah’s Witnesses have been 
sustained against prosecutions when appeal has been taken either 
to the higher courts or to the federal courts. The lower courts—- 
both officials and juries—reflect current prejudice too strongly 
to do justice. Only determined and organized resistance by 
Jehovah’s Witnesses and the skill with which they conduct their 
litigation, have secured the degree of freedom they enjoy.

V

Flag Saluting in the Public Schools
OF all the activities of Jehovah’s Witnesses to attract public 

attention, and the first to raise the issue in the courts, was 
the refusal of school children to salute the flag. Their refusal has 
been handled by sharply differing tactics, In the larger commun­
ities the issue has hardly arisen because school officials common­
ly permit the children of Jehovah’s Witnesses to remain sitting, 
or to stand silently while the rest of the children go through the 
patriotic exercises; or they are excused altogether from at­
tendance at them.

But in the smaller communities, where pressures for conform­
ity are stronger, most school boards have responded by expelling



J e h o v a h ’ s W it n e s s e s  a n d  T h e  W a r 29

the children altogether. Parents then made provision for private 
instruction; or where numerous expulsions occurred, Jehovah’s 
Witnesses organized special schools of their own. In some states, 
expulsions were followed up by prosecutions of parents for refus­
ing to send their children to school or for contributing to their 
delinquency. In a few states children themselves were haled 
to court as delinquents, and ordered to state training schools. 
All these prosecutions have so far failed to stick on appeal, with 
the sole exception of the Supreme Court of Arizona which re­
cently sustained a conviction of parents. A review by the U.S. 
Supreme Court is being sought.

The New Jersey Supreme Court last June ruled that parents 
cannot be penalized if their children are expelled from school 
for not saluting the flag out of religious reasons, and set aside 
the fines imposed on parents of expelled children.

In Massachusetts the State Supreme Court in August 1941 re­
versed the decision of a lower court which upheld the commit­
ment to reform school of three children as “habitual school of­
fenders.” The children were first expelled by the school author­
ities for refusal to salute the flag, and then charged with being 
“ offenders” because of their enforced absence.

The New Hampshire Supreme Court in May 1941 voided re­
form school sentences imposed on children who were charged 
with “delinquency” after being expelled from school for refusal 
to salute the flag. In scouting the charge of “delinquency,” the 
court held that the exercise of religious scruples by the children 
“ is not tinged with immorality or marked by damage to the rights 
of others.”

The ACLU filed briefs as friend of the court in most of the 
flag salute cases.

It is estimated that several thousand children have been ex­
pelled in the last five years and have been forced to receive very 
inferior instruction for the sake of conscience.

Supreme Court Decision

T HE flag saluting issue which arose in so many communities 
was finally carried to the United States Supreme Court, 

which in June 1940 rendered a decision in the case of Minersville



30 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

v. Gobitis with Justice Harlan F. Stone alone dissenting-, sustain­
ing the right of school boards to require flag saluting as a condi­
tion of school attendance. The effect of the decision was not only 
to confirm the expulsions but greatly to extend them.

Thus the issue remained settled, as everybody thought, until 
June 1942 when an unprecedented postscript was added to the 
decision in the literature sales tax case {Opelika) by three of the 
judges who “confessed error.” They said:

“The opinion of the court sanctions a device which in our 
opinion suppresses or tends to suppress the free exercise of 
a religion practised by a minority group. This is but another 
step in the direction which Minersville v. Gobitis took 
against the same religious minority and is a logical exten­
sion of the principles upon which that decision rested. Since 
we joined in the opinion in the Gobitis case, we think this 
is an appropriate occasion to state that we now believe that 
it was also wrongly decided. Certainly our democratic form 
of government functioning under the historic Bill of Rights 
has a high responsibility to accommodate itself to the reli­
gious views of minorities, however unpopular and unortho­
dox those views may be. The first amendment does not put 
the right freely to exercise religion in a subordinate position. 
We fear however that the opinions in this and in the 
Gobitis case do exactly that.”

T almost the same time Congress passed an act sponsored by
the American Legion regarding the use of and respect due 

the flag, in which it was provided that full respect for the flag 
may be shown by civilians when the pledge is given by merely 
standing at attention.

_ An interpretation issued in July 1942, by the Civil Rights Sec­
tion of the Justice Department said that this law “lays down a 
Federal standard with regard to a matter which is primarily a 
concern of the national government and there is therefore a very 
real question whether any local regulation, ordinance or statute 
prescribing a different measure of respect to the flag can be en-

Congress Acts



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 3 1

forced: for example, flag salute regulations of local school boards 
such as the Supreme Court upheld in Minersville v. Gobitis.”

U.S. Attorneys were instructed to bring this law to the atten­
tion of local authorities, requesting the authorities to “conform 
their policies to the Congressional standards.”

Refuse to Follow Supreme Court

T AKING a cue from the “ confession of error” of-the Supreme 
Court judges, a three-judge District Court in West Virginia 

in October 1942 voided a state law requiring the flag salute,, 
saying:

“Ordinarily we would feel constrained to follow an unre­
versed decision of the Supreme Court of the United States, 
whether we agreed with it or not.—The developments with 
regard to the Gobitis case however, are such that we do not 
feel that it is incumbent upon us to accept it as binding au­
thority. Of the seven justices now members of the Supreme 
Court who participated in that decision, four have given 
public expression to the view that it is unsound, the present 
chief- justice in his dissenting opinion therein and three 
other justices in a dissenting opinion in Jones v. City of 
Opelika.

“Under such circumstances, and believing as we do that 
the flag salute here required is violative of religious liberty 
when required of persons holding the religious views of 
plaintiffs, we feel that we would be recreant to our duty as 
judges if through a blind following of a decision which the- 
Supreme Court itself has thus impaired as an authority, 
we should deny protection to rights which we regard as 
among the most sacred of those protected by constitutional 
guaranties.”
Shortly thereafter, the state announced its intention of appeal­

ing this decision to the U.S. Supreme Court, which will thus be 
faced with the reconsideration of its decision in the Gobitis case..

The Kansas Supreme Court alone among the state courts has 
voided a flag-salute statute. In doing so the Court said in July 
1942:



32 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

“The general theory of our educational system is that 
every child in the state without regard to race, creed or 
wealth, shall have the facilities for a free education. In the 
34 years since the (school) statute was enacted, no school 
board, county or state superintendent of public instruction 
ever acted on the theory that failure of the child to salute the 
flag, where such failure was based on sincere religious be­
liefs of the child or his parents would require or justify the 
expelling of the child from school. We think the statute was 
never designed to be so construed, and if so, to that extent 
would be void as being in violation of Section 7 of our 
(state) Bill of Rights.

“We are not impressed with the suggestion that the re­
ligious beliefs of the appellants and their children are un­
reasonable. Perhaps the tenets of many religious sects or de­
nominations would be called reasonable or unreasonable de­
pending upon who is speaking. It is enough to know that in 
fact their beliefs are sincerely religious, and that is conceded 
by appellee. Their beliefs are formed from the study of the 
Bible and are not of a kind which prevent them from being 
good, industrious, home-loving, law-abiding citizens.”

The result of the long litigation shows conclusively that no 
criminal penalties will be maintained against parents or children 
for refusing to salute the flag. Expulsion from school is the only 
penalty; and even that the courts are beginning to hold void. It 
is conceivable that the U.S. Supreme Court in the pending case 
will reverse its position upholding the right to expel—and that 
thus, the common sense practice of tolerance prevalent in the 
larger school systems will be constitutionally guaranteed every­
where.

V I

Military Service
TEHOVAH’S WITNESSES do not regard themselves as paci- 
J  fists or as conscientious objectors to all war. They would fight 
for Jehovah. They take the position that “their personal covenant 
to carry out Jehovah’s work of witnessing at this time precludes



J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r 33

them from taking up carnal weapons.” They commonly regard 
themselves rather as ministers whose work forbids them to en­
gage in military service, and they demand exemption from all 
requirements, the same as others claiming to be ministers of God.

The fact that they are not ministers in the accepted sense, 
following a full-time occupation for which compensation is paid, 
has made the adjustment of their claims difficult. An agreement 
was reached between members of Jehovah’s Witnesses and Selec­
tive Service by which persons qualified by the Witnesses as full­
time servants and listed with Selective Service would be given 
the status of ministers. But the great majority of Jehovah’s Wit­
nesses are not full-time servants and earn their livings in other 
ways. Yet they have commonly demanded the same exemption. 
Local boards may so recognize them, if they will, but few have 
done so.

The result, therefore, is that Jehovah’s Witnesses not on the 
list of full-time servants and yet claiming to be ministers have 
been classified variously by local boards, either for active mil­
itary service, non-combatant service or as conscientious objec­
tors. Recently the furnishing of lists of full-time servants has 
been dropped and discretion left wholly to the local draft boards.

The Witnesses commonly reject any form of compulsory ser­
vice even in a civilian camp for conscientious objectors. When 
notice of induction comes, a large number of them have refused 
to respond and are therefore prosecuted. Over four hundred and 
fifty were in prison by November, 1942 serving sentences up to 
five years—by far the greatest number of any one religious or­
ganization to be sentenced.

In prison most of them have refused to accept paroles to con­
scientious objector camps. Only about 100 of them have done so. 
Suggestions are being considered for solving the impasse by get­
ting them out of prison and into useful work in prison camps 
similar to the work done in Civilian Public Service Camps.

V II

Expulsion from Jobs
QHORTLY after the declaration of war by the United States, 
^  instances were reported of expulsions from their jobs of 
Jehovah’s Witnesses for refusal to salute the flag. The following



34 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

four typical expulsions took place in one month—December 1941.
Seven Jehovah’s Witnesses were dismissed by the Pittsburgh 

Plate Glass Co. in West Va., five of them having worked there 
for 5 to 18 years. All were members of the Window Glass Cutters 
League, AFL, which has a closed shop contract with the firm. 
This organization at a business meeting defeated a resolution 
that “we are not willing to work with any persons refusing to 
salute the Stars and Stripes.” However, CIO truckers refused to 
cart glass. The firm fired the seven in order “not to interfere with 
production.” In November 1942, they were ordered reinstated 
with full seniority by the Fair Employment Practice Committee 
and the unions were ordered to control their members against 
molesting the reinstated men. The case was brought to the atten­
tion of the F.E.P.C. by the A.C.L.U.

A postal clerk in Turlock, California was dismissed after com­
plaints from American Legionnaires against his refusal to salute 
the flag. The Legionnaires wrote to Congressman Bertrand Ger­
hart of California demanding his dismissal, and complained to 
postal authorities that they did not want to be served by a postal 
clerk to whose doctrines they objected and who was obtaining 
his livelihood from a government whose flag he refused to salute. 
All efforts to secure his reinstatement have been unsuccessful.

Two employees of the Hatfield Wire and Cable Co., Hillside, 
N. J., were dismissed because other employees said they would 
not work if the Jehovah’s Witnesses stayed on the job. This ac­
tion was approved by the plant organization of the United Elec­
trical Radio and Machine Workers of America (District 4, CIO).

One employee was dismissed by S. W. Gas and Electric Co. at 
Shreveport, La. He was a member of Local 329, International 
Brotherhood of Electrical Workers.

In one case, there was no dismissal by the employer, but mob 
action by employees prevented Jehovah’s Witnesses from coming 
to work. Since they were still on the payroll, and had “willingly 
absented themselves” from work, they were denied unemploy­
ment insurance benefits. Their troubles are set forth in the affi­
davit of Betty Kaspar and Edna Appar of Hammond, Indiana, 
July 28, 1942:

“On Friday, July 24, there was a flag ceremony in the
Salvage Dept, at which we were not present, because we



J e h o v a h ’ s W it n e s s e s  a n d  T h e  W a r 35

were called to the Assistant Sup. office for no other reason 
than to keep us away from the ceremony to avoid any 
trouble. We planned to be present at the ceremony and stand 
in respect of the flag as it stands as an emblem of freedom 
and justice for all. At quitting time of the same day a 
mob of 50 women asembled to ‘kick us out.’ We managed to 
stay in the plant for our own protection but had to call the 
Indiana Harbor police to get us home safely. The workers 
have since then formed a picket line every morning to pre­
vent us from returning to work, with the threat of tearing 
our clothes and rendering a beating.”
How many such cases there are is difficult to say for most are 

unreported. It is encouraging that the F.E.P.C. has taken juris­
diction in one case and for the first time in history put the power 
of the federal government against discrimination in employment 
because of religious prejudice.

V III

How to Help
A  LL friends of civil liberty can assist in combatting attacks 

i » on the rights of Jehovah’s Witnesses as follows:
1. In cases of threatened expulsion from school for refusal to 

salute the flag, write or see school officials or members of Boards 
of Education, and call attention to the national flag salute law 
and the opinion of the Department of Justice. Seek to effect that 
reasonable settlement of the conflict.

2. In cases of mob or personal violence, write or see the local 
prosecuting officials; if that seems hopeless, and a federal question 
is involved by the participation of local officials or their failure to 
act, write the Civil Rights Section of the Department of Justice, 
Washington, D.C., or the local U.S. Attorney. 3

3. In cases of interference with the free distribution of liter­
ature on the streets or house to house, write or see the police offi­
cials or sheriff calling attention to the constitutional right to 
distribute literature free. If it is sold or contributions are asked,



36 J e h o v a h ’s W it n e s s e s  a n d  T h e  W a r

and arrests are made under a licensing law, urge the repeal oft 
law as bad policy when applied to non-commercial matter, and 
discriminatory if applied only to the Witnesses—for the sale 
newspapers is not commonly licensed.

4. In cases of dismissals irom employment for prejudice, w 
or see the employer or the union officials concerned.

5. In all cases, send letters of comment to local newspapers 
to be published signed or unsigned—in order to help conf 
intolerance. Urge editors to comment.

Much can be done by local effort, even by individual citia 
to establish tolerance in these matters. Assistance can alsc 
rendered by the national office of the A.C.L.U. to which clippis 
information and copies of protests should be sent, to be r 
forced by action from the national office.

Only vigorous action on the part of public and private a 
cies will succeed in overcoming the added war-time intolera 
to Jehovah’s Witnesses, and help maintain those libertie 
speech, press and conscience so essential to us all in a democt





(6137)



Snipmm' Court nf tljr Mttttpfc States
O C TO B ER  TER M , 1944

No. 811

LEO M. HILL and UNITED ASSOCIATION OF 
JOURNEYMEN PLUMBERS AND STEAMFITTERS 
OF UNITED STATES AND CANADA, LOCAL #234,

Petitioners,
v.

STATE OF FLORIDA ex eel. J. TOM WATSON, 
ATTORNEY GENERAL.

ON W R IT  OE CERTIORARI TO T H E  SU PREM E 
COURT OF FLORIDA

MOTION FOR LEAVE TO FILE BRIEF AS 
AMICUS CURIAE AND BRIEF IN 

SUPPORT THEREOF

A merican Civil L iberties U nion, 
Amicus Curiae,

A rthur Garfield H ays,
Counsel.

John M. Coe,
Leonard Cooperman,

Of the Florida Bar,

David I. A she,
Osmond K. Fraenkel,

O f the New York Bar,
Of Counsel.





I N D E X

PAGE
Statement ............................................. ............................. 1

Arguments :
I—Section 4 violates the Fourteenth Amend­

ment by imposing a previous general re­
straint on the civil rights of speech, press 
and assembly .....................................................  3

II—Section 6 likewise violates the Fourteenth 
Amendment by imposing a previous general 
restraint on the civil rights of speech, press 
and assembly .............................................. ..... 7

III—Section 2 (2), upon which Section 4 is de­
pendent, violates the “ due process”  clause 
of the Fourteenth Amendment because of 
its vagueness .....................................................  11

Conclusion ........................................................................  13

Table of Cases Cited

American Federation of Labor v. Reilly, ------  P. 2d
------  (Colo.) ..... ....... ................................ ........ ..........  io

American Federation of Labor v. Swing, 312 U. S
321 ................................................................................. 9

American Steel Foundries v. Tri-City Central Trades 
Council, 257 U. S. 184, 209.......................................  4, 8

HeJonge v. Oregon, 299 U. S. 353 ........................ ...... . 9
Follett v. McCormick, 321 U. S. 573................................  6,7
Gtrosjean v. American Press Company* TJ. S. 8
Hague v. C.I.O., 307 U. S. 496........................................ 6
Herndon v. Lowry, 301 U. S. 242................................... 12



11

PAGE
International Text Book Company v. Pigg, 217 U S

91, 108 .........................................................................  8
Lanzetta v. New Jersey, 306 U. S. 451......  12
Lovell v. Griffin, 303 IT. S. 444........................................ 6, 8
Martin v. City of Struthers, 319 U. S. 141..................  6
Murdock v. Pennsylvania, 319 U. S. 105........................  6, 8
National Labor Relations Board v. Jones & Lauglilin 

Steel Corp., 301 IT. S. 1, 33..............1.......................4, 8, 9
Schneider v. Irvington, 308 U. S. 146............................  6, 9
Senn v. Tile Layers Union, 301 U. S. 468, 478............. ’ 9
Texas & N. O. Railway Co. v. Brotherhood of Rail­

way and Steamship Clerks, 281 U. S. 548...........4, 8, 9
Thomas v. Collins (decided January 8, 1945; Docket

No- I4) .................................................................2,4,5,10
Thornhill v. Alabama, 310 U. S. 88.............................. 6, 8, 9
Truax v. Raich, 239 U. S. 33............................................’ ’ 6
United States v. Cohen Grocery Co., 255 U. S. 81..... 12
A irginian Railway Co. v. System Federation, 300 U. S.

515 ................................................................................  9

Statutes Cited

Fair Labor Standards Act, Section 16 (b )....................  13
Laws of Florida, Acts of 1943, Chapter 21968:

Section 2 (2) ................................................. 2, 3, 5, 7,11
Section 4 ....................................................... 2, 3, 7,11,13
Section 6 ........................................................... 2,7,11,13
Section 14 ...................................................................  11

U. S. Constitution:
First Amendment ................................     10
Fifth Amendment ...................    12
Fourteenth Amendment ........................ 3, 7, 9,10,11,12



#ttpnw  Court of tin' 3Inttr& Stairs
October T erm , 1944

No. 811

L eo M. H ill  and U nited A ssociation of J ourneymen  
P lumbers and S teamfitters of U nited S tates and  Canada, 
L ocal #234,

Petitioners,
v.

S tate of F lorida ex rel. J. T om W atson, 
A ttorney G eneral.

----------  ■«« ------------

ON W R IT  OF CERTIORARI TO T H E  SU PREM E 

COURT OF FLORIDA

Motion for Leave to File Brief as Amicus Curiae
May it Please the Court.

The undersigned as counsel for the American Civil 
Liberties Union, respectfully moves this Honorable Court 
for leave to file the accompanying brief in this case as 
Amicus Curiae. The consent of the attorney for the peti­
tioners to the filing of this brief has been obtained. 
Counsel for respondent has refused to grant his consent.

Special reasons in support of this motion are set out 
in the accompanying brief.

March 26, 1945.

A rthur  Garfield H ays, 
Counsel for American Civil 

Liberties Union, Amicus Curiae.





OInurt of tljp Itttfrit States
O CTO BER  TER M , 1944

No. 811
----------------—m t »  w — -------------

L eo M. H eel and U nited A ssociation of J ourneymen  
P lumbers and S teamfitters of U nited States and Canada, 
L ocal # 2 3 4 ,

Petitioners,
v.

S tate of F lorida ex rel. J. T om W atson , 
A ttorney General.

-------------- -------—M S M H B w — ■-------------------

ON W R IT  OF CERTIORARI TO T H E  SU PREM E 

COURT OF FLORIDA

BRIEF OF AM ERICAN CIVIL LIBERTIES 
UNION AS AMICUS CURIAE

Statement

The American Civil Liberties Union is a national or­
ganization devoted to the protection of civil liberties in 
general and of the Federal and several State Bill of 
Eights in particular. It has members who reside in and 
are citizens of the various States, including the State of 
Florida. The organization endeavors to defend civil liber­
ties from the viewpoint of the general public. It does not 
express the views of any particular group of class, politi­
cal, economic, social or religious. It has come to the aid



2

of employers as well as of labor when it thought that the 
civil liberties of either were being threatened. The Ameri­
can Civil Liberties Union was founded upon the principle 
that where the civil liberties of one group or even of one 
person are threatened, the freedom of all is endangered. 
It has also been motivated in its activities by the principle 
expressed by this Court in the recent case of Thomas v. 
Collins (decided January 8, 1945; Docket No. 14) as 
follows:

“ There is some modicum of freedom of thought, 
speech and assembly which all citizens of the Re­
public may exercise throughout its length and 
breadth, which no State, nor all together, nor the 
Nation itself, can prohibit, restrain or impede. If 
the restraint were smaller than it is, it is from 
petty tyrannies that large ones take root and grow. 
This fact can be no more plain than when they are 
imposed on the most basic rights of all. Seedlings 
planted in that soil grow great and, growing, break 
down the foundations of liberty.”

It is with this larger view that we are concerned. We 
therefore ask leave to file this brief as amicus curiae be­
cause we believe that Sections 2 (2), 4 and 6 of the 
Florida statute (Chap. 21968, Laws of Florida, Acts of 
1943, generally referred to as H. B. 142), here under re­
view, violate the constitutional guarantees of freedom of 
speech, press, assembly and petition, and those against 
deprivation of liberty without due process of law.

In joining with the petitioners herein in attacking the 
Florida statute, we do not assert that labor unions are 
above the law. On the contrary, we agree with the state­
ment of this Court in Thomas v. Collins, supra:

“ That the State has power to regulate labor 
unions with a view to protecting the public interest



oo

is, as the Texas court said, hardly to be doubted. 
They cannot claim special immunity from regula­
tion. Such regulation, however, whether aimed at 
fraud or other abuses, must not trespass upon 
domains set apart for free speech and free as­
sembly.”

But we submit that a regulatory statute must be de- 
rected toward an evil and designed to correct it. Such, 
we maintain, is not the purpose or effect of the Florida 
law now under review.

The vice of the statute here and of similar attempts 
at legislative control over the internal affairs of labor 
unions is that they weaken the autonomy and inde­
pendence of the unions, and in so doing they threaten to 
destroy a most important democratic force in American 
life.

I
Section 4 violates the Fourteenth Amendment by 

imposing a previous general restraint on the civil 
rights of speech, press and assembly.

Section 4 of the Act requires all paid union represen­
tatives to obtain a license from the State of Florida as a 
condition (as stated in Section 2) of acting or attempting 
to act for any labor organization in “ (a) the issuance of 
membership cards, or authorization cards, work permits, 
or any other evidence of rights granted or claimed in, or 
by, a labor organization, or (b) in soliciting or receiving 
from any employer any right or privilege for employees.”  
Section 4 also sets up qualifications for such paid union 
representatives and creates a board to pass upon applica­
tions and to issue such licenses.



4

The Florida Supreme Court upheld the constitution­
ality of the statute on the theory that labor unions are 
business organizations operating for profit, differing essen­
tially from “ religious bodies, chambers of commerce and 
like institutions” , and that hence they are subject to the 
police power.

The American Civil Liberties Union rejects the view 
that labor unions should be treated as business organiza­
tions operating for profit. While unions have certain 
business aspects their most important function is a social 
one: to obtain for working men and women higher and 
better standards of life and in stabilizing industrial rela­
tions. The importance of unions in this capacity was 
recognized by Congress when it enacted the National 
Labor Relations Act, and has often been referred to by 
this Court. See, National Labor Relations Board v. Jones 
& Laughlin Steel Corp., 301 U. S. 1, 33; American Steel 
Foundries v. Tri-City Central Trades Council, 257 U. S. 
184, 209; Texas & N. 0. Railway Co. v. Brotherhood of 
Railway and Steamship Clerks, 281 U. S. 548.

In the Thomas case, supra, this Court indicated that a 
line might be drawn between the public aspects of a labor 
union which could not be restricted and its commercial 
aspects which might be regulated by the state. There the 
Court was concerned with solicitation: it said that solicita­
tion of members could not be the subject of license re­
quirements, that solicitation of funds could be. If we 
assume the latter statement to represent the considered 
judgment of the Court, let us see how the distinction can 
be applied here.

We shall first look at the reason for the distinction. 
Solicitation of membership was held immune because it 
constituted a form of free speech. It was impossible, said 
the Court, to discuss the value of unions without suggest­



ing the desirability of joining them. Free speech and 
solicitation of membership thus merge imperceptibly. On 
the other hand the collection of dues is purely a business 
enterprise.

In the case at bar there is no question concerning the 
collection of dues or the solicitation of funds. The 
Florida law is not expressly concerned with these activi­
ties of unions. The activities described in the definition 
of “ business agent” , contained in Section 2 (2) make no 
reference to money, except with regard to the compensa­
tion of the “ agent.”  If he is a volunteer he need not be 
licensed; if he receives any financial consideration what­
ever, he must be. The activities which form the criterion 
are the issuance of membership cards or other evidences 
of rights granted by the organization and the soliciting or 
receiving of privileges from the employer.

The first criterion is, we submit, a restriction on the 
right of free speech, since it is a serious curb on the right 
to solicit members held protected in the Thomas case. If 
this provision of law is valid then a paid organizer may 
address a group of workers and urge them to join his 
union, but when they come up to him to indicate their 
assent he may not sign them up, unless he be licensed. It 
is a restriction likewise on freedom of assembly because 
it limits the effectiveness of association.

The second criterion is also a serious restriction on 
freedom of assembly. For it is of the essence of an asso­
ciation of workers that they should seek to obtain redress 
of grievances, in the words of the statute to get a “ right 
or privilege for employees”  from an employer. Ex­
perience has demonstrated the desirability of entrusting 
this job to a paid employee of the union, rather than to 
a person subject to the discipline of the employer. The



6

statute conditions the exercise of this essential attribute 
of the association upon obtaining a license.

If it be argued that labor unions are capable of abuses 
which require regulation the plain answer is that this 
statute does not regulate any such abuses. Surely no one 
contends that an abuse has arisen because persons not 
authorized by the union issue membership cards or obtain 
privileges from employers. Yet, absent such abuse, what 
is the purpose of requiring that the applicant submit a 
statement from the president and the secretary of the 
union showing his authority to act? The truth of the mat­
ter is that this is a statute designed to interfere with the 
functioning of labor unions. That is evident from the re­
quirement that no license can be issued at all during a 
thirty day period. This means that any expansion by a 
union would be blocked for that period at least—and 
might well be blocked much longer pending action by the 
board on the application, action which might be prolonged 
because of the requirement of the statute that the appli­
cant be of good moral character. It should be noted, 
moreover, that applicants must not only be American citi­
zens* but that the statutory naturalization period has here 
been doubled.

We submit that no license can be imposed on the basic 
activities here sought to be restricted. Such is the intent 
of the decisions of this Court ever since Lovell v. Griffin, 
303 U. S. 444. See also Hague v. C.I.O., 307 U. S. 496; 
Schneider v. Irvington, 308 U. S. 146; Thornhill v. 
Alabama, 310 U. S. 88; Murdoch v. Pennsylvania, 319 
U. S. 105; Martin v. City of Struthers, 319 U. S. 141; 
Follett v. McCormick, 321 U. S. 573.

* This restriction is invalid: Truax  v. R aich , 239 U. S. 33.



7

It is clear also from these cases that the regulations 
cannot be supported merely because limited to those who 
are paid for what they do. As Mr. Justice Douglas said 
in the Follett case:

“ Freedom of religion is not merely reserved for 
those with a long purse. Preachers of the more 
orthodox faiths are not engaged in commercial 
undertakings because they are dependent on their 
calling for a living.”  Follett v. Town of
McCormick, 321 U. S. 573.

The right to require a license depends on the character 
of the thing to be licensed, not on whether the person to 
be licensed is a paid worker or a volunteer. The state 
may license commercial activity, it cannot license activity 
which involves freedom of speech, religion or assembly. 
What Florida has attempted by Sections 2 (2) and 4 is 
to license activities that are constitutionally protected. 
This it may not do.

II
Section 6 likewise violates the Fourteenth Amend­

ment by imposing a previous general restraint on the 
civil rights of speech, press and assembly.

Section 6 requires every labor organization operating 
in the State to file an annual report with the Secretary of 
State stating its name, its location, the names and ad­
dresses of its officials, and to pay an annual fee. The 
injunction issued by the State courts in the case at bar 
prohibits the union petitioner from functioning as a labor 
organization with Florida unless it files such a report and 
pays the required fee. As so interpreted, Section 6 con­
stitutes a licensing provision, requiring a union to obtain



8

a license as a condition of carrying on its normal and 
legitimate activities. International Text Booh Company 
v. Bigg, 217 U. S. 91, 108. The requirement of the pay­
ment of an annual fee with the filing of the report simi­
larly constitutes a license fee upon the right of labor 
organizations to function within the State of Florida. 
Murdoch v. Pennsylvania, 319 U. S. 105.

As already indicated in our discussion of Section 4, 
above, the rights of free speech, press and assembly may 
not be subject to a prior license or grant of permission. 
That the license fee here involved is only nominal does not 
save the licensing requirement from invalidity. Grosjean 
v. American Press Company, supra; Thornhill v. Alabama, 
supra; Lovell v. Griffin, supra; Murdoch v. Pennsylvania, 
supra.

The various activities of a labor union which consti­
tute the functioning of such an organization, and which 
Section 6 would prohibit unless the required reports were 
filed and the fees paid, are all within the area of rights 
protected by the Fourteenth Amendment against infringe­
ment by any State.

The very essence of a labor organization is the assem­
blage of working men and women into one association for 
their mutual protection. The right of employees thus to 
form themselves into labor unions has been recognized by 
this Court as “ a fundamental right.”  National Labor Re­
lations Board v. Jones & Laughlin Steel Corp., supra. See 
also American Steel Foundries v. Tri-City Central Trades 
Council, supra; Texas & N. 0. Railway Co. v. Brotherhood 
of Railway and Steamship Clerhs, supra.

An essential part of the functioning of a labor union 
is the holding of meetings. During an organizational 
drive, a union invites non-union employees to meetings to



9

explain to them the advantages of union membership. 
After employees have joined a union, they meet to discuss 
their common problems, to exchange information and 
views concerning such problems, to agree upon common 
action to solve their problems and generally to obtain 
improvements in their wages, hours and other conditions 
of employment. The right to hold such meetings is pro­
tected by the Constitution and may not be abridged or 
denied. DeJonge v. Oregon, 299 U. S. 353.

The process of collective bargaining and the making 
of collective agreements with employers are important 
functions of labor unions and are also fundamental rights. 
National Labor Relations Board v. Jones & Laughlin Steel 
Corp., supra; Texas & N. 0. Railway Co. v. Brotherhood 
of Railway and Steamship Clerks, supra; Virginian Rail­
way Co. v. System Federation, 300 IT. S. 515.

When the collective bargaining process breaks down or 
an impasse is reached in negotiations, a union may have 
to resort to a strike and to picketing. These have likewise 
been recognized as constitutional rights by this Court. 
Thornhill v. Alabama, supra; American Federation of 
Labor v. Swing, 312 U. S. 321; Senn v. Tile Layers Union, 
301 U. S. 468, 478.

A functioning labor organization also constantly em­
ploys the printed word to spread its views. It publishes 
periodicals and leaflets for distribution to its own mem­
bers, to non-union employees whom it is seeking to organ­
ize, and to the public generally. A State may not abridge 
this freedom. Schneider v. Irvington, supra.

Thus it is clear that by imposing a previous general 
restraint upon the functioning of labor organizations, Sec­
tion 6 denies to members of such organizations their civil 
rights, in violation of the Fourteenth Amendment.



10

Thomas v. Collins, supra, and American Federation of
Labor v. Reilly,------P. 2 d ------- (Colo.), are the two most
recent judicial pronouncements on the general issue pre­
sented on this appeal.

In striking down the Texas statute requiring all labor 
union organizers to register and obtain an organizer’s 
card, this Court said in the Thomas case:

“ The right thus to discuss, and inform people 
concerning, the advantages and disadvantages of 
unions and joining them is protected not only as 
part of free speech, but as part of free assembly.”

The Colorado statute involved in American Federation 
of Labor v. Reilly, supra, required all labor unions oper­
ating in that State to incorporate, and declared violations 
to be misdemeanors punishable by fine. The Colorado 
Supreme Court quoted with approval from the opinion of 
the trial court in that case, which held those provisions 
to be

“ # * * unconstitutional and inoperative and
unenforceable for the reason that the same do 
require the prerequisite of incorporation for labor 
unions which, under its wording and provisions, 
does operate as a complete general previous re­
straint upon the exercise of the rights of free 
speech, free press and assembly, thus violating, in 
the opinion of the Court, the Due Process Clause 
of the Fourteenth Amendment of the Federal Con­
stitution considered in conjunction with the First 
Amendment * *

In a well reasoned opinion citing numerous decisions 
by this Court and by various State Courts, the Colorado 
Supreme Court held that “ the conclusions of the trial 
court were sound and that its judgment as to the points 
in consideration must be affirmed.”



11

In practical operation and effect the restraint imposed 
by the filing requirements of Section 6 of the Florida 
statute is of the same character as that imposed by the 
requirement for incorporation under the Colorado 
statute.

Under the authorities cited and discussed above, it is 
evident that Section 6 violates the Fourteenth Amend­
ment.

Ill
Section 2 (2 ), upon which Section 4 is dependent, 

violates the “ due process” clause of the Fourteenth 
Amendment because of its vagueness.

The licensing provisions of Section 4 are applicable 
to a “ business agent” , which term is defined in Section 
2 (2) as

“ any person, without regard to title, who shall 
for a pecuniary or financial consideration, act or 
attempt to act for any ‘ labor organization’ in (a) 
the issuance of membership, or authorization cards, 
work permits, or any other evidence of rights 
granted or claimed in, or by, a labor organization, 
or (b) in soliciting or receiving from any employer 
any right or privilege from employees.”

Since under Section 14 any person violating any pro­
vision of the Act is guilty of a misdemeanor and punish­
able by fine, imprisonment, or both, we respectfully 
submit that Section 4 contravenes the Fourteenth 
Amendment. It is well settled by decisions of this Court 
that a criminal statute which is so vague, indefinite or 
uncertain that its application or meaning are not reason­
ably ascertainable does not fulfill the requirements of



12

due process under the Fifth and Fourteenth Amend­
ments. Lametta v. New Jersey, 306 U. S. 451; Herndon 
v. Lowry, 301 U. S. 242; United States v. Cohen Grocery 
Co., 255 U. S. 81.

In the Lametta case, this Court said (at page 453):

“ No one may be required at peril of life, lib­
erty or property to speculate as to the meaning 
of penal statutes. All are entitled to be informed 
as to what the state commands or forbids * * *

“ That the terms of a penal statute creating 
a new offense must be sufficiently explicit to in­
form those who are subject to it what conduct 
on their part will render them liable to its penal­
ties is a well-recognized requirement, consonant 
alike with ordinary notions of fair play, and the 
settled rules of law; and a statute which either 
forbids or requires the doing of an act in terms 
so vague that men of common intelligence must 
necessarily guess at its meaning and differ as to 
its application violates the first essential of due 
process of law.”

Judged by this standard, can it be asserted that the 
meaning of the words “ pecuniary or financial considera­
tion”  is free of doubt? Does a worker who is a member 
of a grievance committee in a plant become a “ business 
agent”  under this definition because he is reimbursed by 
the union for the time lost by him from his work while 
acting as such committee member? Does the definition 
cover an attorney who is paid a fee by a union for as­
sisting in the negotiation of a collective agreement or in 
the settlement of a labor dispute with an employer, so as 
to require the attorney to obtain a license under the Act?

What is meant by “ authorization cards”  and “ work 
permit” ? What constitutes “ evidence of rights granted



13

or claimed in, or by, a labor organization” ! Do these 
words cover a collective agreement! And if so, does an 
attorney for a union need a license before he may draw 
up such an agreement for his client! What is meant by 
the “ issuance”  of such evidence of rights! What con­
stitutes “ receiving from an employer any right or privi­
lege for employees” ! Would that include the acts of an 
attorney who, by instituting an action under Section 16
(b) of the Fair Labor Standards Act, collects overtime 
pay from an employer on behalf of employees!

A statute which is so ambiguous cannot be sustained.

CONCLUSION

It is respectfully submitted that Sections 4 and 6 
of Chapter 21968, Laws of Florida, Acts of 1943, are 
unconstitutional for the reasons set forth above.

Respectfully submitted,

A merican Civil Liberties Union, 
Amicus Curiae,

A rthur Garfield Hays,
Counsel.

John M. Coe,
Leonard Cooperman,

Of the Florida Bar,

David I. A she,
Osmond K. F raenkel,

Of the New York Bar.
Of CouMsel.







v-^

m



(tart of tty Ittttefi States
O ctober T erm, 1944 

No. 588

A L A B A M A  S T A T E  F E D E R A T IO N  O F  L A B O R , L O C A L  
U N IO N  N O . 103 U N IT E D  B R O T H E R H O O D  O F C A R P E N ­
TERS A N D  JO IN ER S O F A M E R IC A , A M E R IC A N  F E D E R A ­
T IO N  O F  L A B O R , U N IT E D  B R O T H E R H O O D  O F C A R P E N ­
TERS A N D  JO IN ER S O F  A M E R IC A  and B. E. JO N ES,

Petitioners,
vs.

RO BERT E. M cA D O R Y , as Solicitor of Jefferson County, Alabama, 
and H O L T  M cD O W E L L , as Sheriff of Jefferson County, Alabama.

ON W RIT OF CERTIORARI TO T H E  SU PREM E COURT OF ALABAM A

BRIEF OF AMERICAN CIVIL LIBERTIES UNION 
AS A M IC U S  C U R IA E

A merican Civil L iberties U nion, 
Amicus Curiae,

A rthur Garfield Hays,
Counsel.

David I. A she,
Osmond K. Fraenkel,

O f Counsel.



■



I N D E X

PAGE
Statement .................................................................................  1

I—Section 7 violates the Fourteenth Amendment to 
the United States Constitution by imposing a 
previous general restraint on the civil rights of 
speech and assemblage....................  3

II—Section 16 violates the right of employees to 
assemble by making it unlawful for certain em­
ployees to be union members ......... ........................  10

III—Section 16 violates the “ due process”  clause of 
the Fourteenth Amendment because of its vague­
ness ........................    12

Conclusion .......................................................... .......................—- 14

Table of Cases Cited

American Federation of Labor, et al. v. Reilly, ------
P. 2 d ----(Colo. Sup. Ct. 1944) ......................    7,9

American Federation of Labor v. Swing, 312 U. S. 321 6
American Steel Foundries v. Tri-City Central Trades 

Council, 257 TJ. S. 184, 209 .........‘ ........................... ... 5
DeJonge v. Oregon, 299 U. S. 353 ................................. i 5
Grosjean v. American Press Company, 297 U. S. 233 4
Fairfield Lumber & Supply Co., 57 NLRB, No. 255.......  13
Floyd D. Penrod & Sons Tool & Engineering Co., 59 

NLRB, No. 29 - ..................................................... .......  13
Hague v. Committee for Industrial Organization, 307 

IT. S. 496 ........................... ................................... .........  5
Herndon v. Lowry, 301 U. S. 242 ....................... ..........  5



11

PAGE
International Text Book Company v. Pigg, 217 U. S.

91, 108 ............................................................................  4

Jones & Laughlin Ore Co., 59 NLRB, No. 3 8 ____ ____  13
Joseph James v. Marinship Corp., et al, decided Dec,

30, 1944, California Supreme Court, No. 17,015... 5,11

Land 0 ’Lakes Creameries, Inc., 53 NLRB, No. 170.... 13
Lanzetta v. New Jersey, 306 U. S. 451 ......................  13
Lovell v. Griffin, 303 17. S. 444 ............... ....................... . 4, 6

Matter of Maryland Drydock Co., 49 NLRB, No. 105.... 12 
Mayer v. Journeymen Stonecutters Ass’n, 47 N. J.

Eq. 519 ...... ................ ............... .................................. .. 11
McKane v. Adams, 123 N. Y. 609 ............................. . 11
Murdock v. Pennsylvania, 319 IJ. S. 105 ............. .........  4

National Labor Relations Board v. Jones & Laughlin
Steel Corporation, 301 U. S. 1, 3 3 ........................ 5, 6,10

Nixon v. Condon, 286 LT. S. 73 ...... ............................... 10-11
Nixon v. Herndon, 273 U. S. 536 ..................................10,11

Richardson v. Union Congregational Society, 58 N. H.
187 ..................................................... ......... '..................  11

H. L. Ruggles & Co., 58 NLRB, No. 62 ........................  13

Schneider v. New Jersey, 308 U. S. 147 ....................  4, 6
Senn v. Tile Layers Union, 301 U. S. 468, 478 ..........  6
Simons v. Berry, 210 App. Div. (N. Y.) 90, 205

N. Y. S. 442 .................................. ................................  11
State v. Butterworth, 104 N. J. L. 579, 142 Atl. 57,

58, A. L. R. 744 ...........................................................  5
Steel v. Louisville & Nashville Railroad Company, 

et al., decided by this Court on December 18, 1944, 
Docket No. 45 ........... .......... ................................... ......  11

Texas & N. O. Railway Co. v. Brotherhood of Railway
and Steamship Clerks, 281 U. S. 548 ..... ......... ..... . 5, 6

Thomas v. Collins (decided Januarv 8, 1945; Docket
No. 14) ...........................................'...............................  2, 7

Thornhill v. Alabama, 310 IT. S. 8 8 ........................ :......  4, 6



I ll

PAGE
United States v. Cohen Grocery Co., 255 U. S. 81, 89 13 
United States v. Eeese, 92 U. S. 214.................... ,......... 13
Virginian Railway Co. v. System Federation, No. 40,

300 U. S. 515 ................................................................. 6
Wallace Corporation v. National Labor Relations 

Board, December 18, 1944, Docket Nos. 66 and 67 11 
Whitney v. California, 274 U. S. 357, 372 ..................... 5

Statutes and Miscellaneous Cited

Bradford Act of 1943:
Section 7 .............................. ........ ................2, 3, 4, 7, 9,14
Section 16 .................................................. ...2,10,11,12,14
Section 18 ...................................................................... 3,12

Fair Labor Standards Act, Section 13 (a)(1) ______ 13
Report and Recommendations of Presiding Officer in 

matter of Proposed Amendments to Wage and 
Hour Division Regulation 541 (CCH Labor Law 
Service, Par. 31, 302) ............................. .................... 13

United States Constitution:
First Amendment .................................................. ......  4, 9
Fifth Amendment......................       13
Fourteenth Amendment ...................... 3, 4, 7, 9,11,12,13





Ihtjmmte (tart of ttjr lltutrft Stairs
October T erm, 1944 

No. 588

A labama State F ederation of Labor, L ocal Union No. 
103 United Brotherhood of Carpenters and Joiners of 
A merica, A merican F ederation of Labor, United 
Brotherhood of Carpenters and Joiners of A merica and 
B. E. J ones,

Petitioners.
vs.

R obert E. McA dory, as Solicitor of Jefferson County, 
Alabama, and H olt McDowell, as Sheriff of Jefferson 
County, Alabama.

ON W R IT  OF CERTIORARI TO T H E  SUPREM E COURT OF ALABAM A

BRIEF OF AMERICAN CIVIL LIBERTIES UNION 
AS A M IC U S  C U R IA E

Statement
Tbe American Civil Liberties Union is a national 

organization devoted to tbe protection of civil liberties 
in general and of the Federal and the several State Bills 
of Rights in particular. It has members who reside in 
and are citizens of the various States, including the State



2

of Alabama. The organization endeavors to defend civil 
liberties from the viewpoint of the general public. As 
such, it does not express the views of any particular 
group or class, political, economic, social or religious. It 
has come to the aid of employers as well as of labor 
when it was of the opinion that the civil liberties of 
either were being threatened. The American Civil Liber­
ties Union was founded upon the principle that where 
the civil liberties of one group or even of one person are 
threatened, the freedom of all is endangered. We agree 
with the following view expressed by this Court in the 
recent case of Thomas v. Collins (decided January 8, 
1945; Docket No. 14), in striking down as unconstitutional 
a labor organizer licensing provision in a statute similar 
to the one here involved:

‘ ‘ There is some modicum of freedom of thought, 
speech and assembly which all citizens of the Re­
public may exercise throughout its length and 
breadth, which no State, nor all together, nor the 
Nation itself, can prohibit, restrain or impede. If 
the restraint were smaller than it is, it is from 
petty tyrannies that large ones take root and grow. 
This fact can be no more plain than when they 
are imposed on the most basic rights of all. Seed­
lings planted in that soil grow great and, growing, 
break down the foundations of liberty.”

It is with this larger view that we are concerned. We 
therefore file this brief as amicus curiae because we be­
lieve that Sections 7 and 16 of the Bradford Act (Act 
of 1943, p. 253), which are here under review, violate the 
constitutional guaranties of freedom of speech, press, 
assembly, and petition, and those against deprivation 
of liberty without due process of law.



3

I

Section 7 violates the Fourteenth Amendment to 
the United States Constitution b y  imposing a previous 
general restraint on the civil rights of speech and 
assemblage.

Section 7 of the Bradford Act makes it unlawful— 
subject to civil and criminal penalties under Section 18— 
for any labor organization to function in the State of 
Alabama unless such labor organization

(1) files with the State Department of Labor a 
copy of its constitution and by-laws and the con­
stitution and by-laws of its parent organization, 
if any, and all amendments thereto;

(2) files annually with each member of the 
organization and with the Director of the Depart­
ment of Labor a verified written report giving the 
names and addresses of its officers, and the salaries 
and other remuneration paid to each; the date of 
regular election of officers; the number of paid-up 
members; and a complete financial statement of 
assets and monies received and detailed list of 
disbursements;

(3) pays an annual filing fee of two dollars.
These provisions are violative of fundamental civil

rights guaranteed by the Fourteenth Amendment against 
infringement by the States.

By prohibiting a labor union from functioning within 
Alabama unless it files its constitution and an annual 
report and financial statement, the State is in effect re-



4

quiring the union to obtain a license as a condition of 
carrying on its normal and legitimate activities. Inter­
national Text Book Company v. Pigg, 217 U. S. 91, 108.

The case cited involved a Kansas statute requiring a 
foreign corporation doing business within that State to 
file a statement similar to the one here in question, 
although much less detailed in nature. This Honorable 
Court held that such requirement amounted to a licensing 
of the business. The Alabama Supreme Court in the case 
at bar missed entirely the significance of the decision in 
the International Text Book ease. That Court brushed the 
decision aside, saying that it “ rested solely upon the right 
of a state to regulate interstate commerce.”  While the 
Kansas statute was declared unconstitutional because it 
violated the “ commerce clause” , the holding of this Court 
that the requirement for the filing of such a statement 
constitutes a licensing is directly applicable to the case at 
bar.

Similarly, the provision for the payment of an annual 
fee with the filing of the statement constitutes a license fee 
upon the right of labor organizations to function within 
the State of Alabama. Murdock v. Pennsylvania, 319 
U. S. 105.

Civil rights protected by the First Amendment from 
infringement by Congress and by the Fourteenth Amend­
ment from infringement by the States may not be made 
subject to a prior license or grant of permission from 
anyone. Lovell v. Griffin, 303 U. S. 444; Schneider v. New 
Jersey, 308 U. S. 147; Murdock v. Pennsylvania, 319 II. S. 
105, supra. It is entirely immaterial from the point of 
view of constitutionality that the fee is only nominal or 
that the license may be had for the asking. Grosjean v. 
American Press Company, 297 U. S. 233; Thornhill v. 
Alabama, 310 IT. S. 88; Lovell v. Griffin, supra.

Under the foregoing established principles of constitu­
tional law Section 7 of the Bradford Act cannot be sus-



0

tained. For the activities of a labor union which constitute 
the “ functioning”  of such an organization are all within 
the area of rights protected by the Fourteenth Amendment 
against infringement by any State.1

The very essence of a labor organization is the assem­
blage of working men and women into one association for 
their mutual protection. The right of employees thus to 
form themselves into labor unions has been recognized by 
this Court as “ a fundamental right.”  National Labor 
Relations Board v. Jones •& Laughlin Steel Corporation, 
301 U. S. 1, 33. See also American Steel Foundries v. Tri- 
City Central Trades Council, 257 TJ. S. 184, 209; Texas 
& N. 0. Railway Co. v. Brotherhood of Railway and 
Steamship Clerks, 281 IT. S. 548.

The constant holding of meetings is an essential part 
of the “ functioning”  of a labor union. During an organi­
zational drive, when a union is seeking to unionize non­
union employees it calls meetings of such employees in 
order to explain to them the advantages of union member­
ship. After these employees have joined the union, they 
meet to discuss their common problems, to exchange infor­
mation and views concerning such problems, to agree upon 
common action to solve their problems, and to achieve 
improvements in their wages, hours and other conditions 
of employment. There is a constitutional right to hold 
such meetings which may not be abridged or denied. 
Hague v. Committee for Industrial Organization, 307 U. S. 
496; Herndon v. Lowry, 301 IT. S. 242; DeJonge v. Oregon, 
299 U. S. 353; Murdock v. Pennsylvania, 319 IT. S. 105; 
concurring opinion of Mr. Justice Brandeis in Whitney v. 
California, 274 IT. S. 357, 372; State v. Butterworth, 104 
N.J.L. 579, 142 Atl. 57, 58 A.L.R. 744.

1. “ It should be recognized at the outset that a union may use the various 
forms o f concerted action, such as strike, picketing, or boycott, to enforce an 
objective that is reasonably related to any legitimate interest o f organized labor.” 
(Cases cited.) J o s e p h  J a m e s  v. Marinship Corp. et al., decided Dec. 30, 1944, 
California Supreme Court, No. 17,015.



6

The process of collective bargaining and the making 
of collective agreements with employers are also impor­
tant functions of labor unions and are also fundamental 
rights. National Labor Relations Board v. Jones <& 
Laughlm Steel Corporation, 301 U. S. 1, 33; Texas & N. 0. 
Railway Co. v. Brotherhood of Railway and Steamship 
Clerks, 281 U. S. 548; Virginian Railway Co. v. System 
Federation, No. 40, 300 U. S. 515.

When the collective bargaining process breaks down 
or an impasse is reached, the union may have to resort 
to a strike and to picketing. These have likewise been 
recognized as constitutional rights by this Honorable 
Court. Thornhill v. Alabama, 310 U. S. 88; American 
Federation of Labor v. Swing, 312 U. S. 321; Senn v. Tile 
Layers Union, 301 U. S. 468, 478.

A  functioning labor organization also constantly em­
ploys the printed word to spread its views. It publishes 
periodicals and leaflets for distribution to its own mem­
bers, to non-union employees whom it is seeking to or­
ganize, and to the public generally. The State may not 
abridge the freedom of the press. Lovell v. Griffin, 303 
U. S. 444; Schneider v. New Jersey, 308 U. S. 147.

By imposing a previous general restraint upon the 
“ functioning”  of labor organizations, the Bradford Act is, 
therefore, denying to the members of these organizations 
their civil rights, in violation of the Fourteenth Amend­
ment. The statute cannot be sustained on the theory that 
no constitutional right is absolute but is always subject to 
regulation to prevent abuse. There is no showing any­
where in the record that the Alabama Legislature con­
ducted any investigation which disclosed any abuses or 
anticipated abuses. The statute itself contains no findings 
justifying its provisions. And the record shows affirma­
tively that no abuses existed among labor organizations in



7

Alabama and that unions operating in the State have regu­
larly rendered financial accounting to their members. 
Moreover, even if there were abuses, Section 7 would do 
nothing to correct them. For once a union complies with 
the licensing and fee provisions of the statute it may op­
erate in the State whether or not it is guilty of anjr abuses.

Directly in point are two very recent decisions, one by 
this Honorable Court and the other by the Supreme Court 
of Colorado. Thomas v. Collins, decided by this Court on 
January 8, 1945, Docket No. 14; American Federation of 
Labor v. Reilly,------P. 2 d ------- (Colo. Sup. Ct. Dec. 1944).

The Thomas case, supra, concerned a provision of a 
Texas statute requiring all labor union organizers operat­
ing in that State to register with the Secretary of State 
and obtain an organizer’s card “ before soliciting any mem­
bers for his organization.”  The Texas statute was much 
less severe in its requirements and effect than the Alabama 
statute here involved. In the first place, failure to register 
under the Texas statute merely debarred a labor organizer 
from soliciting members. Here failure to file the stated 
documents and annual reports debars a labor union from 
carrying on any and all of its functions. Secondly, no fee 
was charged for registering under the Texas statute, 
whereas the Alabama statute requires the payment of a 
two dollars filing fee. Nor was it necessary under the 
Texas law to file any such comprehensive statements as 
are required here. Nevertheless, this Honorable Court 
held the Texas statute to be in contravention of the Four­
teenth Amendment, because it imposed a previous re­
straint upon the rights of free speech and free assembly. 
In so doing, this Court said:

“ The right thus to discuss, and inform people 
concerning, the advantages and disadvantages of



8

unions and joining them is protected not only as 
part of free speech, blit as part of free assembly.”

Discussing the subject further, this Court said in the
same opinion:

“ As a matter of principle a requirement of reg­
istration in order to make a public speech would 
seem generally incompatible with an exercise of the 
rights of free speech and free assembly. Lawful 
public assemblies, involving no element of grave 
and immediate danger to an interest the state is en­
titled to protect, are not instruments of harm which 
require previous identification of the speakers. And 
the right either of workmen or of unions under 
these conditions to assemble and discuss their own 
affairs is as fully protected by the Constitution as 
the right of businessmen, farmers, educators, politi­
cal party members or others to assemble and discuss 
their affairs and to enlist the support of others.”

And the Court added:

“ If the exercise of the rights of free speech and 
free assembly cannot be made a crime, we do not 
think this can be accomplished by the device of re­
quiring previous registration as a condition for 
exercising them and making such a condition the 
foundation for restraining in advance their exercise 
and for imposing a penalty for violating such a re­
straining order. So long as no more is involved 
than exercise of the rights of free speech and free 
assembly, it is immune to such a restriction. If one 
who solicits support for the cause of labor may be 
required to register as a condition to the exercise of 
his right to make a public speech, so may he who 
seeks to rally support for any social business, re­
ligious or political cause. We think a requirement 
that one must register before he undertakes to make 
a public speech to enlist support for a lawful move-



9

ment is quite incompatible with the requirements of 
the First Amendment.”

The Colorado statute involved in American Federation 
of Labor v. Reilly, supra, required all labor unions oper­
ating in that State to incorporate, and declared violations 
to be misdemeanors punishable by fine. The Colorado 
Supreme Court quoted with approval from the opinion 
of the trial court in that case, which held those provisions 
to be

* * unconstitutional and inoperative and un­
enforceable for the reason that the same do require 
the prerequisite of incorporation for labor unions 
which, under its wording and provisions, does oper­
ate as a complete general previous restraint upon 
the exercise of the rights of free speech, free press 
and assembly, thus violating, in the opinion of the 
Court, the Due Process Clause of the Fourteenth 
Amendment of the Federal Constitution considered 
in conjunction with the First Amendment * * *.”

In a well reasoned opinion citing numerous decisions 
by this Honorable Court and by various State Courts, 
the Colorado Supreme Court held that “ the conclusions 
of the trial court were sound and that its judgment as 
to the points in consideration must be affirmed.”

In practical operation and effect the restraint im­
posed by the filing requirements of the Alabama statute 
under consideration in the case at bar is of the same 
general character as the restraint imposed by the re­
quirement for incorporation under Colorado statute.

It is clear from all the authorities cited and discussed 
above that Section 7 of the Bradford Act contravenes the 
Fourteenth Amendment, as it incorporates the First 
Amendment.



10

II

Section 16 violates the right of employees to 
assemble by making it unlawful for certain employees 
to be union members.

Under Section 16 of the Bradford Act it is “ unlawful 
for any executive, administrative, professional, or super­
visory employee to be a member in, or to be accepted 
for membership by, any labor organization, the constitu­
tion and by-laws of which permit membership to em­
ployees other than those in executive, administrative, 
professional or supervisory capacities, or which is 
affiliated with any labor organization which permits mem­
bership to employees other than those in an executive, 
administrative, professional, or supervisory capacity.”

We are not concerned here with the wisdom of super­
visory employees in joining a labor organization, but 
only with their rights. This provision directly abridges 
the right of executive, administrative, professional, or 
supervisory employees to self-organization. The “ funda­
mental right”  of employees to join into labor unions, 
recognized by this Court in National Labor Relations 
Board v. Jones <& Laughlin Steel Corporation, 301 U. S. 1, 
is just as applicable to administrative or supervisory 
employees as to any other employees. It is for the 
employees, and not for the State Legislature, to determine 
what labor organization will best serve their interests. 
A  State may no more exclude employees from joining a 
labor union of their own choice because of their super­
visory status than it may exclude persons from partici­
pating in a primary election because of their color. 
Nixon v. Herndon, 273 U. S. 536; Nixon v. Condon, 286



11

U. S. 73. Both constitute, in the words of Mr. Justice 
Holmes in Nixon v. Herndon, supra, a “ direct and ob­
vious infringement of the Fourteenth (Amendment).”

It should be noted, moreover, that the prohibition in 
Section 16 is a very broad one. Not only is it unlawful 
for a professional or supervisory employee to be a mem­
ber of a union which includes non-supervisory employees; 
he may not even join with other professional and super­
visory employees in a union of their own if it affiliates 
with a labor organization which includes non-supervisory 
employees. In other words, supervisory employees are 
forbidden to form their own organization, even though it 
admits no non-supervisory employees to membership, if 
it affiliates with the American Federation of Labor or the 
Congress of Industrial Organization.

Section 16 also violates the rights of union members 
who may wish to admit professional or supervisory em­
ployees to membership in their organization. It is well 
settled that a voluntary association has complete and sole 
control over who shall be admitted and who shall be ex­
cluded from membership.1 Mayer v. Journeymen Stone­
cutters Ass’n, 47 N. J. Eq. 519; McKane v. Adams, 123 
N. Y. 609; Richardson v. Union Congregational Society, 
58 N.H. 187; Simons v. Berry, 210 App. Div. (N. Y.) 90, 
205 N. Y. S. 442. See also Steele v. Louisville do Nashville 
Railroad Company, et al., decided by this Court on De­
cember 18, 1944, Docket No. 45; and the dissenting opinion 
of Mr. Justice Jackson in Wallace Corporation v. National 
Labor Relations Board, December 18, 1944, Docket Nos. 
66 and 67.

1. W e are in accord with this view so long as the union is not operating 
under a dosed shop agreement. W e approve, therefore, the holding in J o s ep h  
J a m e s  v. Marinship Corp., e t  a l ,  decided Dec. 30, 1944, California Supreme 
Court, No. 17,015, that a “ union may not maintain both  a closed shop and an 
arbitrarily closed or partially closed union.”



1 2

The decisions of tlie National Labor Relations Board 
excluding supervisory employees from bargaining units 
with non-supervisory employees, referred to in the opinion 
of the State Supreme Court below, have no application 
here. All that those cases hold is that the purposes of 
the National Labor Relations Act would not be effectuated 
by “ the representation of supervisory employees by the 
same organizations which might represent the subor­
dinates.”  (Matter of Maryland Dry dock Co., 49 NLRB, 
No. 105; emphasis supplied.) The Board, in the exercise 
of its discretion under the Act, has merely decided what 
constitutes an appropriate collective bargaining unit. It 
has not attempted to prohibit supervisory employees from 
joining labor organizations. And there certainly is a vast 
distinction, from the point of view of constitutionality, be­
tween holding that supervisory employees do not con­
stitute an appropriate bargaining unit and making mem­
bership by supervisory employees in a union a criminal 
offense, punishable by fine or imprisonment or both under 
Section 18 of the Bradford Act.

Ill
Section 16 violates the “ due process” clause of the 

Fourteenth Amendment because of its vagueness.

Nowhere in the Bradford Act are the terms “ execu­
tive” , “ administrative” , “ professional” , or “ supervi­
sory” , as used in Section 16, defined. It is impossible, 
therefore, for employees or unions to know just which 
employees come within these categories. For example, 
most industrial concerns employ “ working foremen” , who 
perform certain supervisory functions but who also do 
work of the same character as their subordinate em-



13

ployees. .Such foremen are generally included in bargain­
ing units by the National Labor Relations Board. See 
Floycl D. Penrod & Sons Tool & Engineering Co., 59 
NLRB, No. 29; Jones & Laug hlin Ore Co., 59 NLRB, No. 
38; Land 0 ’Lakes Creameries, Inc., 53 NLRB, No. 170; 
H. L. Buggies d  Co., 58 NLRB, No. 62. In other cases, 
however, the same Board has held that such employees 
are supervisors who are to be excluded for bargaining 
units. See Fairfield Lumber d Supply Co., 57 NLRB, No. 
255; Zierick Mfg. Co., 57 NLRB, No. 261. The same 
difficulties in determining supervisory status have arisen 
under Section 13 (a)(1) of the Fair Labor Standards 
Act, exempting “ executive, administrative (and) profes­
sional”  employees. See Report and Recommendations 
of Presiding Officer in matter of Proposed Amendments 
to Wage and Hour Division Regulation 541 (CCH Labor 
Law Service, Par. 31, 302).

With so much existing confusion as to who are and 
who are not supervisory employees, and with no defini­
tions or standards set up in the statute here in question, 
an employee would join a union at his peril and the 
officers of the union would accept an employee into mem­
bership at their peril. For they might be subjected to 
criminal liability if a Court should subsequently decide 
that the employee was an executive, administrative, pro­
fessional or supervisory employee.

A criminal statute which is so vague and uncertain 
as to its application does not fulfill the requirements of 
due process under the Fifth and Fourteenth Amendments. 
Lanzetta v. New Jersey, 306 U. S. 451; United States v. 
Reese, 92 U. S. 214; United States v. Cohen Grocery Co., 
255 U. S. 81, 89.



14

CONCLUSION

It is respectfully submitted that Sections 7 and 16 
of the Bradford Act are unconstitutional for the rea­
sons set forth above.

Respectfully submitted,

A merican Civil L iberties Union,
A rthur Garfield H ays,

Counsel.
David I. A she,
Osmond K. Fraenkel,

Of Counsel.







'■
i.H





No. 550

October Term, 1940

E arl Moore, petitioner

v.
I llinois Central R ailroad Company

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

_________

MEMORANDUM FOR THE UNITED STATES AS 
AMICUS CURIAE





I N D E X

Page
The question to be considered in this m em orandum------------------  1
Statute involved__________________________________________________ 2
Statement________________________________________________________  3
Argument_________________________________________________________  6

1. The A ct itself_____________________________________________ 7
2. The immediate legislative history of the 1934 A c t-----------  14
3. The historical background_______________________________  17
4. The practice of the courts------------------------------------------------  27
5. The practice of the present B oard_______________________  31

Summary and recom m endation__________________________________  37

C IT A T IO N S
Cases:

Aden  v. L. & N. Ry. Co., 276 S. W . 511___________________ 29
Amalgamated Utili ty Workers v. Consolidated Edison Co.,

309 U. S. 261______________________________________________ 11
Bell  v. Western Rai lway ,  228 Ala. 328, 153 So. 434________  30
Burke  v. M orphy ,  109 F. (2d) 572, certiorari denied, 310

U. S. 635__________________________________________________  10
Chambers  v. Davis, 128 Miss. 613, 91 So. 346_______________ 29
Chicago & North Western Ra i lway  Co., I n  the Matter o f  

(N. D. 111. No. 60448, opinion of Special Master re
Claim No. 1019, December 16, 1940)____________________  9

Clark v. C., N. 0. & T. P.,  258 K y. 197, 79 S. W . (2d) 7 0 4 .. 29
Cook v. Des M oin es  Union Ra i lw ay  Co., 16 F. Supp. 8 1 0 ..  10, 11
Cousins  v. Pu l lm an  Co., 72 S. W . (2d) 356_________________ 30
Donovan  v. Travers,  285 Mass. 167, 188 N. E. 705_________  29
Estes v. Union Term ina l Company ,  89 F. (2d) 768_________  35
Florestano  v. N. P. R. Co., 198 Minn. 203, 269 N. W . 4 0 7 ..  29
Franklin  v. P enn -R ead in g  Seashore  Lines,  122 N. J. Eq. 205,

193 A. 712________________________________________________  29
George  v. C., R. I . & P.,  183 Minn. 610, 235 N. W . 673____  29
Gooch v. Ogden Union Railway ,  N. R. A. B., 2d D iv. Award

No. 514___________________________________________________  3 4
Gordon  v. Hawkins, 6 6  S. W. (2d) 432_____________________  29
Great Northern Ra i lw ay  Co. v. M erchan ts  Elevator Co.,

259 U. S. 285______________________________________________ 13
Gregg  v. Starks, 188 K y. 834, 224 S. W. 459_______________  29
Harrison  v. P u l lm an  Company ,  6 8  F. (2d) 826_____________  30

297491— 41------ 1
(i)



II

Cases— Continued. p ag8

H enry  v. Twichel l ,  286 Mass. 106, 189 N. E. 593__________  29
L. & N. R. Co. v. Bryan t ,  263 K y. 578, 92 S. W . (2d) 749. 29
Lane  v . Union T erm ina l Co., 12 F. Supp. 204______________ 10
Ledford  v. Chicago, M., St. P . & P. R. Co., 298 111. App.

298, 18 N. E. (2d) 568__.____________________________  30, 34, 40
Lehon  v. City o f  Atlanta, 242 U. S. 53______________________  41
Long  v. B. & 0. R. Co., 155 M d. 265, 141 Atl. 504________  29
Long  v. Van Osdale,  26 N. E. (2d) 69______________________  30, 41
Louisv i l le  Lodge No. 10, A ssoc ia t ion  o f  Colored Rai lroad  

Tra inm en  v. National Rai lroad Adjus tm ent Board , First 
Divis ion  (N. D. 111., No. 45687), decided February 8 ,
1937--------------------------------------------------------------------------------------------35

Lyons  v. St. J o s e p h  Belt  Ry. Co., 232 M o. App. 575, 84 S..W.
(2d) 933___________________________________________________ 29

M allehan  v. Texas & P a c i f i c  Ry. Co., 87 S. W. (2d) 771___ 30
Malone  v. Gardner, 62 F. (2d), 15_____________________________ 10
Manse l l  v. Texas & P a c i f i c  Ry. Co., 137 S. W . (2d) 997___  10
Matlock  v. Gulf C. & S. F. Rai lway ,  99 S. W. (2d) 1056.__ 30
M cCoy  v. St. J o s e p h  Belt  Ry. Co., 229 M o. App. 506, 77

S. W. (2d) 175____________________________________________  29
McDermott  v. New York Central R. Co., 32 F. Supp. 873___ 10
McGee  v. St. J o s e p h  Belt  Ry. Co., 233 M o. App. I l l ,  93 S.

W. (2d) 1111______________________________________________ 29
Moore  v. Y. & M. V. Ry.,  176 Miss. 65, 166 So. 395______  29
M ossham er  v. Wabash R., 221 Mich. 407, 191 N . W. 210_. 29
M yer s  v. Bethlehem Sh ipbu i ld in g  Corpora tion ,  303 U. S. 41. 41
National Labor Relat ions B oa rd  v. P en n s y l v a n ia  G reyhound

Lines , In c . ,  303 U. S. 261_________________________________  32
Nord  v. Griffin, 8 6  F. (2d) 481, certiorari denied, 300 U. S.

673-------------------------------------------------------------------------------------  9 , 35
Parr i sh  v. Chesapeake & Ohio R. Co., 62 F. (2d) 20______  10
P enn sy lvan ia  R. R. Co. v. Pu r i tan  Coal Co., 237 U. S. 121. 13
Penn sy lvan ia  Railroad Com pany  v. Railroad Labor Board,

261 U. S. 72______________________________________________  2 0 , 28
Penn sy lvan ia  R. R. Co. v. Sonm an  Shaft  Coal Co., 242 U. S.

1 2 0 -------- . . . . . . ------------------------------------------------------------------  13
Penn sy lvan ia  Railroad S y s t em  and  Allied L in es  Federa tion

v. Penn sy lvan ia  Railroad Company ,  267 U. S. 203_______ 20
P i e r c y  v. L. & N. Ry.,  198 K y. 477, 248 S. W. 1042______  29
Reed  v. St. Louis S. W. Ry.,  95 S. W . (2d) 887____________  30
Ryan  v. N. Y. C. R. Co., 267 Mich. 202, 255 N. W. 365___ 29
Smith  v. I l l in o i s  Bell Tel. Co., 270 U. S. 587_______________  41
Stephen son  v. New Orleans and N. E. R. Co., 180 Miss. 147,

177 So. 509__________________________________________ ____  i i
Swi l l ey  v. Galveston, etc., Rai lway ,  96 S. W . (2 d) 107______  30
Tank Car Corp. v. Termina l Co., 308 U. S. 422____________  42



Il l

Cases— Continued, Page
Texas & New Orleans R. Co. v. Brotherhood o f  Ra i lway

Clerks, 281 U. S. 548_____________________________________  20, 21
Texas & P a c i f i c  Ry. Co. v. Abilene Cotton Oil Co., 204 U. S.

426________________________________________________________  13
Texas & P a c i f i c  Ry. Co. v. Rigsby,  241 U. S. 33 -----------------  12
Virgin ian Ry. Co. v. S y s t em  Federa tion  No. 40, 300 U. S.

515________________________________________________________ 21, 32
Wilson  v. New, 243 IT. S. 332_______________________________  IS-
Wyatt  v. K an sa s  City Ry. Co., 101 S. W. 1082--------------------  30’
Yazoo & M. V. R. Co. v. Webb, 64 F. (2d) 902____________  10
Youmans  v. Charleston & W. C. Ry. Co., 175 S. C. 99, 178—

S. E. 671__________________________________________________  30
Statutes:

Bituminous Coal Act, c. 127, 50 Stat. 72 (15 U. S. C.,
Secs. 828-851)_______________________________________________  12

Civil Aeronautics Act, c. 601, 52 Stat. 973 (49 U. S. C.,
Sec. 676)_____________________________________________________  12:

Interstate Commerce Act, c. 104, 24 Stat. 379 (49 U. S. C.,
Sec. 22)______________________________________________________  12i

Longshoremen’s and Harbor W orkers’ Compensation Act,
c. 509, 44 Stat. 1424 (13 U. S. C., Sec. 905)________________  12

National Labor Relations Act, c. 372, 49 Stat. 449 (29 
U. S. C „  Sec. 159):

Sec. 9 (a )__________________________________________________  32
160 (a )____________________________________________________  11

Packers and Stockyards Act, c. 64, 42 Stat. 159 (7 U. S. C.,
Secs. 181-231)______________________________    12

Railway Labor A ct of 1926, c. 347, 44 Stat. 577, Sec. 3 ____  26
Railway Labor Act as amended June 21, 1934, c. 691, 48 

Stat. 1185 (45 U. S. C., Secs. 151-163):
Sec. 2______________________________________________________  g
Sec. 3_______________________________________________  2, 6 , 7, 11

Safety Appliance Act, c. 160, 36 Stat. 279; c. 225, 35 Stat.
476 (45 U. S. C., Secs. 15, 19)_______________________________ 12

Securities and Exchange Commission statutes:
c. 38, 48 Stat. 74 (15 U. S. C., Sec. 77 p )_________________  12
c. 404, 48 Stat. 881 (15 U. S. C., Sec. 78 b b )_ 12
c. 687, 49 Stat. 803 (15 U. S. C., Sec. 79 p )_ 12
c. 411, 53 Stat. 1149 (15 U. S. C., Sec. 77 www (b))__ 12

Transportation Act, 1920, c. 91, 41 Stat. 469, Title III:
Sec. 302___________________________________________________  20
Sec. 303___________________________________________________  20
Sec. 307__________________________________________________  20

Miscellaneous:
Attorney General’s Committee on Administrative Procedure:

Final R eport___________________________________________  1 0  31
Monograph No. 17, pp. 8 - 1 0 _______________ __________  ’ 3 1



IV

Miscellaneous— Continued. p ag»
Inquiry of the Attorney General’s Com mittee on Adminis­

trative Procedure Relating to the National Railroad 
Adjustment Board, and Historical Background and 
Growth of Machinery Set-up for the Handling of Rail­
road Labor Disputes, 1888-1940 (referred to  as Com­
p i la t io n ) -----------------------------  2, 18, 19, 20, 21, 23, 31, 32, 33, 42, 43

78 Cong. Rec. 11718_________________________________________ 14
78 Cong. Rec. 12390-12393, 12402_________________________  3 7
Garrison, L loyd K ., The N ational R a ilroad  A djustm ent

B oard , 46 Yale L. J. 567__________________________________ 3 9
Hearings before House Com m ittee on Interstate and For­

eign Com m erce on H. R. 7650, 73d Cong., 2d Sess______  15,
16, 24, 25, 36

Hearings before Senate Com m ittee on Interstate Com merce
on S. 3266, 73d Cong., 2d Sess________________________ 15, 16, 25

H. Rept. No. 1944, 73d Cong., 2d Sess_____________________ 14, 24
Op. Atty. Gen., Vol. 39, No. 113____________________________ 3 3
Report of the D irector General for the Fourteen Months

Ending M arch 1, 1920, p. 15_______ , ____________________  19
S. Rept. No. 779, 6 8 th Cong., 1st Sess_____________________  22
S. Rept. No. 1065, 73d Cong., 2d Sess_____________________  14
Spencer, William H., The N ational R a ilroad  A djustm en t 

B oa rd  (University of Chicago Press, 1938), p. 39, Com ­
pilation, Appendix, p. 189________________________________  35, 37

W itmer, C ollective Labor A greem en ts in  the C ourts, 48 Yale
L. J. 195, 224 (1938)_____________________________________  27

W olf, The R ailroad Labor B oard , pp. 50-57_________  18, 19, 21, 22



October Term, 1 9 4 0

No. 550

E arl M oore, petitioner

v.

I llinois Central R ailroad Company

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

MEMORANDUM EOR THE UNITED STATES AS 
AMICUS CURIAE

TH E  QUESTION TO BE CONSIDERED IN  T H IS  
M EM O RAN DU M

O ne o f  the issues in  th is case u p on  w hich  the 
C ourt m ay find it necessary to  pass is w hether a 
person  cla im ing rights un der a collective barga in ­
ing  agreem ent betw een a ra ilroad  and  its em­
ployees m ay b rin g  suit f o r  breach  o f  the agree­
m ent in  the courts w ith out first in stitu tin g  p ro ­
ceedings b e fore  the N ational R a ilroa d  A d ju stm en t 
B oa rd . D ecision  o f  this question rests la rge ly

(i)



2

upon  the in tention  o f  C ongress in  am ending the 
R a ilw a y  L a b or  A c t  in  1934 so as to  create the N a ­
tional R a ilroa d  A d ju stm en t B oa rd . I t  is the p u r ­
pose o f  th is m em orandum  to b r in g  togeth er fo r  
the in form a tion  o f  the C ourt the fa c ts  as to  the 
legislative and h istorica l back grou n d  o f  the 
am endm ent, and also to suggest the considerations 
involved  in  the question o f  sta tu tory  construction . 
The issue here considered  is to  be d istingu ished  
fro m  another question ra ised  in  the case— w hether 
an em ployee must, as a m atter o f  con tract law, 
avail h im self o f  the rem edia l m ach in ery  estab­
lished b y  a collective barga in in g  agreem ent b e fo re  
su ing in  couyt.1

ST A TU T E  IN V O LV E D

The statute involved  is the R a ilw a y  L a b or  A ct  
as am ended June 21,1934 ( c. 691, 48 Stat. 1185, 45 
II. S. C., Secs. 151 -163), and p a rticu la r ly  S ection  3 
thereof, w hich  creates and defines the p ow ers o f  
the N ational R a ilroa d  A d ju stm en t B oa rd . T he 
entire A c t  is prin ted  at pp . 74-87  o f  the A p p e n d ix  
to a com pilation  o f  m ateria l on  the A d ju stm en t 
B oa rd  entitled “ In q u iry  o f  the A ttorn ey  G en era l’s 
Com m ittee on  A dm in istra tive  P roced u re  relating  
to  the N ational R a ilroa d  A d ju stm en t B oa rd , and 
H istorica l B ack grou n d  and G row th  o f  M ach in ery

1 Although it has been said that the provisions o f the Rail- 
way Labor Act are to be regarded as incorporated in railroad 
collective bargaining agreements, this does not help in deter­
mining how the statute is to be construed before it is given 
such effect.



3

Set U p  f o r  the H an d lin g  o f  R a ilroa d  L a b o r  D is ­
putes, 1888-1940”  (h ere in a fter  re fe rre d  to  as Com­
pilation )  cop ies o f  w h ich  w ill be d istribu ted  to  the 
C ourt.2

ST A TE M E N T

The facts , in so fa r  as relevant to  the p o in t here 
to be considered , are as fo l lo w s :

P etition er, E a r l M oore , w as a sw itchm an em ­
p loyed  in  the Jack son  Y a rd s  o f  the A labam a and 
V ick sb u rg  R a ilw a y  C om pan y (R . 103) and a m em ­
ber o f  the S w itch m en ’s U n ion  o f  N orth  A m erica , 
w hich  had negotia ted  the agreem ent f o r  yardm en  
on that ca rr ie r  (R . 112, 136 ). I n  Ju n e 1926 re ­
spondent, I llin o is  C entral R a ilro a d  C om pany, took  
over the operations o f  the A labam a and V ic k s b u r g ; 
the I llin o is  C entral had a con tract cov erin g  y a rd ­
m en w ith  the B roth erh ood  o f  R a ilro a d  T ra in m en  
(R . 112, 162 ). T h rou gh  n egotia tion s w ith  the 
B roth erh ood , but not w ith  the S w itch m en ’s U n ion , 
the sen iority  rosters in  both  the old  and new  Jack -

2 This volume is a compilation of most of the pertinent 
documentary material relating to the National Railroad A d ­
justment Board. I t  contains in full the reports o f and pro­
ceedings before the Attorney General’s Committee on A dm in­
istrative Procedure dealing with the Adjustment Board, and 
reprints the executive orders, collective labor agreements and 
statutes disclosing the history of the Adjustment Board and 
also the leading speeches and articles describing its opera­
tion. This publication was compiled by H arry E . Jones, 
Executive Secretary, Eastern Committee for the National 
Railroad Adjustment Board, New York City. Most o f the 
documents hereinafter referred to are printed in the A p ­
pendix to the volume (the pink pages).



4

son yard s o f  the I llin o is  Central w ere consolidated  
(R . 110-111, 162-3, 1 3 7 ,1 3 3 ,1 6 8 ). P e tit ion er  con ­
tin u ed  to  w ork  f o r  the carrier, but w as id le  at 
tim es as a resu lt o f  a consequent red u ction  in  his 
sen iority  lis tin g  (R .  4 5 -4 6 ). In  1932 he brought 
su it in  the state courts o f  M ississ ip p i f o r  dam ages 
f o r  th is p a rtia l unem ploym ent (R . 113, 4 2 ). T h is  
suit w as unsuccessfu l, the State Suprem e C ourt 
h o ld in g  that he had  accepted  his new  sen iority  
ra tin g  b y  con tin u in g  to  w ork  f o r  the com p a n y  fo r  
a  num ber o f  years a fte r  it had been  prom u lgated  
(R . 4 8 -5 2 ). I n  F eb ru a ry  1933 petition er was d is­
ch arged  (R . 96, 115 ). A lth ou gh  the com pan y  
cla im ed  that he was d ischarged  because o f  slowness 
and  ir reg u la r ity  in  his w ork , the D istr ic t  C ou rt in  
th is case fo u n d  that in  fa c t  he w as d isch arged  fo r  
h ay in g  sued the com pan y (R . 201 ).

A ft e r  1926 he jo in e d  the B roth erh ood  o f  R a il­
roa d  T ra in m en  but w as expelled  fro m  that o rg a n i­
zation  fo r  non -paym en t o f  dues (R . 112, 1 6 5 ,1 6 7 ). 
H e  con tin u ed  to  he represented  b e fo re  the carrier  
b y  the head  o f  the loca l branch  o f  the S w itch m en ’s 
U n ion  (R . 112, 116, 136 ).

A ft e r  h is d ischarge p etition er  was. g iven  a hear­
in g  b y  the S uperintendent, but to no avail (R . 115 - 
1 1 8 ). H e  then filed this su it in  the M iss iss ip p i 
courts f o r  breach  o f  A rtic le  22 D  (R . 15) 3 o f  the

3 This paragraph of the agreement reads as follows (B . 15) : 
Yardmen or switchtenders taken out o f the service or 

censured for cause, shall be notified by the Company of the



5

agreem ent betw een the ca rr ier  and the B ro th e r ­
hood, cla im ing that he had  been u n ju stly  d ism issed 
fro m  service and w as entitled  to  be p a id  f o r  tim e 
lost (R . 1 -3 ) .

A fte r  the p etition er had lost in  the M ississipp i 
C ircu it C ourt, obtained  a reversa l and rem and in  
the M ississipp i S uprem e C ourt,4 and am ended his 
com plaint so as to p ra y  f o r  m ore than $3,000 dam ­
ages (R . 5 6 -5 7 ), the case was rem oved  to  the U n ited  
States D istr ict C ourt (R . 5 7 -5 8 ). R espon den t 
filed a num ber o f  specia l p leas (R . 6 5 -7 7 ), and in  
add ition  a p lea  in  abatem ent, a lleg in g  that p e ti­
tioner had fa iled  to appear at the appeal b e fore  the 
general superintendent o f  the ra ilroad , had never 
requested any decision  fr o m  h igh er officers o f  the

l’eason therefor, and shall be given a hearing within five days 
after being taken out o f service, i f  demanded, and if  held 
longer shall be paid for all time so held at their regular 
rates of pay. Yardmen or switclitenders shall have the right 
to be present and to have an employee of their choice at hear­
ings and investigations to hear the testimony, and ask ques­
tions which will bring out facts pertinent to the case. They  
shall also have the right to bring such witnesses as they 
desire to give testimony, and may appeal to higher officers 
of the Company in case the decision is unsatisfactory. Such 
decision shall be made known within three days at New  
Orleans and at other points ten days after the hearing, or 
yardmen or switchtenders shall be paid for all time lost 
after the expiration of three days at New Orleans and ten 
days at other points. In  case the suspension or dismissal or 
censure is found to be unjust, yardmen or switchtenders, 
shall be reinstated and paid for all time lost.

4 See Moore v. Illinois Central Railroad Company, 180 
Miss. 276,176 So. 593.

297491—41— .— 2



6

carrier, and that the dispute had not been re ferred  
to the F irst D iv ision  o f  the N ation a l R a ilroa d  A d ­
justm ent B oa rd  (R . 6 0 -6 2 ). The D istr ic t  C ourt 
overruled  these pleas (R . 8 6 -9 4 ), and a fte r  hear­
ing  the evidence entered a ju d gm en t in  fa v o r  o f  
the petitioner (R . 200 -204 ). T h e C ircu it C ourt o f  
A ppeals reversed, hold ing that the case was barred  
by  the three-year statute o f  lim itations fo r  ora l con ­
tracts and that the p r io r  d ecision  o f  the M ississipp i 
Suprem e C ourt that the s ix -year statute app lied  
was not b in d in g  upon  it  (R . 217 -2 24 ). T he cou rt 
also considered the other defenses and held  that 
the petitioner was not requ ired  to go to the A d ­
justm ent B oa rd  b e fore  seeking redress in  the courts 
(R . 225-226).

AR G U M E N T

The N ational R a ilroa d  A d ju stm en t B oa rd , es­
tablished by  Section  3 o f  the R a ilw a y  L a b or  A ct, 
as am ended in  1934, is a board  com posed  o f  an equal 
num ber o f  representatives selected b y  the carriers  
and by  the national labor organ izations o f  ra ilroad  
em ployees. The B oa rd  consists o f  fo u r  d ivisions, 
each having ju risd iction  over certa in  cra fts  and 
classes o f  em ployees. The ju r isd ict ion  o f  the 
B oa rd  is lim ited  to grievances and cases in v o lv in g  
the in terpretation  or  ap p lica tion  o f  agreem ents 
concern ing rates o f  pay, rules o r  w ork in g  con d i­
tions. M aj or disputes as to w hat such rates o f  pay, 
rules and w ork ing conditions shall be are to  be



7

handled by  the N ation a l M ediation  B oa rd  and the 
arbitration  m ach inery  set u p  elsewhere in  the A ct.

I f  a d iv is ion  o f  the A d ju stm en t B oa rd  deadlocks 
upon  an aw ard, p rov is ion  is m ade fo r  the selection  
o f  a referee. T h e re feree  m ay vote as a m em ber o f  
the d iv ision . I f  a carrier  does not com p ly  w ith  
an ord er o f  the A d ju stm en t B oa rd , the person  fo r  
whose benefit the order was m ade m ay file suit in  a 
U nited  States D istr ict C ou rt and the findings and 
order o f  the B o a rd  are m ade prim a facie  evidence 
o f  the fa cts  therein  stated. The d iv isions o f  the 
B oa rd  are authorized  to establish reg ion a l ad ju st­
m ent boards, and in d iv id u a l carriers  or grou ps o f  
carriers and their em ployees, acting through  rep ­
resentatives, are authorized  to establish system , 
group , or regiona l boards fo r  the p u rpose  o f  ad ju st­
in g  disputes w hich  w ou ld  otherw ise go  b e fore  the 
national board.

1 . T H E  ACT ITSELF

The A ct  now here states w hether o r  n o t the ju r is ­
d iction  o f  the A d ju stm en t B o a rd  to  in terp ret ra il­
road  labor agreem ents or to hear grievances a ris in g  
out o f  them  is to be exclusive o r  that the courts are, 
o r  are not, to  be ousted o f  ju r isd ict ion  over such 
m atters.

S ection  3, F irs t  ( i ) , o f  the A c t  p rov id es  that d is ­
putes grow in g  out o f  grievances or the in terp reta ­
tion  or ap p lica tion  o f  agreem en ts :

* * * shall be handled in  the usual m an­
ner up to and in clu d in g  the ch ie f op era tin g



8,
officer o f  the ca rr ier  designated  to  handle 
such d isputes; but, fa ilin g  to reach  an  ad­
justm ent in  this m anner, the d isputes may 
be re ferred  * * * to the a p p rop ria te
division  o f  the A d ju stm en t B o a rd  * * *.
[Ita lics  supp lied .]

This language we subm it is consistent w ith  either 
interpretation  o f  the statute. A s  the cou rt below  
held (R . 225 ), the m an datory  “ sh a ll”  f o r  handling- 

m atters through the op era tin g  officers o f  the car­
rier m ay reasonably be regarded  m erely  as a p re ­
requisite to the in stitu tion  o f  p roceed in g s  be fore  
the B oa rd  rather than as a sta tu tory  requirem ent 
that all d isputes o f  this typ e  be so handled. The 
use o f  “ m a y ”  in  con n ection  w ith  tak in g  cases to 
the B oa rd  lends som e su p port to th is construction . 
O n the other hand “ sh a ll”  can be construed  lite r ­
a lly  as applicable to all such disputes, and the fa i l ­
ure to repeat the w ord  in  the fo llo w in g  clause can 
be readily  explained on  the grou n d  that parties 
were not to be requ ired  to  seek rev iew  o f  the de­
cision  b y  the ca rr ier  officials b y  tak ing the case to 
the A d ju stm ent B oa rd , unless they saw fit.

Other provisions of the Act are o f little help. 
Section 2 declares that the “ General Purposes”  
o f the Act are—

(1 )  T o  avoid  any in terru p tion  to com m erce 
or  to the operation  o f  an y  ca rr ie r  engaged 
therein ; * * * (5 )  to p rov id e  fo r  the
prom p t and ord erly  settlem ent o f  all d is-



9

putes grow in g  out o f  grievances o r  ou t o f  
the in terp retation  or  a p p lica tion  o f  agree­
m ents coverin g  rates o f  pay , rules, o r  w ork ­
in g  cond itions.

These pronouncem ents are en tire ly  consistent w ith  
the n otion  that any other m eans o f  a rr iv in g  a t a 
p eacefu l settlem ent o f  such disputes, presum ably  
includ ing ju d ic ia l proceed ings, m ay be utilized , b u t  
they do not com pel such an in terpretation .

F ew  ju d ic ia l decisions un der the R a ilw a y  L a b or  
A ct  throw  m uch ligh t u p on  the present problem . 
A p a rt fro m  the declaration  b y  the cou rt below  in  
this case that recourse to the A d ju stm en t B o a rd  is  
not a necessary prerequ isite  to  the institu tion  o f  
ju d ic ia l p roceed in gs there has been no d irect h o ld ­
ing  on the question  b y  any federa l cou rt.5 6 The S ev­
enth C ircu it C ou rt o f  A ppea ls , in  a case in  w hich  
this C ourt denied  certiorari, has indicated , b y  w ay 
o f  d ictum , that it  takes the same view . N ord  v. 
Griffin, 86 F . (2 d )  481, 483-484 (C . C. A . 7 th ), cer­
tiora ri denied, 300 IT. S. 673. I n  that case the court 
s a id :

N o r  do w e believe that the R a ilroa d  L a b or  
A c t  in  an y  w ay  lim ited  the ju r isd ict ion  o f  
the D istrict C ourt as p rev iou sly  con ferred  
b y  28 II. S. C. A ., § 41 ( 1 ) .  S ection  3, sub­
d iv is ion  ( p ) ,  * * * p ro v id e s : “ I f  a

5 There is a decision to the same effect by a Special Master 
m In the Matter of Chicago tfe North Western Railway Co.
(N . D. 111., No. 60,448), opinion of Special Master re Claim  
No. 1019, December 16,1940.



10

carrier does not com p ly  w ith  an ord er o f  a 
d ivision  o f  the A d ju stm en t B o a rd  w ith in  the 
tim e lim it in  such order, the petition er, or 
any person  fo r  w hose benefit such ord er  was 
made, m ay file in  the D istr ict C ourt o f  the 
U n ited  States f o r  the d istrict in  w h ich  he 
resides * * * a p e tit ion ,”  etc. T he
clear intent was not to  lim it the p rev iou sly  
existing ju r isd iction  o f  the court, bu t rather 
to extend that ju r isd iction  to  cases to w hich  
it had not p rev iou sly  applied.

O ther decisions touch ing u p on  different phases o f  
the A d ju stm ent B o a r d ’s activities also seem to re ­
flect an assum ption  that the courts are not deprived  
o f  ju risd iction  over cases arisin g  out o f  ra ilw ay la ­
bor contracts.6 The F in a l K ep ort o f  the A ttorn ey  
G en era l’s Com m ittee on A dm in istra tive  P roced u re  
declares that “ The courts have held that they  [em ­
p loyees] m ay assert con tract claim s against ca r­
riers d irectly  in  co u r t”  (p . 188).

6 See Burke v. Morphy, 109 F. (2d) 572 (C. C. A . 2nd), 
certiorari denied, 310 U . S. 635; Malone v. Gardner, 62 F. 
(2d) 15 (C. C. A . 4 t h ) ; Parrish v. Chesapeake <& Ohio R. Co., 
62 F . (2d) 20 (C . C. A . 4 t h ) ; Yazoo & M. V. R. Co. v. Webb, 
64 F . (2d) 902 (C . C. A . 5 th ); McDermott v. New York 
Central R. Co., 32 F . Supp. 873 (S . D. FT. Y . ) ; Cook v. Des 
Moines Union Railway Co., 16 F . Supp. 810 (S . D . Iow a) ; 
Lane v. Union Terminal Co., 12 F . Supp. 204 (N . D . T ex.). 
The opinion of the Supreme Court of Texas in Mansell 
v. Texas rf; Pacific Ry. Co., 137 S. W . (2d) 997, contains a 
suggestion that the Board’s jurisdiction may generally be 
exclusive, but not when the cause of action arose before the 
1934 amendment to the Railway Labor Act. The facts of 
both the Mansell case and the present case fall within the 
latter category.



11

I t  can be argued  that the establishm ent o f  the 
A d ju stm en t B o a rd  in  itse lf m an ifests  a congres­
sional in tention  that all d isputes com ing w ith in  its 
ju r isd iction  be subm itted to it rather than to  the 
courts.7 B u t an equally im pressive case can  be 
m ade fo r  the p rop os ition  that the fa ilu re  o f  C on­
gress to  declare that the B o a rd  was to have exclu ­
sive ju r isd iction  indicates that other rem edies p re ­
v iously  available w ere not to be destroyed.

E xam in ation  o f  the language o f  statutes creating 
other adm inistrative bodies and o f  the decisions 
under them  reveals the absence o f  any u n ifo rm  
legislative o r  ju d ic ia l p o licy  w hich  m ight be con ­
tro llin g  here. I n  some instances Congress has 
specified that an adm in istrative rem edy is to be 
exclusive, as in  the N ational L abor R ela tion s A c t 8

7 A  requirement that parties first resort to the Adjustment 
Board does not mean that a proceeding based upon the R ail­
way Labor Act will not eventually be heard de novo in court. 
Section 3, First (p ) , of the A ct provides that the successful 
party before the Board may sue in the District Courts and 
that the suit shall proceed as other civil suits, except that 
the findings of the Board shall be prima facie evidence of 
the facts therein stated. C f. Cook v. Des Moines Union 
Railway Co., 16 F . Supp. 810, wherein the District Court 
granted greater relief than that approved by the Board. It  
has also been held that parties who have lost before the 
Board may still sue on their original contract rights, although 
this has not been conclusively determined. See Stephenson 
v. New Orleans and N. E. R. Co., 180 Miss. 117, 177 So. 509, 
where the state court held that the Adjustment Board had 
had no jurisdiction and enjoined compliance with its ruling.

8c. 372, 49 Stat. 449, 29 U . S. C., Section 160 (a) ; Amal­
gamated Utility Workers v. Consolidated Edison Co., 309 
U . S. 261.



1 0

and the L on gsh orem en ’s and H a rb or  W o r k e rs ’ 
Com pensation A ct.9 F requ en tly  it  is c lear fro m  
the fa ct  that the statute regulates an en tire ly  new  
field that on ly statutory rem edies are to he avail­
able.10 11 On the other hand, Congress has also spe­
cifically provided , as in  the In terstate C om m erce 
A ct ,11 the C iv il A eron au tics  A c t 12 and the statutes 
adm inistered by  the Securities and E xchange C om ­
m ission,13 that existing rem edies are not to  be 
abridged. A n d  some statutes, such as the S a fe ty  
A pp lian ce  A ct,14 w hich  con ta in  no express p ro v i­
sion  one w ay or  the other, have been construed as 
perm itting  private  persons to  en force  th eir  rights 
in  courts as w ell as b e fore  the adm in istrative tr ib u ­
nal. I t  has been held that even w here, as in  the 
Interstate Com m erce A ct, the statute contains an 
express prov iso  that—

* * * noth ing in  this act contained  shall
in  any w ay abridge or  alter the rem edies 
now  existing at com m on law  or  b y  statute,

9c. 509, 44 Stat. 1424, 33 U. S. C., Section 905.
10 See, e. g., Bituminous Coal Act, c. 127, 50 Stat. 72, 15 

TJ. S. C., Sections 828-851; Packers and Stockyards Act, 
c. 64, 42 Stat. 159, 7 U . S. C., Sections 181-231.

11 c. 104, 24 Stat. 379, 49 U . S. C., Section 22.
12 c. 601, 52 Stat. 973, 49 U . S. C., Section 676.
13 c. 38, 48 Stat. 74, 15 U . S. C., Section 77 p ; c. 411, 53 

Stat. 1149,15 TJ. S. C., Section 77 www ( b ) ; c. 404, 48 Stat. 
881, 15 U . S. C., Section 78 bb; c. 687, 49 Stat. 803, 15 
TJ. S. C., Section 79 p.

14 c. 160, 36 Stat. 298, c. 225, 35 Stat. 476, 45 TJ. S. C., Sec­
tions 15, 19; Texas <& Pacific Ry. Go. v. Rigsby , 241 TJ. S. 
33, 39.



13

but the rem edies o f  this act are in  addition  
to  such rem edies.

questions o f  “ adm in istrative p ow er and d iscre­
t io n ”  m ust first go  to  the C om m ission  rather than 
to the courts in  ord er to avoid  a result inconsistent 
w ith  the general p o licy  o f  the A ct. Pennsylvania  
B. R. Co. v. Sonman Shaft Coal Co., 242 U . S. 120, 
123 -124 ; Texas & Pacific B y . Co. v. Abilene Cotton  
Oil Co., 204 U . S. 426, 446 -447 ; Pennsylvania B . R. 
Co. v. P uritan  Coal Co., 237 U . S. 121, 129; Great 
N orthern Railw ay Co. v. M erchants E levator Co., 
259 U . S. 285.

Th is variety  o f  statutes and decisions m erely  
shows that the' present prob lem  cannot be solved by  
any autom atic rule pursuant to  w hich  a statute 
establishing an adm inistrative bod y  is inev itably  
construed in  one w ay or the other. In  each case all 
o f  the m a n ifo ld  fa ctors  w hich  guide courts in  con ­
struing statutes are g iven  consideration , and the 
determ ination  m ade by  the court as to  w hat Con­
gress w ou ld  have in tended  in  the particu lar  statute 
be fore  the court.

W h en  a statute creates new  rights and estab­
lishes an agency to  adm inister them, it m ay n o r ­
m ally be presum ed, even in  the absence o f  express 
language to  that effect, that the legislature in ­
tended the agency to  have exclusive p rim a ry  ju r is ­
d iction . B u t the A d ju stm en t B oa rd  does not 
adm inister o r  pass u p on  rights created b y  the R a il­
w ay L a b or  A ct, but u p on  contract rights p rev i-

297491— 41------ 3



14

ously recognized and en forced  in  other foru m s. 
The B oa rd  is also not str ictly  com parable to other 
adm inistrative bodies, in  that it stems fr o m  boards 
established by  agreem ent w hose fu n ction s  w ere 
clearly the settlem ent o f  disputes th rou gh  ad ju st­
m ent rather than ad ju d ication . See p p . 17-25 , in­
fra. I t  is conceivable that C ongress cou ld  have 
designed the A d ju stm en t B o a rd  either as a supple­
m ent to or a substitute f o r  the ex istin g  rem edies 
fo r  breach o f  ra ilw ay labor contracts. In  v iew  o f  
the inconclusiveness o f  the A ct  u p on  this poin t, it  
is necessary to turn  to secondary sources, such as 
the general purposes and b ack grou n d  o f  the A c t  
in  order to determ ine how  it  should  be construed.

2 . TH E  IM M E D IA T E  LEGISLATIVE H ISTO RY OF T H E

1 9 3 4  ACT

The com m ittee reports  15 and the debates on  the 
floor o f  Congress 16 do not a m p lify  the language o f  
the A ct, in sofa r  as specific evidence o f  legislative 
intention on  the present question  is concerned.

A t hearings before  com m ittees o f  the H ouse and 
Senate the proposed  am endm ents to  the R a ilw a y

16 H . Kept. No. 1944, 13(1 Cong., 2d Sess.; S. Kept. No. 
106o, <3d Cong., 2d Sess. See pp. 24—26, infra.

10 The only remark which might seem to bear upon the 
question is that of Representative Mead, supporting the bill, 
who stated that “ * * * this bill sets up an orderly pro­
cedure for the settlement of grievances and disputes that 
arise upon the railroads of the country. It augments and 
supplements existing law ; * * * ”  (78 Cong. Rec.
11718). This suggests that pre-existing judicial remedies 
were not to be destroyed.



Is5

L abor A ct  w ere exp la in ed  and supported  b y  the F ed ­
eral C oord in ator  o f  T ran sportation , M r. Joseph  B . 
Eastm an. H is  rem arks do n ot at any po in t touch  
upon  the re la tion  o f  the A d ju stm en t B o a rd  to  the 
courts. H e  stated that “ unadjusted  disputes 
* * * may be r e fe r r e d ”  to  the A d ju stm en t
B oard , and that “ noth ing in  the act shall be con ­
strued to  p reven t a ca rrier  or  g rou p  o f  carriers 
from  agreeing w ith  em ployees, o r  any class there­
o f, upon  another m ethod  o f  settling  d isputes.”  17

B ut he does advance as one o f  the advantages o f  a 
national board, as contrasted  w ith  regiona l boards, 
the desirability  o f  “ a m ore u n ifo rm  settlem ent o f  
these d isp u tes” ; this he fe lt  w ordd u ltim ately  “ tend 
to reduce very  m ateria lly  the num ber o f  disputes 
which cou ld  n ot be settled lo ca lly .”  18 In  this con ­
nection he s ta ted :

I  also have the fee lin g  that the national 
board  w ill have a v ery  d istinct advantage, 
because it  can  establish certa in  precedents 
o f  general ap p lica tion  w h ich  should fu rn ish  
a gfuide f o r  d ecid in g  cases loca lly . A s  a 
m atter o f  fa c t  the same rules are now  in ­
terpreted  in  m any d ifferen t w ays through ­
out the country, and  that is one reason  w hy 
grievances w hich  arise rem ain  unsettled, be­
cause there is disagreem ent as to w hat the

17 Hearings before House Committee on Interstate and 
Foreign Commerce on H . E . 7650, 73d Cong., 2d Sess., p. 47.

18 Hearings before Senate Committee on Interstate Com­
merce on S. 3266, 73d Cong., 2d Sess., pp. 154-155.



16

same language m eans and a great va rie ty  o f  
interpretations. I f  w e had one hoard, 
nation-w ide, setting precedents in  these 
m atters, I  th ink  the tendency w ou ld  be 
to establish gu ides w h ich  w ou ld  enable a 
great m any o f  the issues to be settled at 
hom e.19

* * * * *  
F urtherm ore, I  have the fee lin g  that it  is 

very  desirable to  have a m ore u n ifo rm  settle­
m ent o f  these disputes. These m atters that 
we are now  dealing  w ith  are grievances. 
They are not the basic rates o f  p a y  or  the 
basic w ork in g  ru les and the in terpretation  
o f  those rules o r  grievances w hich  m en have, 
and it d oesn ’t seem  to m e that it  is neces­
sary to have any num ber o f  d ifferen t w ays 
o f  d isposing o f  those all over the country , 
and that the n ational b oa rd  cou ld  soon  set 
certain precedents w hich  w ou ld  d iscourage 
and lim it the num ber o f  such disputes w hich  
w ould arise, because it  w ou ld  be p e r fe c t ly  
clear w hat the outcom e w ou ld  be i f  they 
w ere p re fe rred  to  the n ational board .20

U n ifo rm ity  in  ap p ly in g  ra ilw ay  la b or  agree­
m ents is, o f  course, m ore lik e ly  to  be achieved i f  
all d isputes m ust first go to a national board  rather 
than to  the num erous state and fed era l courts. 
Thus, although M r. Eastm an was speak in g  on ly  o f

10 House Hearings, supra, p. 48.
20 Senate Hearings, supra, p. 155.



17

the advantages o f  national over regiona l ad just­
ment boards, his rem arks are also pertinent here.

The fa c t  that there w as no re feren ce  to ju d ic ia l 
rem edies d u rin g  the entire legislative d iscussion  
suggests both  that the courts have not cut a very  
im portant figure in  resolv ing  this type o f  dispute 
and also that som e other m ethod  o f  settling such 
disputes is essential. B u t the establishm ent o f  
special m ach in ery  to fill this need does not in  and 
o f  itse lf m an ifest an intention , one w a y  o r  the 
other, to deprive  the courts o f  ap y  ju r isd iction  
which they m ay fo rm erly  have possessed. J u d g ­
ment on  that question  can  be exercised  m ore in ­
telligently in  the ligh t o f  the h istorica l back ground  
o f  the A d ju stm en t B oa rd  and the relationship  be­
tween its predecessors and the courts.

3 . T H E  H ISTO RICAL BACKGROUND

The present B o a rd  is the cu lm ination  o f  a long 
period  o f  p ractice  and experim entation  in  devising 
means o f  settling ra ilw ay  labor disputes w ithout 
in terruption  to  transportation . The status o f  the 
B oard , w hich  is unique am ong adm inistrative 
agencies ( i f  it  be such an agency at a ll; see p. 31, 
in fra ) can on ly  be understood  in  the ligh t o f  this 
h istorical background.

The first predecessor o f  the A d ju stm en t B oa rd  
was the “ C om m ission  o f  E ig h t”  created on  M arch  
19,1917, by  agreem ent o f  the ra ilroads and the fo u r  
train service B roth erh oods, to  in terpret an aw ard



18

o f  the Com m ittee o f  the C ouncil o f  N ational D e ­
fense settling the eigh t-hour day con troversy .21 
This conm iission was com posed  o f  fo u r  representa­
tives o f  the B rotherhoods and fo u r  o f  the carriers .22

S h ortly  a fter  the G overnm ent took  over the ra il­
roads during the w ar, the D irector  G eneral o f  R a il­
roads, by  order, established R a ilw a y  B o a rd  o f  A d ­
justm ent N o. 1, w hich  w as in  substance and fo rm  
a continuation  o f  the C om m ission  o f  B ig h t fo r  tra in  
service em ployees.23 T he order, w h ich  m ade e ffec­
tive a “ m em orandum  o f  u n derstan d in g ,”  p re ­
v iou sly  reached betw een the B roth erh ood s and the 
“ d irectors fo r  the ra ilroads under governm ent con ­
tro l,”  p rov id ed  that “ all con troversies grow in g  out 
o f  the in terpretation  or ap p lica tion  o f  the p ro ­
visions o f  the w age schedule o r  agreem ents w hich  
are not p rom p tly  ad justed  by  the officials and the 
em ployees on  any one o f  the ra ilroads operated  by  
the G overnm ent shall be d isposed  o f  i n ”  the m anner 
described.24 D eadlocked  cases w ere re ferab le  to

21 See Compilation, pp. 403-404, and Appendix, pp. 18-19; 
W o lf, The Railroad Labor Board, pp. 50-57. The award 
was expressly made to become effective whether or not the 
Adamson Act was held constitutional. Although the settle­
ment was obviously agreed upon before the decision of this 
Court in Wilson v. New, 243 U . S. 332, it was signed on 
March 19,1917, the same day that the decision was rendered.

22 Compilation and W olf, loc. cit. supra.
23 See W o lf, supra, pp. 50 et seq.; Compilation, Appendix, 

pp. 19-22.
24 The Board consisted of an equal number of representa­

tives of the carriers and the labor organizations. Section 10 
of the memorandum, in language similar to that in the pres-



the D irector  G en era l; “ but p ractica lly  every ca se”  
w as am icably  settled b y  a m a jo r ity  vote  o f  the 
B oa rd .25 D u rin g  succeeding m onths tw o sim ilar 
boards w ere established fo r  the sh opcra fts  and fo r  
other national labor organ izations.26

This m ach in ery  was recogn ized  as app licable  on ly  
to the m em bers o f  the m a jo r  ra ilw ay labor organ ­
izations s ign atory  to  the understanding.27 B y  
order o f  the D irector  G eneral the cases o f  “ em ­
ployees n ot represented  by  R a ilw ay  B oa rd s  o f  A d ­
ju stm en t”  w ere to be handled by  the in d iv idu a l or 
his representative in  the same m anner through  the 
ch ie f op eratin g  officer o f  the carrier, and then, i f

ent Act, provided that “ Personal grievances or controversies 
arising under interpretation of wage agreements, and all 
other disputes * * * covered by this understanding, will 
be handled in their usual manner by general committees of 
the employees up to and including the chief operating officer 
of the railroad (or someone officially designated by him ), 
when, if an agreement is not reached, the chairman of the 
general committee o f employees may refer the matter to the 
chief executive officer of the organization concerned, and if  
the contention of the employees’ committee is approved by 
such executive officer” then the matter shall be jointly sub­
mitted to the board of adjustment. In  the proceedings be­
fore the Board the employees were to be represented by the 
person designated by the chief executive officer of the organ­
ization concerned. Ibid.

25 See ibid ; Report o f the Director General for  the Four­
teen Months Ending March 1, 1920, p. 15.

26 Compilation, Appendix, pp. 23-30 ; W o lf, supra.
27 W o lf, supra, pp. 52-53.



2 0

not settled, subm itted to the D iv is ion  o f  L a bor 
o f  the R a ilroad  A dm in istra tion .28

These orders becam e inoperative  a fter  the car­
riers were returned to p rivate  ow nership . R a il­
w ay labor relations were subsequently governed  
by  T itle I I I  o f  the T ran sporta tion  A ct, 1920 (c . 91, 
41 Stat. 456). A lthough  it had been p roposed  that 
adjustm ent boards be m ade com pu lsory , S ection  
302 o f  the 1920 A ct  p rov id ed  on ly  that—

* * * R a ilroa d  B oa rd s  o f  L a b or  A d ju s t ­
m ent m ay be established b y  agreem ent be­
tween any carrier, g rou p  o f  carriers, o r  the 
carriers as a w hole, and any em ployees or 
subordinate officials o f  carriers, or  organ i­
zation or grou p  o f  organ izations th ereo f.29

Such adjustm ent boards w ere to hear cases subm it­
ted by  the carriers or labor organizations, or “ upon  
the w ritten  petition  signed by  not less than 100 un­
organ ized em ployees ’ ’ ( S ection  303 ). I f  no ad ju st­
ment board  was established, or i f  an adjustm ent 
board  fa iled  to reach an agreem ent, the dispute was 
to be subm itted to the R a ilroa d  L a bor B oa rd  (S e c ­
tion  307 ).30

28 Compilation, Appendix, pp. 30-32.
29 Compilation, Appendix, p. 33; W o lf, supra, pp. 91, 267.
30 This Board was composed of three representatives of 

the public, three of management, and three of labor. Its  
functions are described in Pennsylvania Railroad Company 
v. Railroad Labor Board, 261 U . S. 72; Pennsylvania Rail­
road System and Allied Lines Federation  v. Pennsylvania 
Railroad Company, 267 U . S. 203; Texas cf- New Orleans 
Ry. Co. v. Brotherhood o f Railway Clerks, 281 U . S. 548.



21

A lthough  the A ct  w as passed in  the b e lie f that 
adjustm ent boards w ou ld  be established, the car­
riers and the labor organ izations w ere not able to 
agree u p on  w hether national or system  boards 
should be created.31 A ccord in g ly , no general sys­
tem o f  adjustm ent boards was set up. One result 
o f  this was that the R a ilroa d  L a b or  B oa rd  was 
sw am ped w ith  a vast num ber o f  m in or cases and 
was unable to devote adequate tim e to the larger 
issues w ith  w hich  it was expected  p rim a rily  to  deal.32

Three reg ion a l adjustm ent boards, how ever, w ere 
created, b y  agreem ent betw een the fo u r  tra in - 
service brotherhoods and m any o f  the carriers. 
These agreem ents w ere substantially sim ilar to  
those entered in to  during  the W a r ;  they p rov ided  
that d isputes “ shall b e ”  disposed o f  in  the m anner 
provided . U nsettled  cases w ere to be certified  to 
the R a ilroa d  L a bor B oa rd .33

In  1926, a fter  the break-dow n, fo r  m any reasons,34 
o f  the m ach inery  established in  T itle  I I I  o f  the

51 W o lf, supra, pp. 267-273. A s  in 1934, the employees 
sought a national board and the carriers system boards.

32 Ibid.
33 W o lf, supra, pp. 273-276 ; Compilation, Appendix, pp. 

39-53. The agreements conformed to the statute in that, 
after submission to the chief operating officer of the carrier, 
disputes could be filed with the Board either by the chief of 
the labor organization or by petition of 100 unorganized 
employees.

34 See W o lf, supra, pp. 358 et seq.; Texas <& New Orleans 
Ry. Co. v. Brotherhood of Railway Clerks, 281 U . S. 548, 
563: Virainian Ry. Co. v. System Federation No. Ifi, 300 
U . S. 515, 542.



22

T ransportation  A ct, the R a ilw a y  L a b or  A c t  was 
enacted in  its place (44  Stat. 577 ). S ection  3 o f  
this statute appeared to m ake the establishm ent o f  
adjustm ent boards m an d atory ; it  p rov id ed  that—

* * * B oard s o f  ad justm ent shall be cre ­
ated by  agreem ent betw een any ca rr ier  or 
grou p  o f  carriers, o r  the carriers  as a w hole, 
and its or their em ployees.35

The section w ent on to  state that disputes o f  the 
type here in question “  shall be handled  in  the usual 
m anner up to  and in clu d in g  the ch ie f operatin g  
officer o f  the carrier  * * * ; but, fa ilin g  to  reach
.an adjustm ent in  this m anner, that the dispute 
shall be referred  to the designated ad justm ent 
board  by  the parties, o r  b y  either p a rty  * * * ”
(S ection  3, F irs t  ( c ) ) .

A s  m ight have been anticipated , the change fro m  
“ m a y ”  to “ sh a ll”  in  the 1926 A c t  d id  n ot in  itse lf 
succeed in b ringing agreem ent betw een carriers and 
em ployees as to the k in d  o f  ad justm ent board  to  
be created. The carriers still insisted  on  system

35 The labor organizations had previously supported the 
Howell-Barkley bill which was favorably reported to the 
Senate in 1924, but which failed to pass. See Senate Report 
No. 779, 68th Cong., 1st Sess.; W o lf, supra, pp. 406^ 15 . 
This bill provided for national adjustment boards. Pre­
sumably the substitution in the 1926 bill of the provision for 
the establishment of boards by agreement only was a con­
cession to the carriers in order to get them to join with the 
labor organizations in submitting the latter bill to Congress.



2 8

boards and the B roth erh ood s  on  a national board .”  
The boards p rev iou sly  established fo r  tra in  service 
em ployees w ere continued, how ever, and a new  
board  created f o r  the southw estern region .37 In  
addition , a num ber o f  system  boards w ere created 
fo r  other classes o f  em ployees.

B u t in  m any instances the carriers and the em ­
ployees w ere unable to  reach  agreem ent on  w hether

30 The situation was picturesquely described by Chairman 
W inslow of the Board of Mediation before the Senate Com­
mittee on Interstate Commerce, at the Hearings on the 1934 
amendments (Hearings on S. 3266, 73d Cong., 2d Sess., p. 
137), as follow s:

“The provision in the present act for adjustment boards is 
in practice about as near a fool provision as anything could 
possibly be. [Laughter.] I  mean this— that on the face of 
it they shall, by agreement, do so and so. W ell, you can do 
pretty nearly anything by agreement, but how can you get 
them to agree? No way has yet been found, where difficul­
ties have come up. But the curious part is that they can 
work entirely within the provisions of law and never agree, 
so you never get an adjustment board. Side A , for instance, 
wants a system board. Side B wants a regional board, to 
illustrate. And they are both subscribing to that provision 
of law ; they both want boards; they are broken-hearted to 
think that they can’t get them [laughter], but they never 
will agree on the board. So what good is it? It  is utterly 
impractical and absolutely a mess. * * * ”

37 Compilation, p. 410; Appendix, pp. 57-61. The new 
train service agreement was substantially the same as the 
earlier ones, except that it omitted the provision required by 
the 1920 A ct for submission of cases by unorganized em­
ployees {I iid .) .  The older agreements were modified so as 
to make unsettled cases referable to the Board of Mediation 
instead of to the Railroad Labor Board and so as to indicate 
that only organizations party to the agreement could submit 
cases to the Board {Id., at 47, 49, 54, 56).



2 4

or n ot to establish boards o f  adjustm ent. See 
H . R ept. N o. 1944, 73d Cong., 2d Sess., p . 3. 
M oreover, the 1926 A ct  contained  no m ach inery  to 
care fo r  the cases in  w hich  the ca rrier  and labor 
m em bers o f  the B oards, w ho w ere equal in  num ber, 
fa iled  to agree. A s  a consequence, “ M a n y  thou­
sands o f  these disputes have been considered  by  
boards established un der the R a ilw a y  L a b or  A c t ; 
but the boards have been unable to  reach a m a jo r ity  
decision, and so the proceed in gs have been dead­
lo ck ed ”  (H . R ept. N o. 1944, 73d Cong., 2d Sess., 
p. 3 ) . The B o a rd  o f  M ed iation  w as flooded w ith  
these deadlocked cases, to be handled through  
m ediation  in add ition  to its other duties.38 T he 
result o f  the fa ilu re  o f  the parties to agree to estab­
lish adjustm ent boards, or o f  the m em bers o f  such 
boards to reach decisions was that, “ unad ju sted  
disputes have becom e so num erous that on  several 
occasions the em ployees have resorted  to the issu­
ance o f  strike ballots and  threatened to in terrupt 
interstate com m erce in  ord er to secure an ad ju st­
m en t”  (H . R ept. 1944, p. 3 ) .

Because o f  these deficiencies in  the operations 
o f  the 1926 A ct, the 1934 am endm ents to  the R a il­
w ay L abor A ct  w ere adopted  (48 Stat. 1185, 45 
U . S. C., Sections 151 -163). The H ouse com m ittee 
report, a fter  recitin g  the above facts  (w h ich  are

ss See the testimony of Chairman W inslow before the 
House Committee on Interstate and Foreign Commerce 
(Hearings on H . E . 7650, 73d Cong., 2d Sess.), p. 72.



25

am ply su pported  b y  the testim ony be fore  the con ­
gressional com m ittee 89) w ent on  to  declare—

This con d ition  should be corrected  in  the in ­
terest o f  industria l peace and o f  un in ter­
ru pted  tran sporta tion  service. Th is bill, 
th erefore , p rov ides fo r  the establishm ent o f  
a national board  o f  ad justm ent to w hich  
these disputes may be subm itted i f  they shall 
not have been ad justed  in  con ference  be­
tw een the parties. [Ita lics  supp lied .]

W h en  the carriers and em ployees cou ld  agree to 
establish sim ilar regiona l o r  system  boa rd s ,"  they 
were to be “ exem pt fro m  the ju r isd iction  o f  this 
national b o a rd ”  (id., p. 4 ) .  I f  a board  deadlocked 
on a decision , im partia l referees w ere to be chosen 
by  the board  m em bers, or i f  necessary, b y  the M ed i­
ation B oa rd . The H ouse com m ittee rep ort con ­
cludes—

The com m ittee is confident that this b ill 
strengthens the R a ilw a y  L a bor A ct, w here it 
is necessary to do so, and feels sure that i f  
the act is am ended as p rop osed  in  this bill, 
it  w ill p rov ide  effective and adequate m a­
ch inery  to ad ju st controversies betw een the 39 40

39 See Hearings before House Committee on Interstate and 
Foreign Commerce on H . E . 7650, 73d Cong., 2d Sess.; 
Hearings before Senate Committee on Interstate Commerce 
on S. 3266, 73d Cong., 2d Sess.

40 The representatives of the employees had insisted on a 
national board while the carriers had proposed compulsory 
regional boards. The A ct provides for the former and 
permits the latter.



26

carrier  m anagem ents and em ployees. I t  w ill 
assure em ployees the r igh t to  barga in  co l­
lectively  and w ill contribute im m easurably 
to the establishm ent and m aintenance o f  in ­
dustrial peace.

I t  is clear fro m  the above outline o f  the back ­
ground o f  the present statute that C ongress created 
the N ational R a ilroa d  A d ju stm en t B o a rd  as a suc­
cessor to the boards established b y  agreem ent un ­
der earlier statutes. These agreem ents contained 
m andatory language, and u n der the law  o f  con ­
tracts the boards therein  established m ight f o r  that 
reason he said to have exclusive p r im a ry  ju r isd ic ­
tion  over cases arising under contracts m ade by  the 
parties to the agreem ent. I t  is in ferab le  that C on­
gress d id  not in tend  the new  national board  to have 
a narrow er ju r isd iction  than its predecessors, and 
that accordingly, resort to  the n ationa l board  is 
also a necessary prerequ isite  to the in stitu tion  o f  
ju d ic ia l proceedings. O n the other hand it  is p os ­
sible to poin t to the substitution in  1934 o f  the less 
dem anding “ m a y ”  fo r  the m andatory  “ sh a ll”  con ­
tained both in  the earlier agreem ents and in  the 
corresponding section  (S ection  3, F irs t  ( c ) )  o f  the 
1926 R a ilw ay L abor A c t  as m an ifestin g  a delib ­
erate e ffort by  Congress not to give the present 
board  exclusive ju risd iction .

In  this connection  it should be observed that the 
agreem ents creating the earlier ad justm ent boards 
perm itted  on ly  the labor organ izations and n ot the 
ind ividual em ployees to  present m atters to  the



27

boards.41 (S ee  p . 18, fo o tn o te  2 4 ; pp . 19 -2 1 ; p. 23, 
footnote 37, supra.) These boards thus d id  not 
assume to protect the rights o f  in d iv id u a l em ploy­
ees i f  not sponsored  by  the la b or  organ ization , a l­
though it is genera lly  recogn ized  that such persons, 
in the absence o f  express contractual p rov is ion s to 
the contrary, have en forceable  rights under labor 
agreements.42 O m ission  fro m  the present statute 
o f  the requirem ent that cases be presented through  
the labor organ ization  p a rty  to  the agreem ent is 
some in d ica tion  that ind iv idua l em ployees w ere to 
be perm itted  to  b r in g  cases be fore  the B oa rd , and 
thus that the B oa rd  has ju r isd iction  over the w hole 
field o f  d isputes under ra ilw ay labor agreem ents. 
But as we p o in t out, in fra, pp . 33-37, the A d ju st­
ment B oa rd  has in  fa c t  continued to operate along 
the same lines as its predecessors, and has refu sed  
to hear eases n ot subm itted by  the labor organ iza­
tions. Th is, o f  course, w eakens the in ference  
which m ight otherw ise be draw n  as to the exclusive 
nature o f  the B o a r d ’s ju r isd iction  under the pres­
ent A ct as contrasted  w ith  the earlier agreem ents.

4 . TH E PRACTICE OP TH E COURTS

A s has been suggested, it is not unreasonable to 
assume that C ongress intended the present ad-

41 A s required by the 1920 statute, agreements made be­
tween 1920 and 1926 also permitted 100 unorganized em­
ployees to file cases with the boards.

42 See W itm er, Collective Labor Agreements in the Courts, 
48 Yale L. J. 195, 224 (1938).



28

justm ent board  to occupy:, in  general, the same 
p osition  vis a vis the courts in  the ra ilw ay  labor 
structure as its predecessors. The p ractice  o f  the 
courts in  deciding cases u n d er the p r io r  statutes 
and agreem ents w ould  thus be an in d ica tion  as to 
w hether the present A c t  w as designed  to  d eprive  
the courts o f  ju risd iction .43

In  view  o f  the thousands o f  cases w h ich  cam e 
before  the earlier ad justm ent boards, it m ust be 
assumed that m ost disputes arisin g  w here agrees 
m ents w ere in  e ffect w ere subm itted to  the boards. 
I t  is difficult to ascertain  how  m any or w hat p ro ­
p ortion  o f  the cases w ere taken  d irectly  to  court 
instead o f  goin g  through  a board . A n  exam ­
ination  o f  the rep orted  decisions does not, o f  
course, give any accurate in d ica tion  o f  this, since 
m ost law  suits do not reach the stage o f  requ irin g  
an op in ion  by  an appellate court. N evertheless, 
such reported  op in ions a ffo rd  the on ly  clue 
available.

43 Most of the Federal cases arising both before and after 
1934 have already been discussed, supra, pp. 9-10. In  Penn­
sylvania Railroad Company v. Railroad Labor Board, 261 
IT. S. 72, 84, this Court stated generally, with respect to Title 
I I I  of the 1920 Act, that it “ was not enacted to provide a 
tribunal to determine what were the legal rights and obliga­
tions of railway employers and employees or to enforce or 
protect them. Courts can do that.” [Italics supplied.] 
Although this remark was not directed at the adjustment 
board section of the Act, it does indicate in some slight 
degree that while the 1920 A ct was in effect the jurisdiction 
of neither the Railroad Labor Board nor the adjustment 
boards was exclusive.



29

The cases m ay be grou p ed  in to several catego­
ries. There are—

(a )  A  considerable num ber in  w hich  the courts 
have assum ed that they had ju r isd iction  to grant 
relief under ra ilw ay labor contracts, w ithout any 
reference to fed era l leg islation  or  to  the existence 
o f  an ad justm ent b oard .44

44 See, e. g., Lyons v. St. Joseph Belt Ry. Go.. 232 Mo. App. 
575, 84 S. W . (2d) 933 (1 9 3 7 ); Mosshamer v. Wabash R., 
221 Mich. 407,191 N. W . 210 (1922) ; Long  v. B. & 0 . R. Go., 
155 Md. 265, 141 A tl. 504 (1928) ; Aden  v. L. da N. Ry. Go., 
276 S. W . 511 (1 921); Chambers v. Davis, 128 Miss. 613, 91 
So. 346 (1922); Piercy  v. L. dt N. Ry., 198 K y . 477, 248 S. W . 
1042 (1923); Henry  v. Twichell, 286 Mass. 106, 189 N. E. 
593 (1934); Donovan v. Travers, 285 Mass. 167, 188 N. E. 
705 (1934) ; Gordon v. Hawkins, 66 S. W . (2d) 432 (1933) ; 
McCoy v. St. Joseph Belt Ry. Go., 229 Mo. App. 506, 77
S. W . (2d) 175 (1934); Ryan  v. N. Y. G. R. Go., 267 Mich. 
202, 255 N. W . 365 (1934) ; George v. G., R. I . dc P., 183 
Minn. 610, 235 N. W . 673 (1931) ; L. da N. R. Go. v. Bryant, 
263 K y. 578, 92 S. W . (2d) 749 (1936) ; Moore v. Y. d: M. V. 
Ry., 176 Miss. 65, 166 So. 395 (1936); McGee v. St. Joseph 
Belt Ry. Go., 233 Mo. App. I l l ,  93 S. W . (2d) 1111 (1936); 
Clark v. G., N. O. daT. P., 258 K y. 197, 79 S. W . (2d) 704 
(1935) ; Franklin v. Perm-Reading Seashore Lines, 122 N. J. 
Eq. 205, 193 A . 712 (1937); Florestano v. N. P. R. Go., 198 
Minn. 203, 269 N. W . 407 (1936); Gregg v. Starks, 188 Ky. 
834, 224 S. W . 459 (1920). These cases arising before and 
after 1934 indicate the practice o f the courts as to both the 
earlier adjustment boards and the present Board. Since 
the cases cited do not mention any adjustment board, we 
have included only cases involving train service employees, 
inasmuch as substantially all of this class of employees has 
been covered by adjustment boards ever since 1917. (See 
pp. 17-23, supra.)



30

(b )  Cases h o ld in g  that em ployees m ust exhaust 
procedura l rem edies set fo rth  in  labor agreem ents, 
in clud ing  the prov is ion  fo r  A d ju stm en t B oa rd s .45 * *

( c )  Cases hold ing  that an em ployee can  go  to 
court w ithout availing h im self o f  the rem edies 
described in  the contract or under the A ct, w here 
fo r  one reason or another such action  w ou ld  be 
fu tile .48

A lth ou gh  court decisions w h ich  do n ot discuss 
an issue lurk in g in  the record  do n ot ca rry  m uch 
authority, the v e ry  fa c t  that there had been num er­
ous cases in  the courts w hile the earlier boards w ere 
fu n ction in g  is o f  significance in  and o f  itse lf, i f  it 
be assum ed that Congress in tended  the new  board  
to occu p y  the same p osition  in  respect to  the courts 
as d id  the old. A  con trary  in feren ce  can, how ever, 
be draw n fro m  the rather few er decisions requ irin g  
the use o f  the m ach inery  p rov id ed  in  the contracts, 
on  the th eory  that Congress in tended  the statute 
establishing the new  board  to have as great an effect 
as the agreem ents w hich  it was rep lacing.

45 Harrison v. Pullman Company, 68 F . (2d) 826 (C . C. A . 
8 th ) ; Bell v. Western Railway, 228 A la. 328, 153 So. 434;
Wyatt v. Kansas City Ry. Co., 101 S. W . 1082 (Tex. Civ. 
A p p .) ; ■;Swilley v. Galveston, etc., Railway, 96 S. W . (2d) 
107 (Tex. Civ. A p p .) ; Matlock v. Gulf C. & S. F. Railway,

S. W . (2d) 1056 (Tex. Civ. A p p .) ; Reed v. St. Louis S. 
IT. Ry., 95 S. W . (2d) 887; Cousins v. Pullman Co., 72 
S. W . (2d) 356 (Tex. Civ. A p p .).

Youmans v. Charleston A  W. C. Ry. Co., 175 S. C. 99, 
178 S. E . 671; Long v. Van Osdale, 26 N. E . (2d) 69 (Ind. 
A p p .) ; Mallehan v. Texas A  Pacific Ry. Co., 87 S. W . (2d) 
771 (Tex. Civ. A p p .) ; Ledford v. Chicago. M.. St. Paul <fs 
P. R. Co., 298 111. App. 298, 306,18 N. E . (2d) 568.



3 1

5 . TH E PRACTICE OF TH E PRESENT BOARD

The N ation a l R a ilroa d  A d ju stm en t B o a rd  es­
tablished in  1934 d iffers  in  im portan t respects 
fro m  the boards u p on  w hich  it w as m odeled. A l ­
though its m em bers are still ap p oin ted  and p a id  
by  the carriers and the labor organ izations, it  is 
created b y  statute and not b y  agreem ent, an d  the 
rem ainder o f  its sta ff m ust be ap p roved  and p a id  
by  the G overnm ent, through  the N ational M ed ia ­
tion  B oa rd . W h e n  it deadlocks, referees are to 
be chosen, i f  necessary, b y  the M ed iation  B oard . 
Its  decisions are m ade en forceable in  court, the 
findings o f  the B o a rd  being prim a facie  evidence 
o f  the fa cts  fou n d .

A s a resu lt o f  these d ifferences, it is uncertain  
w hether the B oa rd  m ay any lon ger be treated m erely 
as ‘ ‘ an extension  o f  the m ach inery  fo r  settling dis­
putes on  the p ro p e rty  o f  the ca rr ie rs”  or  whether 
it has becom e a fu ll-fledged  adm inistrative agency 
w ith a d ju d ica tory  fu n ction s.47 On this question the 
carrier and labor m em bers o f  the B oa rd  apparently 
disagree, the labor m em bers tak ing the p osition  that 
the B oa rd  “ never w as intended to fu n ction  as a 
court o f  equity, but rather that it should operate as 
a continuation  o f  the con ference  room  m ethod em­
p loyed  upon  the variou s properties.48

47 See Attorney General’s Committee on Administrative 
Procedure, Monograph No. 17, pp. 8-10, Compilation, p. 
230-231; id., Final Report, p. 185.

48 Ibid.



3 2

T h is d ifference in  analysis is not academ ic. I t  
cuts across various facets  o f  the B o a r d ’s p rocedu re 
and operations and is inev itab ly  reflected in  the 
problem  now  before  this Court. F o r  as a resu lt o f  
the view  that the present B oa rd , like its p redeces­
sors, is an adjustm ent, and not an ad ju d ica tory , 
body  representing the organ izations w hose m em bers 
com pose it, the labor m em bers o f  the B o a rd  have 
declined to perm it the B oa rd  to  hear cases n ot sub­
m itted by  the un ion  representing the m a jo r ity  o f  
the cra ft  involved .49

On this point, the study p rep a red  b y  the sta ff o f  
the A ttorn ey  G en era l’s C om m ittee on  A d m in istra ­
tive P roced u re  d ecla res : 50

Assertions o f  claims. The agreem ents en­
tered into by  the m a jo r ity  unions w ith  the 
carriers are regarded  b y  the unions as pecu ­
lia rly  theirs, although they  ap p ly  n ot on ly  
to the em ployees o f  the ca rr ier  w ho are m em ­
bers o f  the union, but to the non-m em bers as 
well. In  some fo u r  hundred  cases since the 
establishm ent o f  the B oa rd  ind ividua ls  have

49 The exclusive statutory authority of the majority to 
represent the entire collective bargaining unit in negotiating 
agreements does not extend to the presentation of individual 
grievances. Sections 2, Fourth, and 3, First ( j ) .  C f. Vir­
ginian By. Co. v. System Federation No. Jfi, 300 IT. S. 515, 
548, 557. The National Labor Relations Act, which was 
modeled on the Railway Labor Act (National Labor Rela­
tions Board v. Pennsylvania Greyhound Lines, Inc., 303 
I . S. 261, 266-267) so provides in express language (Section 
9 ( a ) ,  49 Stat. 449, 29 IT. S. C., Sec. 159).

’“ Monograph No. 17, supra, pp. 15, 16, Compilation, pp. 
233-234.



33

sought to assert claim s b e fo re  the B oard . 
W ith  the exception  o f  a fe w  isolated  cases o f  
D iv is ion  I Y  in volv in g  claim s o f  individuals 
where there w as no organ ization  o f  the p a r ­
ticu lar c ra ft  o r  class on  the p rop erty , no case 
asserted b y  an in d iv idu a l has ever been de­
cided  on  the m erits b y  the B oard . T he on ly  
w ay that an ind ividual m ay p reva il is b y  tak­
in g  his case to  the un ion  and causing the 
un ion  to ca rry  it through  to  the B oard .

T he B o a rd  does not affirm atively take the 
p osition  that claim s o f  ind ividuals m ay not 
be asserted be fore  it. The labor m em bers 
so lid ly  vote  in  each instance not to consider 
claim s asserted b y  individuals, w hile the car­
r ier  representatives consistently  vote to con ­
sider them, even though they are claim s 
asserted against the railroads, basing their 
p osition  u p on  “ the constitutional righ t o f  
the ind ividua l. ”  W h a tev er  the reason m ay 
be, each d iv is ion  o f  the B o a rd  deadlocks on 
the question  w hether or not to  consider in d i­
viduals ’ claim s, and since this question has 
never been resolved b y  the appointm ent o f  
a referee, it  is sim ply  stalem ated.51 H ence, 
no affirm ative action  is taken and no awards 
are m ade.15

15 The secretary of Division I  says that he has 
been instructed that he is not to inform individuals

61 Only after the Attorney General’s opinion of February 
19, 1940, were referees appointed to break deadlocks on 
jurisdictional questions ( See Opinions of Attorney General, 
Vol. 39, No. 113; Attorney General’s Committee on Adminis­
trative Procedure, Monograph No. 17, p. 24, Compilation, 
p. 238.)



3 4

who seek to petition the Board that the Board will 
not consider claims asserted by individuals. He 
therefore uses his ingenuity in explaining reasons 
for rejecting cases, and is forced to write many 
equivocal letters. I f  a party or his representative 
comes into the offices of the Board, however, the 
secretary tells him orally and confidentially the 
reason for refusing to docket the case.

Since the issuance o f  the report, the Second 
D iv ision  o f  the B oard , s itting  w ith  a referee, has 
form a lly  held that it lacked ju r isd iction  to  hear 
cases brought by  an individual, on  the groun d  that 
the p rov is ion  in the A ct  that “ d isputes shall be 
handled in  the usual m an n er”  b e fo re  the carrier 
requ ired  that grievances he taken  up  through  the 
union com m ittee, even w hen the un ion  was allegedly 
d iscrim inating against the particu lar  em ployee be­
cause o f  his fa ilu re  to  p a y  dues. See Gooch  v. 
Ogden Union Railway, N . R . A . B ., 2nd D iv., 
A w ard  N o. 514.

U n der these circum stances it m ight not unrea­
sonably be assumed, that the un ions representing 
the m a jor ity  in a cra ft  w ou ld  natura lly  be less 
anxious to brin g  b e fore  the B oa rd  the in d iv id u a l 
grievances o f  non-m em bers o r  m em bers n ot in  good  
standing than those o f  their m em bers.52 I n  this

52 W e do not mean to suggest that the labor organizations 
never bring the cases of non-members before the Board. 
They are more likely to do so, however, when the case in­
volves a general principle applicable as a precedent to all 
in the craft than when it involves a seniority or discharge 
question limited in effect to the individual, or when the posi­
tion of the individual nonmember is frequently adverse to 
members of the organization. See e. g., Ledford  v. Chicago, 
M., St. Paul <& P. R. Co., 298 111. App. 298, 18 N. E . (2d) 
568.



35

connection it should  be noted  that certa in  groups 
o f  em ployees, such as N egroes, are inelig ib le  fo r  
m em bership in  m any o f  the ra ilw ay  labor organ ­
izations.53

W hether o r  n ot the refu sa l o f  the B o a rd  to  hear 
cases not filed  by  the labor organ ization  is in  con ­
form ity  w ith  the statute,54 it  m ust be reckoned  w ith  
here as a fact. T he consequences o f  a ru lin g  that 
the creation  o f  the A d ju stm en t B o a rd  ousted the 
courts o f  ju r isd iction  w ould, at least under current 
practice, be to leave rem ediless in d iv id u a l em ­
ployees or grou ps o f  em ployees w hom  fo r  any rea-

53 Louisville Lodge, No. 10, Association of Colored Rail­
road Trainmen v. National Railroad Adjustment Board, 
First Division (N . D . 111., No. 45687), decided February 8, 
1937,1940, is a case in which a labor organization of Negroes 
complained that the Board would not hear its complaint as 
to discrimination against colored employees. The case Was 
dismissed on the grounds that the United States District 
Court lacked jurisdiction to issue a writ o f mandamus. See 
William H . Spencer, The National Railroad Adjustment 
Board, supra, p. 40, reprinted in Compilation, Appendix, 
p. 190.

54 Two circuit courts of appeals have indicated that they 
disagree with the view that individuals have no right to 
appear before the Board, except through the labor organiza­
tions. Nord v. Grifjd-n, 86 F . (2d) 481 (C . C. A . 7th ), certio­
rari denied, 300 U . S. 673; Estes v. Union Terminal Com­
pany, 89 F . (2d) 768 (C . C. A . 5th). The statute declares 
that the Board shall hear “ disputes between an employee or 
group of employees and a carrier or carriers” (Section 3, 
First ( i ) ) ,  that “ Parties may be heard either in person, by 
counsel, or by other representatives, as they may respectively 
elect” (Section 3, First ( j ) ) ,  that notice of hearing shall be



36

son the labor organ izations do n ot undertake to 
represent. I t  w ou ld  be un lik ely  that such a person  
cou ld  a fford  to  o r  w ould  care to  seek b y  m andatory 
in ju n ction  or m andam us to com pel the B oa rd , com ­
posed  o f  the em ployee representatives w ho had 
orig in a lly  refu sed  to perm it the case to  be sub­
m itted  and the representatives o f  the carrier  w hom  
he was opposing, to hear h is case.

I t  is quite clear that, in  the absence o f  a specific 
contractual lim itation , in d iv id u a l em ployees and 
m in ority  groups w ere p rev iou sly  able to  p rotect 
their rights in  court, regardless o f  the attitude o f

given “to the employee or employees and the carrier or car­
riers involved” (ibid. ) , and that uany person  for whose bene­
fit” an award is made may sue on the award in a United 
States District Court (Section 3, First ( p) ) .  The language 
of the Act differs considerably, of course, from  that o f the 
earlier agreements, which expressly provided that cases could 
be submitted to the Adjustment Boards only with the con­
sent of the chief officers o f the signatory labor organizations, 
see pp. 18-23, supra. Mr. George M . Harrison, president of 
the Brotherhood of Railway and Steamship Clerks, who 
appeared in support o f the 1934 A ct on behalf o f all the 
railway labor organizations, testified before the House Com­
mittee on Interstate and Foreign Commerce (Hearings on 
H . R. <650, 73d Cong., 2d Sess., p. 83) as follow s:

* * a question developed about whether or no an
individual or a minority of individuals, collectively con­
cerned in grievances would have the right under this 
bill to have their grievances passed upon by the board.

_v * in connection with disputes to be decided by 
adjustment boards, it is clear that an employee may in 
person or by counsel o f his own choosing, or other rep­
resentation, take care o f his individual grievances.

So, it cannot be said then that an employee will be 
unable to get consideration of his grievances just be-



37

the m a jo r ity  organ ization , and that Congress d id  
not intend the R a ilw a y  L a b or  A c t  to  abolish these 
rights.65 T h e re fu sa l o f  the la b or  m em bers o f  the 
present B oa rd  to  hear cases n o t filed by  the organ i­
zations in  e ffect im poses u p on  the B o a rd  the lim ita ­
tion contained  in  the o ld er  agreem ents (bu t n ot in 
the present sta tu te) that cases cou ld  on ly  be sub­
m itted b y  the ch ie f officer o f  the labor organ izations 
signatory  to  the agreem ent. Thus the practice  o f  
the B o a rd  in  re fu sin g  to  hear such cases is h ard ly  
.compatible w ith  the th eory  that its ju r isd ict ion  is 
exclusive.

SU M M A R Y  A N D  RECOM M EN DATION

The above rev iew  o f  those fa ctors  w h ich  m ust be 
considered in  con stru in g  the R a ilw a y  L a b or  A ct

cause he does not happen to be a member of the group 
representing the majority, because this bill is not de­
signed to prevent the adjustment o f grievance cases. 
The bill is designed to bring that very thing about.

See, also, W illiam  H . Spencer, The National Railroad 
Adjustment Board (University of Chicago Press, 1938), p. 
39, Compilation, Appendix, p. 189, where the author con­
cludes that, “ I t  would seem that the phraseology of the R ail­
way Labor Act authorizes an individual employee to petition 
the Adjustment Board for relief.”

55 See notes 6, 44—46, 54, supra. Inasmuch as the ability to 
protect his contract rights may be a matter o f economic life 
and death to an employee, it would not be unlikely that to 
construe the A ct as giving exclusive control over such mat­
ters to the labor organizations representing the majority 
could be used by the unions as a method of forcing all em­
ployees into such organizations. This would not be in har­
mony with the statutory prohibition against a closed shop 
(Section 2, F ifth ) which was deliberately adopted by Con­
gress after considerable opposition (78 Cong. Rec. 12390- 
12393, 12402).



leads to conclusions w hich  m ay  be sum m arized as 
fo llo w s :

1. The language and legislative h is tory  o f  the 
A ct  are inconclusive as to w hether o r  n o t resort to 
the A d ju stm en t B oa rd  is to be requ ired  b e fo re  the 
institu tion  o f  proceed ings in  court,

2. The cases m ay be said  to h o ld  o r  assum e that 
the ju r isd iction  o f  the B oa rd  is not exclusive.

3. A  com parison  o f  the A c t  w ith  the earlier stat­
utes and also w ith  the orig in a l agreem ents estab­
lishing adjustm ent boards, both  o f  w h ich  used 
m andatory language, leads to possib le con flicting  
in ferences, depending u p on  w hether it  is assum ed 
that the slight d ifferen ce  in  the p h raseology  o f  the 
A ct was deliberately  d irected  at the present p ro b ­
lem  or that the present ad justm ent boa rd  w as to 
have the same ju r isd iction  as its predecessors.

4. In so fa r  as the purposes o f  the A c t  are con ­
cerned, it is probable that the existence o f  a single 
experienced  b od y  in terp reta tin g  ra ilw ay  labor 
agreem ents in  a u n iform  m anner is con du cive  to  
harm ony and to a decrease in  the num ber o f  such 
disputes. A n d  yet it cannot be said  w ith  an y  as­
surance that the availab ility  o f  the o rd in a ry  ju d i­
cial rem edy fo r  breach o f  con tract w ou ld  be lik ely  
to brin g  on  industria l strife .

5. The practice  o f  the B oa rd  in  re fu s in g  to  hear 
cases not subm itted by  the representative o f  the 
m a jo r ity  o f  a c ra ft  is not consistent w ith  the n o­
tion  that the B oa rd  has exclusive ju r isd ic t io n  o f  
the type o f  cases w hich  com e b e fore  it.

38



39

W e believe that in  v iew  o f  all o f  the above con ­
siderations, the gen era lly  accepted  p rin cip les  o f  
statutory con stru ction  do n ot com pel the C ourt to 
reach either con clu sion  as to the exclusive ju r is ­
d iction  o f  the A d ju stm en t B oa rd . I n  the absence 
o f  an adequate gu ide to the actual in tention  o f  
Congress on this point, we think the con tro llin g  
consideration  should  be the e ffect o f  the p roposed  
interpretation  u p on  the attainm ent o f  the ob je c ­
tives o f  the R a ilw a y  L a b or  A ct.

E ven on this issue there is room  fo r  d ifference  o f  
opinion. T he p r im a ry  pu rp ose  o f  the R a ilw ay  
L abor A c t  is the settlem ent o f  d isputes p eace fu lly  
w ithout in terru p tion  to transportation . S ince ju ­
dicial p roceed in gs are a p eace fu l m eans o f  reso lv ­
ing disputes, the p ossib ility  o f  resort to the courts 
is not inconsistent w ith  this basic ob jective . O n 
the other hand, the u n ifo rm  interpretation  o f  such 
agreem ents b y  a single expert tribunal w ou ld  elim i­
nate the p oss ib ility  o f  d iscrim ination  betw een m en 
w ork ing on  d ifferen t parts  o f  the same road or on  
different roads, and  thus rem ove one cause o f  d is­
satisfaction  and con troversy .56 F urtherm ore, com -

56 See Lloyd K . Garrison, The National Railroad Adjust­
ment Board: A Unique Administrative Agency, 46 Yale  
L. J. 567 ( Compilation, Appendix, pp. 110-135). The cases 
which come before the Board arise out of numerous tech­
nical rules with “ intricate” interpretations. Attorney Gen­
eral’s Committee on Administrative Procedure, Monograph 
No. 17, pp. 5-6 , Compilation, p. 229; Garrison, supra, pp.



4 0

p u lsory  use o f  the m ach inery  established b y  the 
statute w ill, exeept f o r  those cases w h ich  go to r e f ­
erees, in  substance result in  the settlem ent o f  cases 
b y  agreem ent betw een the carriers and the unions. 
W e  believe that such a so lu tion  o f  a d ispute is p ro b ­
ably m ore consistent w ith  harm onious la b or  rela ­
tions than the p eacefu l but com pu lsory  acceptance 
o f  ju d ic ia l decisions.

W e  w ould  have been in clin ed  to argue m ore v ig ­
orou sly  in  su pport o f  th is v iew  i f  it w ere not fo r  
its possible in ju stice  as app lied  to  ind iv idua ls  
whose cases the B oa rd  refu ses to  hear un der its 
present practice . W e  th ink  it clear that C ongress 
d id  not in tend  the m ach inery  established in  the 
R a ilw a y  L abor A c t  to d eprive  any in d iv id u a l or 
group  o f  all m eans o f  p rotectin g  the righ ts granted 
under collective labor agreem ents.

A  possible solution  o f  this p rob lem  w ould  be to 
perm it court action by  ind iv idua ls  w ho cannot, w ith ­
out the use o f  some m an datory  process, b r in g  their 
case be fore  the A d ju stm en t B oa rd .57 A n  em ployee 
w ho is not a m em ber o f  the organ ization  w hich  p re ­
sents such cases should not be requ ired  to  do m ore

586-591 (Compilation, Appendix, 125-129). A  definite ad­
vantage is to be derived from having such cases decided by 
persons familiar with the subject and its terminology, and 
not by persons having “no practical experience of railroad­
ing.” Garrison, supra, p. 593 (Compilation, Appendix, p. 
131).

57 Injunctive relief was granted an individual employee 
under such circumstances in Ledford  v. Chicago, M S t .  
Paul <& P. R. Co., 298 111. App. 298, 306, 18 N. E . (2d) 568.



.41

than show  that the u n ion  has declined  to  present his 
case.68 S ince the filing o f  proceed ings w ith  the 
B oard  by  the in d iv idu a l w ou ld  under such circu m ­
stances be fu tile , and since the B oa rd  gen era lly  does 
not issue a fo rm a l ru lin g  declin ing  ju r isd iction ,69 
to require a re fu sa l b y  the B o a rd  itse lf w ou ld  m erely  
serve to exhaust the p eriod  o f  lim itations in  w hich  
a person  w ou ld  be able to  sue in  court.60

The h istory  o f  the present case indicates that the 
petitioner p robab ly  is not a m em ber o f  o r  in  good  
standing w ith  the officials o f  the labor organ ization  
representing his cra ft. (S ee  R . 1 3 4 ,1 6 5 -1 6 7 ,1 8 1 - 
184.) H e had  p rev iou sly  attacked the fa irness o f  
its sen iority  roster  and been expelled  fro m  the union  
fo r  fa ilu re  to  p a y  dues. Thus, although it does not 
appear w hether or not the organ ization  was re ­
quested to take h is case, he m ight not unreasonably

68 This might not be necessary or advisable as to members, 
since they might be deemed to have agreed to permit all dis­
putes to be handled through the officers o f their organiza­
tions.

59 See p. 33, swpra.
60 These factors, we believe, make inapplicable the prin­

ciple that a person cannot complain that an administrative 
remedy is inadequate until he has tried it. See, e. g., Lehon 
v. City of Atlanta, 242 U . S. 53. A n administrative remedy 
must be “ adequate” (cf. Myers v. Bethlehem, Shipbuilding 
Corporation, 303 U . S. 41) ; an “ idle ceremony” will not be 
required. Long v. Van Osdale, 26 N. E . (2d) 69,74, and cases 
cited, supra, note 46, p. 30. Just as long-continued refusal 
to act in a particular case warrants disregard of an admin­
istrative remedy (Smith v. Illinois Bell Tel. Go., 270 U . S. 
587), so should an admitted long-continued refusal to hear a 
certain class o f cases.



42

have assumed, w ithout asking, that it  w ou ld  have re ­
fu sed  to have done so.61

In  view  o f  the uncerta in  state o f  the law  as to 
the necessity o f  goin g  b e fore  the A d ju stm en t B oa rd  
rather than suing in  court, we do n ot believe that 
petition er should be p re ju d iced  b y  any fa ilu re  to 
anticipate w hat this C ourt m ay now  decide. I f  the 
C ourt should hold  that the A d ju stm en t B oa rd  has 
p r im a ry  ju risd iction , except as to those cases w hich  
the B oa rd  declines to handle, we suggest that the 
C ourt not ord er that p e t it io n e r ’s com pla in t in  this 
case he finally  dism issed, but on ly  that the ju dgm en t 
o f  the D istrict C ourt be stayed, p en d in g  a request 
by  petition er that the un ion  present his case, i f  
necessary, to the h igh er op eratin g  officials o f  the 
carrier  and then, i f  the m atter has not been ad ­
justed  in good  fa ith  w ith in  a reasonable tim e, to 
the B oard . C f. Tank Car Corp. v. Terminal Co., 
308 U . S. 422. I f  his case is then subm itted to  the 
B oa rd  the fu rth er  action  o f  the B oa rd  should  be

61 Tlie record shows that petitioner presented his seniority 
complaint to a “Labor Board” in 1931, but that after seven 
years he had still heard nothing as to its disposition (R . 127, 
134, 138). Since there was no known body of that name at 
that time, it is difficult to determine what “Labor Board” is 
meant, but we believe that the reference is probably to the 
Train Service Adjustment Board for the Western Region, 
to which the Illinois Central belonged. See Compilation, 
Appendix, p. 46. Although we have been advised that the 
records of that Board were transferred to the First Division  
of the National Railroad Adjustment Board in 1934, that 
Division has informed us that it is unable to find petitioner’s 
complaint in its files.



4 3

awaited.62 B u t i f  the u n ion  w ill not present p eti­
tion er ’s case to  the B oa rd , the D istr ict  C ou rt should 
then be perm itted  to en force  its judgm ent.

R esp ectfu lly  subm itted.
F rancis B iddle,

Solicitor General.
Robert L. Stern,

Special A ssistant to the A ttorn ey  General.

March 1941.

62 Petitioner’s case would come before the First Division 
of the Adjustment Board, which has jurisdiction over yard­
men. W e  think that the Court’s attention should be called 
to the fact that this Division is now more than “three years 
behind in its docket” and “constantly falling further be­
hind.” (Attorney General’s Committee on Administrative 
Procedure, Monograph No. 17, p. 36, Compilation, p. 244.)

U. S. GOVERNMENT PRINTING OFFICE: 1941









N o.e28

October Term, 1942

T he W ashington Terminal Company, petitioner

v.
F . E . B o s w e l l , E .  R . B ij r k h e a d , R . R . B r id g e s ,

e t  AL,

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE





I N D E X

Page
Opinion below ____________________________________________________ 1
Statute involved____________________________________________ — X
Statement and questions presented______________________________ 5
Summary of conclusions_________________________________________ 7
Argument:

Introduction________________________________________________  8
The first question: Whether either party to a dispute over 

which the Adjustment Board has authority is precluded 
from seeking a determination of the dispute by the 
courts, either before or after submission of the dispute 
to the Board______________________________________________  9

A. The historical background_________________________  10
1. The period preceding the present A ct_____  10
2. The practice of the present Board_________  23
3. The adjustment boards and the courts____  29

B. Whether parties may resort to the courts before
submission of a controversy to the National 
Railroad Adjustment B oard_____________________  35

1. Considerations relating to the Railway
Labor A ct________________________________  36

2. Considerations applicable to administra­
tive bodies generally__________________  41

3. Conclusion__________________________________ 47
C. Whether Parties may resort to the courts after

submission of a controversy to the National Rail­
road Adjustment Board__________________________ 50

1. While the proceeding is pending before the
Adjustment Board_______________________  51

2. After the Board had made its decision_____  54
a. The adequacy of the rem edy_______  55
b. The analogy of the Interstate

Commerce A ct___________________  62
c. The advantages given the em­

ployees___________________________  64
The second question: Whether the Board may make an

award ex pa rte  if one party to the dispute does not appear 
before the Board, and if so the effect given by the statute 
to such an award_________________________________________ 6 6

(i)
506724— 43------ 1



II

Argument— Continued. Page
The third question: The effect of the expiration of the two- 

year period specified by Section 3, First (q) upon the 
right of either party to the dispute to obtain a determina­
tion of it in the courts____________________________________ 6 8

The fourth question: The effect of the words “ final and bind­
ing”  in Section 3, First (m) upon the right to resort to the 
courts and upon the scope of judicial review, (A) during 
the two-year period, and (B) after expiration of the two- 
year period________________________________________________ 70

A. Legislative history__________________________________ 71
1. Historical background____ •_________________  72
2. The legislative hearings____________________  75

B. The meaning to be given the “ final and binding”
clause_____________________________________________ 82

Recom mendation_______________________________________ 9 4
The basic issue underlying this case________________________  96

C IT A T IO N S
Cases:

A dams v. New York, C. & St. L. R. Co., 121 F. (2d) 8 0 8 --  31
Alabama S tate F edera tion  v. K u rn , 46 F. Supp. 385________ 33
A m algam ated U tility W orkers v. C onsolida ted  E dison  Co.,

309 U. S. 261_____________________________________________  42
A nniston M fg. Co. v. Davis, 301 U. S. 337_________________  84
A tlantic Coast L ine R. Co. v. P op e, 119 F. (2d) 39______ . . .  32
A ustin  v. Sou th ern  P a c. Co., 123 P. (2d) 39________________ 31, 58
B a ldw in  v. Scott C ounty M illin g  Co., 307 U. S. 478________  62
B altim ore & Ohio R. Co. v. B rady, 288 U. S. 448___ 44, 58, 63, 91
B a ltim ore & Ohio R. Co. v. U nited S tates, 87 F. (2d) 605__ 63
B altim ore & Ohio R. R. Co. v. P itca irn  Coal Co., 215 U. S.

481-------------------------------------------------------------------------------------  43
B ell v. W estern R y. 228 Ala. 328, 153 So. 434_____________  30
B rady  v. In tersta te C om m erce C om m ission , 43 F. (2d) 847, 

affirmed, sub nom . B rad y  v. U nited S tates, 283 U. S. 804__ 63
B rand  v. P en n sy lva n ia  R. Co., 22 F. Supp. 569_________ 34, 35, 54
B urch ett v. M arsh, 17 How. 344____________________________  8 6
Burke v. Union P a c i f ic  R. Co., 129 F. (2d) 844____________ 31, 52
C leapor v. Atlanta, B. & C. R. Co., 123 F. (2d) 374______  32
Cook v. Des M oin es Union R y. Co., 16 F. Supp. 810_______ 58
C ousins v. P u llm an  Co., 72 S. W. (2d) 356__________________ 30
D elaware & H udson R. Corp. v. W illiam s, 129 F. (2d) 11, 

judgment vacated Decem ber 7, 1942, Nos. 446-447, this
Term _____________________________________________________  40

Estes v. Union T erm ina l C om pany, 89 F. (2d) 768- _ 27, 34, 54, 84 
Evans v. L ouisv ille & N. R. Co., 191 Ga. 395, 12 S. E. (2d)

0 1 1 ------------------------------------------------------------------------------------- 30
E verly  v. Erie R. Co., National Railroad Adjustment Board,

Second Division, Award No. 515_________________________ 26



III

G eneral C om m ittee o f  B rotherhood o f  L ocom otive E ngin eers
v. Sou th ern  P a c i f ic  C om pany, 132 F , (2d) 194___________  26

G eorgia & F. R y. Co. v. B rotherhood o f  L ocom otive E ngin eers,
217 Fed. 755______________________________________________  74

Gooch v. Ogden U nion R y. Co., National Railroad Adjust­
ment Board, Second Division, Award No. 514________  26

Great N orthern R a ilw ay Co. v. M erchan ts E levator Co., 259
U. S. 285__________________________________________________ 43, 44

H arrison  v. P u llm an  Co., 6 6  F. (2d) 826___________________  30
In tersta te  C om m erce C om m ission  v. U nited S tates, 289 U. S.

385_____________________________________________________________ 63
K eife r  & K e i f e r  v. R econ stru ction  F inan ce C orpora tion , 306

.IT. S. 381__________________________________________________ 10
K lin e  v. Burke C onstru ction  Co., 260 4J. S. 226____________  52
L edford  v. C hicago, M ., St. P au l & P . R. Co., 298 111. App.

298, 18 N . E. (2d) 568___________________________________ 30, 48
L ouisv ille & N. R. Co. v. B ryan t, 263 K y. 578, 92 S. W. (2d)

749_______________________ ________________________________  29
M allehan  v. Texas & P a c i f ic  Ry. Co., 87 S. W. (2d) 771.__ 30
M alone  v. G ardner, 62 F. (2d) 15__________________________  52
M arin e T ransit Co. v. D reyfu s, 284 U. S. 263______________ 8 6
M atlock  v. G ulf C. & S. F. Ry. Co., 99 S. W. (2d) 1056____ 30
M cD ermott v. N ew York Central R. Co., 32 F. Supp. 873___30, 52
M eeker & Co. v. L ehigh Valley R. Co., 236 U. S. 412___ 58, 62, 91
M itch ell Coal Co. v. P en n sy lva n ia  R. R. Co., 230 U. S. 247__ 43
M oore  v. I l l in o is  C entral R. Co., 312 U. S. 630_____________ 30,

31, 35, 36, 41, 48, 49, 57, 83
M yers  v. B eth leh em  S h ip bu ild in g  Corp., 303 U. S. 41______  53
N ickey v. M iss is s ip p i,  292 U. S. 393_______________________  62
Nord v. Griffin, 8 6  F. (2d) 481, certiorari denied, 300 U. S.

673_____________________________________  26, 31, 34, 35, 48, 55, 84
P a cif ic  L ive Stock Co. v. O regon Water B oard, 241 U. S. 440- 62
P en n  G eneral C asualty Co. v. P en n sy lva n ia , 294 U. S. 189-_ 52
P en n sy lva n ia  R ailroad C om pany  v. R ailroad Labor B oard,

261 U. S. 72______________________________________________  13
P en n sy lva n ia  R a ilroad S ystem  and A llied L in es F edera tion

v. P en n sy lva n ia  R a ilroad  C om pany, 267 U. S. 203----------  13
P en n sy lva n ia  R. R. Co. v. In tern a tion a l Coal Co., 230 U. S.

184____________________________- __________________________  44
P en n sy lva n ia  R. R. Co v. P u ritan  Coal Co., 237 U. S. 121 __ 44
P en n sy lva n ia  R. R. Co. v. Sonm an  Coal Co., 242 U. S. 120-- 44
P ittsburgh  & W. V. R y. Co. v. U nited S tates, 6  F. (2d) 646- 63
P r in ce s s  Lida v. T hom pson , 305 U. S. 456__________  52
R ailroad Yard M asters o f  North A m erica  v. P ittsburgh  &

Lake E rie R. Co., 39 F. Supp. 876_______________________  34
R econ stru ction  F in an ce Corp. v. Bankers Trust Co., Nos.

387-388, decided February 8 , 1943_____________________  85
R eed  v. St. L ou is S. W. R. Co., 95 S. W. (2d) 887_________ 30

Cases— C ontinued. Page



IV

R ochester T eleph one C orp . v. U nited  S tates, 307 U. S. 125, 63, 84, 84 
R u d d  v. M in n ea p o lis , etc., R y . C o., National Railroad Ad­

justment Board, Third Division, Award No. 1718______  26
S hield s  v. U tah Id a h o  C entral R . C o., 305 II. S. 177______  64
S m ith  v. T exas &  N . 0 .  R y . C o., 32 F. Supp. 1013________  32
S outhern  P a c ific  C o., I n  re, 155 Fed. 1001__________________ 7 4

S p ra gu e  v. T icon ic  N a tion a l B a n k , 307 U. S. 161__________  65
S tan dard  O il Co. v. U nited  S ta tes, 283 U. S. 235___________  63
S tep h en son  v. N ew  O rleans & N . E . R . C o., 180 Miss. 147,

177 So. 509-------------------------------------------------------------  34, 35, 5 4 , 84
S w artz  v. S outh B u ffa lo  R y . C o., 44 F. Supp. 447__________  31
S w illey  v. G alveston , etc ., R y . C o., 96 S. W. (2d) 105______  30
S ystem  F ed era tion  N o . 8  v. M is s o u r i -K . -T .  R . C o., 40 F.

Supp. 803--------------------------------------------------------------------------- 33

S ystem  F ed era tion  N o . 4 9  v. L a . & A rk . R y . C o., 119 F. (2d)
509 certiorari denied, 314 U. S. 656_____________________  32

T exas &  N ew  O rleans R . C o. v. B roth erh ood  o f  R a ilw a y
C lerks, 281 U. S. 548_____________________________________ 1 3 , 1 4

T exas & P a c if ic  R y . C o. v. A b ilen e  C otton  O il C o., 204 U, S.
426-------------------------------------------------------------------------------------  43

T exas & P a c if ic  R y . C o. v. R igsby , 241 U. S. 33___________  43

T hom as v. T exas & N . O. R . C o., 118 F. (2d) 75___________  32
W ilso n  v. N ew , 243 U. S. 332______________________________  1 1

W y a tt  V. K a n sa s  C ity  R y . C o., 101 S. W. (2d) 1082_______  . 30
Y ork  & C um berland  R . R . Co. v. M y ers , 18 How. 246_____  86
Y ou m a n s  v. C harleston  & W . C. R y . C o., 175 S. C. 9 9 , 178

S. E. 671__________________________________________________ 30
V irg in ia n  R y . C o. v. S ystem  F ed era tion  N o . 40 , 300 U. S. 515- 14
V irg in ia n  R y . Co. v. S ystem  F ed era tion  N o . 40 , 131 F. (2d)

840-------------------------------------------------------------------------------------  32

Statutes:
Bituminous Coal Act, c. 127, 50 Stat. 72, 15 U. S. C., Sec­

tions 828-851_____________________________________________  42
Civil Aeronautics Act, c. 601, 52 Stat. 973, 49  U. S. C.,

Section 676_______________________________________________  42

Erdman Act of June 1, 1898, 30 Stat, 424, 425, Sec. 3,
Second____________________________________________________  7 3

Federal Declaratory Judgment Act of June 14, 1934, 48
Stat. 955__________________________________________________  58

Interstate Commerce Act, c. 104, 24 Stat. 379, 49 U. S. C., 
Sections 1-27:

Sec. 9_____•_____________________________________________  44

See. 16.---- ------------------------------------------- 43, 44, 62, 63, 70, 91, 92
Sec. 22___: ---------------------------------------------------------------------  4 2 ,4 4

Longshoremen s and Harbor 'Workers’ Compensation Act, c.
509, 44 Stat, 1424. 33 U. S. C„ Section 905______________ 42

National Labor Relations Act, c. 372, 49 Stat, 449, 29 
U. S. C., Section 160 (a)______________   42

Cases— C ontinued. Page



V

Statutes— Continued Page
N. Y. Civ. Practice Act, Sections 1456-1458_______________86, 88
Newlands Act of July 15, 1913, 38 Stat. 103, 105, Sec. 4___ 73
Packers and Stockyards Act, c. 64, 42 Stat. 159, 7 U. S. C.,

Sections 181-231__________________________________________ 42
Railway Labor Act as amended June 21, 1934, c. 691, 48 

Stat. 1185, 45 U. S. C., Sections 151-163:
Sec. 2___________________________________________________ 29, 52
Sec. 3__________________________  2, 15, 23, 26, 29, 32, 43, 44, 50,

55, 56, 61, 62, 66, 67, 70, 72, 84, 91
Sec. 8___________________________________________________  72
Sec. 9___________________________________________________ 88

Safety Appliance Act, c. 160, 36 Stat. 298, c. 225, 35 Stat.
476, 45 U. S. C., Sections 15, 19_________________________  42

Securities and Exchange Commission statutes:
c. 38, 48 Stat. 74, 15 U. S. C., Section 77 p___________  42
c. 411, 53 Stat. 1149, 15 U. S. C., Section 77 www(b)__ 42
c. 404, 48 Stat. 881, 15 U. S. C., Section 78 bb______  42
c. 687, 49 Stat. 803, 15 U. S. C., Section 79 p________  42

Transportation Act, 1920, Title I I I , c. 91, 41 Stat. 456:
Sec. 302________________________________________________  13
Sec. 303________________________________________________  13
Sec. 307________________________________________________  13

Uniform Arbitration Act, Sections 15-18, 9 U. L. A. 66-70_ 86, 87 
United States Arbitration Act of February 12, 1925 (43

Stat. 883, 885, 9 U. S. C., Sec. 10), Section 10__________  86, 87

Miscellaneous:
Attorney General’s Committee on Administrative Pro­

cedure :
Final Report____________________________________  26, 27, 28, 56
R ailw ay Labor, Sen. Doc. No. 10 (Part 4), 77th Cong.,

1st Sess. (C om pila tion ) ________  24, 26, 27, 33, 37, 38, 39, 45
C om pila tion : Inquiry of the Attorney General's Committee 

on Administrative Procedure relating to the National 
Railroad Adjustment Board, and Historical Back­
ground and Growth of Machinery Set Up for the
Handling of Railroad Labor Disputes, 1888-1940-------  2,

11, 12, 13, 14, 16, 24, 26, 27, 28, 29, 33, 37, 38, 39, 45
78 Cong. Rec.:

11718___________________________________________________  22
12371___________________________________________________  21
12391___________________________________________________  21

Garrison, The N ational R ailroad A djustm ent B oa rd : A 
Unique A dm in istra tive A gency, 46 Yale L. J. 567 (Com­
p ila t ion , Appendix, pp. 110-135)___________ ______ 27, 33, 37, 39

Hearings before House Committee on Interstate and For­
eign Commerce on Railway Labor Act amendments,
73d Cong., 2d Sess_________________________ 17, 20. 27, 56, 71, 74



V I

Hearings before Seilate Committee on Interstate Com­
merce to amend the Railway Labor A ct (S. 3266, 73d
Cong., 2d Sess---------------------------------------------  16, 18, 19, 20, 57, 81

H. Rep No. 1944, 73d Cong., 2d Sess________________  1 7 , 2 1 , 22
National Mediation Board, E ighth  A n n u a l R ep o rt_____ 29, 3 3 , 40
National Mediation Board, S eventh  A n n u a l R e p o r t________’ ’ 40
National Mediation Board, I n  the M a tter  o f  P ro tes t o f  

C arrier M em b ers  against the a p p o in tm en t o f  J u s tice  P a u l
W . R ich ard s as R eferee , decided J u n e  5 , 1 9 4 1 ___________  4 0

R ep ort o f  the D irec tor  G eneral f o r  the F ou rteen  M on th s
E n d in g  M a rch  1, 1920 , p. 15__________________  _ 1 2

S. Rep. No. 779, 6 8 th Cong., 1st Sess_____ 15

Spencer, William H., T he N a tio n a l R a ilroa d  A d ju stm en t
B oa rd  (University of Chicago Press, 1938)______________  27

Sturges, C om m ercia l A rb itra tio n s  and A w a rd s  (1930)______ 87, 8 8
W olf, The R a ilw a y  L a b or  B o a rd _______________  n ,  1 2  1 3  1 4  15

Miscellaneous—Continued. Page



<§mtt of IhMmtd plates
O ctober T erm , 1942

N o. 28

T he W ashington T erminal Company, petitioner

v.
E. E . B oswell, E . R . B urkhead, R . R . B ridges,

et al.

ON W R I T  O F  C E R T IO R A R I  T O  T H E  U N IT E D  S T A T E S  C O U R T  
O F  A P P E A L S  F O R  T H E  D I S T R I C T  O F  C O L U M B IA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 

O PIN ION  BELOW

The op in ion  o f  the U n ited  States C ourt o f  
A ppea ls  f o r  the D istrict o f  Colum bia is reported  
at 124 E. (2 d )  235, and is p rin ted  in  the record  
at R . 331-381. The d istrict court rendered  no 
opinion .

STATU TE IN VO LV ED

The statute p r im a rily  involved  is the R a ilw a y  
L abor A c t  as am ended June 21, 1934 (c. 691, 48 
S lat. 1185, 45 U . S. C., Secs. 151 -1 63 ), and p a r ­
ticu larly  S ection  3 thereof, w hich  creates and 
defines the pow ers o f  the N ational R a ilroa d  A d ­
justm ent B oard . The entire A ct  is p rin ted  at

(i)



2

p p . 74-87  o f  the A p p en d ix  to a com p ila tion  o f  
m aterial on  the A d ju stm en t B o a rd  entitled “ In ­
qu iry  o f  the A ttorn ey  G en era l’s Com m ittee on 
A dm in istra tive  P roced u re  re lating  to the N a­
tional R a ilroa d  A d ju stm en t B oa rd , and H isto r i­
cal B ack grou n d  and G row th  o f  M ach in ery  Set 
U p  fo r  the H an d lin g  o f  R a ilroa d  L a bor D isputes, 
1888-1940”  (h ere in a fter  re ferred  to as Compila­
tion) copies o f  w hich  have been d istributed  to 
the C ourt.1

The m ost im portan t p rov is ion s are paragraphs
(i)>  ( j ) ,  (m ) ,  ( o ) ,  ( p ) ,  and  (q )  o f  S ection  3, 
P irs t  o f  the A ct. These paragraph s read  as fo l ­
low s:

( i )  The disputes betw een an em ployee 
or g rou p  o f  em ployees and a ca rr ie r  or 
carriers g row in g  out o f  grievances o r  out 
o f  the in terp retation  or  ap p lica tion  o f  
agreem ents concern ing  rates o f  pay , rules, 
or w ork in g  conditions, in clud ing  cases p en d ­
in g  and unad ju sted  on  the date o f  ap p rov a l

1 This volume is a compilation of most o f the pertinent 
documentary material relating to the National Railroad 
Adjustment Board. I t  contains in full the reports o f and 
proceedings before the Attorney General’s Committee on A d ­
ministrative Procedure dealing with the Adjustment Board, 
and reprints the executive orders, collective labor agreements, 
and statutes disclosing the history of the Adjustment Board 
and also the leading speeches and articles describing its oper­
ation. This publication was compiled by H arry E. Jones, 
Executive Secretary, Eastern Committee for the National 
Railroad Adjustment Board, New York City. Most o f the 
documents hereinafter referred to are printed in the A p ­
pendix to the volume (the pinh pages).



3

o f  this A ct, shall he handled in  the usual 
m anner up  to  and  in clu d in g  the ch ie f o p ­
erating officer o f  the carrier  designated to 
handle such d isp u tes ; but, fa ilin g  to reach 
an ad justm ent in  this m anner, the d is­
putes m ay be re fe rre d  b y  p etition  o f  the 
p arties  or b y  either p a rty  to  the a p p ro p r i­
ate d iv is ion  o f  the A d ju stm en t B o a rd  w ith  
a fu ll  statem ent o f  the fa cts  and all sup­
p ortin g  data bearin g  u p on  the disputes.

( j )  P a rties  m ay be heard  either in  p er ­
son, b y  counsel, or b y  other representatives, 
as they m ay resp ective ly  elect, and the sev­
eral d iv isions o f  the A d ju stm en t B o a rd  
shall g ive  due n otice  o f  all hearings to  the 
em ployee or em ployees and the ca rr ier  or 
carriers involved  in  any disputes sub­
m itted  to  them.

(m )  T he aw ards o f  the several d ivisions 
o f  the A d ju stm en t B o a rd  shall be stated in  
w ritin g . A  co p y  o f  the aw ards shall be 
fu rn ish ed  to  the respective  parties to  the 
con troversy , and the aw ards shall be final 
and b in d in g  u p on  both  parties to the d is­
pute, except in so fa r  as they shall contain  
a m on ey  aw ard. In  case a dispute arises 
in v o lv in g  an in terpretation  o f  the aw ard 
the d iv is ion  o f  the B o a rd  u p on  request o f  
either p a rty  shall in terp ret the aw ard  in  
the lig h t  o f  the dispute.

(o )  I n  case o f  an aw ard  b y  any d ivision  
o f  the A d ju stm en t B oa rd  in  fa v o r  o f  p eti­
tioner, the d iv is ion  o f  the B oa rd  shall m ake 
an order, d irected  to  the carrier, to m ake 
the aw ard  effective and, i f  the aw ard  in -



4

eludes a requ irem ent f o r  the paym en t o f  
m oney, to  p a y  to  the em ployee the sum  to 
w hich  he is entitled  under the aw ard  on  or 
b e fore  a day  nam ed.

( p )  I f  a ca rr ie r  does not com p ly  w ith  an 
ord er  o f  a d iv is ion  o f  the A d ju stm en t 
B o a rd  w ith in  the tim e lim it in  such order, 
the petition er, o r  an y  p erson  f o r  w hose 
benefit such ord er  was m ade, m ay  file in  the 
D istr ict  C ourt o f  the U n ited  States f o r  the 
d istr ict  in  w h ich  he resides or in  w h ich  is 
loca ted  the p r in c ip a l op era tin g  office o f  the 
carrier, o r  th rou gh  w h ich  the carrier  op er ­
ates, a p etition  setting fo r th  brie fly  the 
causes fo r  w h ich  he claim s re lie f, and the 
ord er  o f  the d iv is ion  o f  the A d ju stm en t 
B o a rd  in  the prem ises. Such  suit in  the 
D istr ict  C ou rt o f  the U n ited  States shall 
p roceed  in  a ll respects as other c iv il suits, 
except that on  the tr ia l o f  such suit the 
findings and ord er o f  the d iv is ion  o f  the 
A d ju stm en t B o a rd  shall be p rim a  fa c ie  
evidence o f  the fa cts  therein  stated, and 
except that the p etition er  shall n ot be liable 
f o r  costs in  the d istr ict court n or  f o r  costs 
at an y  subsequent stage o f  the proceed ings, 

unless th ey  accru e u p on  his appeal, and 
such costs shall be p a id  out o f  the a p p ro ­
p ria tion  fo r  the expenses o f  the courts o f  
the U n ited  States. I f  the p etition er shall 
finally  p reva il he shall be a llow ed a reason­
able a tto rn ey ’s fee , to  be taxed  and co l­
lected  as a p a rt  o f  the costs o f  the suit. 
T he d istr ict courts are em pow ered , un der 
the rules o f  the cou rt govern in g  actions at



5

law , to  m ake such ord er and enter such 
judgm en t, b y  w rit  o f  m andam us or  other­
w ise, as m ay  he ap p rop ria te  to en force  or  
set aside the ord er  o f  the d iv is ion  o f  the 
A d ju stm en t B oa rd .

(q )  A ll  actions at law  based u p on  the 
p rov is ion s o f  th is section  shall be begun 
w ith in  tw o years fro m  the tim e the cause 
o f  action  accrues under the aw ard o f  the 
d iv is ion  o f  the A d ju stm en t B oa rd , and not 
a fter.

ST A TE M E N T A N D  QUESTIONS PRE SEN TED

R espondents, em ployees o f  petition er, w ere en­
gaged in  a d ispute w ith  p etition er as to the in ter­
pretation  to be g iven  the sen iority  provisions o f  
the collective agreem ent govern in g  the w ork  p er­
form ed  b y  the respondents. A fte r  the parties had  
fa iled  to settle the dispute them selves, respondents 
subm itted their claim s to  the F irs t  D iv is ion  o f  
the N ational R a ilroa d  A d ju stm en t B oa rd , w hich, 
on O ctober 24, 1938, ru led  in  respon den ts ’ fa v o r  
(R . 9 -1 0 ) . O n D ecem ber 29, 1938, petition er 
filed this suit fo r  a declaratory  judgm ent, p ra y in g  
that the agreem ent be in terpreted  in  accordance 
w ith  p e tit ion er ’s orig in a l contentions and that the 
aw ard and  ord er  o f  the A d ju stm en t B oa rd  be de­
clared “ invalid  and  o f  no legal fo r ce  and e ffe c t”  
(R . 1 3 -1 4 ).

The D istr ict C ourt d ism issed the com plaint, 
hold ing that there was no actual con troversy  be­
tween the parties, and that there was a specific



6

rem edy p rov id ed  by  statute f o r  this typ e  o f  case 
(E . 326, 55 ). T he C ourt o f  A p p ea ls  f o r  the D is ­
tr ict o f  Colum bia affirmed, on  the groun d  that at 
least during the first tw o years a fter  the A d ju st ­
m ent B o a r d ’s aw ard the p roced u re  p rescribed  in  
Section  3, F irs t  ( p )  o f  the E a ilw a y  L a bor A c t  was 
exclusive (E . 3 31 -3 81 ). B e fo re  the en try  o f  the 
op in ion  o f  the C ourt o f  A ppeals , the tw o-year p e ­
r iod  expired . Th is C ourt gran ted  certiorari 
(E . 383).

A fte r  argum ent by  the parties, this C ourt en­
tered the fo llow in g  o r d e r :

This cause is restored  to the docket fo r  
reargum ent. On the reargum ent counsel 
are requested to include in  their b r ie fs  and 
oral argum ent a d iscussion  o f  the fo llow in g  
qu estion s:

1. W hether either p a rty  to  a dispute over 
w hich  the A d ju stm en t B oa rd  has authority  
is precluded  fro m  seeking a determ ination  
o f  the dispute by  the courts, either be fore  
or a fter  subm ission o f  the dispute to  the 
B o a r d ;

2. W h eth er the B oa rd  m ay m ake an 
aw ard ex parte  i f  one p a rty  to the dispute 
does not appear be fore  the B oa rd , and i f  
so the effect g iven  by  the statute to such an 
a w a rd ;

3. The effect o f  the exp ira tion  o f  the tw o- 
year p eriod  specified b y  S ection  3 F irs t  
(q )  upon  the r igh t o f  either p a rty  to the 
dispute to obtain  a determ ination  o f  it  in  
the cou rts ;



7

4. T he effect o f  the w ords “ final and 
con clu siv e”  in  S ection  3 F irs t  (m )  upon  the 
righ t to resort to the courts and upon  the 
scope o f  ju d ic ia l review , (a )  during the 
tw o-year period , and (b )  a fter  exp ira tion  
o f  the tw o-year period .

The S o lic itor  G eneral is requested To file 
a b r ie f, and, i f  he so desires, to  participate  
in  the oral argum ent.

This b r ie f  is filed pursuant to  the above request. 
I t  w ill discuss the fo u r  questions listed  in  the 
C ou rt ’s order.

SU M M A R Y  OF CONCLUSIONS

1. A  p a rty  is n ot p reclu ded  by  the ad justm ent 
prov isions o f  the R a ilw a y  L a bor A c t  fro m  resort­
ing to the courts instead o f  subm itting a dispute 
to the A d ju stm en t B oard . O nce the m ach inery 
o f  the A c t  has been invoked , how ever, extra-statu­
tory  legal proceed ings are no lon ger available to 
the parties.

2. The B o a rd  m ay m ake an aw ard although one
party  does not appear, and such an aw ard has the 
same effect as any other.

3. The exp ira tion  o f  the tw o-year p eriod  speci­
fied in  S ection  3, F irs t  (q )  fo r  seeking en force ­
m ent o f  orders o f  the A d ju stm en t B oa rd  does not 
enlarge the righ t o f  either party  to resort to the 
courts.

4. The p rov is ion  in  S ection  3, F ir s t  (m ) that 
non-m oney awards shall be “ final and b in d in g ”  is 
an in d ica tion  that C ongress intended such awards



8

to  be treated  as conclusive except as otherw ise 
specified  in  the A c t  o r  requ ired  b y  the Constitu ­
tion. Th is w ou ld  m ean that w here the sta tu tory  
rem edies are lega lly  adequate, no other p roceed ­
ings can be brought, and  that in  any extra-statutory  
suits w hich  m ight be brought, the B o a r d ’s aw ards 
w ou ld  be ju d ic ia lly  review able to  the m inim um  
extent requ ired  b y  the C onstitution . I n  p roceed ­
ings under S ection  3, F ir s t  ( p ) ,  the B o a r d ’s 
aw ards w ou ld  be prim a facie  evidence o f  the facts  
stated.

These conclusions are based u p on  w hat we con ­
ceive to have been the in ten tion  o f  the C ongress 
w hich  passed the A c t  in  1934. T h at C ongress, we 
believe, assum ed that p aragrap h  ( p )  w ou ld  not 
on ly  p rov id e  the ca rr ier  w ith  an adequate rem edy 
in  theory, but also that the p aragrap h  w ou ld  be 
used b y  the em ployees. T he la tter has not been 
the fact. N evertheless, desp ite the e ffect o f  the 
em ployees ’ u n foreseen  re fu sa l to  avail them ­
selves o f  the rem edy u p on  its p ra ctica l adequacy, 
w e do not fee l free  to  urge that, because o f  the 
m anner in  w hich  the A c t  has operated , it  should 
be construed  in  a w ay  not in tended  by  the 
Congress.

A R G U M E N T

IN TRODU CTION

The issues presented by  this case arise because 
o f  the e ffort o f  Congress to  strengthen a b i­
partisan  system  o f  adjustm ent, dependent fo r  its



9

existence and fo rce  u p on  the agreem ent o f  the 
parties, b y  changing  it  in to a com pu lsory  system  
finding its roots  in  m an d atory  sta tu tory  p ro v i­
sions. L a b or  and m anagem ent d iffe r  as to 
w hether th is tran sform ation  affected  the basic 
nature o f  the system  and the m anner in  w hich  
it was designed to  operate. A  consequence o f  
their con flicting  positions has been to  im p air the 
effective fu n ction in g  o f  at least the F ir s t  D iv is ion  
o f  the N ation al R a ilroa d  A d ju stm en t B oa rd .

T he difficult questions w h ich  now  con fron t the 
C ourt result, in  part, fro m  the fa ilu re  o f  Congress 
to recogn ize o r  be aw are o f  the possible im p lica ­
tions o f  this change. Th is is reflected in  the novel 
and, in  so fa r  as involved  here, apparen tly  in ter­
n ally  inconsistent language o f  the A ct. I n  these 
circum stances, and in  the absence o f  an express 
declaration  o f  any sort, legislative in tention  is d if ­
ficult to  ascertain.

T H E  F IR S T  QUESTION

W H ETH E R  EITHER PARTY TO A DISPUTE OVER W H IC H  
TH E ADJUSTMENT BOARD H AS AUTHORITY IS PRE­
CLUDED FROM SEEKING A DETERMINATION OF THE  
DISPUTE BY TH E COURTS, EITHER BEFORE OR AFTER 
SUBMISSION OF TH E DISPUTE TO TH E BOARD

The p r im a ry  issue presented in  this case is 
w hether a carrier  m ay brin g  an action  fo r  a 
declaratory  judgm en t seeking an in terpretation  o f  
a ra ilw ay labor agreem ent a fter  the same question 
has been presented  to, and decided  by, the N ational 
R a ilroad  A d ju stm en t B oard . The C ourt has also 
requested discussion  o f  the separate but related



10

question as to w hether the A d ju stm en t B o a r d ’s 
ju r isd iction  is exclusive in  the first instance.

N o p rov is ion  o f  the R a ilw a y  L a b or  A c t  ex­
p ressly  answ ers either o f  the questions. N o r  is 
there definite m anifestation  o f  congressiona l in ten ­
tion  in  the im m ediate legislative h istory  o f  the A ct. 
W e  are thus fa ced  w ith  the task o f  seeking the 
m eaning o f  the A c t  in  re lation  to  a prob lem  w hich  
p robab ly  d id  n ot occur to  the legislative b od y  and 
w ith  respect to w hich  it appears to have had  no 
“ consciousness o f  in ten tion ”  w hatsoever. K ei-  
f e r  A  K e ife r  v. R econstruction  Finance Corpora­
tion, 306 U . S. 381, 389. The p rob lem  m ust be 
resolved  in  the ligh t o f  the purposes o f  the stat­
ute, and p articu lar ly  o f  the p rov is ion s relating 
to the A d ju stm en t B oa rd . A n  exam ination  o f  
the h istorica l back ground  o f  those p rov is ion s 
should a id  in  determ in ing the con stru ction  m ost 
lik ely  to achieve the statu tory  objectives.

A . TH E  HISTORICAL BACKGROUND la

1. The Period Preceding the Present Act

The present B oa rd  is the culm ination  o f  a long 
p e iio d  o f  p ractice  and experim entation  in  d evis in g  
m eans o f  settling ra ilw ay labor disputes. The first 
predecessor o f  the A d ju stm en t B o a rd  w as the

The background and legislative history of the “final and 
bmding” clause in Section 3, First (m ) are set forth sepa­
rately in our discussion of the Court’s Fourth Question, 
infra, pp. 71-81. That material, which develops the rela­
tionship between adjustment under the Railway Labor Act 
and arbitration, also has a bearing upon the answer to the 
First Question.



11

“ Com m ission o f  E ig h t ”  created on  M arch  19, 
1917, by  agreem ent o f  the ra ilroads and  the 
four tra in -service B rotherhoods, to in terpret an 
award o f  the Com m ittee o f  the Council o f  N a­
tional D efen se  settling the eight-hour day con tro­
versy.2 Th is com m ission  w as com posed  o f  fou r  
representatives o f  the B rotherhoods and fo u r  o f  
the carriers.3

S hortly  a fter  the G overnm ent took  over the ra il­
roads du rin g  that w ar, the D irector  G eneral o f  
R ailroads, by  order, established R a ilw ay B oa rd  o f  
A djustm ent N o. 1, w hich  was in  substance and 
form  a continuation  o f  the Com m ission o f  E ight 
fo r  tra in  service em ployees.4 The order, which 
made effective a “ m em orandum  o f  an understand­
in g ,”  p rev iou sly  reached betw een the B roth er­
hoods and the “ d irectors fo r  the ra ilroads under 
governm ent con tro l,”  p rov id ed  that “ all con tro­
versies g row in g  out o f  the in terpretation  or ap p li­
cation o f  the p rov is ion s o f  the w age schedule or 
agreem ents w hich  are n ot p rom p tly  adjusted  by 
the officials and the em ployees on  any one o f  the 
railroads operated  b y  the G overnm ent shall be d is-

2 See Compilation, pp. 403-404, Appendix, pp. 18-19; 
W olf, The Railroad Labor Board, pp. 50-57. The award 
was expressly made to become effective whether or not the 
Adamson A ct was held constitutional. Although the settle­
ment was obviously agreed upon before the decision of this 
Court in Wilson V. New, 243 U . S. 332, it was signed on March 
19, 1917, the same day that the decision was rendered.

3 Compilation and Wolf, loc. cit. supra.
‘ See Wolf, supra, pp. 50 et seq.; Compilation, Appendix,, 

pp. 19-22.
506724— 43------2



12

p osed  o f  in ”  [ita lics  su p p lied ] the m anner de­
scribed .5 D ead lock ed  cases w ere re ferab le  to  the 
D irector  G en era l; “ but p ra ctica lly  every  ca se”  was 
am icably  settled by  a m a jo r ity  vote o f  the B oa rd .6 
D u rin g  succeeding m onths tw o sim ilar boards w ere 
established fo r  the sh op cra fts  and fo r  other n a­
tional labor organ izations.7

This m ach inery  w as recogn ized  as applicable 
on ly  to the m em bers o f  the m a jo r  ra ilw ay  labor 
organ izations s ign atory  to the understand ing.8 
B y  order o f  the D irector  G eneral the cases o f  “ em­
ployees not represented  b y  R a ilw a y  B oa rd s  o f  
A d ju stm en t”  w ere to  be handled b y  the ind ividua l 
or  his representative in  the sam e m anner up  to

6 The Board consisted of an equal number of representa­
tives of the carriers and the labor organizations. Section 10 
of the memorandum, in language similar to that in the pres­
ent Act, provided that “Personal grievances or controversies 
arising under interpretation of wage agreements, and all 
other disputes * * * covered by this understanding,
will be handled in their usual manner by general committees 
of the employees up to and including the chief operating 
officer of the railroad (or someone officially designated by 
him ), when, if an agreement is not reached, the chairman of 
the general committee of employees may refer the matter to 
the chief executive officer o f the organization concerned, and 
if the contention of the employees’ committee is approved 
by such executive officer’’ then the matter shall be jointly 
submitted to the board of adjustment. In  the proceedings 
before the Board the employees were to be represented by 
the person designated by the chief executive officer o f the 
organization concerned. Ibid.

6 See ibid; Report o f the Director General fo r  the Four­
teen Months Ending March 1,1920 , p. 15.

7 Compilation, Appendix, pp. 2 3 -30 ; W o lf, supra.
8 W o lf, supra, pp. 52-53.



13

the ch ief op era tin g  officer o f  the carrier, and then, 
i f  not settled, subm itted  to the D iv is ion  o f  L abor 
o f  the R a ilroa d  A dm in istra tion .9

These orders becam e inoperative  a fte r  the car­
riers w ere returned  to p rivate  ow nership . R a il­
w ay labor relations w ere subsequently governed 
by  T itle  I I I  o f  the T ran sp orta tion  A ct, 1920 (c . 
91, 41 Stat. 4 5 6 ). A lth ou gh  it had been p rop osed  
that ad justm ent boards be m ade com pulsory, S ec­
tion 302 o f  the 1920 A ct  p rov id ed  on ly  that—

R a ilroa d  B oa rd s  o f  L a bor A d ju stm en t 
may be established by  agreem ent betw een 
any carrier, group  o f  carriers, or  the car­
r iers  as a w hole, and any em ployees or  
subordinate officials o f  carriers, o r  organ i­
zation  o r  grou p  o f  organ izations th ereof.10 
[Ita lics  supp lied .]

Such ad justm ent boards w ere to hear cases sub­
m itted b y  the carriers o r  labor organizations, or 
“ upon  the w ritten  p etition  signed b y  not less than 
100 unorganized  em ployees”  (S ection  303 ). I f  
no ad justm ent boa rd  was established, or i f  an ad­
justm ent board  fa iled  to reach an agreem ent, the 
dispute w as to be subm itted to the R a ilroa d  L abor 
B oard  (S ection  3 0 7 ).11

9 Compilation, Appendix, pp. 30-32.
10 Compilation, Appendix, p. 33; W o lf, supra, pp. 91, 267.
11 This Board was composed of three representatives o f the 

public, three of management, and three of labor. Its func­
tions are described in Pennsylvania Railroad Company v. 
Railroad Labor Board , 261 U . S. 72; Pennsylvania Railroad 
System and Allied Lines Federation  v. Pennsylvania Rail­
road Company, 267 U . S. 203; Texas do New Orleans R. Co. 
v. Brotherhood o f Railway Clerks, 281 U . S. 548.



14

A lth ou gh  the A c t  was passed in  the b e lie f that 
adjustm ent boards w ou ld  be established, the car­
riers and the labor organ izations w ere not able to 
agree u p on  w hether n ational o r  system  boards 
should be created.112 A ccord in g ly , no general 
scheme o f  ad justm ent boards was established. 
One result o f  this was that the R a ilroa d  L a bor 
B oa rd  w as sw am ped w ith  a vast num ber o f  m in or 
cases and was unable to  devote adequate tim e to 
the la rger  issues w ith  w hich  it w as expected  
p r im a rily  to  deal.13

T hree regional ad justm ent boards, how ever, 
w ere created, by  agreem ent betw een the fo u r  
tra in -service brotherhoods and m any o f  the ca r­
riers. These agreem ents w ere .substantially sim i­
lar to those entered in to during  the W a r ;  they 
p rov id ed  that disputes “ shall b e ’ ’ d isposed  o f  in  
the m anner p rov ided . U nsettled  cases w ere to  be 
certified to the R a ilroa d  L a b or  B oa rd .14

In  1926, a fte r  the break-dow n, fo r  m any rea­
sons,15 o f  the m ach inery  established in  T itle  I I I

12 W o lf, supra, pp. 267-273. A s in 1934, the employees 
sought a national board and the carriers system boards

13 Ibid.
W o lf, supra, pp. 2 7 3 -2 (6 ; Compilation, Appendix, pp. 

39-53. The agreements conformed to the statute in that 
after submission to the chief operating officer of the carrier, 
disputes could be filed with the Board either by the chief of 
the labor organization or by petition of 100 unorganized 
employees.

15 See W o lf, supra, pp. 358 et seq.; Texas & New Orleans 
R. Co. v. Brotherhood o f Railway Clerks, 281 TJ. S. 548, 
563; Virginian Ry. Co. v. System Federation No W  300 
U . S. 515, 542. ' ’



15

o f  the T ran sp orta tion  A ct, the R a ilw a y  L abor 
A ct was enacted in  its p lace (44  Stat. 577). S ec­
tion 3 o f  this statute indicates an in tention  that the 
establishm ent o f  ad justm ent boards w as m anda­
tory ; it p rov id ed  that—

* * * B oa rd s  o f  adjustm ent shall be
created by  agreem ent betw een any carrier 
or g rou p  o f  carriers, or  the carriers as a 
w hole, and its or their em ployees.16 [Ita lics  
su pp lied .]

* * * * *

The section  w ent on  to state that d isputes o f  the 
type here in  question “  shall be handled in  the 
usual m anner up to  and includ ing  the ch ie f oper­
ating officer o f  the carrier  * * * ;  but, fa ilin g
to reach an ad justm ent in  this m anner, that the 
dispute shall he referred  to the designated ad ju st­
ment board  b y  the parties, or  by  either p a rty  
* * * ”  [Ita lics  su pp lied .] (S ection  3, F irs t

(c)).
A s m ight have been anticipated , the change 

from  “ m a y ”  to “ sh a ll”  in  the 1926 A ct  d id  not 
in itse lf succeed in b rin g in g  agreem ent between

16 The labor organizations had previously supported the 
Howell-Barkley B ill which was favorably reported to the 
Senate in 1924, but which failed to pass. See Senate Re­
port No. 779, 68th Cong., 1st Sess.; W o lf, supra, pp. 406- 
415. This bill provided for national adjustment boards. 
Presumably the substitution in the 1926 bill of the provision 
for the establishment o f boards by agreement only was a 
concession to the carriers in order to get them to join with 
the. labor organizations in submitting the latter bill to 
Congress.



16

carriers and em ployees as to  the k ind  o f  ad just­
m ent board  to be created. T b e  carriers  still in ­
sisted on  system  boards and the B roth erh oods 
on a national board .17 The boards p rev iou sly  es­

tablished fo r  tra in  service em ployees w ere con ­
tinued, how ever, and a new  board  created  fo r  the 
southw estern reg ion .18 In  addition , a num ber o f

17 The situation was picturesquely described by Chairman 
Winslow, of the Board of Mediation, before the Senate Com­
mittee on Interstate Commerce, at the Hearings on the 1934 
amendments (Hearings on S. 3266, 73d Cong., 2d Sess., p. 
137), as follows:

“ The provision in the present act for adjustment boards 
is in practice about as near a fool provision as anything 
could possibly be. [Laughter.] I  mean this— that on the 
face of it they shall, by agreement, do so and so. W ell, you 
can do pretty nearly anything by agreement, but how can 
you get them to agree? No way has yet been found, where 
difficulties have come up. But the curious part is that they 
can work entirely within the provisions o f law and never 
agree, so you never get an adjustment board. Side A , for 
instance, wants a system board. Side B  wants a regional 
board, to illustrate. A nd they are both subscribing to that 
provision of law ; they both want boards; they are broken­
hearted to think that they can’t get them [laughter], but 
they never will agree on the board. So what good is it ? It  
is utterly impractical and absolutely a mess * * *.”

18 Compilation, p. 410, Appendix, pp. 57-61. The new 
train service agreement was substantially the same as the 
earlier ones, except that it omitted the provision required 
by the 1920 A ct for submission of cases by unorganized em­
ployees (Hid.) . The older agreements were modified so as 
to make unsettled cases referable to the Board of Mediation 
instead of to the Railroad Labor Board, and so as to indicate 
that only organizations party to the agreement could sub­
mit cases to the Board (Id., at 4 7 ,4 9 ,5 4 ,5 6 ).



17

system  boards w ere created fo r  other classes o f  
em ployees.

B u t in  m any instances the carriers and the 
em ployees w ere unable to  reach  agreem ent on 
w hether o r  n ot to establish boards o f  adjustm ent. 
See H . R ep . N o. 1944, 73d Cong., 2d  Sess., p. 3. 
M oreover, the 1926 A c t  contained no m ach inery  
to deal w ith  the cases in  w hich  the ca rrier  and 
labor m em bers o f  the B oards, w ho w ere equal in  
num ber, fa iled  to  agree. A s  a consequence, 
“ M any thousands o f  these disputes have been con ­
sidered b y  boards established under the R a ilw ay  
L abor A c t ;  but the boards have been unable to 
reach a m a jo r ity  decision , and so the proceed ings 
have been d ead lock ed ”  (Ib id .). T he B o a rd  o f  
M ediation  w as flooded  w ith  these deadlocked cases, 
to be handled through  m ediation  in  add ition  to  its 
other duties.19 The result o f  the fa ilu re  o f  the 
parties to agree to establish ad justm ent boards, or 
o f  the m em bers o f  such boards to  reach  decisions 
was that “ unadjusted  disputes have becom e so 
num erous that on  several occasions the em ­
ployees have resorted  to the issuance o f  strike bal­
lots and threatened to in terru pt interstate com ­
m erce in  order to secure an ad ju stm en t”  (Ib id .).

19 See the testimony of Chairman W inslow at the Hearings 
before the House Committee on Interstate and Foreign Com­
merce on Railway Labor A ct amendments (H . R. 7650), 73d 
Cong., 2d Sess., p. 72 (hereinafter referred to as “House 
Hearings” ) . In  1934 the name of the Board of Mediation, 
created by the 1926 Railway Labor Act, was changed to 
“National Mediation Board.”



18

There was substantial agreem ent as to the need 
fo r  correctin g  these conditions. F ed era l C oord i­
nator o f  T ran sp orta tion  E astm an, w ho subm itted 
and explained  the b ill w hich  becam e the 1934 A ct 
to the congressional com m ittees, sum m ed u p  the 
view s o f  the carriers and the em ployees on  this 
question as fo llow s (H ea rin g s  b e fore  Senate C om ­

m ittee on  In terstate Com m erce, to am end the R a il­
w ay L a bor A ct  (S . 3266 ), 73d Cong., 2d Sess., pp . 
152-153, h ere in a fter  re fe rre d  to  as “ Senate 
H ea r in g s” ) :

* * * A p p a ren tly  it  is agreed b y  all
that the p rov is ion  in  the present act fo r  
boards o f  ad justm ent has been in e ffective ; 
(1 )  because the establishm ent o f  such 
boards has n ot been  com pu lsory , and (2 )  
because there has been no w ay to prevent 
deadlocks in  those w hich  have been set up. 
The em ployees w ant a N ational B oa rd  o f  
A d ju stm ent, d iv id ed  in to fo u r  sections, to 
be created defin itely and certa in ly ; and the 
railroads, as I  understand them , are w ill­
in g  to have 16 regiona l boards o f  ad ju st­
m ent set up. B oth  parties are w illin g  to 
perm it system  or other local boards o f  
adjustm ent to be set u p  b y  agreem ent, 
so lon g  as the arrangem ent is otherwise 
w ith in  the term s o f  the act. B oth  are w ill­
in g  to have neutral m em bers appointed , 
and by  the M ediation  B o a rd  i f  necessary, 
in  order to prevent deadlocks.

The C oord in ator favored  the establishm ent o f  a 
national board, although he conceded  that the



19

plan was experim ental, that there was som ething 
to the ca rr ie rs ’ ob jection  that such a board  m ight 
“ bog dow n  w ith  a m ultitude o f  docketed but 
undecided cases”  (id., at p. 18 ), that the plan  
depended f o r  its success “ v ery  large ly  u p on  the 
w isdom  w ith  w hich  it is  adm inistered, both  by  
the actual m em bers o f  the board  and also by the 
parties w h ich  stand behind them , nam ely, the 
carriers and the labor organ izations,”  (ib id ) and 
that either side cou ld  “ m ake the experim ent f a i l ”  
(id., at p. 19 ).

M r. E astm an advanced as one o f  the advantages 
o f  a n ational board, as contrasted  w ith  regional 
boards, the desirab ility  o f  “ a m ore u n iform  settle­
ment o f  these d isp u tes” ; this he fe lt  w ould  u lti­
m ately “ tend to reduce very  m ateria lly  the num ­
ber o f  d isputes w hich  cou ld  not be settled lo ca lly ”  
(id. at 154, 155 ). In  this connection  he stated :

I  also have the fee lin g  that the national 
board  w ill have a very  d istinct advantage, 
because it can establish certa in  precedents 
o f  general ap p lica tion  w hich  should furn ish  
a gu ide fo r  decid in g  cases locally . A s  a 
m atter o f  fa c t  the same rules are now  in ­
terpreted  in  m any different w ays through­
out the country, and that is one reason w hy 
grievances w hich  arise rem ain unsettled, 
because there is disagreem ent as to what 
the same language m eans and a great va ri­
ety  o f  interpretations. I f  w e had one 
board, nation-w ide, setting precedents in 
these m atters, I  th ink the tendency w ould



20

be to  establish guides w hich  w ou ld  enable 
a great m an y o f  the issues to  be settled at 
hom e.20 * * *

* * * * *

Furtherm ore, I  have the fee lin g  that it is 
very  desirable to  have a m ore u n ifo rm  set­
tlem ent o f  these disputes. These m atters 
that w e are now  d ea lin g  w ith  are griev­
ances. T h ey  are n ot the basic rates o f  pay 
or  the basic w ork in g  rules and the inter­
preta tion  o f  those rules or grievances which 
m en have, and it d oesn ’t seem to m e that 
it  is necessary to have any num ber o f  d if ­
feren t w ays o f  d isposing  o f  those all over 
the country, and that the national board 
could soon  set certa in  precedents w hich 
w ould  d iscourage and lim it the num ber o f  
such disputes w hich  w ould  arise, because it 
w ould  be p e r fe c t ly  clear w hat the outcom e 
w ould  be i f  they w ere p re fe rred  to the na­
tional board .21

U n ifo rm ity  in  ap p ly in g  ra ilw ay  labor agree­
m ents is, o f  course, m ore lik e ly  to be achieved i f  
all disputes m ust first go  to a national board  
rather than to  the num erous state and federa l 
courts. Thus, although M r. E astm an was speak­
in g  on ly o f  the advantages o f  national over re ­
gional ad justm ent boards, his rem arks are also 
pertinent here.

A s  a result o f  opp osition  on  the p art o f  the car­
riers to a national ad justm ent board, tw o new

20 House Hearings, supra, p. 48.
21 Senate Hearings, supra, p. 155.



21

paragraphs, now  S ection  3, F irs t  (w ) ,  and 3, Sec­
ond, had been added to  the b ill b y  the tim e it 
came b e fore  the H ouse Com m ittee. T h ey  p ro ­
vided (1 )  that any d iv ision  o f  the adjustm ent 
board m ight establish regional boards, and (2 )  
that any ca rr ier  or grou p  o f  carriers cou ld  agree 
with the representatives o f  its or their em ployees 
to establish system , group , or regional boards, 
which w ou ld  take the p lace o f  the national board  
in so fa r  as that ca rrier  or carriers w ere con ­
cerned. M r. E astm an supported  the bill w ith  
these am endm ents, w hich  he thought sufficient to 
meet the ob jections raised. Th is w ould  seem to 
indicate that the u n ifo rm ity  in  decision  w hich  
m ight have resulted fro m  the creation  o f  on ly  a 
single board  was regarded  as less consequential 
than the establishm ent o f  boards sa tisfa ctory  to 
the parties. The im portan t thing, obviously , was 
to have an ad justm ent board , w hether local, re ­
gional, or  national, defin itely  available f o r  all 
disputes o f  the typ e  in  question.

The bill, substantially in  the fo rm  subm itted by  
Mr. E astm an (78  Cong. R ec. 12391 ,12371), was re ­
ported  fa v ora b ly  by  both  legislative com m ittees. 
The H ouse rep ort (H . R ep . H o. 1944, 73d Cong., 
2d S ess.), a fte r  sum m arizing the cond itions w hich  
made the am endm ent necessary, stated (p . 3 ) :

Th is cond ition  should  be corrected  in  the 
interest o f  industria l peace and o f  uninter­
ru pted  transportation  service. This bill, 
therefore , p rovides f o r  the establishm ent o f



2 2

a national board  o f  ad justm ent to which 
these d isputes m ay be subm itted  i f  they 
shall not have been ad ju sted  in  conference 
between the parties. * * * [Ita lics  sup­
p lied .]

W h en  the carriers and em ployees cou ld  agree 
to establish sim ilar regiona l o r  system  boards, 
they w ere to be “ exem pt fro m  the ju r isd iction  of 
this N ational B o a r d ”  (id., p. 4 ) . I f  a  board  dead­
locked  on a decision , im partia l referees w ere to  be 
chosen by  the board  m em bers, o r  i f  necessary, by 
the M ediation  B oa rd . T he H ou se  r e p o r t 22 con­
cludes (ib id . ) :

T he com m ittee is, confident that this bill 
strengthens the R a ilw ay  L a b or  A ct, where 
it is necessary to do so, and fee ls  sure that 
i f  the act is am ended as p rop osed  in  this 
bill, it w ill p rov id e  effective and adequate 
m ach inery  to ad ju st con troversies between 
the carrier  m anagem ents and em ployees. 
I t  w ill assure em ployees the r igh t to bar­
gain  co llective ly  and w ill contribute im ­
m easurably to the establishm ent and m ain­
tenance o f  industria l peace.

22 The debates on the 1934 A ct add little to the committee 
reports. The only remarks which might seem to bear upon 
the question is that of Representative Mead, supporting the 
bill, who stated that “ * * * this bill sets up an orderly
procedure for the settlement of grievances and disputes that 
arise upon the railroads o f the country. It  augments and 
supplements existing law ; * * *” (78 Cong. Rec. 11718). 
This suggests that preexisting judicial remedies were not to 
be destroyed. But this statement referred to the A ct gener­
ally, and may not have had the present problem in mind.



23

The A c t  was passed in  Jun e 1934 w ithout any 
change in  these p rov is ion s (48  Stat. 1185).

2. The practice o f  the present Board.
A s has been shown, the present A d ju stm en t 

B oard is an outgrow th  o f  the boards established 
by agreem ent o f  the parties. U n d er  such agree­
ments, d isputes w ere first to he handled on the 
property o f  the carrier, and w hen they w ere not 
disposed o f  sa tis fa ctorily  at that stage, the m em ­
bers o f  the boards w ere to settle the disputes by 
“ ad justm ent,”  a process w hich  was p robab ly  in 
part ad ju d ica tion  and  in  p art bargain ing. The 
prelim inary stages o f  negotiations on  the p ro p ­
erty are the same under the R a ilw ay  L a bor A ct 
as under the earlier agreem ents, and the B oa rd  
itself is selected by  the parties in  substantially 
the same m anner as its predecessors. T he source 
o f the present B o a rd ’s pow ers, how ever, is not the 
will o f  the parties, but the statute. The A ct 
makes p rov is ion  f o r  referees i f  the parties dead­
lock on  aw ards, and thus perm its decisions to 
which the parties have not agreed (S ec. 3, F irs t  
(1 )) . I t  seems to  im pose certa in  o f  the fu n d a ­
mental p roced u ra l requirem ents com m on to  fe d ­
eral adm inistrative bodies. (S ee  Sec. 3, F irst 
( j ) . )  A n d  the B o a r d ’s decisions can be en forced  
in the courts in  the same m anner as those o f  such 
fam iliar agencies as the In terstate Com m erce 
Com m ission (S ec. 3, F irs t  ( p ) ) .

W hether in  this background “ the w ork  o f  the 
B oard  should  be denom inated ‘ ad ju stm en t’, as the



2 4

B o a r d ’s nam e im plies, or  w hether it is ad jud ica­
tion, is a m atter o f  in terpretation  on w hich  opin­
ions d iffer  w idely. The question is not m erely  the 
em pty one concern ing w hat labels should be at­
tached fo r  convenience, but it is one on  w hich  sev­
eral im portan t problem s hinge. In  a sense, the 
B o a rd ’s w ork  is on ly  an extension  o f  the m achin­
ery  fo r  settling disputes on  the p rop erty  o f  the 
carriers. W h e n  the em ployee and his forem an 
discuss a grievance o f  the em ployee, they are ad­
ju stin g  rather than ad jud icating , and the same is 
true w hen the representative o f  the loca l u n ion 

considers the ease w ith  the loca l superintendent. 
The con troversy  does n ot take on  an ad jud icatory  
character as it  goes on  u p  through the hierarchy 
o f  ra ilroad  and labor representatives. I f  the con­
troversy  is n ot settled on  the p rop erty , the ques­
tion  then is presented to  still other ‘ representa­
t iv es ’ o f  the parties, nam ely, the m em bers o f  the 
A d ju stm en t B oard . The carrier  and labor mem­
bers d iffer  in  their analysis o f  the w ork  o f  the 
d iv is ion s .”  A tto rn ey  G en era l’s Com m ittee on 
A dm in istra tive  P roced u re , Bailw ay Labor, Sen. 
D oc. N o. 10 (P a r t  4 ) ,  77th Cong., 1st Sess., pp. 
4 -5  ( Compilation, pp . 230 -2 3 2 ). T he carrier 
m em bers have m aintained  that “ the m ost cursory 
exam ination  o f  the nature o f  the argum ents put 
up  to the B oa rd  and the grounds o f  its decisions 
w here these are given, conclusively  dem onstrates 
that it regards its fu n ction  as one o f  strict legal



25

interpretation  rather than com prom ise and ad­
justm ent”  (ib id ). T he labor m em bers, on  the 
other hand, have taken the position  that the B oa rd  
“ should operate as a continuation  o f  the con fer ­
ence room  m ethod em ployed  u p on  the various 
properties w here m en and m anagem ent T a lk  
things th rou gh ,’ argue the m eaning o f  rules, d is­
cuss the ap p lica tion  in  effect under those rules, 
and finally attem pt to reach an equitable ‘ ad ju st­
m ent’ based u p on  our p ractica l know ledge o f  how  
things are done ‘ back  h om e ’ ”  (ib id ). The A tto r ­
ney Gfeneral’s Com m ittee fou n d  that “ in  any 
event, when a re feree  is called in, the proceed ing 
before the B oa rd  is m uch like true a d ju d ica tion ”  
(ibid).

This C ourt is not n ow  called upon  to resolve the 
troublesom e question  as to the nature o f  the B oa rd  
and its functions. W e  have called attention to the 
controversy, how ever, because it a ffects the p ra c ­
tice o f  the B oa rd  in  several respects pertinent 
here.

(a )  A s  a result o f  their view  that the B oa rd  is 
a continuance o f  the negotiations on  the p roperty , 
the em ployee m em bers have refu sed  to perm it the 
B oard to hear cases not subm itted by  the organ i­
zation representing the m a jor ity  o f  a c ra ft  or 
class. E ach  d iv ision  o f  the B oa rd  deadlocks as to 
whether cases subm itted by  individuals m ay be 
heard at all, and the result has been that they have



26

not been heard .23 In  at least three instances r e f ­
erees appoin ted  to break such deadlocks have held 
that individuals have no standing be fore  the 
B oard . Gooch  v. Ogden Union B y. Co., N ational 
R a ilroa d  A d ju stm en t B oa rd , Second  D ivision , 
A w ard  N o. 514 (R e fe ree  M cA llis ter ) ; E verly  v. 
E rie B . Co., id., A w a rd  N o. 515 (R e fe re e  M cA llis ­
ter ) ; Budd  v. M inneapolis, etc. B y. Co., N ational 
R a ilroa d  A d ju stm en t B oard , T h ird  D ivision , 
A w a rd  N o. 1718 (R e fe re e  S h a rp e ). W h eth er  this 
result is r igh t o r  w ron g ,24 it has the effect o f  p re ­
venting persons w hose cases are not sponsored

23 This question is discussed in Attorney General’s Com­
mittee on Administrative Procedure, Railway Labor, Sen. 
Doc. No. 10 (Part 4 ) , 77th Cong., 1st Sess., pp. 7 -1 0 ; Com­
pilation, pp. 233-234. The Final Report of the Attorney 
General’s Committee on Administrative Procedure states (p. 
188) : “The Board has deadlocked upon the question whether 
employees in person, as distinguished from labor organiza­
tions, should be permitted to bring their claims before the 
Board. The effect of this deadlock has been that no such 
claims are set down for hearing.”

24 The statute declares that the Board shall hear “disputes 
between an employee or group of employees and a carrier 
or carriers” (Section 3, First ( i ) ) ,  that “Parties may be 
heard either in person, by counsel, or by other representatives, 
as they may respectively elect” (Section 3, First ( j ) ) ,  that 
notice of hearing shall be given “ to the employee or employees 
and the carrier or carriers involved” (ibid.), and that any 
person for whose benefit an award is made may sue on the 
award in a United States District Court (Section 3, First 
( p ) )- (Italics supplied.) The courts have indicated that 
they disagree with the view that individuals have no right 
to appear before the Board except through the labor organi­
zations. General Committee of Brotherhood of Locomotive 
Engineers v. Southern Pacific Company, 132 F . (2d) 194 
(C. C. A . 9 ) ;  Nord v. Griffin, 86 F . (2d) 481 (C. C. A . 7 ),



27

by the m a jo r ity  organ ization  fro m  hav ing their 
claims decided  b y  the B oa rd , and i f  the B oa rd  
were regarded  as having exclusive ju risd iction , 
would m ake the organ ization s ’ decisions as to 
their cases conclusive.

(b )  The B o a r d ’s p rocedu re is m ore closely  akin 
to that o f  the boards w hich  w ere its predecessors 
than to that o f  the ord in ary  adm inistrative agency. 
There are no responsive p lead in gs; both  sides 
o f  the case m ust be subm itted sim ultaneously 
(A ttorn ey  G en era l’s Com m ittee on  A dm in istra tive  
Procedure, Railway Labor, Sen. D oc. N o. 10 (P a r t  
4 ), 77th Cong., 1st Sess., pp . 11-12 ( Compilation, 
pp. 2 3 8 -2 3 9 )) . T he m aterial subm itted consists 
o f interm ingled  fa c t  and argu m en t; the B oa rd  has 
no pow er o f  subpoena and  evidence is not taken, 
although oral argum ents are heard {id., at p p . 
12-14, Compilation, p p . 2 39 -2 42 ). T he case is 
explained to the re feree  by  the other m em bers o f  
the B oard , not by  the parties {id,, at pp . 15-16, 
C ompilation, pp . 242 -243 ). A lthou gh  the A tto r ­
ney G en era l’s Com m ittee m ade some suggestions 
for  the im provem ent o f  this procedure, it d id  n ot 
find it to  be fundam entally  un fa ir . See Final 
Report o f  the A ttorn ey  G eneral’s Com m ittee on 
Adm inistrative P rocedure, pp . 185 -188 ; see also 
Garrison, The National Railroad Adjustm ent

certiorari denied, 300 U . S. 673; Estes v. Union Terminal 
Company, 89 F . (2d) 768 (C . C. A . 5 ). See also House 
Hearings, p. 83; W illiam  H . Spencer, The National Railroad 
Adjustment Board (University of Chicago Press, 1938), p. 
39, Compilation, Appendix, p. 189.

.506724— 43------3



28

B oard : A  U nique Adm inistrative A gen cy, 46 Y a le  
L . J . 567 (1 9 3 7 ), rep rin ted  in  Compilation, A p ­
pen d ix , p p . 110-135. T he fa cts  o f  the cases are 
usually w ell know n to  the parties and  disclosed by  
the file o f  the negotiations on  the p rop erty . The 
A ttorn ey  G en era l’s Com m ittee estim ated that in  
on ly  five percent o f  the cases w ere there any fa ct 
issues w ith  respect to w h ich  evidence w ou ld  have 
been h e lp fu l ( Final Report, p. 187).

The C ourt is not, o f  course, requ ired  in  this 
case to pass u p on  the va lid ity  o f  these departures 
fro m  orth odox  adm inistrative procedure. W e  
have re ferred  to  them  so that the C ourt m ay have 
the in form a tion  b e fore  it, in  v iew  o f  p e tition er ’s 
contention  that the B o a r d ’s p roced u re  should be 
g iven  consideration  in  determ ining w hether the 
B o a r d ’s ju r isd iction  is exclusive and its aw ards 
“ final and b in d in g .”

( c )  The b ipartisan  nature o f  the B o a rd  is re ­
flected both  in  its in ab ility  to agree on rules o f  
procedure and in  the fa ilu re  o f  the F irs t  D ivision , 
from  w hich  this case arose, to  keep up  w ith  its 
docket. In  1940, w hen the rep ort o f  the A ttorn ey  
G enera l’s Com m ittee on  A dm in istra tive  P ro ce ­
dure was prepared , the D iv is ion  was “ m ore than 
three years behind its d o ck e t”  (p . 188 ). Betw een  
1940 and 1942 the num ber o f  undisposed  cases on 
hand at the close o f  the fiscal year rose from  
4298 to 6033, leaving the D iv is ion  betw een fo u r  
and five years behind (N ation a l M ed iation  B oard ,



29

Eighth Annual R ep ort, p. 4 5 ) .25 The m em bers 
o f  the D iv is ion  have been unable to agree upon  a 
means o f  rem ovin g  this congestion, although the 
statute perm its them  to sit in  panels (S ec. 3, F irs t
( k ) ) ,  or  to establish regiona l boards (S ec. 3, F irst 
( w ) ) . 26 Th is cond ition  m ight affect the desir­
ability  o f  m aking the B oa rd  the exclusive fo ru m  
fo r  the d isposition  o f  such cases.

3. The adjustm ent hoards and the courts.

The rep orted  cases arising  b e fore  the 1934 A ct, 
and in v o lv in g  the in terpretation  o f  ra ilw ay  labor 
agreem ents establish ing an ad justm ent procedure, 
fa ll in to several categories. Som e o f  these p ro ­
ceed to  in terp ret the agreem ent w ithout regard  
fo r , o r  even awareness o f, the availability  o f  any 
other p rocedu re, although it  w ou ld  appear that 
an ad justm ent board  coverin g  the em ployees and 
carriers involved  was in  existence.27 O ther cases 
hold that an em ployee m ust avail h im self o f  the 
ad justm ent p rov is ion s o f  the contract govern ing

26 The Railway Labor A ct of 1934 was entitled “A N
A C T  * * * to provide for the 'prompt disposition of
disputes between carriers and their employees” (48 Stat. 
1185. [Italics supplied.] See also Sec. 2 (General Pur­
poses (4, 5 ) ) .

20 A t  the present time the Office of Defense Transporta­
tion, at the request of the President, is endeavoring, thus 
far, unsuccessfully, to see if the parties will agree to steps 
through which the jam can be broken.

27 See, e. g., Louisville & N . R. Co. v. Bryant, 263 K y. 578, 
92 S. W . (2d) 749 (1936). The Louisville & Nashville Rail­
road was a party to the agreement creating a Southeastern 
Regional Adjustment Board for train service employees 
(Compilation, Appendix, pp. 39-42 ; see pp. 14, 16, supra).



3 0

M s cra fts  b e fore  resortin g  to  tbe co u rts ; these 
decisions gen era lly  are based u p on  the p rin cip les  
o f  con tract la w /8 although there is occasional 
re feren ce  to the R a ilw a y  L a b or  A c t  as w ell.29 
A n d  another g rou p  o f  cases holds that an em­
p loyee  can  go to  cou rt w ithout availing  h im self 
o f  the rem edies p rescribed  in  the con tract o r  un ­
der the A ct  w here fo r  one reason  or  another such 
action  w ou ld  be fu tile .30

A fte r  the 1934 A c t  becam e effective, but b e fore  
this C o u rt ’s decision  in  M oore  v. Illinois Central It. 
Co., 312 U . S. 630, there w ere on ly  a few  rep orted  
instances o f  suits brought b y  em ployees w ho had 
not gone to the A d ju stm en t B oa rd .31 The F ifth

28 Harrison v. Pullman Go., 68 F . (2d) 826 C. C. A. 8 ) ; 
Bell v. Western Railway, 228 Ala. 328, 153 So. 434 (1 9 3 4 ); 
Wyatt v. Kansas City Ry. Go., 101 S. W . (2d) 1082 (Tex. 
Civ. App., 1 9 3 7 ); Swilley v. Galveston, etc., Ry. Go., 96 
S. W . (2d) 105 (Tex. Civ. App., 1 9 3 6 ); Matlock v. Gulf, G. 
<& A. F. Ry. Co., 99 S. W. (2d) 1056 (Tex. Civ. App., 1 9 3 6 ); 
Cousins v. Pullman Go., 72 S. W . (2d) 356 (Tex Civ. App., 
1934 ); Reed v. St. Louis S. W. R. Go., 95 S. W. (2d) 887 
(M o. App., 1936).

29 Bell v. Western Ry., 228 Ala. 328, 153 So. 434 (1 934); 
Wijatt v. Kansas City Ry. Go., 101 S. W. (2d) 1082 (Tex. 
Civ. A pp., 1937).

30 Youmans v. Charleston rf; W. G. Ry. Co., 175 S. C. 99, 
178 S. E . 671 (1 9 3 5 ); Mallehan v. Texas & Pacific Ry. Go., 
87 S. W . (2d) 771 (Tex. Civ. A pp ., 1935).

51 McDermott v. New York Central R. Co., 32 F . Supp. 873 
(S. D. X . Y .)  ; Evans v. Louisville & N. R. Co., 191 Ga. 395, 
i2 S. E . (2d) 611 (1 94 0 ); Ledford v. Chicago. .1/,. St. Paul<& 
P. R. Co., 298 111. A pp. 298, 306, 18 X . E . (2d) 568 (1939). 
In the Ledford case the complainants had sought to go to the 
Adjustment Board, but the Board had refused to docket the 
case. See pp. 25-26, supra.



31

C ircu it C ourt o f  A p p ea ls  had  held  in  the M oore  
case itse lf that p re lim in ary  resort to the A d ju s t ­
m ent B oa rd  w as unnecessary, and there was a d ic­
tum  to  the same effect in  N ord  v. Griffin, 86 F . (2 d ) 
481, 483-484 (C . C. A . 7 ) ,  ce rtio ra ri denied, 300 
U . S. 673. T h ere have been several independent 
court actions by  em ployees since then.32 These 
cases have held that under the rule o f  the M oore  
case an em ployee has an election  betw een su ing in  
court and p roceed in g  be fore  the B oa rd , but that he 
cannot do both .33 S o fa r  as w e know , there have 
been no cases brought by  carriers b e fore  subm is­
sion o f  a cla im  to the A d ju stm en t B oard .

M ore  significant than the small num ber o f  de­
cisions is the apparent attitude, i f  it can be so 
called, o f  the parties tow ard  the ju d ic ia l m ethod 
o f  resolv in g  this type  o f  con troversy . I n  so fa r  
as the legislative h istory  o f  the 1934 A ct  in d i­
cates, it never occu rred  to anyone that the courts 
a fforded  a fo ru m  in  w hich  such m atters m ight be 
determ ined. P r io r  to 1934, it was assum ed that 
i f  disputes w ere not d isposed o f  b y  the parties 
am icably o r  by  an ad justm ent board  the on ly  
alternative was to threaten the use o f  econom ic

32 Adams v. New Y ork, C. da St. L. R. Go., 121 F . (2d) 808, 
810 (C. C. A . 7 ) ;  Austin  v. Southern Pac. Go., 123 P. (2d) 
39 (Cal. A pp., 1942); Burke v. Union Pacific R. Go., 129 F . 
(2d) 844 (C. C. A. 10) ; Swarfs v. South Buffalo Ry. Co., 44 
F. Supp. 447 (W . D . N. Y .) .

33 Adams v. New Y ork, G. da St. L. R. Go., 121 F . (2d) 
808, 810 (C. C. A . 7 ) ;  Austin  v. Southern Pac. Co., 123 P. 
(2d) 39 (Cal. A pp., 1942).



32

force . W e  do not know  w hether the fa ilu re  o f  
the em ployees to resort to the courts was due 
to a belief' that such m atters cou ld  not be heard 
in  the courts, to a b e lie f that the ju d ic ia l rem edy 
was expensive and tim e consum ing and that the 
carrier  had superior fa c ilities  f o r  engaging in 
litiga tion  (It . 3 34 ), to  a fee lin g  that the courts 
w ere not sufficiently expert o r  in clin ed  to  under­
stand the em p loyees ’ p o in t o f  view , o r  m erely  
to  the em p loyees ’ greater fa ith  in  their ow n bar­
ga in ing  p ow er— or to  these fa ctors  in  com bi­
nation. W h a tev er  the reason, it is clear that the 
in du stry  regarded  som e other typ e  o f  m ach inery  as 
essential.

The reluctance o f  labor to use the courts is 
evidenced by  its fa ilu re  to m ake any extensive use 
o f  the en forcem ent p rocedu re available under 
S ection  3, F irs t  ( p )  a fter  aw ards had been en­
tered  in  its favor. The variou s d iv isions o f  the 
A d ju stm en t B oa rd  have entered thousands o f  
aw ards.34 O n ly  a fe w  have been en forced  through  
proceed in gs institu ted under p a ra g ra p h  ( p ) . 35

34 The number of awards is stated in the Annual Beports 
of the National Mediation Board.

35 Beported cases are: Atlantic Coast Line R. Co. v. Pope, 
119 F . (2d) 39 (C . C. A . 4 ) ;  System Federation No. 59 v. 
La. & Ark. Ry. Co., 119 F . (2d) 509 (C . C. A . 5 ), certiorari 
denied, 314 U . S. 656; Tho<mas v. Texas & N. 0 . R. Co., 118 
F. (2d) 75 (C. C. A . 5) (for the same case see also 162 S. W . 
(2d) 1039 (Tex. Civ. A pp., 1 9 4 2 )) ; Cleapor v. Atlanta, B. 
<& C. R. Co., 123 F . (2d) 374 (C. C. A . 5 ) ;  Virginian Ry. 
Co. v. System Federation No. JfO, 131 F . (2d) 840 (C. C. A . 
4 ) ;  Smith v. Texas <& N. 0 . R. Co., 32 F . Supp. 1013 (W . D.



33

The A ttorn ey  G en era l’s C om m ittee on  A d m in is­
trative P roced u re  fo u n d : 36

Theoretica lly , the ra ilroads do n ot need to 
com p ly  w ith  an  aw ard until an action  is 
brought, in  court to en force  the aw ard. 
The theory  does not accord  w ith  the fact, 
how ever. O f about 5,00Q aw ards that the 
B o a rd  has m ade to date, not m ore than 
a h a lf dozen en forcem ent proceedings in  
court have been brought, and yet the great 
p repon deran ce o f  the aw ards have been 
com plied  w ith. Som e awards, how ever, are 
never en forced  either b y  cou rt action  or by  
econom ic force , either because o f  doubts as 
to the success o f  litigation , or because o f  
insufficient general im portance.

This report, an article b y  D ean L loy d  G arrison ,37 
and the b r ie f  o f  the respondents in  the D istrict 
Court (R . 103) recogn ize that the p r im a ry  sanc­
tion  re lied  on  to en force  the B o a r d ’s orders has 
been the econom ic bargain ing  pow er o f  the em ­
ployees, and w e do not th ink  it w ill be denied 
that the em p loyees ’ organ izations w hose cases are

L a .) ; Alabama State Federation v. Kum, 46 F . Supp. 385 
(N. D . A l a ) ; System Federation No. 8 v. Missouri-K.-T. R. 
Go., 40 F . Supp. 803 (N . D . T e x .) ; CooJc v Des Moines Union 
Ry. Go., 16 F . Supp. 810 (S. D . Iow a). Only the last of 
these cases involved a decision of the First Division of the 
Adjustment Board.

36 Attorney General’s Committee on Administrative Pro­
cedure, Railway Labor, Sen. Doc. No. 10 (Part 4 ) , 77th 
Cong., 1st Sess., p. 6 (Compilation, p. 233).

37 Garrison, The National Railroad Adjustment Board: A 
Unique Administrative Agency, 46 Yale L . J. 567, 591-592 
(1937) (Compilation, Appendix pp. 129-130).



3 4

handled  b y  the F ir s t  D iv is ion  have ad op ted  the 
p o licy  o f  n ot tak in g  cases to the courts.38 There 
have been a p p rox im a te ly  eight threats to  strike 
against carriers  w h ich  declined  to com p ly  w ith 
orders o f  the A d ju stm en t B oa rd . These disputes 
w ere all settled peacefu lly , gen era lly  through com ­
pliance  b y  the ca rr ier  w ith  the B o a r d ’s aw ards.39

There have also been a few  suits to en jo in  ca r­
riers fro m  g iv in g  effect to A d ju stm en t B oa rd  
orders. N ord  v. Griffin, 86 F . (2 d )  481 (C . C. A . 
7 ) ,  certiora ri denied, 300 U . S. 673; E stes  v. 
Union Terminal Co., 89 F . (2 d )  768 (C . C. A . 5 ) ; 
B rand  v. Pennsylvania R . Co., 22 F . Supp. 
569 (E . D . P a . ) ; Stephenson  v. N ew Orleans & 
N. E . R. Co., 180 M iss. 147, 177 So. 509 (1937 ) ; 
Railroad Yardm asters o f  N orth  Am erica  v. P itts ­
burgh & Lake E rie R . Co., 39 F . S upp . 876 (FT. D . 
O h io ). These cases have gen era lly  been brought 
b y  em ployees aggrieved  b y  B o a rd  decisions a ffect­
in g  th eir  sen iority , not b y  the ra ilroad  labor o r ­
ganization , and in ju n ction s have been granted 
when it was fo u n d  that the B o a rd  had v io la ted  due

38 The position of the employees’ representatives is that if  
they accept the awards, the carriers should do likewise, that 
they have no means of contesting an award when they lose 
and that accordingly it is unfair to give the carrier a chance 
to challenge an award when it loses, that taking the cases to 
court would cause further long delays before awards were 
obeyed, and that the carriers have a large body of lawyers 
available to give them an unfair advantage over the em­
ployees if  cases have to be taken to court.

30 This information was obtained from the files of the 
National Mediation Board.



35

process by  not g iv in g  the claim ants notice  o f  its 
hearings (N ord  v. Griffin; Brand  v. Pennsylvania  
R. Co., supra )  or  that the B o a rd  had  acted  w ithout 
ju risd iction  ( Stephenson  v. N ew Orleans <tt N. E. 
R. Co., supra).

B. W H ETH ER PARTIES M A T  RESORT TO TH E  COURTS BEFORE SUB­

MISSION OF A  CONTROVERSY TO TH E  N ATIO N AL RAILROAD

ADJU STM EN T BOARD

In  M oore  v. Illinois Central R . Co., 312 U . S. 
630, this C ourt held that an  em ployee was not 
required to seek ad justm ent o f  his con troversy  
with a ca rr ie r  b e fore  the N ational R a ilroa d  A d ­
justm ent B o a rd  as a prerequisite to the institu tion  
o f  a law suit. The U n ited  States filed a b r ie f  as 
amicus curiae in  the M oore  case. The G ov­
ernm ent was o f  op in ion  that the question  was 
a close one, and that the variou s fa ctors  to  be 
considered d id  not p o in t conclusively  in  either d i­
rection. W e  suggested that a possible solution  o f  
the p rob lem  w ou ld  be to  perm it cou rt action  b y  
individuals w ho cou ld  not, w ithout the use o f  som e 
m andatory process, b rin g  their cases be fore  the 
A djustm ent B oa rd , but not otherwise.

The C ourt held, how ever, that resort to  the 
statutory m ach inery  was n ot com pu lsory . The 
Court has now  requested a reconsideration  o f  the 
matter. E ven  i f  the C ourt should not treat the 
M oore case as con trolling , the choice it  m ade be­
tween the various argum ents advanced is entitled 
to w eight. I t  is on  this basis that we have re­
exam ined the questions decided  in  the M oore  case.



36

1. Considerations relating to the Railway Labor
A ct

( a )  T he statute declares that unadjusted  dis­
putes m ay be re fe rred  to the A d ju stm en t B oard . 
T he w ord  “ m a y ”  could have been used either to 
show  that parties w ere not requ ired  to  go before  
the A d ju stm en t B oa rd  at all, o r  that they  need not 
appeal a p articu lar  case unless they desired  to 
do so. In  the M oore  case, this C ourt adopted 
the fo rm er  in terpretation , saying (312 U . S., at 
6 3 5 ):

I t  is significant that the com parable section 
o f  the 1926 B a ilw ay  L a b or  A c t  (44  Stat. 
577, 578 ), had, b e fore  the 1934 am endm ent, 
p rov id ed  that upon  fa ilu re  o f  the parties to 
reach  an ad justm ent a “ dispute shall be re ­
fe rred  to the designated A d ju stm en t B oa rd  
b y  the parties, o r  by  either p a rty  * * * ”
This d ifference in  language, substituting 
“ m a y ”  fo r  “ sh a ll” , was not, w e think, an 
ind ication  o f  a change in  p o licy , but was in ­
stead a clarification  o f  the la w ’s orig in a l p u r­
pose. F o r  neither the orig in a l 1926 A ct, 
n or  the A ct  as am ended in  1934, indicates 
that the m ach inery  p rov id ed  fo r  settling dis­
putes was based on a p h ilosoph y  o f  legal 
com pulsion . On the contrary , the legisla­
tive h istory  o f  the B a ilw a y  L a b or  A c t  shows 
a consistent pu rp ose  on the p art o f  Congress 
to establish and m aintain  a system  fo r  peace­
fu l adjustm ent and m ediation  volu ntary  in 
its nature. * * *



37

The legislative h is tory  o f  the 1934 A ct  is con ­
sistent w ith  the above conclusion .393 The advan­
tages w hich  M r. E astm an thought w ould  accrue 
from  the u n iform  in terpretation  o f  ra ilw ay labor 
agreem ents b y  a single bod y  d id  not lead to his 
refusal to  accept regiona l or loca l adjustm ent 
boards, w henever the parties cou ld  agree to estab­
lish them  (see pp. 19-21, supra).

(b )  The p rim a ry  p u rpose  o f  the R a ilw ay L a bor 
A ct was the settlem ent o f  disputes peacefu lly  w ith ­
out in terru ption  to transportation . S ince ju d icia l 
proceedings are a p eacefu l means o f  resolv ing dis­
putes, the possib ility  o f  resort to the courts is en­
tirety com patib le w ith  this basic objective. O n 
the other hand, the u n ifo rm  interpretation  o f  
such agreem ents b y  a single expert tribunal w ould  
elim inate the p ossib ility  o f  d iscrim ination  be­
tween m en w ork in g  on  d ifferent parts o f  the same 
road or on  d ifferen t roads, and thus rem ove one 
cause o f  d issatis faction  and controversy .40 F u r-

39a The j f oore opinion refused to draw the inference that 
the Board was intended to have as broad a jurisdiction as 
the prior adjustment and arbitration (see pp. 85-88, infra) 
boards to which disputes were required by agreement to be 
submitted.

40 See Garrison, The National Railroad Adjustment 
Board: A  Unique Administrative Agency , 46 Yale L . J. 
567 ( Compilation, Appendix, pp. 110-135). The cases 
which come before the Board arise out o f numerous technical 
rules with “ intricate” interpretations. Attorney General’s 
Committee on Administrative Procedure; Railway Labor, 
Sen. Doc. No. 10 (Part 4 ) , 77th Cong., 1st Sess., p. 3 (Com­
pilation, p. 2 2 9 ); Garrison, supra, pp. 586-591 ( Compilation, 
Appendix, 125-129). A  definite advantage is to be derived



38

therm ore, com pu lsory  use o f  the m ach inery  estab­
lished b y  the statute w ou ld  (ex cep t f o r  those cases 
w hich  go to re feree ) in  substance result in  the 
settlem ent o f  cases by  agreem ent betw een the car­
riers and the unions. Such  a so lution  o f  a dis­
pute w ou ld  p robab ly  be m ore consistent w ith  har­
m onious labor relations than the p eace fu l but 
com pu lsory  acceptance o f  ju d ic ia l decisions. W e  
believe that the advantage o f  decisions to  w hich  
both sides have agreed  is the basic reason f o r  the 
use o f  the ad justm ent board  device.

B u t the benefits o f  a u n ifo rm  in terpretation  by 
a single bod y  o f  experts and o f  a decision  resu lt­
in g  fro m  agreem ent betw een the representatives 
o f  the carriers and the em ployees are not to be 
fou n d  in  the large p r o p o r t io n 41 o f  the cases w hich  
are decided  w ith  the assistance o f  referees. The 
referees  are not necessarily  experts in  the ra ilw ay 
labor field,42 and their decisions are not neces-

from having such cases decided by persons familiar with the 
subject and its terminology, and not by persons having “no 
practical experience of railroading.” Garrison, supra, p. 593 
(Compilation, Appendix, p. 131).

41 Approximately one-half. See report of Attorney Gen­
eral’s Committee on Administrative Procedure, Railway 
Labor, Sen. Doc. No. 10 (Part 4 ) , 77th Cong., 1st Sess., pp. 
1, 15 (Compilation, p. 2 4 2 ); National Mediation Board, 
Eighth, Annual Report, p. 45.

12 Dean Garrison’s article states in this connection:

* * * W ith  rarest exceptions, the referee, to be 
neutral, must be drawn from outside the railroad 
world. H e comes to the Board with no practical ex­
perience of railroading. Its vocabulary, its customs 
are strange to him. He cannot catch the undertones of



39

sarily u n ifo rm .43 The parties frequ en tly  do not 
acquiesce in  re fe re e s ’ d e c is io n s ;44 thus, they do

the cases, or weigh as surely as one bred to the trade the 
force o f the rival contentions addressed to him. He 
cannot appreciate with any certainty the implications, 
for future cases, o f the decisions he must render. He 
has no fellow-judges to consult with. Nearly every 
case comes up to him evenly balanced, strenuously 
fought, and freighted with importance not only to both 
sides but to all other carriers and unions for whom the 
decision will stand as a precedent. And his will be the 
final say, for he knows that there will be no review. 
T ry as he will he is bound to make mistakes which a 
more experienced judge would not make. And these 
mistakes may be costly and wide-reaching in their 
effects. W hen he is through with the cases assigned to 
him, and has begun to gain some insight, he is not 
likely to be reappointed to the Division in which he 
sat, for he will probably be unwanted either by the 
labor members or the carrier members or both; and 
the National Mediation Board (which has to make the 
appointments since the Divisions are not able to agree 
upon mutually satisfactory persons) quite properly 
will not appoint unwanted men. * * *

Garrison, The National Railroad, Adjustment Board: A 
Unique Administrative Agency, 46 Yale L. J. 567, 593-594  
(Compilation, Appendix, p. 131-132). The Annual Beports 
of the National Mediation Board show that since 1935 only 
one referee has sat with the First Division during more 
than three fiscal years, and one other during as many as 
three fiscal years. Other Divisions have often been able to 
agree upon referees, and referees have been more frequently 
reappointed.

43 See report of Attorney General’s Committee on Adm in­
istrative Procedure, Railway Labor, Sen. Doc. No. 10 (Part 
4), 77th Cong., 1st Sess., p. 19 {Compilation, p. 247).

44 “Yet, identical problems repeatedly have to be carried 
all the way to a referee before the parties will consider them­
selves bound. W hen the same problem has been decided 
hundreds of times by many different referees, and when all



40

not have the harm onious effect o f  a determ ination  
agreed upon  b y  representatives o f  both  sides.

The cases subm itted to  the re ferees com prise 
those in  w hich  there is undoubted ly  the bitterest 
conflict. W e  are not inclined  to  believe that there 
is any great d ifference  in  the e ffect u p on  am i­
cable labor relations betw een decisions rendered 
b y  the referees in  such cases (m ost o f  w hom  now  
are ju d g e s ) ,45 and those rendered  b y  courts. In

decisions are in agreement, principles that should be regarded 
as established are not always recognized by the parties. 
* * * In  the application of the ‘road yard’ rule, for in­
stance, the decisions have uniformly accepted the basic prin­
ciple advocated by labor, but the carriers have consistently 
refused to acquiesce in that principle. A s a result cases in­
volving the ‘road yard’ rule are seldom settled on the prop­
erty of the carrier, the Board nearly always deadlocks such 
cases, and they almost invariably have to be decided by 
referees. The failure to acquiesce in decisions of the Board 
is one substantial cause of the large volume of business of 
Division I. * * *”  Ibid. Illustrative of the parties’ at­
titude are (1) the withdrawal by the employees of cases sub­
mitted to Justice Royal A . Stone as referee after his conclu­
sions had been made known but before his opinions were 
filed, and the resubmission of tiie same cases to the Board in 
the hope of getting a different referee (Delaware <& Hudson
R. Corp. v. Williams, 129 F . (2d) 11 (C. C. A . 7 ) , judgment 
vacated December 7, 1942, Nos. 446-447, this Term ), and 
(2) the attempt by the carriers to disqualify Justice Paul W . 
Ricl*frcls as referee because of disagreement with some of 
his prior decisions in other cases (See National Mediation 

.is • B°al"d, In the Matter of Protest of Gamer Members against 
the appointment of Justice Paul IF. Richards as Referee, 
decided June 5, 1941; Seventh Annual Report, p. 11).

15 In the past several years, the National Mediation Board 
has generally appointed State supreme court judges as 
referees. National Mediation Board, Seventh Annual Re­
port, p. 46 ; Eighth Annual Report, pp. 46-47.



41

each instance the decision  is reached b y  the peace­
fu l process o f  ad ju d ica tion , and a strike against 
it is unlikely . In  neither instance does the 
losing p a rty  regard  the decision  as one to w hich  
he has agreed. I t  is n ot un lik ely  that the ju d g ­
ment o f  a court, w hich  is d irectly  enforceable, 
w ould be treated  w ith  m ore respect than is such 
an aw ard o f  the B oa rd .40

( c )  The p ractice  o f  the B o a rd  in  re fu sin g  to 
hear cases n ot subm itted by  the representative o f  
the m a jo r ity  o f  a c ra ft  is n ot consistent w ith  the 
notion that the B oa rd  has exclusive ju r isd iction  
o f the type o f  cases w hich  com e b e fore  it. See 
pp. 25-27, supra.

( d )  M ost courts, both  b e fore  and a fter  this 
C ou rt’s decision  in  the M oore  case, seem to have 
held, or assumed, that the ju r isd iction  o f  the A d ­
judgm ent B o a rd  is not exclusive. See pp. 29-31, 
supra.

2. Considerations applicable to administrative 
bodies generally

I t  can be argued that the establishm ent o f  the 
A djustm ent B oa rd  in  itse lf m anifests a congres­
sional in tention  that all d isputes com ing w ith in  its 
ju risd iction  be subm itted to it rather than to  the

46 See Note 44, supra. Since a judicial decree is enforce­
able, employees would never be faced with the necessity of 
threatening to call a strike to obtain compliance with a court 
order, although they have engaged in such tactics with 
respect to some Adjustment Board awards. See pp. 33-34, 
supra.



4 2

courts. B u t it can also be argued  that the fa ilu re  
o f  C ongress to  declare that the B o a rd  w as to  have 
exclusive ju r isd iction , in  a field in  w h ich  com m on- 
law  rem edies are available, ind icates that the p re ­
existing rem edies w ere not to  be destroyed.

E xam in ation  o f  the language o f  statutes creat­
in g  other adm inistrative bodies and o f  the deci­
sions under them  reveals the absence o f  any un i­
fo rm  legislative or ju d ic ia l p o licy  w h ich  m ight be 
con tro llin g  here. I n  som e instances C ongress has 
specified that an adm inistrative rem edy is to  be 
exclusive, as in  the N ational L a bor R ela tion s 
A c t 47 and the L on gsh orem en ’s and H a rb or  W o r k ­
e r s ’ C om pensation  A c t .48 F requ en tly  it is clear 
from  the fa ct  that the statute regulates an en­
tire ly  new  field that on ly  sta tu tory  rem edies are 
to  be available.49 O n the other hand, Congress 
has also specifically  prov ided , as in the In terstate 
C om m erce A c t ,50 the C iv il A eron au tics  A c t 51 and 
the statutes adm inistered by  the S ecurities and 
E xchange C om m ission ,52 that existing  rem edies are

47 c. 372, 49 Stat. 449, 29 U . S. C., Section 160 ( a ) ;
Amalgamated Utility Workers v. Consolidated Edison Co.. 
309 U . S. 261.

48 c. 509, 44 Stat. 1424, 33 U . S. C., Section 905.
48 See, e. g., Bituminous Coal Act, c. 127, 50 Stat. 72, 15 

U . S. C., Sections 828-851; Packers and Stockyards Act, c. 64, 
42 Stat. 159,7 U . S. C., Sections 181-231.

60 c. 104, 24 Stat. 379, 49 U . S. C., Section 22,
61 c. 601, 52 Stat. 973, 49 U . S. C., Section 676.
62 c. 38 ,48  Stat. 74 ,15  U . S. C., Section 77p ; c. 411, 53 Stat, 

1149,15 U .S .C ., Sections 77www ( b ) ; c. 404, 48 Stat. 881,15  
U . S. C., Sections 78bb; c. 687, 49 Stat. 803, 15 U . S. C., 
Section 79p.



43

not to  be abridged. A n d  som e statutes, such as 
the S a fe ty  A p p lia n ce  A c t ,53 w h ich  contains no ex ­
press p rov is ion  one w ay  or  the other, have been 
construed as perm ittin g  private  persons to en force  
their rights in  courts as w ell as be fore  the 
adm inistrative tribunal.

M ost pertin en t w ou ld  appear to be the in ter­
preta tion  g iven  Section  16 (2 )  o f  the In terstate 
Com m erce A ct, w hich  is in  substantially the same 
language as S ection  3, F irs t  ( p )  o f  the R a ilw ay  
L abor A ct, and upon  w hich  the latter p rov is ion  
was m odeled . See p. 91, infra. I n  a long series 
o f  cases, this C ourt has held that when a question 
presented is adm inistrative rather than ju d icia l, 
or w here there w as an evidentiary  question  upon  
which fact-fin d in g  bodies m ight d iffer  and thus 
in terfere  w ith  the u n ifo rm ity  w hich  the In te r ­
state C om m erce A c t  w as designed to secure, the 
m atter m ust first be subm itted to  the In terstate 
Com m erce Com m ission. Texas d  Pacific B y . Co. 
v. A bilene Cotton Oil Co., 204 U . S. 426, 4 4 6 ^ 4 7 ; 
Baltim ore d  Ohio B . B . Co. v. Pitca irn  Coal Co., 
215 IJ. S. 481 ; M itchell Coal Co. v. Pennsylvania  
B. B . Co., 230 U . S. 247 ; Great N orthern Bailway 
Co. v. M erchants E levator Co., 259 U . S. 285, and 
cases cited  at 295 n. B u t where the question 
was m erely  w hether there had been com pliance 
w ith a ta r iff, or  was one o f  construction  o f  w ords

63 c. 160, 36 Stat. 298, c. 225, 35 Stat. 476, 45 IT. S. C., Sec­
tions 15, 19; Texas & Pacific Ry. Go. v. Rigsby, 241 U . S . 
33, 39.

506724— 43------ 4



44

used in  their o rd in a ry  sense, p re lim in ary  resort 
to the C om m ission  was unnecessary. P enn syl­
vania R. R. Co. v. International Coal Co., 230 
U . S. 184, 196 ; Pennsylvania R . R . Co. v. P uritan  
Coal Co., 237 U . S. 121, 134 ; Pennsylvania R . R. 
Co. v. Sonman Coal Co., 242 U . S. 120; Great 
N orthern Railway Co. v. M erchants E levator Co., 
259 XJ. S. 285 ; and  cases cited  at 295 n . ; B alti­
m ore & Ohio R. Co. v. B rady, 288 U . S. 448.

The draw ing o f  conclusions fro m  one statute 
as to  the in terpretation  to  be g iven  an en tirely  
d ifferent law  is an uncertain  approach , even w here 
som e o f  the language em ployed  is sim ilar. A l ­
though Sections 16’ (2 )  o f  the In terstate  C om m erce 
A c t  and 3, F irs t  ( p )  o f  the R a ilw ay  L a b or  A ct  
are substantially the same, the other d ifferences 
betw een the tw o statutes are so great as to  m ake 
it clear that each section  m ust be fitted  in to  its 
particu lar  setting. The In terstate  C om m erce A ct  
specifically  gives a sh ipper a choice betw een a 
suit in  court and the com m encem ent o f  p roceed ­
ings b e fore  the C om m ission  (S ection  9 ) .  I t  fu r ­
ther p rov id es  (S ection  22) th at:

* * * noth ing in  this act contained
shall in  any w ay abridge or  alter the rem e­
dies now  existing  at com m on law  or  by  
statute, but the rem edies o f  this act are in  
add ition  to such rem edies * * *.

D espite these seem ingly exp lic it  provisions, it  is 
established, as we have indicated, that in  certa in  
types o f  cases a com pla int m ust first go b e fore  the 
In terstate C om m erce C om m ission  in  ord er  that



45

the basic ob jectives  o f  the v ita l substantive 
provisions o f  that A e t m ay be achieved.

The p r im a ry  reason fo r  first requ irin g  resort to 
the In terstate C om m erce C om m ission  in  such 
cases does not ap p ly  to  the A d ju stm en t B oard . 
The latter b od y  does not exercise adm inistrative 
d iscre tion ; n or  do m any o f  its decisions turn  upon  
disputed  questions o f  fa ct. See pp . 27-28 , supra. 
To the extent that they  do, the B o a rd  is in  som e 
respects less fitted to  resolve them  than are the 
courts, since the B o a rd  has no subpoena pow er 
and u n der its rules does not perm it the 
presentation  o f  evidence or the exam ination  
o f  w itnesses.54 The A d ju stm en t B oa rd , all 
o f  w hose perm anent m em bers are exp eri­
enced ra ilroa d  m en, m ay how ever, be m ore 
expert than the courts in  in terpreting  the con­
tracts over w hich  it  has ju r isd iction .55 I n  so fa r  as 
a u n ifo rm  in terpretation  is deem ed desirable, it 
w ould be w ise to  requ ire cases in volv in g  such con ­
tracts first to be subm itted to the B oard . B u t 
the p rov is ion s in  the A c t  f o r  the creation  o f  re ­
gional and loca l adjustm ent boards show  that the 
ob ject o f  the R a ilw a y  L abor A c t  was not p r i­
m arily  to secure u n ifo rm ity  in  the interpretation  
o f  these agreem ents.

I n  v iew  o f  these considerations, we believe that 
no definite conclusion  can be draw n fro m  an anal-

54 Report o f Attorney General’s Committee on Adm in­
istrative Procedure, Railway Labor, Sen. Doc. No. 10 (Part 
4 ), 77th Cong., 1st Sess., p. 6n. (Compilation, p. 233n.).

56 Ibid.



4 6

ysis o f  the In terstate  C om m erce A c t  o r  any other 
statute as to w hether the B oa rd  established under 
the R a ilw a y  L a b or  A c t  was in tended  to  have ex­
clusive ju risd iction . The va rie ty  o f  statutes and 
decisions shows that the present p rob lem  cannot 
be solved by  any autom atic rule pursuant to  w hich 
a statute establish ing an adm in istrative b od y  is 
inev itab ly  construed h i one w ay  or  the other. In  
each case all o f  the m a n ifo ld  fa ctors  w hich  guide 
courts in  constru ing  statutes are g iven  considera ­
tion, and the determ ination  m ade as to w hat C on­
gress w ould have intended in  the p articu lar  act 
involved.

W h en  a statute creates new  rights and estab­
lishes an agency to adm in ister them , it  m ay n or ­
m ally  he presum ed, even in  the absence o f  express 
language to that effect, that the legislature in ­
tended the agency to have exclusive p r im a ry  ju r is ­
d iction . B u t the A d ju stm en t B oa rd  does not 
adm in ister o r  pass upon  rights created by  the 
R a ilw a y  L a b or  A ct, but upon  contract rights p re ­
v iou sly  recogn ized  and en forced  in  other foru m s. 
The B oa rd  is also not str ictly  com parable to other 
adm inistrative bodies, in  that it stem s fro m  boards 
established by  agreem ent w hose fu n ction s  w ere 
clearly the settlem ent o f  d isputes through  ad ju st­
m ent rather than ad jud ication .

It. is conceivable that Congress cou ld  have de­
signed the A d ju stm en t B o a rd  either as a supple­
m ent to or a substitute f o r  the existing  rem edies 
f o r  breach  o f  ra ilw ay  labor contracts. W h eth er  it 
has or  not m ust be determ ined  by  the p articu lar



47

in tention  o f  the C ongress w hich  passed the K a il­
w ay L a b or  A ct, rather than b y  the invocation  o f  
any general p r in cip le  o f  adm inistrative law.

3. Conclusion

A s was ind icated  b y  the G overnm ent’s b r ie f  in  
the M oore  case, we th ink that the question as to 
w hether an em ployee or  ca rr ier  m ay  proceed  on ly  
before  the A d ju stm en t B oa rd  is a close one. T he 
various m anifestations o f  congressional intention  
poin t to no definite conclusion . In  such circum ­
stances, the con tro llin g  consideration  should be the 
effect o f  the p rop osed  in terpretation  upon  the at­
tainm ent o f  the ob jectives o f  the R a ilw ay  L abor 
A ct, p rov id ed  that this m ay not be said to be in ­
consistent w ith  the m ethod  intended b y  Congress.

W ith  respect to disputes settled w ithout r e f ­
erees, decisions b y  a board  m ade u p  o f  rep re­
sentatives o f  the carriers  and  the em ployees are 
m ore lik ely  to be w illin g ly  accepted  by  both sides, 
and thus less lik e ly  to resu lt in  in terruptions to 
com m erce, than w ou ld  the decisions o f  courts. 
This is less true, we believe, as to the cases de­
cided w ith  the assistance o f  referees. E xperien ce 
under the present B o a rd  suggests that ju d ic ia l 
determ inations w ou ld  cause no m ore, and m ight 
cause less, ill fee lin g  than the decisions o f  the 
referees (see p. 39, n. 44, supra). H ow ever, the 
possib ility  o f  resort to d ifferent tribunals in  itself 
m ight result in  d isharm ony, to  the extent that 
court and B oa rd  decisions m ight be less u n iform



4 8

than decisions o f  the B o a rd  alone in clu d in g  its 
referees.

I n  so fa r  as actual in terru ption s to tran sporta ­
tion  are concerned, w e cannot say that strikes 
are m ore lik e ly  to occu r i f  the parties are 
perm itted  to take their cases either to  the courts 
or to  the B oa rd . Such  cases have alm ost in v ar­
iably  been brought b y  the em ployees rather than by  
the carriers. In  accordance w ith  th eir  past p ra c ­
tice, the ra ilroad  labor organ izations w ou ld  alm ost 
certa in ly  take their cases to  the B oa rd , and i f  they  
chose to  use the courts in  a particu lar  instance, 
there w ou ld  be no reason  to  an ticipate that 
the ju d ic ia l decision  w ou ld  n ot d ispose o f  the con ­
troversy . M ost o f  the cases taken to the courts 
p robab ly  w ou ld  be brou gh t b y  in d iv id u a l em ­
ployees o r  grou ps not desiring  to  have th eir  cases 
handled b y  the m a jo r ity  organ ization . T h is is 
the situation  at the present tim e. Such  persons 
or grou ps m ight be unable to induce the B o a rd  to 
decide their cases at all, o r  m igh t be un w illin g  to 
subm it them selves to  a b ipartisan  board  w here the 
interests o f  the labor m em bers m ight w ell be ad ­
verse.56 W e  assume that even i f  it should be held 
that the em ployees w ere as a general rule required 
to go to the B o a rd  instead o f  to  court, this w ou ld  
not ap p ly  to  persons w hose eases the B o a rd  re­
fused  to hear.67

60 E . g., Nord  v. Griffin, 86 F . (2d) 481 (C. C. A . 7 ) , certi­
orari denied, 300 TJ. S. 673; Moore v. Illinois Central R. Co., 
312 U . S. 630.

57 See cases cited, supra, p. 30, n. 30, and Ledford  v. Chi­
cago M., St. Paul & P. R. Co., 298 111. App. 298, 18 N. E.



4 9

T he considerations w h ich  w e have advanced 
were, in  substance, b e fo re  th is C ourt w hen the 
M oore  case was h eard  in  1940. T he C ourt held 
at that tim e that the statute d id  not preclude a 
p a rty  fro m  resortin g  to  the courts w ithout first 
going to the A d ju stm en t B oard . W e  assume that 
under the p r in c ip le  o f  stare decisis decisions o f  this 
C ourt w ill n ot he overru led  ligh tly  or unnecessar­
ily. O nce the C ourt has decided  a question one 
way, the burden  o f  persuasion  should be on  the one 
w ho seeks to have the decision  overruled. S ince 
we are not convin ced  that the conclusion  reached in  
the M oore  case w as erroneous, or that it has in  any 
w ay im p a ired  the effectiveness o f  the R a ilw ay 
L abor A c t  as a m eans o f  avoid in g in terruption s 
to com m erce, w e do not fee l ju stified  in  requesting 
its reversa l.58

(2d) 568 (1939). In  the Moore case, the record did not 
show that the plaintiff had requested the majority organiza­
tion to take his case to the Board, or that he had done so 
himself, but his past relations with the organization were 
such that he might reasonably have assumed either that it 
would have refused to handle his case or not represented 
him very zealously.

58 Inasmuch as there was no evidence in the Moore case 
that the plaintiff had attempted to have the labor organiza­
tion take his case to the Board, or that he had tried to do so 
himself (see n. 57 supra) , the case cannot be distinguished on 
the ground that it involved a situation in which such efforts 
were unsuccessfully made. I f  the Court should desire to 
limit the Moore decision, it should not require an employee 
to do more than show that the majority union has declined 
to present his case. Since the filing of proceedings with the 
Board by the individual would under such circumstances be 
futile, and since the Board generally does not issue a formal



50

O. W H E T H E R  PARTIES M A T  RESORT TO T H E  COURTS AFTER SUB­

M ISSION  OF A  CONTROVERSY TO TH E  N A T IO N A L  RAILROAD 
AD JU STM E N T BOARD

T he p rob lem  presented  a fte r  a ease has been 
subm itted  to  the A d ju stm en t B o a rd  d iffers  from  
that p rev iou sly  considered. T he existence o f  
a lternative m eans o f  resolv in g  disputes as to  the 
in terp reta tion  o f  ra ilw ay  labor agreem ents does 
not fo rec lose  g iv in g  exclusive e ffect to  the m a­
ch in ery  created b y  the R a ilw a y  L a b or  A c t  once 
it has been invoked. The sta tu tory  p rov is ion  
p r im a rily  involved  before  the case com es to the 
B o a rd  is S ection  3, F ir s t  ( i )  ; the p rov is ion  con ­
cern ing  en forcem en t o f  the B o a r d ’s orders a fter  
it  has acted is S ection  3, F irs t  ( p ) ,  w h ich  reads 
as fo llo w s :

I f  a carrier  does not com p ly  w ith  an 
ord er o f  a d iv is ion  o f  the A d ju stm en t 
B o a rd  w ith in  the tim e lim it in  such order, 
the petition er, or any person  f o r  w hose 
benefit such ord er was m ade, m ay file in  
the D istrict C ourt o f  the U n ited  States fo r  
the d istr ict in  w h ich  he resides o r  in  w hich  
is located  the p r in c ip a l operatin g  office o f  
the carrier, o r  through  w hich  the carrier 
operates, a p etition  setting fo r th  briefly  the 
causes fo r  w hich  he claim s re lie f, and the 
ord er o f  the d iv is ion  o f  the A d ju stm en t 
B oa rd  in  the prem ises. Such suit in  the 

_______ D istr ict  C ourt o f  the U n ited  States shall

ruling declining jurisdiction, to require a refusal by the 
Board itself would merely serve to exhaust the period o f  
limitations in which a person wrould be able to sue in court.



51

p roceed  in  all respects as other civ il suits, 
except that on  the tr ia l o f  such suit the 
findings and ord er  o f  the d ivision  o f  the 
A d ju stm en t B o a rd  shall be p rim a  fa cie  
evidence o f  the fa cts  therein  stated, and 
except that the p etition er shall not be 
liable  f o r  costs in  the d istrict court n or  fo r  
costs at an y  subsequent stage o f  the p r o ­
ceedings, unless they  accrue upon  his ap ­
peal, and such costs shall be p a id  out o f  the 
a p p rop ria tion  fo r  the expenses o f  the 
courts o f  the U n ited  States. I f  the p eti­
tion er shall finally p reva il he shall he al­
low ed  a reasonable a ttorn ey ’s fee, to  be 
taxed  and collected  as a p a rt o f  the costs 
o f  the suit. T he d istrict courts are em pow ­
ered, under the ru les o f  the court govern ­
in g  actions at law , to m ake such order and 
enter such judgm en t, b y  w rit  o f  m andam us 
or otherw ise, as m ay he ap p rop ria te  to  en­
fo r ce  o r  set aside the order o f  the d ivision  
o f  the A d ju stm en t B oa rd .

The question m ay be separately considered in 
relation to tw o chronolog ica l p er iod s : (1 )  while 
the proceed in g  is p en d in g  b e fore  the A djustm ent 
B oard , and (2 )  a fter  the B oa rd  has m ade its de­
cision.

1. W hile the proceeding is pending before the 
Adjustm ent Board

Since this question is not raised  in  the present 
case, it is unnecessary to consider it  at length. W e  
think it clear, how ever, that w hen Congress p r o ­
vided that the parties m ight subm it unadjusted



52

disputes to the A d ju stm en t B oa rd , and that the 
A d ju stm en t B oa rd  m ight enter aw ards and orders, 
it d id  not in tend  that the proceed in gs b e fore  the 
B o a rd  cou ld  be set at naught b y  an independent 
a ction  seeking a determ ination  o f  the same ques­
tion  be fore  another tribunal.

Such' suits w ou ld  be based upon  contracts, and 
w ould  he actions in -personam. U n d er the rule 
govern ing  concurren t suits in personam  in  federal 
and state courts 59 tw o actions m ay p roceed  inde­
pendently , although a judgm en t in  either is res 
judicata  in  the other. K lin e  v. B urke Construc­
tion Co., 260 U . S. 226 ; P en n  General Casualty Co. 
v. Pennsylvania, 294 U . S. 189, 195 ; P rincess Lida  
v. Thompson, 305 U . S. 456, 466. The resu lt w ou ld  
be that i f  one p a rty  to a d ispute institu ted  p ro ­
ceedings be fore  the B o a rd  and the other p a rty  p re ­
fe rred  a d ifferent foru m , the latter cou ld  file a suit 
in  court. I f  the cases w ere so tim ed that ju d g ­
m ent was first rendered  in  the ju d ic ia l p roceed ing , 
the ju r isd iction  o f  the B oa rd  w ould  be lost, and 
the statu tory  m ach inery  m ade inoperative.60

39 The judicial proceedings would normally be brought 
in a state court, unless the requisites of federal jurisdiction 
were present. Such suits are not regarded as based upon 
the Railway Labor A ct or any federal statute. Malone v. 
Gardner, 62 F . (2d) 15 (C. C. A . 4) ; Burke v. Union Pacific 
R. Co., 129 F . (2d) 844 (C. C. A . 1 0 ) ; McDermott v. New 
York Central R. Co., 32 F . Supp. 873 (S. D. N. Y).

60 A  decision of the Board, however, would be res judicata 
in the courts only to the extent that the Board’s order could 
not be judicially reviewed; an order could, o f course, be set 
aside in an enforcement suit brought under Section 3,



53

Such unseem ly com petition  betw een ad jud ica ­
tory bodies, even i f  perm issible under the com m on 
law, is h ard ly  consistent w ith  the p u rpose  o f  Con­
gress, as expressed in  the R a ilw a y  L a bor A ct 
(Sec. 2 ) ,  “ to p rov id e  f o r  the p rom p t and orderly  
settlement o f  all d isputes grow in g  out o f  g r iev ­
ances or out o f  the in terpretation  or app lication  
o f agreem ents coverin g  rates o f  pay , rules, or  
w ork ing con d ition s.”  N or w ou ld  such a race fo r  
the tribunal deem ed m ost favorable  be conducive 
to harm onious labor relations. The decisions or 
awards in  such circum stances w ould  not be ac­
cepted as the ru lin g  o f  an im partia l, o r  bipartisan  
body, but as the un fortunate  consequence o f  being 
in the w ron g  court, o r  o f  bad  tim ing. I l l  w ill 
w ould alm ost inevitably be engendered. Thus, to 
construe the A ct as a llow ing resort to the courts 
while a case was be fore  the A d ju stm en t B oa rd  
m ight underm ine its p rim a ry  ob jective, the peace­
fu l and am icable settlem ent o f  labor disputes.

E ven  apart fro m  the R a ilw ay  L a b or  A c t  the 
general p o licy  o f  the courts not to  take action  
which w ill in terfere  w ith  proceedings pend ing be­
fore  adm inistrative agencies is pertinent. E . g. 
M yers v. Bethlehem  Shipbuilding Corp., 303 IJ. S. 
41. T o  perm it the b r in g in g  o f  an independent 
suit on  the same cause o f  action  w hile a case is 
pending be fore  the B oa rd  w ould  certa in ly  under-

First (p) .  Since the First Division of the Board is now 
years behind in its docket (see pp. 28-29, supra) , the judicial 
proceeding would probably be concluded first.



54

m ine its effectiveness as m uch as a d irect inter­
feren ce  w ith  its operations.

2. A fter the Board has made its decision

A fte r  the B oa rd  had m ade its decision , all fu r­
ther proceed ings, w hether by  w ay o f  enforcem ent 
suit or an independent action  on  the contract, 
w ou ld  take p lace in  the courts. There w ou ld  thus 
no lon ger be the p oss ib ility  o f  conflict between 
ju d ic ia l and adm inistrative tribunals. The ques­
tion  is w hether w hen Congress established a spe­
cial ju d ic ia l p rocedu re through  w hich  the B o a rd ’s 
orders m ight be en forced  or  set aside, it intended 
that the courts review  the orders in  other ways.

W e  believe that this question  should be answered 
in  the negative. There w ould, o f  course, be no 
doubt as to  this i f  the statute contained  express 
language m aking paragraph  (p )  the exclusive 
m ethod o f  ju d ic ia l en forcem ent or review . W hile  
the prob lem  is not that sim ple, the adequacy o f 
the sta tu tory  rem edy, the advantages it  was de­
signed to give the em ployees, and com parison  with 
the closely  parallel p rov is ion s o f  the Interstate 
C om m erce A c t  ind icate that paragrap h  ( p )  was 
p robab ly  designed as an exclusive review  p ro ­
cedure/11 This conclusion  is, to  some extent,

B1 As  we shall show, the statutory remedy is legally ade­
quate both for the carriers and for employees who invoke 
the services of the Adjustment Board, whether they win or 
lose. This might not be the case as to other employees who 
are adversely affected by a Board award and who are, or 
should be, parties to a proceeding before the Board. Nord



55

confirmed b y  the “ final and b in d in g ”  clause in  
Section 3, F irs t  (m ) ,  w hich  m ay be interpreted  
as requ iring that the B o a r d ’s orders (excep t fo r  
money aw ards) be final, except as otherwise p ro ­
vided in  the A c t  o r  requ ired  by  the Constitution. 
This is the p o in t ra ised  b y  this C ou rt ’s F ou rth  
Question, and  it  is considered  at greater length 
infra, pp . 70-95.

a. The adequacy o f  the remedy. O n its face, 
paragraph ( p )  p u rp orts  to  p rov id e  a rem edy 
only w here the aw ard  is in  fa v o r  o f  the em ployee 
and w here the carrier  does not com ply . B u t the 
failure o f  the statute to  p rov id e  expressly  fo r  
jud icia l review  at the instance o f  the carrier  does 
leave the rem edy inadequate. This w ill appear 
from  an analysis o f  the fo u r  situations in  which 
review m igh t be sou gh t: (1 )  the righ t o f  the em ­
ployee i f  he is successfu l b e fo re  the B o a rd ; (2 )  
the righ t o f  the ca rr ier  w hen it is successful be­
fore the B o a rd ; (3 )  the righ t o f  the em ployee

v. Griffin, 86 F . (2d) 481 (C . C. A . 7 ) , certiorari denied, 300 
U. S. 673; Estes v. Union Terminal Go., 89 F. (2d) 768 
(C. C. A . 5 ) ;  Brand v. Pennsylvania II. Go., 22 F. Supp. 
569 (E . D . P a . ) ; Stephenson v. New Orleans & N. E. R. Go., 
180 Miss. 147,177 So. 509 (1937). Such persons would have 
no right to judicial relief under paragraph (p) ,  nor would 
they be able, as is the carrier, to await a proceeding against 
them before complying with the award. I f  the carrier obeys 
the Board’s order, they would be remediless. Such persons 
have been held entitled to judicial relief by way of injunc­
tion in the cases cited, and nothing said in this brief is to be 
regarded as directed at their special problem. This Court 
is, of course, not called upon to determine the rights o f such 
persons in this case.



56

w ho has lost b e fore  the B o a r d ; and (4 )  the right 
o f  the ca rr ie r  w ho has lost b e fore  the B oard .

(1 )  I f  the em ployee w ins his case b e fore  the 
B oa rd , he m ay sue f o r  en forcem en t u n der para­
graph  ( p ) .

(2 )  I f  the carrier  w ins be fore  the B oa rd , it has 
no statu tory righ t to  sue. B u t it has the p ow er to 
put the B o a r d ’s decision  in to  e ffect w ithout the aid 
o f  any en forcem ent procedure. A lth ou gh  the A ct 
perm its carriers as w ell as em ployees to  b r in g  cases 
to the B oard , substantially all o f  the eases consist 
o f  claim s by  em ployees against the carriers, seek­
in g  either m on etary  aw ards o r  changes in  p rac­
tices a llegedly  requ ired  b y  the term s o f  the agree­
m ents. T h e cases are alm ost in variab ly  brought 
to the B o a rd  by  the em p lo y e e 62 and Congress 
understood  that this w ou ld  be so.63 A n  award 
in  fa v o r  o f  the carrier  w ou ld  deny the em­
p loy ees ’ claim , and the ca rr ier  cou ld  p u t the award 
in to effect itse lf s im p ly  by  not p ay in g  the am ount 
dem anded or otherw ise d o in g  w hat the em ployee 
requested.64 T here was accord in g ly  no need fo r

62 See Final Report of Attorney General's Committee on 
Administrative Procedure, p. 186.

63 Section 3, First (o) speaks of an order in favor o f “peti­
tioner” , directed to the carrier, and paragraph (p ) refers 
to the “petitioner” bringing suit against the carrier if the 
latter does not comply with the Board’s order. This sug­
gests that Congress assumed that the employee would nor­
mally be the petitioner before the Board. See Senate Hear­
ings, p. 33.

84 The A ct was prepared on the assumption that the em­
ployees would not strike against unfavorable awards. See



57

giving the ca rr ie r  a rem edy such as that m ade avail­
able to the em ployee in paragraph  (p ) .  This was 
pointed out to  the H ouse Com m ittee by  C oord i­
nator E a stm a n 65 and his assistant, M r. Carmalt."® 
M r. C arm alt stated that “ the carrier had the p ow er 
in its hands to en force  the aw ards o f  the B oa rd  as 
against the individual. ’ ’ 67

(3 )  A n  em ployee w ho has been denied re lie f by  
the B oa rd  w ou ld  appear to have no fu rth er 
rem edy. H e  certa in ly  has none under the A ct. T h e 
carrier can proceed  to m ake such an aw ard e f ­
fective  by  itse lf {su pra ). The em ployees ’ p osi­
tion  w ou ld  seem  to be the same as that o f  a 
sh ipper w ho has unsuccessfu lly  brought a cla im  f o r  
reparations b e fore  the In terstate Com m erce C om ­
m ission. I f  he loses he cannot have the order over­
turned in  cou rt.68 Th is results under the R a il­
w ay L a b or  A c t  fro m  the fa ct  that the em ­
ployee v o lu n ta rily  invoked  the services o f  the 
B oard , fo re g o in g  his alternative right to sue in 
court in  the first instance {M oore  v. Illinois Cen­
tral R . Co., 312 U . S. 630, see pp. 35-49, supra.69

House Hearings, pp. 63-64, 58-59 ; Senate Hearings, p. 35. 
This assumption has been justified. The strike threats re­
ferred to by petitioner were to compel the carriers to obey 
awards in favor of the employees.

65 See House Hearings, p. 61.
60 Id., at page 63.
67 Ibid.
68 See pp. 62-64, infra.
69 This reasoning of course would not apply if the Court 

should now overrule the Moore case and hold that the 
emploj^ees could not resort to the courts in the first instance.



58

O nce lie has m ade his e lection  to use the statutory 
m achinery, he cannot com pla in  that the rem edy 
is inadequate. C f. Baltim ore & Ohio B . Co. v. 
Brady, 288 U . S. 448, 457 -4 58 ; A ustin  v. South­
ern Pac. Co., 123 P . (2 d )  39 (C al. A p p . 1942).

(4 )  The p osition  o f  an unsuccessfu l carrier  
be fore  the B oa rd  is greatly  su p erior  to that o f  an 
unsuccessfu l em ployee. F o r  the B o a r d ’s aw ard 
is not se lf-en forc in g  against the carrier. Thus, 
the carrier  can re fu se  to  com p ly  until and unless 
a p roceed in g  is brought against it  under para ­
graph  ( p ) .  W h en  such a suit is brought, the 
aw ard is on ly  prim a facie  evidence o f  the facts  
stated, and the ca rr ier  can d e fen d  as in  an y  other 
civ il action. That such a proced u re  p rov id es  an 
adequate rem edy fo r  the losin g  party , consistent 
w ith  the Constitution , w ou ld  seem to fo llow  fro m  
the reparations cases under the In terstate C om ­
m erce A ct. M eeker & Co. v. Lehigh V alley R . Co., 
236 U . S. 412 ; Cook  v. D es M oines Union R y. Co., 
16 F . S upp . 810 (S . D . Io w a ).

The in ab ility  o f  the carrier  to b r in g  an inde­
pendent action  to set aside the aw ard  does not 
make this defensive rem edy inadequate. P r io r  
to  the passage o f  the d eclaratory  ju d gm en t acts,™ 
persons against w hom  claim s o f  breach  o f  con­
tract w ere m ade cou ld  n ot in itia te  actions to ob ­
tain an in terpretation  o f  the contract. A lthough

" T h e  Federal Declaratory Judgment A ct was passed on 
June 14,1934, a week before the Railway Labor A ct o f 1934. 
See 48 Stat. 955, 1185.



50

th is m ay have been inconvenient f o r  them, it  was 
never thought that this d isability, w hich  le ft  them  
w ith fu ll  p ow er to  assert their rights defensively  
in an action  brought against them , was uncon­
stitutional. T he R a ilw a y  L a bor A ct, enacted 
one w eek a fter  the D ecla ra tory  Judgm ent A ct, 
was d ra fted  and ap p roved  b y  the congressional 
com m ittees b e fore  the D eclaratory  Judgm ent A ct  
becam e law , and it  can hard ly  be said  to  have 
been  designed w ith  an  eye tow ard  procedu ra l 
rem edies w hich  w ere non-existent until the latter 
act was passed.

The petition er claim s that the statutory rem edy 
is inadequate because the em ployees have usually 
not brought suit under paragraph  ( p ) ,  but have 
threatened to  strike i f  the carrier d id  not com ply  
w ith  the aw ard. T h is has happened on eight oc­
casions (see p. 34, supra). The em ployees ’ p osi­
tion  is that since the carriers can en force  awards in  
their ow n fa v o r  w ithout the necessity o f  goin g to 
court, the em ployees should not be com pelled to 
go to the trouble o f  suing and engaging in  ex­
pensive and tim e-consum ing litiga tion  to obtain 
en forcem ent o f  aw ards w hen they have been suc­
cessful be fore  the B oard . (Ib id .)  W h ile  it  is d if ­
ficult on this p o in t to ju d ge  cases in  the abstract, it 
can be said that the ob ject and hope o f  the R ailw ay 
L abor A c t  w as to insure the p eacefu l settlement o f  
labor disputes, and the reason fo r  g iv in g  the em­
ployees the rem edy contained in  paragraph (p )

506724— 43------ 5



60

was to p rov id e  a m eans fo r  en forcem ent o f  awards 
w hich  w ould  m ake the use o f  econom ic pressure 
unnecessary.

B u t the fa ct  that such tactics m ay have been 
adopted  does not, in  our view , change the situation 
so as to g ive the carrier  an add ition a l ju d ic ia l 
rem edy. B e fo re  the R a ilw a y  L a b or  A c t  and the 
D ecla ra tory  Judgm en t A c t  w ere passed, the em ­
ployees cou ld  have en forced  their claim s under 
labor agreem ents either through  a law suit or by 
the threat to  use econom ic fo rce . T he ca rr ie rs ’ 
on ly  ju d ic ia l rem edy at that tim e w as defensive, a 
fa c t  w hich  obviously  d id  not deprive  them  o f  con ­
stitutional rights.

T he question then com es dow n to w hat Congress 
intended. The legislative h istory  indicates that 
Congress d id  not have in  m ind  the possib ility  that 
the enforcem ent suit under paragrap h  ( p )  w ould  
not be used by  the em ployees. S ince the em ploy­
m ent o f  a threat to  strike as a device to  en force  
A d ju stm en t B oa rd  aw ards w as h oped  to be avoided, 
it d id  not affect the understand ing o f  Congress that 
the statu tory rem edies w ere expected  to  be ade­
quate to  cover all situations and a ccord in g ly  w ere 
exclusive.

W e  believe it p robab ly  true, how ever, that in 
establishing an adequate rem edy to cover all situa­
tions Congress assumed that the rem edy w ould 
be used. W e  can do little  m ore than speculate as 
to  w hether Congress w ou ld  have intended the 
rem edy to  be exclusive i f  it had k now n  that the



61

labor organ izations w ould  refu se to  avail them ­
selves o f  it. T hat w ould  depend in  part on 
whether the ob ject o f  Congress w as to p rov ide  an 
adequate m eans o f  ju d ic ia l review  o f  the B o a rd ’s 
orders or an effective and legal m ethod o f  en­
forc in g  them  w hen disobeyed. The legislative 
h istory (in fra , pp . 75 -80 ) shows concern  on ly as to 
the latter. A ccord in g ly , despite the effect o f  the 
em ployees’ un foreseen  refu sa l to avail them selves 
o f the rem edy u p on  its p ractica l adequacy, we do 
not fee l free  to urge that, because o f  the m anner in  
which the A c t  has operated, it should be construed 
in a w ay  not intended by  the Congress.

P etition er  attacks the adequacy o f  the statu­
tory  rem edy on  the groun d  that the A d ju stm ent 
B oard  is n ot a ju d ic ia l or  quasi-jud icia l body  
and that its p rocedu re does n ot con form  to  the 
standards genera lly  recogn ized  as essential to 
due process. I t  m ay be conceded  that the B oa rd  
d iffers in  m any respects fro m  other adm inistra­
tive agencies or tribunals. See p. 23, supra. B u t 
as lon g  as the constitu tional rights o f  the car­
riers are safeguarded , this w ould  appear to be 
im m aterial. The carrier  has a legal right to dis­
regard a B o a rd  ord er until it has been affirmed 
by a cou rt in  an action  brought under paragraph 
(p ) .  The carrier  w ill be able to present its side 
o f the case adequately in a defense to such a p ro ­
ceeding. S ince an aw ard has no legal effect un­
til ju d ic ia lly  approved , the ca rr ie rs ’ constitu-



62

tional rights are protected  irrespective  o f  the nat- 
ture o f  the B o a rd  or its p rocedu re.71

F o r  the A ct , in  m ak in g  the B o a r d ’s awards 
prim a facie  evidence o f  the fa cts  stated, m erely 
sh ifts the burden  o f  p ro o f. M eeker & Co. v. Le­
high V alley R. Co., 236 IT. S. 412; Baldwin  v. 
Scott County M illing Co., 307 IT. S. 478, 482. 
Congress has the pow er to  sh ift  the burden, and 
certa h d y  m ay do so on  the basis o f  a prelim in ary 
determ ination  o f  facts , regardless o f  w hether such 
determ ination  w as based u p on  a com pletely  ju ­
d ic ia l proceed ing . N ickey  v. M ississippi, 292 IT. S. 
393 (ta x  assessm ent prim a facie  v a lid ) ; Pacific 
L ive  S tock  Co. v. O regon W a ter  Board, 241 U . S. 
440, 451-454 (e n g in e e r ’s rep ort prim a facie  evi­
d en ce ).

F rom  the above analysis we believe that the 
rem edy established b y  Congress was, and was in­
tended  to be, lega lly  adequate to  p rotect both  car­
riers  and em ployees in  all situations, once a case 
had been decided  b y  the A d ju stm en t B oa rd . The 
fa c t  that such a rem edy was established a ffords  sup­
p o rt  f o r  the b e lie f that Congress intended that

71 There is no indication in the statute that Congress in­
tended that the Adjustment Board not follow the procedural 
standards commonly accepted by other judicial agencies (see 
paragraphs ( i ) ,  ( j ) ,  and (m) of Section 3 ) , although the 
Board does lack the subpoena power granted to most admin­
istrative agencies. The Board has generally proceeded, 
however, on the assumption that its procedure was intended 
to be the same as that of the adjustment boards established 
by agreement before 1934. See pp. 23, et seq.



63

rem edy to be fo llow ed  once the statutory m achinery 
was invoked.

b. The analogy o f the In tersta te Commerce Act. 
This construction  o f  the A c t  is supported  by  the 
practice under S ection  16 (2 )  o f  the Interstate 
Com m erce A ct, w hich  Section  3, F irs t  ( p )  fo llow s 
almost in  haec verba. See p. 91, n. 99, infra. B oth  
statutes relate to  actions against carriers, in  the 
one instance by  sh ippers and in  the other by  
employees. N eith er gives the carrier any rem edy 
except b y  w ay o f  defense.

U nder S ection  16 (2 )  in  m any cases shippers 
have an e lection  w hether to proceed  b e fore  the 
courts o r  b e fore  the In terstate Com m erce Com ­
mission. B altim ore A  Ohio B. Co. v. Brady, 288 
U. S. 448, see p. 57, supra. B u t a fter a shipper 
has taken his case to the Com m ission, Section  
16 (2 )  has been held to p rov id e  the exclusive 
remedy. Ibid. I f  he loses be fore  the Com m is­
sion, he is rem ediless. Ib id .; B rady  v. In ter­
state Com m erce Commission, 43 F . (2 )  847 (N . D. 
W . V a .) ,  affirmed, sub nom. Brady  v. United  
States, 283 U . S. 804 ; In tersta te Commerce Com­
mission v. United States, 289 U . S. 385, 394; Stand­
ard Oil Co. v. United States, 283 U . S. 235, as 
interpreted in  R ochester Telephone Corp. v. United 
States, 307 U . S. 125, 140n. A n d  the rem edy pre­
scribed in  that section has been held to bar the 
carrier from  suing to en jo in  the enforcem ent o f  a 
reparations order. Pittsburgh  d? IF. V. B y. Co. v. 
United States, 6 F . (2 d )  646 (W . D . P a .)  ; Balti-



64

m ore &  Ohio R . Co. v. United States, 87 P . (2 d ) 
605, 606 (C . 0 . A . 3 ) .  A lth ou gh  the latter cases 
involved  suits fo r  in ju n ction s,72 w'e th ink  that the 
same p o licy  applies to actions fo r  d eclaratory  ju d g ­
m ents w hen a special statu tory rem edy is available.

M ore significant, perhaps, than these decisions 
was the genera l p ractice  and understanding that 
carriers cou ld  not sue to  set aside reparations 
orders. W h eth er  because no such action  was 
available to them  or  because they w ere satisfied 
w ith  the p rotection  a fford ed  them  as defendants in 
proceed in gs brought under S ection  16 ( 2 ) ,  they 
have not institu ted m an y such actions. W h a t­
ever the reason, Congress, w hich  m odeled  para­
grap h  (p )  o f  the R a ilw ay  L a bor A ct  on  Section 
16 (2 ) ,  m ay not unreasonably be deem ed to have 
in tended  it to have the same effect as an exclu­
sive rem edy once proceed ings had been instituted 
b e fo re  the adm in istrative body.

c. The advantages given the em ployees. T o  per­
m it a carrier  to  brin g  suit fo r  a declaration  as to 
the m eaning o f  a ra ilw ay labor contract, a fter  the 
A d ju stm en t B oa rd  has decided the identica l case 
against the carrier, w ou ld  d eprive  the em ployees 
o f  some o f  the advantages w hich  paragraph  (p )  
was designed to  give them. U n der that paragraph 
once an em ployee had convinced  the A djustm ent 
B oa rd  that his cla im  should be allowed, he was

72 The decisions turned in part on considerations appli­
cable only to cases under the Urgent Deficiencies Act.



65

given  the choice o f  venue, im m unity from  costs, and 
the righ t to a ttorn eys ’ fees, and in  addition  the 
aw ard becam e prim a facie  evidence o f  the facts 

.stated. I n  the absence o f  express statutory au­
thorization, the first th r e e 73 o f  these w ould  clearly 
not be available in  a suit brought b y  the carrier.74

I t  is no answ er to im pute tr iv ia lity  to these ad­
vantages b y  characterizing them  as m erely p ro ­
cedural. Congress intended the successful claim ­
ant be fore  the A d ju stm ent B oa rd  to have them, and 
they w ill be unavailable to h im  i f  he m ust defend  
his aw ard in  a suit brought by  the carrier. O n this 
point w e can add noth ing to the ably reasoned 
op in ion  o f  Justice  R utledge in  the court below  (R . 
334-339).

P etition er  argues that the em ployees m ay still 
secure these advantages i f  they sue w ith in  the tw o-

73 A  court of equity may allow costs “as between solicitor 
and client,” but only “ in exceptional cases.” Sprague v. 
,Ticonic National Bank, 307 U . S. 161, 167.

74 This would probably not be so as to the requirement that 
the Board’s award be prima facie evidence. I f  we assume 
that Congress did not intend paragraph (p) to provide an 
exclusive method of review, it would not have intended that 
■a Board award be given less weight in a suit by the carrier 
than in a suit by an employee. Accordingly any court 
which was called upon to review the Board’s decision, or to 
pass upon the same dispute after the Board had made its 
award, would be required to give the award at least the 
weight prescribed in a proceeding under paragraph (p).  
This conclusion can rest both upon what Congress would 
have intended under this particular statute and upon general 
principles of administrative law. Cf. Shields v. Utah Idaho 
Central R. Co., 305 U . S. 177.



66

y ea r  p er iod  allow ed, and that even i f  the ca rr ie r  
has p rev iou sly  institu ted its ow n independent suit, 
the em ployees w ou ld  not be foreclosed  fro m  b rin g ­
in g  a statu tory en forcem ent s u it ; that i f  they d id  
so the court in  w hich  the first suit was brought 
w ould  be requ ired  to stay its  hand until the second 
case had been term inated. B u t the result w ou ld  be' 
that the em ployees w ou ld  still, to  som e extent, have 
to defen d  a separate suit brought by  the carrier, in 
w hich  the statu tory  advantages w ould  not be avail­
able to  them . F u rtherm ore, it is h igh ly  specu­
lative, in  v iew  o f  the vagaries o f  court calendars 
and the range o f  d iscretion  open  to fed era l and 
state tr ia l court judges, w hether once the carrier 
had brought its suit, the situation  w ould  invariably  
be ad justed  so as to  p rotect the em ployee in  the 
m anner suggested.75

TH E  SECOND QUESTION

W H E T H E R  T H E  BOARD M A Y  M A K E  A N  A W A R D  E X  PARTE 

IE  ONE P A R T Y  TO T H E  DISPU TE DOES NOT APPEAR BE­
FORE T H E  BOARD, AN D  IP  SO T H E  EFFECT GIVEN BY 
T H E  STATU TE TO SU C H  A N  AW A RD

T he C ourt has asked our v iew  as to  w hether the- 
B o a rd  m ay m ake an aw ard ex parte  i f  one p a rty  to 
the dispute does not appear be fore  the B oa rd , and 
i f  so the effect g iven  by  the statute to  such an 
award.

Inasm uch as the A c t  requires the B oa rd  to give 
n otice  to  the parties involved  in  a dispute (S ec. 3,

75 See pp. 28-29, supra.



67

F irst ( j ) ) ,  there can be no ex parte  aw ard in  the 
sense that the adverse p a rty  is not notified and 
given an op p ortu n ity  to be present. A ccord in gly , 
we assume that the C ou rt ’s question relates to a 
case in  w hich  the responding party  is notified but 
does not appear.

W e  th ink  that i f  a p a rty  does not appear a fter  
notice is received, the B oa rd  m ay m ake an aw ard 
against h im ,76 and that such an aw ard shall have 
the same effect as i f  he had appeared.77 The A ct 
provides that disputes m ay be re ferred  to  the B oa rd  
“ by  either p a r ty ”  (pa ra grap h  ( i ) ) .  The B oa rd  
is to give notice  to all parties, and is em pow ered 
after hearing to  enter its award. There is no re­
striction  upon  the effect o f  these general provisions 
in case one p a rty  does not appear, and we think 
that no such lim itation  can possibly  be im plied.

The statu tory  provisions do not d iffer  substan­
tially fro m  those relating  to other ju d icia l or 
quasi-jud icia l agencies, and we think it p rop er  
to assume that the B oa rd  w ould  have the pow er, 
unquestionably possessed by  other bodies, to ren ­
der a decision  although one party  fa ils  to appear. 
To hold  that the B o a r d ’s proceedings could be 
ham strung or rendered less effective by  the fa ilu re

76 Whether such an award could be entered by default, 
without any consideration of the merits of the case presented 
by the petitioning party, would presumably depend upon the 
rules o f the Board.

77 Since this is so, we do not think the responding party’s 
■appearance may properly be regarded as voluntary.



68

o f  a p a rty  to  p articip a te  in  its p roceed in gs w ould  
enable the d efen d in g  p a rty  to  n u llify  the statu­
to ry  scheme.

TH E T H IR D  QUESTION

t h e  e f f e c t  o f  t h e  e x p i r a t i o n  o f  t h e  t w o - y e a r

PERIOD SPECIFIED B Y  SECTION 3 , FIRST (Q ) UPON  TH E
r i g h t  o f  e i t h e r  p a r t y  t o  t h e  d i s p u t e  t o  o b t a i n

a  d e t e r m i n a t i o n  o f  i t  i n  t h e  c o u r t s

I f  either p a rty  m ay obtain  an independent 
determ ination  o f  a d ispute in  the courts im m e­
diately  a fter  and not w ithstanding the B o a rd  has 
entered its aw ard, apart fro m  the proced u re  p re­
scribed in the A ct, he or it can unquestionably still 
do so a fter  the exp ira tion  o f  the tw o-year p eriod  
specified in  paragraph  (q )  fo r  su ing on  B oa rd  
aw ards.78 The on ly  question w hich  need be con ­
sidered  here is w hether the same result fo llow s 
i f  it should be held that, i f  the dispute has gone 
to the B oa rd , a p arty  m ay not sue (ex cep t in  the 
m anner specified in  paragraph  ( p ) )  during the 
tw o-year p eriod .70 The court below  le ft  that ques­
tion  open, treating the case as one begun before  the 
exp iration  o f  the two years. The tw o years ex-

78The paragraph reads as follow s: “A ll actions at law  
based upon the provisions of this section shall be begun 
within two years from the time the cause of action accrues 
under the award of the division of the Adjustment Board, 
and not after.”

70 W e assume in the following discussion that no other 
statute o f limitations stands as a bar to the suit in a par­
ticular case. Such statutes would presumably govern if the 
limitation in paragraph (q) did not apply.



69

pired, how ever, w hile the case was under consider­
ation by  the C ourt o f  A ppea ls .80

A n  em ployee who has prevailed  be fore  the B oa rd  
can no longer bring the action described in  para­
graph ( p )  a fter  tw o years have elapsed from  the 
time the B o a r d ’s aw ard becam e effective (R . 3 47 ). 
W e  th ink  that Congress w ould  not have intended 
him  to be able to sue on  the contract, independently  
o f  the award, a fter  that period . This result can 
be supported  on  the ground that his origina l cause 
o f  action  on the contract was m erged in  the award. 
W hatever the theory, we think that a hold ing that 
all actions by  em ployees are barred a fter the two 
years is m ost consistent w ith  the p o licy  o f  lim ita­
tion  contained in  paragrap h  (q ) .

I f ,  as we are assum ing arguendo, the carrier has 
no right to institute a suit during the tw o-year 
period, it does not seem reasonable to hold  that its 
cause o f  action, w hich  vanished when the case was 
first subm itted to the A d ju stm ent B oard , revived 
at the exp ira tion  o f  the tw o years, the exact m om ent 
when the em p loyee ’s claim  becam e unenforceable 
in court. I t  is m ore reasonable to conclude that 
the B o a r d ’s aw ard, and the claim  upon  w hich it 
was ba,sed, becom e dead i f  not obeyed w ithin 
two years and i f  no en forcem ent suit has been 
brought w ith in  that tim e. The carrier w ould then

80 The Adjustment Board’s award was made October 24, 
1938 (R. 4 ). The case was argued before the Court of A p ­
peals on April 18, 1940 (R. 330). The case was decided by 
the Court of Appeals on November 18, 1941 (R . 331).



70

be under no legal ob ligation  to com ply  w ith  the 
aw ard, and there w ou ld  be no substantial basis 
fo r  a llow ing it to m ain ta in  an action  in volv in g  
the question raised. Indeed , a fter  the em ployee 
had lost his righ t to en force  his claim , there m ight 
no longer be even a case or con troversy  in  the con ­
stitutional sen se ; there w ould  m erely  be a d ifference 
o f  op in ion  betw een the parties as to  how  the 
contract should be in terpreted .81

F o r  these reasons w e are o f  the op in ion  that 
i f  the subm ission  o f  a case to  the A d ju stm en t 
B o a rd  should  be held  to  d eprive  a ca rr ier  o f  the 
righ t to  b r in g  a separate ju d ic ia l p roceed in g , the 
d isab ility  should not be lim ited  to the tw o-year 
period , but should be regarded  as perm anent.

TH E  FO U RTH  QUESTION

T H E  EFFECT OF T H E  W ORDS “ F IN A L  AND B IN D IN G ”  IN  

SECTION 3 , FIRST ( M )  U PO N  T H E  R IG H T  TO RESORT 

TO T H E  COURTS AND U PO N  T H E  SCOPE OF JU D IC IA L 

RE V IE W , (A )  DURING T H E  T W O -Y E A R  PERIOD, AND 

(B ) AFTER EX PIR A T IO N  OF T H E  T W O -Y E A R  PE R IO D 82

S ection  3, F ir s t  (m )  o f  the R a ilw a y  L a b or  A ct 
states that the aw ards o f  the A d ju stm en t B oa rd

81 To the extent that new claims could arise based upon a 
continuation o f the same conduct, the question would not be 
academic. New proceedings could presumably be based upon 
acts occurring after, or differing from, those which were 
the basis of the claim before the Adiustment Board.

82 For reasons set forth in answer to the third question 
(supra, pp. 67 -69 ), we think the right to resort to the 
courts outside of paragraph' (p) and the scope of judicial 
review do not change at the expiration of the two-year



71

shall be “  final and b in d in g  u p on  both  parties to 
the dispute, except in  so fa r  as they shall contain 
a m oney a w ard .”  P a ra g ra p h  ( p ) ,  w hich  is not 
lim ited to  m oney aw ards,83 specifies the only 
statutory m eans o f  en forcin g  such awards, and 
declares that in  such cases the ord er o f  the B oa rd  
shall be “ p rim a  fa c ie  ev iden ce”  o f  the facts 
stated. These tw o paragraphs contain  appar­
ently inconsistent provisions as to the m anner in 
which the B o a r d ’s aw ards shall be treated. The 
language o f  paragrap h  ( p )  m akes it clear that 
the prim a facie  evidence rule governs suits 
brought to  en force  awards. The question is what 
effect, i f  any, can be g iven  to  the clause in  p ara ­
graph ( m ) . T o  the extent that the clause makes 
an aw ard conclusive, it strengthens the position  
taken in  answ er to  the co u r t ’s F irst Q uestion that 
no extra -sta tu tory  m ethod  o f  review ing the 
B o a rd ’s orders is available.

A . LEGISLATIVE HISTORY

Since the language o f  the A ct  is itself responsible 
fo r  doubt as to  w hat was m eant, we turn to other 
indicia o f  legislative intention. N either the com ­
mittee reports  n or the congressional debates, how­
ever, deal w ith  this issue. Som e idea as to  what

period. Accordingly, the views set forth in this section are 
equally applicable to the period before and after the expi­
ration of two years from the Board’s award.

83 In  this respect paragraph (p) differs from Section 16 
(2) of the Interstate Commerce Act, which applies only to 
orders “ for the payment of money.” See p. 91, infra.



72

Congress intended m ay be gleaned fro m  an exam i­
nation  o f  the h istorica l background  o f  paragrap h  
( m ) ,  and also fro m  the references to  it in  the legis­
lative hearings on  the 1934 A ct.

1. H istorical background .— The w ords “ final 
and  b in d in g ”  in  paragraph  (m )  w ere taken fro m  
Section  3 o f  the 1926 R a ilw a y  L abor A c t .84 That 
section  (44  Stat. 577, 579) p rov id ed  that boards o f  
ad ju stm en t should be created b y  agreem ent o f  the 
parties, and that the agreem ent should, in ter alia, 
contain  a stipu lation  that “ decisions o f  ad ju st­
m ent boards shall be final and binding on  both  
parties to  the d isp u te ; and it shall be the duty  o f  
both  to abide b y  such decisions * * (S e c ­
tion  3 ( e ) ) .  (I ta lics  su p p lied ). T h e quoted  pas­
sage w ou ld  seem  in  turn  to have been taken 
fro m  the agreem ents betw een the carriers and 
tra in  service em ployees f o r  the Southeastern, 
E astern  and W estern  R egions, adopted  in  1921, 
establish ing regiona l adjustm ent boards.85 The 
thirteenth paragrap h  o f  each o f  these agreem ents 
p rov id ed  th a t :

13. A ll decisions o f  the B oa rd  shall be 
ap p roved  b y  a m a jo r ity  vote o f  the fu ll 
m em bership o f  the B oa rd , and shall be 
final and binding upon  the parties to the 
dispute. [Ita lics  supplied .]

84 Mr. Eastman so testified before the House Committee. 
House Hearings, p. 58.

85 These agreements are quoted in the Appendix to the 
Compilation, pages 39, 43, and 50.



73

S im ilar language has been included  in  the arb i­
tra tion  p rov is ion s o f  ra ilw ay labor legislation  fo r  
a num ber o f  years. Section  8 ( l)  o f  the 1926 A ct 
(44 Stat. 577, 585, 45 t l .  S. C. § 1 5 8 (1 ) ) ,  which 
rem ained unchanged  in  1934, declared that agree­
m ents to  arbitrate

Shall p rov id e  that the award, when so filed 
[in  a U n ited  States D istrict C ou rt], shall 
be and conclusive upon  the parties as to 
the facts  determ ined by  said aw ard and as 
to  the m erits o f  the controversy decided ; 
[Ita lics  supplied .]

T itle  3 o f  the T ran sportation  A ct o f  1920 (c. 91, 
41 Stat. 469) contained  no arbitration  section. Its  
predecessor, the N ew  lands A ct  o f  J u ly  15, 1913 
(38  Stat. 103, 105) prov ided , how ever, f o r  the 
settlem ent o f  controversies by  agreem ents to arbi­
trate. S ection  4 o f  that A ct  stated that “ the
agreem ent to  arbitrate—

*  *  *  *  *

Eleventh. Shall p rov id e  that the award 
and the papers and proceedings, including 
the testim ony relating  thereto, certified un­
der the hands o f  the arbitrators, and which 
shall have the fo rce  and effect o f  a b ill o f  
exceptions, shall be filed in  the c le rk ’s office 
o f  the d istrict court o f  the U nited  States 
f o r  the d istrict w herein  the controversy 
arises or  the arbitration  is entered into, 
and shall be final and conclusive upon  the 
parties to the agreem ent unless set aside 
fo r  error  o f  law  apparent on the record ; 
[Ita lics  supplied .]



74

A  substantially iden tica l paragrap h  w as contained 
in  S ection  3, Second, o f  the E rd m an  A ct  o f  June 
1, 1898 (30  Stat. 424, 4 2 5 ).86

A ll  o f  these prov isions, the language o f  w hich  
is sim ilar to that contained  in  paragrap h  (m )  o f  
the present A ct, d iffer  fro m  it in  one fu n d a ­
m ental respect. In  every  ease the tribunal w hich  
was to render “ final and b in d in g ,”  or “ final and 
conclusive ,”  aw ards was to be established b y  the 
agreem ent o f  the parties. The statutes m erely  
declared  that such agreem ents, i f  m ade, should 
contain  such clauses. B u t the finality o f  the 
aw ards was u ltim ately  dependent u p on  the con ­
sent o f  the parties, not upon  a statu tory  m andate. 
Questions as to  the effect o f  the aw ards w ould  
thus be determ ined  in  accordance w ith  the p r in ­
ciples o f  the law  o f  contracts or o f  volu ntary  
arbitration .

I t  is, o f  course, to be noted that the “ final and 
b in d in g ”  clause does not ap p ly  to m oney awards, 
w hich  constitute m uch the largest p rop ortion  o f  
the decisions rendered  by  the A d ju stm en t B oa rd .87

80 These provisions were applied in Georgia <& F. Ry. Co. 
v. Brotherhood of Locomotive Engineers, 217 Fed. 755' 
(C . C. A . 5), and In re Southern Paoifta Co., 155 Fed. 1001 
(C. C. N . D . C a l.). In  these cases the court’s power to over­
turn awards was regarded as the same as in common law 
arbitration.

87 The Secretary of the First Division has advised the 
Solicitor General that the 789 sustained awards rendered 
by that Division during the year 1942 fell in the following; 
classes: (1) money awards 517; (2) mixed awards 221; (3 )  
non-money awards 51.



75

M oney aw ards w ere presum ably treated d iffer­
ently because o f  a b e lie f that the Constitution 
required a tria l b y  ju r y  to be available in  such 
cases.

2. The legislative hearings. The legislative 
hearings show  that the draftsm en  o f  the 1934 A ct 
unquestionably obtained the “ final and b in d in g ”  
clause in  p aragrap h  (m ) from  the provisions in 
the earlier statutes fo r  the inclusion  o f  such a 
requirem ent in  adjustm ent and arbitration  agree­
ments. M r. E astm an stated, in  reference to  p ara ­
graph (m )  (H ou se  H earings, p. 58) :

That is the same language which, as I  
recall it, is in  the present act w ith  re fe r ­
ence to  decisions o f  boards o f  adjustm ent 
on  grievances. The present act also p ro ­
vides that i f  the parties agree to arbitration  
o f  a m a jor  issue, then the decision o f  the 
board  o f  arb itration  shall be final and con­
clusive.

H ow , the on ly  d ifference here is that 
there is p rov is ion  fo r  preventing deadlocks 
on  an adjustm ent board  by  the appoin t­
m ent o f  a neutral member.

In  answer to  questions as to the right o f  em­
ployees to strike i f  an aw ard w ent against them, 
M r. Eastm an declared {id., p. 59) : 88

In  m y answ er to  you  I  said there was 
noth ing in  the act w hich  prov ided  fo r  the

88 The question as to the right to enjoin a strike by em­
ployees was seemingly left up in the air. Mr. Eastman’s 
legal adviser, M r. Carmalt, thought it arguable that such a

506724— 43 6



7 6

en forcem ent o f  those p articu lar  decisions. 
That answ er w ou ld  n ot ap p ly  to  decisions 
o f  the adjustm ent board , and they are m ade 
final and b in d in g  b y  the term s o f  this act, 
and as I  understand it, the la b or  organ iza ­
tions, none o f  them, are ob jectin g  to that 
prov ision . T h ey  have their day  in  court 
and they have their m em bers on  the ad ju st­
m ent board, and i f  an agreem ent cannot be 
reached betw een the parties representing 
both  sides on  the ad justm ent board , a neu­
tra l m an steps in  and renders the decision, 
and they w ill he requ ired  to  accept that 
decision  w hen m ade, w ith  respect to these 
m in or  m atters. * * *

The co lloqu y  on  this su b ject continued  (H ou se  
H earin gs, pp . 6 0 -6 1 ) :

M r. C o o per . D o I  understand this para ­
graph  then on  page 17, in  w hich  it says, 
“ the aw ards shall be final and b in d in g  upon  
both  parties to  d isp u tes” , w ou ld  that p re -

strike might be enjoined under the law (House Hearings, 
pp. 62-63). M r. Eastman thought the contingency would 
not arise, since he could not “conceive o f organizations 
striking over the settlement of grievances, particularly when 
they had been passed upon by an impartial tribunal under 
Government auspices.” H is idea was to find out from ex­
perience whether such a provision was necessary before 
including it in the law (pp. 62 -64). Congressman W olver- 
ton stated, however, that although that might be true, he was 
seeking to find out “whether this language declares some­
thing else to be the policy” (p. 64). Mr. Eastman then 
agreed to study the matter and give the Committee his 
opinion on it, but so far as we know, nothing further was 
done.



77

vent a ra ilroad  em ployee or an organiza­
tion  fro m  strik ing, i f  they saw fit?  W ou ld  
it  be a v io la tion  o f  the law  i f  they d id  that?

M r. P ettengiix. C ould  an in ju n ction  is­
sue to  prevent them  fro m  d o in g  it ?

C om m issioner Eastman. I  cannot tell 
y ou  w hat the legal procedures w ould  be in  
en forcin g  the award, where it is against the 
em ployee. P a ra grap h  (p )  covers the case 
w here a carrier  does not com ply  w ith  the 
ord er  o f  the adjustm ent board.

M r. Cooper. W o u ld  it ap p ly  to either 
ca rrier  a n d /o r  em ployees? N ow , i f  we go 
that fa r  are we not w ritin g  som ething new 
into the law  o f  the land to deprive the 
em ployees o f  rights w hich they already 
h a d ?

C om m issioner Eastman. W ell, as I  say, 
you  have exactly  sim ilar provisions in  the 
present labor act w ith  respect to decisions 
b y  ad justm ent boards and w here they agree 
to arbitration , and this law  is in  effect an 
agreem ent on  the part o f  the parties to 
arbitrate all o f  these m inor disputes.

The Ch airm an . W a s that, not one o f the 
reasons, to try  to  keep dow n strikes to  get 
peop le  togeth er?

C om m issioner E astman. Y es. I t  is a very  
im portan t p a rt o f  it. The w illingness o f  the 
em ployees to agree to  a prov is ion  o f  that 
sort seem ed to  m e to be a very  im portant 
and pra isew orthy thing.

M r. Cooper. W ell, I  fu lly  approve o f  that 
m ethod, M r. Com m issioner, and I  say that 
i f  they are go in g  into these boards and are



78

w illin g  to go  in  there, w hy p robab ly  they  
ought to abide b y  the find ing o f  the h o a rd ; 
but I  do not know  w hether I  w ou ld  w ant 
to  go so fa r  as to say that i f  they do n ot 
agree to  it that it  w ou ld  be a v io la tion  o f  
law.

M r. W olverton. D oes this act in  any w ay, 
M r. E astm an, p rov id e  that it  w ill be a v io ­
la tion  o f  law  i f  they do not com ply  w ith  the 
decree and the order that is m ade?

C om m issioner E astman. I t  says that the 
aw ard  shall be final and b inding.

M r. W olverton. D oes this b ill attem pt in  
any w ay to  en force  that p ro v is io n ; and i f  
so, is it  con trary  to p u b lic  p o licy  to  pu t such 
a p rov is ion  in  the bill ?

C om m issioner Eastman. P a g e  19, line 19 
[the last sentence o f  paragraph  ( p ) ] ,  it 
says:

The d istrict courts are em pow ered, u n d er 
the rules o f  the court govern in g  actions at 
law, to  m ake such order and enter such 
judgm ent, b y  w rit o f  m andam us or other­
w ise, as m ay be ap p rop ria te  to  en force  o r  
set aside the ord er  o f  the d iv is ion  o f  the 
ad justm ent board.

Chairm an W in s low  o f  the fo rm e r  B o a rd  o f  
M ediation , subsequently stated w ith  referen ce  to 
the “ final and b in d in g ”  clause (H ou se  H earings, 
p. 72) :

* * * The b ill requires “ final and b ind ­
in g ”  m ay ap p ly  to all decisions o f  an ad­
justm ent board , and that seems easy, but it 
is not. In  the early  days o f  our w ork , w ith



79

all good  intent, we thought that i f  disputes 
w ent through  an adjustm ent board  and were 
decided, that was the end o f  it f o r  us, and 
fo r  everybody else, b y  law. * * *

H is  experience proved , how ever, that though the 
parties agreed that the decisions w ere “ final and 
b in d in g ,”  they disagreed as to how  they should 
be applied , and that in  such cases m ediation  be­
cam e necessary. Thus, “ in  spite o f  the p ro v i­
sion ‘ final and b in d in g ’ there is considerable 
trouble a r is in g ”  (p . 73 ).

G eorge M . H arrison , testify in g  on behalf o f  the 
R a ilw ay  L a bor E xecutives A ssociation , stated his 
views on  the sub ject as fo llow s (H ou se H earings,
p. 82) :

W h en  that decision  is m ade, the law  w ill 
p rov id e  that it shall be final and b inding 
on  the parties and enforceable in  the 
courts, in  substantially the same m anner 
as the present law  provides fo r  the en­
forcem en t o f  arb itration  awards, the ex­
tent that the cou rt m ay go in  issuing a 
m andatory  process to com pel observance 
o f  the decision  on the grievance basis.

H e then described the situation  under the p ro v i­
sions o f  the 1926 A ct  as fo llow s (H ouse 
H earings, pp . 88 -89 ) :

* * * N ow , under the present law  we
have agreem ents, set up  local m achinery, 
w hich  m ay be considered  com parable to 
w hat this w ill p rov id e , to be established 
i f  they w ant to establish i t ;  but in the



80

agreem ents establishing the vo lu n tary  m a­
ch inery, there shall he a p rov is ion  to  m ake 
final and b in d in g  and conclusive on  the 
parties the decisions m ade b y  such m a­
ch in ery  and the parties shall in  good  fa ith  
abide b y  such decisions. I  know — m y op in ­
ion  is, regardless o f  a specific p rov is ion  
in  the law , that i f  you  had a con tract m ade 
b y  true and lega l representatives set up 
b y  such volu n tary  m achinery, you  cou ld  
go in to cou rt and en force  the term s o f  that 
contract. I  am  not an attorney, but I  base 
that on  experience that w e have had, be­
cause som e o f  these loca l boards have m ade 
decisions and m anagem ents have refu sed  
to  respect them , and w hen cou rt action  was 
threatened, w e gen era lly  got the term s o f  
the con tract obeyed.

B e fo re  the Senate Com m ittee, M r. H a rrison  had
stated (S en ate  H earings, p. 32) :

Then we p rov ided , in  ord er to  overcom e 
our past experience, that the decision  when 
m ade b y  the ad justm ent board  shall he en­
forceab le. W e  have had several instances 
where, even though the law  prov id es  that 
the agreem ent setting up  the board  shall 
p rov id e  fo r  the acceptance o f  the decision  
by  the parties, that the decisions haven ’t 
been obeyed.

[p. 34.] The Chairman. A re  the deci­
sions en forceable in  the courts ju st the 
same as the nationa l-board  d ecision s?

M r. H arrison. W e  d o n ’t p rov id e  fo r  
that, but it is ou r in tention  and our p u r-



81

pose  that such system  boards, group  boards,, 
o r  regiona l boards that are established by  
the parties, by  agreem ent, w ill p rov ide  such 
term s that the decisions can be en forced  in  
the courts. The fa c t  o f  the m atter is  the 
present law  provides fo r  that. I t  provides 
that decisions shall be final and b ind ing and 
conclusive on  the parties, and I  think that 
k in d  o f  decisions can be en forced .

H e em phasized the fa c t  that under an agreem ent 
to settle disputes, the aw ard w ould voluntarily  be 
lived  u p  to  by  the labor organizations (H ou se 
H earings, p . 8 9 ).

These statem ents o f  op in ion  before  the congres­
sional com m ittees show  that the witnesses expected 
the aw ards o f  the A d ju stm en t B oa rd  to have the 
same effect as those o f  the earlier adjustm ent and 
arbitration  boards, and that such awards have 
usually been obeyed voluntarily . T hey also in d i­
cate that a m ethod o f  en forcem ent against the car­
rier was considered  desirable in case o f  fa ilu re  to  
com ply , but was not thought necessary against the  
em ployees since the carrier  cou ld  itself put the 
award into effect. See pp . 55-56, supra.

P a ra gra p h  ( p ) ,  w hich  contains the enforcem ent 
device adopted, was regarded  as strengthening the 
aw ard rather than the contrary. N o one re ferred  
to the prim a facie  evidence prov is ion  in  that para­
graph, o r  conceived  o f  the possib ility  o f  conflict 
between that p rov is ion  and the “ final and b in d in g”  
clause in  paragrap h  (m ) .  N or  d id  anyone advert



to  the fa c t  that m ost o f  the B o a r d ’s decisions w ould  
be m oney aw ards to w hich  the A c t  d id  not g ive  final 
and b in d in g  effect.

B. TH E  M E A N IN G  TO BE GIVEN T H E  “ F IN A L  AND B IN D IN G”  CLAUSE

I t  is apparent fro m  the above that neither C on­
gress n or the persons w ho expla ined  the A c t  to 
its com m ittees w ere conscious o f  the possible in con ­
sistency betw een the “ final and b in d in g ”  clause in  
p aragrap h  (m ) ,  derived  fro m  earlier adjustm ent 
and arbitration  statutes, and the prim a facie  evi­
dence ride in  paragraph  ( p )  taken from  the In ter ­
state C om m erce A ct. In  the absence o f  any actual 
legislative in tention  as to  how  the prov is ion s w ere 
to be reconciled , w e must, in  accordance w ith  
fam iliar  rules o f  statu tory construction , search fo r  
an in terpretation  o f  the law  w hich  w ill g ive each 
paragraph  m eaning and leave S ection  3, as a whole, 
harm onious and consistent.

C onceivably  the “ final and b in d in g ”  clause m ight 
be in terpreted  as (1 )  forec los in g  all review  o f  non- 
m oney aw ards, except as p rov id ed  in  paragraph  
(p )  or requ ired  b y  the C on stitu tion ; (2 )  g iv ing  
such aw ards the same effect as an arbitration  
award, to the extent lega lly  perm iss ib le ; (3 )  ex­
p ressin g  a desire that the parties abide b y  the 
aw ards, but w ith  p aragrap h  ( p )  con tro llin g  as to 
the scope o f  review  and the procedure to be fo l ­
low ed ; or  (4 )  m aking non-m oney aw ards subject 
on ly  to  the final and b in d in g  clause and m oney



83

awards alone sub ject to the prim a facie  evidence 
rule contained in  paragraph  (p ) .

1. The “ final and b in d in g ”  clause in  paragraph  
(n i)  m igh t be deem ed to require that an aw ard 
(excep t f o r  a m oney aw ard ) be treated as con ­
clusive, except as otherwise specifically indicated 
in the A ct  o r  as lim ited  b y  constitutional consider­
ations. Th is v iew  w ou ld  appear to be m ost con ­
sistent w ith  the strong language used. The clause 
w ould  not be conclusive, o f  course, in  an en force ­
m ent suit brought by  an em ployee under para­
graph ( p ) ,  since in  that case the A ct  specifically 
requires that it  be treated  on ly  as prim a facie  
evidence.

B u t the “ final and b in d in g ”  clause m ight be held 
to bar all other m ethods o f  attacking non-m oney 
awards, to the extent lega lly  perm issible. Th is 
w ould  m ean that neither the em ployees n or the 
carriers cou ld  seek review  o f  awards in cases de­
cided against them  or otherwise collaterally im ­
peach an aw ard. This result w ould  be constitu­
tional as to the carrier  i f  the Court regards the 
right o f  the carrier  to defend  its position  in an 
enforcem ent action  under paragraph  (p )  as a 
legally adequate rem edy (see pp. 57-62, supra). I t  
w ould be va lid  as to the em ployee i f  the decision  
in  the M oore  case is not restricted  or overruled, 
and i f  he has an election  between suing in court or 
proceed ing be fore  the B oard . H e cannot com plain 
o f  the inadequacy o f  a rem edy he has voluntarily  
chosen. A n d  even i f  he has no such choice it



84

w ou ld  p robab ly  be va lid  as to  an em ployee w ho 
has invoked  the B o a rd ’s services. The position  o f  
such an em ployee is analogous to  that o f  a sh ipper 
w ho can place h is cla im  fo r  reparations only be­
fo re  the In terstate C om m erce Com m ission. I f  
such a sh ipper takes his case to  the C om m ission  
and is denied  re lie f, he has no available avenue o f  
ju d ic ia l review .89 Th is result has been based in 

part on  the d iscred ited  “ negative o rd e r ”  doctrine, 
and in  p a rt on  the “ statu tory scheme dealing w ith  
reparations. ’ ’ 90 W h a tev er  the theory, it has never 
been thought to  deprive the sh ipper o f  constitu ­
tional righ ts.91

I f  a p roceed in g  w ere brought against an em ­
p loyee ,92 these p rin cip les  m ight not app ly . Such 
an  em ployee w ou ld  n ot have invoked  the B o a rd ’s 
services. N o r  w ou ld  he be able to  avoid  com pli-

89 See pp. 62-63, supra.
90 Rochester Telephone Gorp. v. United States, 307 U . S. 

125, 140n.
91 I f  the right of shippers to judicial review had rested on 

the Constitution, the negative order cases would have been in 
violation of the Constitution. This was not suggested in the 
Rochester Telephone case.

92 Although it is rarely, if ever, done, the carriers have 
equal power with the employees to bring cases before the 
Board. Sec. 3, First ( i ) . A n  employee might also be before 
the Board as a third party respondent in cases brought by 
other employees against a carrier. E . g., Nord v. Griffin, 
86 F . (2d) 481 (C . C. A . 7 ) , certiorari denied, 300 U . S. 673. 
Seniority disputes often find employees, or groups of em­
ployees, on the side o f the carrier. Ibid; Estes v. Union 
Terminal Go., 89 F . (2d) 768 (C . C. A . 5) ; Stephenson v. 
New Orleans & N. E. R. Go., 180 Miss. 147,177 So. 509 (1937).



85

ance w ith  the B o a r d ’s order until an enforcem ent 
suit was instituted against h im  and thus assert his 
p osition  d e fen sive ly ; the carrier m ight m ake the 
aw ard effective im m ediately.

W h erev er  the rem edy was legally  inadequate, a 
person  w ou ld  presum ably be entitled to brin g  an 
appropria te  independent action  attacking the 
aw ard o f  the B oard . C f. Anniston M fg. Co. v. 
Davis, 301 IT. S. 337. In  such an action, the 
B o a rd ’s aw ard w ould  be “ final and b in d in g ”  to 
the extent that Congress could make it so. In  
other w ords, the scope o f  ju d ic ia l review  w ould be 
the m inim um  requ ired  by  the Constitution. A l ­
though it  is unnecessary to determ ine in  this case 
ju st w hat those lim its are, we assume that the 
court w ould  at least have pow er to determ ine ques­
tions o f  law, such as w hether there had been com ­
p liance w ith  the statute and the Constitution.93

2. S ince the “ final and b in d in g ”  clause was de­
rived  fro m  earlier statutes requ iring the inclusion 
w ith in  ad justm ent and arbitration  agreements o f  
a sim ilar prov ision , it can be argued that it was 
intended to give non-m oney awards o f  the ad just­
m ent boards the same effect as those o f  its p rede­
cessors. The testim ony o f  M r. Eastm an and M r. 
H arrison  quoted supra, pp . 74—80 supports this 
conclusion.

93 A s to whether the question of the existence of substan­
tial evidence to support a finding raises a question of law 
see Reconstruction Finance C orf. v. Bankers Trust Co., Nos. 
387-388, decided February 8, 1943.



86

There has been no ju d ic ia l pronouncem ent as to  
the effect o f  the aw ards o f  the early  adjustm ent 
b o a rd s ; but the agreem ents establish ing the boards 
closely  resem ble contracts to  arbitrate and w e as­
sum e that the p rin cip les  govern in g  the en force ­
m ent o f  arb itration  aw ards w ou ld  be applicable. 
Such aw ards n orm ally  w ould  be en forced  b y  the 
courts in  the absence o f  ‘ ‘ irregu larity , fra u d , ultra  
vires  or other d e fe c t ,”  M arine Transit Co. v. D rey ­
fus, 284 U . S. 263, 276 ; Burchett v. Marsh, 17 H ow . 
344, 3 4 9 ;94 Y ork  <& Cumberland R. R . Co. v. M yers, 
18 H ow . 246, 253. The R a ilw a y  L a b or  A c t  speci­
fies, in  Section  9, that an arb itration  aw ard m ay be 
im peached on ly  i f  it does not con form  to the re ­
quirem ents o f  the A ct, is not confined to the stipu ­
lations o f  the agreem ent to arbitrate, o r  is fra u d u ­
lent or corrupt. The U n ited  States A rb itra tion  
A c t  o f  F eb ru a ry  12, 1925 (43 Stat. 883, 885, 9 
U . S. C. Sec. 1 0 ), the U n ifo rm  A rb itra tion  A c t  (9  
U n iform  Law s A nnotated, p. 61) and the D ra ft  
State A rb itra tion  A c t  (e . g., N . Y . Civ. P ra ctice  
A ct, Sec. 1457) all p rov id e  that an aw ard m ay be 
vacated i f  frau du len t o r  corrupt, i f  the arbitrators 
have been gu ilty  o f  m isconduct (such  as re fu sin g  to 
hear m aterial ev idence) or p re ju d ic ia l m isbe- 94

94 In  the Burchell case the Court stated “I f  the award is 
within the submission, and contains the honest decision of 
the arbitrators, after a full and fair hearing of the parties, a 
court o f equity will not set it aside for error, either in law 
or fact.”



87

havior, or  i f  the arbitrators have “ exceeded their 
p ow ers .”  95

These reasons fo r  setting aside an arbitration  
aw ard are not strictly  applicable to adm inistrative 
determ inations. T h ey  dem onstrate, how ever, an in ­
tention  that the p ow er o f  the courts to overturn 
awards be circum scribed  w ith in  extrem ely narrow  
lim its. W h en  translated in to terms o f  adm inistra­
tive law, they w ou ld  probably  perm it the courts on ly 
to overturn  an aw ard i f  it was not issued in  con­
fo rm ity  to the statute o r  was otherwise illegal (see 
pp. 84-85 , supra ) . 96 These have been the grounds 
upon  w hich  aw ards o f  the present A djustm ent 
B oa rd  have been invalidated. (S ee  pp . 34-35, 
supra.)

In  the law  o f  p rivate  arbitration , since the entire 
proceed ing was based upon  contract, the usual con­
tractual rem edies w ere available unless the agree­
m ent specified  otherw ise.97 This w ould  custom arily 
mean that the person  who broke the contract could 
be sued fo r  dam ages or to prevent fu rth er breach. 
U ntil the declaratory  judgm en t came into exist­
ence, he w ould  have been able to bring no action  
o f  his own.

95 The citations to the various state arbitration laws are 
collected in Sturges, Commercial Arbitrations and Awards 
(1930), p .  ix and appendix.

96 W e assume that an administrative order, like that of an 
arbitration board, could also be set aside for fraud, but know 
of no cases in which that problem has arisen.

9‘ I t  is unnecessary here to consider the extent to which the 
courts at common law refused to enforce contracts to 
arbitrate.



The tendency o f  m odern  arb itra tion  statutes, 
such as the U n ited  States A rb itra tion  A c t  and the 
R a ilw a y  L a bor A c t  itse lf, is to  p erm it an aw ard to 
be attacked on ly  in  a p rescribed  m anner. U n d er  
the R a ilw a y  L a b or  A ct, an arb itra tion  aw ard m ay 
be challenged on  the specified groun ds on ly  w ith in  
ten days a fter  it has been filed w ith  the clerk  o f  a 
fed era l d istrict court (S ection  9 ) .98

W e  th ink  this expression  o f  leg islative p o licy  as 
to  arbitrations gen era lly  m ay w ell be g iven  effect in 
con stru in g  the p rov is ion  o f  paragrap h  (m ) ,  w hich  
has its source in  statu tory  p rov is ion s fo r  arb itra ­
tion. I f  the arb itra tion  ana logy is applied , a n on ­
m oney aw ard cou ld  be contested on ly  in  the m anner 
prescribed  in  the A ct. T h is w ou ld  lead to the con ­
clusion  that the m eans o f  setting aside aw ards p re ­
scribed  in  p aragrap h  ( p ) ,  i f  lega lly  adequate, 
w ou ld  be exclusive.

The consequence o f  g iv in g  to the final and b ind ­
in g  clause the e ffect g iven  to  its predecessors w ould  
thus m ean that both  the m ethod  and the scope o f  
review  w ou ld  be n arrow ly  restricted . Such  an in ­
terpretation  w ou ld  lead, in  its p ractica l operation , 
to the same result as that p rev iou sly  suggested, that 
the aw ard be deem ed final except w here the statute 
specifies to the con tra ry  or w here necessary to fu l­
fill constitu tional requirem ents.

98 C f. United States Arbitration Act, Section 10; Uniform  
Arbitration Act, Secs. 15-18 (9 U . L . A . 6 6 -6 7 ) ; N. Y . Civ. 
Practice Act, §§ 1456-1458; Sturges, loc. cit. supra, c. 15.



89

3. The effect o f  the “ final and b in d in g ”  clause 
in paragraph  (m ) m ay be regarded  as having been 
generally curta iled  by  the prim a facie  evidence 
prov ision  in  p aragraph  ( p ) . I t  can be argued that 
the latter paragraph , w hich  gives the B o a r d ’s order 
relatively  little  w eight, shows that paragraph  (m ) 
was not in tended  to determ ine the scope o f  ju d ic ia l 
review  or  a ffect the r igh t to  resort to the courts. 
This v iew  finds su p port in  the apparent unreason­
ableness o f  treating the aw ard as conclusive w hen 
it has prim a facie  e ffect in  the only k ind o f  p ro ­
ceeding in  w hich  it  can be enforced, as w ell as the 
fact that the clause is in term s inapplicable to the 
larger p rop ortion  o f  m oney awards entered by  the 
B oard . T h is anom aly can be avoided by ap p ly in g  
the specific ind ication  in  paragraph  (p )  as to the 
desired scope o f  review  to any ju d icia l proceeding 
involving B oa rd  orders.

On this theory, the “ final and b in d in g”  clause 
has the effect m erely  o f  a legislative declaration 
that the parties ought, and w ere expected, to abide 
by B oa rd  orders. The fo rce  o f  the m andatory 
character o f  the language used is destroyed by  the 
fact that the on ly  m eans o f  enforcem ent against a 
carrier is through  a suit in  w hich the aw ard is 
given on ly prim a facie  weight.

That the “ final and b in d in g ”  clause was largely  
precatory  in  and o f  itse lf appears from  the fact 
that M r. E astm an and M r. H arrison  regarded  it 
as strengthened by  paragrap h  (p ) .  M r. H arrison  
indicated that sim ilar language in the earlier ad-



90

justm ent agreem ents was valuable in  the m ain  as 
an expression  o f  the good  fa ith  o f  the parties es­
tablish ing the B oa rd  and as m an ifestin g  their 
w illingness to abide by  an aw ard  volu ntarily . I f  a 
carrier  refu sed  to  com ply , the threat o f  cou rt ac­
tion  was necessary. P a ra g ra p h  ( p )  was designed 
to  p rov id e  a sim ilar sanction  fo r  the aw ards o f  the 
new  B oa rd .

I f  the “ final and b in d in g ”  clause is g iven  this 
effect, it w ou ld  n ot con tro l the scope o f  ju d ic ia l 
review , n or  w ou ld  it  lim it the w ays in  which 
orders o f  the B o a rd  cou ld  be ju d ic ia lly  attacked. 
P a ra g ra p h  ( p )  w ou ld  govern  on  both  o f  these 
issues. The scope o f  review  generally, as to both 
m oney and non -m oney aw ards, w ou ld  be that speci­
fied in  the later p a ra gra p h ; the aw ard w ou ld  be 
g iven  prim a facie  e ffect only. I f  the C ourt should, 
f o r  reasons unconnected w ith  the “ final and b ind­
in g ”  clause, hold  paragrap h  (p )  to be an exclusive 
rem edy, all other avenues o f  review  w ould  be closed. 
I f  the C ourt should hold  to the contrary , B oard  
orders w ou ld  be subject to  rev iew  in  other p roceed ­
ings, in  all o f  w hich  they woxdd be g iven  prima 
fa c ie  w eight.

4. S ince the “ final and b in d in g ”  clause does not 
a p p ly  to  m oney awards, it m ay be suggested that 
it can be reconciled  w ith  paragraph  (p )  b y  giv ing 
non -m oney aw ards final and b in d in g  effect (to  the 
extent constitu tiona lly  p erm issib le ) but leaving 
m oney aw ards alone to  be con trolled  b y  the proce­
dure p rescribed  in  the latter paragraph . W e  do 
not th ink  that the A ct  can  be so construed.



91

I t  is true that the exem ption  o f  m oney awards 
from  the “ final and b in d in g ”  clause, and the prima  
facie  evidence rule in  paragraph  ( p )  both had 
their roots  in  the righ t to  a ju r y  tria l in  suits fo r  
m oney dam ages. P a ra grap h  ( p )  was derived 
from  S ection  16 (2 )  o f  the Interstate Com m erce 
A ct, w hich  on ly  app lied  to orders fo r  the paym ent 
o f  m oney, and w hich  this Court has indicated was 
d ra fted  in  the ligh t o f  the constitutional right to 
a ju r y  tria l. M eeker & Go. v. Lehigh Valley R. 
Go., 236 IT. S. 412, 430 ; Baltim ore d  Ohio R. Go. 
v. Brady, 288 IT. S. 448, 458. B u t the fa ct  that 
paragraph  (p )  was obviously  m odeled on Section 
16 ( 2 ) "  em phasizes the im portance o f  the few

99 Section 16 (2) of the 
Interstate Commerce A c t  
(before immaterial changes 
in 1940 (54 Stat. 912))
reads as follow s:

I f  a carrier does not comply
with an order
fo r  th e  p a y m e n t  o f  m o n e y

within the time limit in such 
order,
the complainant,
or any person for whose benefit 
such order was made, may file 
in the
circuit court of the United 
States for the district in 
which he resides or in which 
is located the principal 
operating office o f the carrier, 
or through which the road of 
the carrier runs, 
or in any State court of 

500724— 43--------7

Section 3, First (p ) , of the 
Railway Labor Act reads as 
follow s:

I f  a carrier does not comply 
with an order 
of a division of the Adjust­
ment Board
within the time limit in such 
order,
the petitioner,
or any person for whose benefit 
such order was made, may file 
in the
District Court of the United 
States for the district in 
which he resides or in which 
is located the principal 
operating office of the carrier, 
or through which 
the carrier operates,



92

differences betw een the sections. W h ereas Section  
16 (2 )  is lim ited  to  an order “ fo r  the paym ent o f

general jurisdiction having 
jurisdiction o f the parties, 
a petition setting forth briefly 
the causes for which he claims 
dam ag e s ,  and the order o f the 
commission in the premises.

Such suit in the circuit court 
o f the United States shall 
proceed in all respects like 
other civil suits for dam a g e s ,  
except that on the trial of 
such suit the findings and 
order of the 
commission

shall he prima facie evidence 
o f  the facts therein stated, 
and except that the petitioner 
shall not be liable for costs 
in the circuit court nor for 
costs at any subsequent stage 
o f  the proceedings unless they 
accrue upon his appeal.

I f  the petitioner shall finally 
prevail he shall be allowed a 
reasonable attorney’s fee, to 
be taxed and collected as a 
part o f the costs of the suit.

a petition setting forth briefly 
the causes for  which he claims 
r e l i e f ,  and the order o f  the 
division of the Adjustment 
Board in the premises.
Such suit in the District Court 
of the United States shall 
proceed in all respects as 
other civil suits, 
except that on the trial of 
such suit the findings and 
order o f the
division of the Adjustment 
Board
shall be prima facie evidence 
of the facts therein stated, 
and except that the petitioner 
shall not be liable for costs 
in the district court nor for 
costs at any subsequent stage 
o f the proceedings, unless they 
accrue upon his appeal, and 
such costs shall be paid out 
o f the appropriation for the 
expenses of the courts of the 
United States.
I f  the petitioner shall finally 
prevail he shall be allowed a 
reasonable attorney’s fee, to 
be taxed and collected as a 
part o f the costs of the suit.

The district courts are 
empowered, under the rules 
of the court governing 
actions at law, to make 
such order and enter such 
judgment, by writ o f  man­
damus or otherwise, as 
may be appropriate to en­
force or set aside the 
order o f the division of 
the Adjustment Board.



93

m oney,”  and re fers  to  actions fo r  “ dam ages”  only, 
those phrases w ere om itted from  paragraph (p )  
o f the R a ilw a y  L a b or  A ct. A n d  Congress added to 
the la tter paragraph  a sentence not contained in 
Section 16 (2 ) ,  p rov id in g  that:

T he d istrict courts are em powered, under 
the rules o f  the court governing actions at 
law, to  m ake such order and enter such 
judgm ent, by  w rit o f  m andam us or other­
w ise, as m ay be appropria te  to en force  or  set 
aside the order o f  the d ivision  o f  the A d ju st­
m ent B oard .

Such other form s o f  re lie f as are contem plated in  
this p rov is ion  fo r  judgm en t o f  “ m andam us or 
otherw ise”  are clearly  broad  enough to encom pass 
non-m oney awards, and it w ou ld  have been un­
necessary to p rov id e  fo r  them  i f  only m oney awards 
were intended to  be reached. This sentence was 
referred  to in  the hearings (see pp. 77-78 supra) 
as bolsterin g the final and binding clause. I t  was 
undoubtedly included in  the A ct  in order to make 
it clear that both m oney and non-m oney awards 
could be en forced  against the carriers.

B oth  paragraph  (p )  and the final and binding 
clause in  paragrap h  (m ) thus ap p ly  to non-m oney 
awards. W e  are accord in gly  com pelled to con­
clude that no d ifferen tia tion  between the two para­
graphs on the basis o f  a d istinction  between m oney 
and non-m oney aw ards w ould  be w arranted.



94

Recom m endation .— W e  have suggested that the 
“ final and  b in d in g ”  clause m ight, w ith  some ju s ­
tification , be construed as:

1. F orec los in g  all review  o f  non -m oney awards, 
except as p rov id ed  in  p aragrap h  ( p )  o r  required 
b y  the C on stitu tion ;

2. G iv in g  an ad justm ent board  aw ard the same 
effect as an arb itration  aw ard, to the extent legally 
p erm issib le ; and

3. E xpressin g  a desire that the parties abide by 
the aw ard, but w ith  p aragrap h  (p )  con tro llin g  as 
to the scope o f  review  and the p rocedu re to  be 
follow ed .

The first o f  these in terpretation s is probably 
supported  m ost closely  by  the ord in ary  m eaning 
o f  the w ords em p loy ed ; the second by  the historical 
background o f  the clause, and p a rtly  by  the state­
m ents o f  the persons testify in g  b e fore  the Con­
gressional C om m ittees ; and the th ird  by  the p rac­
tica l effect o f  the b road  scope o f  review  allow ed 
in  the on ly  proceed in g  in  w h ich  the aw ards can be 
lega lly  en forced , and the fa c t  that the large p rop or ­
tion  o f  m on ey  aw ards are not governed  by  the 
clause at all. T he first two o f  the interpretations 
reach substantially the same results, as does the 
th ird  i f  paragraph  ( p )  be regarded  as an exclusive 
rem edy apart fro m  paragraph  (m ) .  O n any o f 
these theories, i f  ou r view s as to  the adequacy o f 
the rem edy are correct, the B o a r d ’s aw ards can 
norm ally  be challenged on ly  b y  w ay o f  defense to 
a suit brought under paragraph  ( p )  ; in  such a suit,



95

o f  course, the aw ards w ould  have on ly prima facie 
w eight.100

W e  believe that C ongress intended the B o a rd ’s 
awards to be accepted by  the parties at least to 
the same extent as had been the decisions o f  its 
predecessors. N o one thought that the statutory 
m andate w ould  be less potent than a contractual 
p rov is ion  to the same effect. Indeed , the en force ­
ment proced u re  in  paragraph  (p )  was regarded as 
strengthening the aw ard. T he fa ilu re  o f  any one 
to re fe r  to the prima facie  evidence prov ision  in 
that paragraph  is an ind ication  that no one was 
o f  the op in ion  that it w ou ld  com pletely alter the 
effect o f  the awards. F o r  this reason, we believe 
that the B o a r d ’s aw ards should be made as “ fina l”  
as possible, in  accordance w ith  either o f  the first 
two o f  the in terpretations discussed above.

This view , we think, is also' m ost consistent w ith 
the over-a ll purpose  o f  the A c t  to insure the peace­
fu l settlem ent o f  labor disputes. The fr ic t ion  aris­
ing from  the m any disputes as to grievances and 
the in terpretation  o f  contracts w ill be reduced to 
the extent that the parties treat the awards o f  the 
B oard  as “ final and b in d in g .”

100 If paragraph (p) is held to be an exclusive remedy 
apart from the “final and binding” clause, money and non- 
money awards would be subject to the same treatment. If 
not, extra-statutory suits on money claims alone might be 
permissible. It is of some significance that, outside of the 
language of paragraph (m) itself, there is no indication in 
the legislative history or purposes of the Act that money and 
non-money awards were to be governed by different rules.



96

TH E  BASIC ISSUE U N D E R L Y IN G  T H IS  CASE

T he im portan ce o f  this case transcends that o f 
the rather technical lega l issues to  be decided. I t  
involves fundam ental d ifferences betw een m anage­
m ent and labor as to the e ffect to be g iven  the 
ad justm ent prov is ion s o f  the K a ilw ay L a b or  Act.

L a b or  fa vors  the final and  com plete settlem ent 
o f  cases by  the ad justm ent device and is w illing, 
w ithout other com pulsion , to abide b y  aw ards o f 
the A d ju stm en t B oa rd . W h e n  the A ct  was passed, 
the em ployees ’ representatives recogn ized  that they 
w ere agreeing to  abandon their righ t to  strike over 
such questions. I n  return, labor expected  the car­
riers vo lu n tarily  to com p ly  w ith  the B o a rd ’s 
decisions.

A lth ou gh  the carriers m ight have been o f  the 
same view  w hen the A c t  was passed, they have 
since taken the p osition  that the B o a r d ’s p roce ­
dure deprives them  o f  a fa ir  hearing, that this 
a ffects the quality  o f  the aw ards, and that m any 
o f  the B o a r d ’s decisions are p la in ly  erroneous and 
seriously  p re ju d ic ia l to the efficient operation  o f 
the roads. A s  a result, they are frequ en tly  un­
w illin g  to  com ply  w ith  the aw ards unless forced  
to  do so, or  until they have had an op p ortu n ity  to 
have the va lid ity  o f  the aw ards tested b e fore  a 
ju d ic ia l tribunal.

The em ployees rep ly  that the ad justm ent sys­
tem  w ill n ot be w orkable i f  the B o a r d ’s awards 
are not treated as final w ithout the necessity fo r  
litiga tion  to  en force  them. The em ployees ’ rep­



9 7

resentatives fee l that, fo r  financial and other rea­
sons, they are in  no position  to com pete w ith  the 
carriers i f  such m atters are taken to the courts, 
and that resort to litigation  w ould  delay final 
decisions fo r  a lon g  tim e a fter  the entry o f  the 
B o a rd ’s aw ards and thus cause even greater dis­
satisfaction  than now  prevails w ith  the period  
between subm issions and settlement. A s  a result, 
it was the p o licy  o f  labor, be fore  the beginning o f  
the present w ar, not to sue on awards but to 
threaten to strike i f  awards w ere not obeyed. This 
p o licy  genera lly  resulted in  com pliance w ith the 
awards.

I f  the carriers p reva il in this case, they w ill have 
fou n d  a m eans o f  b r in g in g  the B o a rd ’s awards to 
the courts, and presum ably w ill take to court all 
aw ards against them  w hich  they deem harm ful. 
Irrespective  o f  the m erits o f  the decisions in  such 
circum stances, it is clear that the result w ould be 
to open  an avenue o f  review  not contem plated by  
Congress and to lessen the effect o f  the B o a rd ’s 
orders. I f  the em ployees prevail, on the other 
hand, they w ill continue to re ly  on their econom ic 
pow er instead o f  upon  the ju d icia l rem edy provided 
in paragrap h  ( p ) ,  and that paragraph  will rem ain 
substantially a dead letter.

These difficulties arise because o f  the substitution 
o f  an ad justm ent system  having its foundation  in 
a m an datory  statute fo r  a procedure based upon 
agreem ents between the parties. W h en  the parties



9 8

established the early  adjustm ent boards by  agree­
m ent, they gen era lly  fe lt  bound  as a m atter o f  m u­
tual good  fa ith  to accept the B o a r d ’s decisions. 
T he em ployees believe that the aw ards o f  the pres­
ent B oa rd  should be treated w ith  the same respect, 
p articu larly  since they are final as to the em ployees 
i f  they lose. The carriers, how ever, see no reason 
w hy, since they have not g iven  their w ord  to  accept 
the B o a r d ’s decisions, the aw ards should be any 
m ore b ind ing than those o f  other agencies whose 
decisions are g iven  effect by  law. The decisions 
o f  other agencies m ay not be finally accepted until 
upheld  in  the courts, and the carriers fee l that they 
need not accept A d ju stm en t B oa rd  aw ards which 
they deem  clearly  erroneous unless and until the 
em ployees m ake use o f  the sta tu tory  en forcem ent 
procedure w hich  perm its the orders to be ju d ic ia lly  
review ed.

W e  have taken the position  that paragraph  (p )  
was designed to be an exclusive rem edy once the 
B oa rd  has entered an aw ard. W e  recognize, how ­
ever, that, although this conclusion  m ay be correct 
as a m atter o f  statu tory in terpretation , it is not 
en tire ly  rea listic  to bar all other means o f  review  
because o f  the adequacy o f  a rem edy w hich  those 
to  w hom  it is g iven  deliberately  re fu se  to  em ploy. 
A lthou gh  one or the other result w ill fo llow , de­
pend ing  on how  this case is decided, one cannot 
view  w ith  equanim ity either a situation  in  w hich  
all aw ards o f  the B oard , substantially insulated



99

against ju d ic ia l review , are subject to enforcem ent 
by threats to strike, o r  one in  w hich  the carriers can 
use the d eclaratory  judgm en t procedure to get at 
the B o a r d ’s aw ards and thereby prevent the statute 
from  operating h i the m anner orig in a lly  intended.

O ur v iew  that the A c t  should be construed so as 
to m ake paragraph  ( p )  an exclusive rem edy is 
based largely  on  the theory  that the ca rr ie rs ’ right 
to defen d  an en forcem ent suit brought under that 
paragraph  gave them  adequate protection . This 
contem plates, o f  course, that paragraph (p )  w ill 
be o f  m ore than academ ic effect, that carriers m ay 
refuse to com p ly  w ith  awards, and that the courts 
m ay determ ine the va lid ity  o f  the awards when suit 
is brought to en force  them. W e  think that Con­
gress assum ed that the carriers w ould  com ply  w ith 
m ost o f  the aw ards w ithout the need fo r  litigation  
(as has been the ca se ), but that w hen the carriers 
thought an aw ard clearly  un law fu l they could 
p rop erly  aw ait an en forcem ent suit against them. 
The fa ilu re  o f  the A c t  to operate in  the m anner 
contem plated, how ever, w ould not seem to w arrant 
a fu rth er, even though perhaps com pensating, 
ju d icia l departure from  the statutory design.

R esp ectfu lly  subm itted.
Charles F a h y ,

Solicitor General.
R obert L. Stern,

A ttorney.
F ebruary 1943.

U .* . GOVERNMENT PRINTING OFFICE: 1943







■
"

.

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■

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QJourt of %  Intftii States
October T erm , 1930.

No. 606.

UNITED STATES OF AMERICA,
Appellant,

against

WILLIAM H. SPRAGUE and WILLIAM J. HOWEY,
Appellees.

Appeal from th e  D istrict Court of th e  United States 
for th e  D istrict of N ew  J ersey.

B R IEF  O F ARTH UR B. SPINGARN AND JAMES 
M ARSHALL AS AM ICI CURIAE ON BEH A LF  
O F T H E NATIONAL ASSOCIATION FO R TH E  
ADVANCEM ENT O F T H E COLORED PEO PLE.

ARTHUR B. SPINGARN, 
JAMES MARSHALL,

Amici Curiae.

T h e  H e c la  P re s s , 225 V a r ic k  S t ., N . Y . T e l. W A lk e r  6-1480.





SU BJECT IN D EX.

Statem ent ..................................................................................  1
The Opinion of the Court and the Argument of 

the Appellees........................................................... 2

P oint I— The discretion exercised by Congress as to 
the manner of ratification of the amendment was 
political in its nature and is not subject to judicial
review...............................................................................  3

Consequently, the real question is not one of the 
discretion of Congress but of the power of 
Congress................................................................... 4

P oint II— The Eighteenth Amendment was properly 
adopted............................................................................. 5

(a) The act of the Legislatures in ratifying the
amendment must be conclusively presumed 
to be the act of the people of the several 
States...................................................................  6

(b) The people, through their Legislatures, had
the right and the power to restrict the police 
powers of the States.......................................... 11

(c) The people, acting through their Legisla­
tures, had the right and the power to place
a restraint upon their own personal liberties 13

PAGES





CASES C ITED .

Agnello y. United States, 269 U. S. 20........................  5
Bailey v. Alabama, 219 U. S. 219................................  13
Cherokee Nation v. Georgia, 5 Pet. 1..........................  4
Civil Rights Cases, 109 U. S. 1̂ 20.................................. 13
Dillon v. Gloss, 256 U. S, 368...................................... 7
Georgia v. Stanton, 6 Wall. 50...................................... 4
Hawke v. Smith, No. 1, 253 U. S. 221.....................6, 7, 8,9
Leser v. Garnett, 258 U. S. 130....................................8,12
Luther v. Borden, 7 How. 1...........................................  4
National Prohibition Cases, 253 U. S. 350................... 11
Nixon v. Herndon, 273 U. S. 536.................................. 13
Rhode Island v. Palmer, 253 U. S. 350...................... 4,14
United States v. State Bank, 6 Pet. 29........................ 5
White v. Hart, 13 Wall. 646.........................................  4

PAGES





O TH ER A U TH O RITIES.
PAGES

U. Si. Code Annotated, Constitution, Parts 2 and 3.. 3
Willoughby on the Constitution of the United States,

Second Edition, Vol. I, p. 30.................................... 4
Ibid., Vol. Ill, p. 1326...........................................  4
Ibid., Vol. I, p, 49................................................... 5
Ibid., Vol. I, pp. 63, 64...........................................  6

Elliot’s Debates, Vol. I l l .............................................. 11
Elliot’s Debates, Vol. IV, 176-178................................  9
Secret Proceedings and Debates of the Federal Con­

stitution, Albany, 1821, pp. 89, 91............................  10
Beard on the Rise of American Civilization, Vol. I,

pp. 328 et seq.............................................................. 10
Ferrand, The Records of the Federal Convention,

Vols. I, II, I I I ...........................................................11,12
Federalist, The, No. 43.................................................  11
Ames, The Proposed Amendments to the Constitution 

of the United States During the First Century of 
Its History, 29-8......................................................... 12





Supreme (Enurt nf tlje Inttefc States

B R IE F  O F ARTH UR B. SPINGARN AND JAMES 
M ARSHALL AS AM ICI CURIAE ON BEH ALF  
OF TH E NATIONAL ASSOCIATION FO R TH E  
ADVANCEM ENT O F TH E COLORED PEO PLE.

The comprehensive argument which the Government 
will present in this case renders it unnecessary to enter 
into a detailed discussion of the authorities and of the 
origin of Article V of the Constitution. The National 
Association for the Advancement of the Colored People 
on whose behalf we are intervening and the Negro citizens 
of this country whom it represents are interested in this 
case because the affirmance of the judgment of the District 
Court might place in jeopardy the Thirteenth, the Four­
teenth and the Fifteenth Amendments to the Constitution 
which, like the Eighteenth, involve the surrender of State 
powers and the transfer of authority to the Federal govern­
ment. We shall only stress those features of the case 
which have a bearing upon the method of ratification of 
Constitutional Amendments employed in the adoption of 
the Eighteenth, the Thirteenth, the Fourteenth, and the 
Fifteenth Amendments. The Association for whom we are

October Teem, 1930.

Wn



2

intervening is not now concerned with the political or 
ethical problems relating to the question of Prohibition.

The Opinion of the Court and the Argument of the
Appellees.

In the opinion of the District Court it was urged that 
the submission by Congress of the Eighteenth Amendment 
to the legislatures of the several States for ratification 
constituted “an abuse of discretion on the part of Congress 
in its capacity as an administrative agent” and that Con­
gress should have submitted the proposed amendment to 
conventions to be held in the several States for the purpose 
of ratification. Boiled down to its essential element, the 
District Court reasoned that the convention method rather 
than the legislative method of ratification was the proper 
one to have been employed because the Eighteenth Amend­
ment transferred to the United States powers which were 
inherent in the people themselves; that the State legisla­
tures could not as State or Federal agencies deprive the 
people of those powers.

The argument of the appellees is not entirely co-extensive 
with the opinion of the Court. They do not consider that 
the process of ratification involved the discretion of Con­
gress but rather that it was imperative that the proposed 
amendment be submitted to the people acting through con­
vention. They distinguish between approval by the people 
in this manner and approval by legislature.

The appellees also argue that the Tenth Amendment 
to the Constitution declaring the people to be the reservoir 
of all power not expressly delegated to the Federal govern­
ment made it requisite that a Constitutional Amendment 
tending to deprive the people, as distinguished from the 
State governments, of tlieir inherent powers must be 
approved by the people themselves, that the voice of the 
people through their legislatures is a faint reproduction of 
their true expression and that the accurate quality of their 
intention can only be obtained through convention.



3

P O I N T S .

I.

The discretion exercised by Congress as to the man­
ner of ratification of the amendment was political in 
its nature and is not subject to judicial review.

Article V of the Constitution provides that amendments 
shall be proposed by Congress in one of the two following 
manners: (a) whenever two-thirds of both Houses shall 
deem it necessary; (b) on the Application of the Legis­
latures of two-thirds of the several States, Congress shall 
call a convention for proposing amendments. Amendments 
proposed in either manner shall become valid “to all In­
tents and Purposes” when ratified (a) by the Legislatures 
of three-fourths of the several States, or (b) by conven­
tions in three-fourths of the several States “as one or the 
other mode of ratification may be proposed by the Con­
gress.”

In every instance of constitutional amendment from the 
first ten amendments proposed by the first Congress on 
September 25, 1789, to the Nineteenth Amendment pro­
posed by the sixty-sixth Congress on the 5th day of Janu­
ary, 1919, Congress has itself, and not through conventions 
called at the instance of the several States, submitted the 
proposed amendments for ratification. And in each in­
stance it has selected the State legislatures as the ratify­
ing bodies. (TJ. S. Code Annotated, Constitution, Parts 
2 and 3.)

There can be no question but that the proposal of a 
constitutional amendment is a political function involving 
political discretion. With this discretion the Courts will 
not interfere.



4

“It is a principle adopted by all courts and with 
regard to all kinds of law that it does not fall within 
the judicial function to control the exercise of the 
discretionary powers which, by the Constitution or 
statutes, are vested in pnblic officials.”

Willoughby on the Constitution of the United 
States, Second Edition, Yol. 1, page 30.

See also:
Luther v. Borden, 7 How. 1.
Cherokee Nation v. Georgia, 5 Peters, 1.
Georgia- v. Stanton, 6 Wall. 50.

In Rhode Island v. Palmer (one of the National Prohibi­
tion Cases) (1920), 253 U. S. 350, the State of Rhode 
Island attacked the constitutionality of the Eighteenth 
Amendment on the ground that it deprived the State of its 
inherent police power. Mr. Hughes, who filed a brief as 
amicus curiae there, contended that the Court had no juris­
diction of this question as it involved a purely political 
controversy. The amendment was upheld but there was 
no opinion rendered by this Court on that aspect of the 
controversy.

There is an exception to the rule referred to in that 
the Courts will intervene in the event that the political 
departments of the Government exceed their constitu­
tional powers.

Willoughby, ibid., Yol. 3, page 1326.
White v. Hart, 13 Wall. 646, 649.

Consequently, the real question is not one of the discretion 
of Congress but of the power of Congress.

The method by which the Eighteenth Amendment was 
proposed and ratified is, as we have shown above, the 
orthodox method of constitutional amendment. It has 
the authentication of the first Congress, composed of men



5

of the same generation which adopted the original Con­
stitution, and of Congresses and generations intermediate 
to and including those of our own time.

“The presumption of constitutionality which 
attaches to an act of Congress is increased when 
the legislative interpretation has been frequently 
exercised during a considerable number of years, or 
when it dates from a period practically contem­
poraneous with the adoption of the Constitution, or 
when, based upon a confidence in its correctness, 
many and important public and private rights have 
become fixed.”

Willoughby, ibid., Vol. 1, page 49.

See:
Agnello V. United States, 269 U. S. 20.
United States v. State Bank, 6 Peters, 29.

Unless, therefore, there is something peculiar to the 
purpose and intent of the Eighteenth Amendment, some­
thing which differentiates it essentially from all other 
amendments, the established practice of amendment must 
be deemed proper in this instance, otherwise similar amend­
ments must fall with the Eighteenth.

II.

The Eighteenth Amendment was properly adopted.

(a) The act of the Legislatures in ratifying the amend­
ment must be conclusively presumed to be the act of the 
people of the several States.

Emphasis is laid by the appellees upon a distinction 
between “ The People” and the States as bodies politic. 
While this distinction is at times of great importance, it 
does not appear to be of any materiality with reference



6

to the amendment of the Constitution. Stress is laid upon 
the preamble to the Constitution and to the words, “We, 
the People.” Whether this meant the people of the ratify­
ing States considered as one body politic or the people 
of the several States organized into political communities 
is impossible to say.

“The use of the phrase, ‘We, the People of the 
United States,’ as indicating the ordainers and 
establishes of the Union, is, however, of significance 
in determining the nature of the Union that was 
intended to be created when taken in connection 
with the provision of Article VII that the Constitu­
tion was to be ratified, not by the State legislatures, 
but in conventions, for it indicates that the Union 
was one which the State legislatures were not com­
petent to create; that, in other words, it was to be 
not a mere league or confederacy, such as the exist­
ing State governments might enter into, but a funda­
mental Union resulting in the creation of a new 
National State which, according to the political 
philosophy of that date, only the people acting in 
their original sovereign capacity were able to 
create.”

Willoughby on the Constitution of the United 
States, Vol. 1 (2nd Ed.), pp. 63-64.

The distinction between ratification by convention and 
ratification by legislature was therefore clearly in the 
minds of the framers. (Compare Article V and Article 
VII of the Constitution.) If the framers had been as
solicitous as the appellees for a direct expression by the 
people with respect to constitutional amendments they 
could have provided for a direct vote by the people but 
they did not and consequently this Court has held that 
provisions in State Constitutions of the present day re­
quiring a referendum on amendments to the Federal Con­
stitution are void. Ha take v. Smith, No. 1, 253 U. S. 221.



7

In that case this Court by Mr. Justice Day said at pages
226-227:

“ The method of ratification is left to the choice 
of Congress. Both methods of ratification, by legis­
latures or conventions, call for action by delibera­
tive assemblages representative of the people, which 
it icas assumed would voice the will of the people.

The Fifth Article is a grant of authority by the 
people to Congress. The determination of the 
method of ratification is the exercise of a national 
power specifically granted by the Constitution; that 
power is conferred upon Congress, and is limited 
to two methods, by action of the legislatures of three- 
fourths of the States, or conventions in a like num­
ber of States. Dodge v. Woolsey, 18 How. 331, 318. 
The framers of the Constitution might have adopted 
a different method. Ratification might have been 
left to a vote of the people, or to some authority 
of government other than that selected. The lan­
guage of the article is plain, and admits of no doubt 
in its interpretation. It is not the function of 
courts or legislative bodies, national or state, to 
alter the method which the Constitution has fixed.” 
(Italics ours.)

In Dillon v. Gloss, 256 U. S. 368, Mr. Justice Van 
Devanter, speaking for this Court, said at page 371:

“Thus the people of the United States, by whom 
the Constitution was ordained and established, have 
made it a condition to amending that instrument 
that the amendment be submitted to representative 
assemblies in the several States and be ratified in 
tliree-fourtlis of them. The plain meaning of this is 
(a) that all amendments must have the sanction of 
the people of the United States, the original foun- 
t ain of power, acting through representative assem­
blies, and (b) that ratification by these assemblies 
in three-fourths of the States shall be taken as a 
decisive expression of the people’s will and be bind­
ing on all.”  (Italics ours.)



8

It was also pointed out in Hawke v. Smith, that the 
framers of the Constitution clearly understood the distinc­
tion between action by legislature and action by the people 
—which is emphasized by the different methods provided 
for the election of Senator and Representative. Mr. Jus­
tice Day said at page 228:

“There can be no question that the framers of 
the Constitution clearly understood and carefully 
used the terms in which that instrument referred to 
the action of the legislatures of the States. When 
they intended that direct action by the people should 
be had they were no less accurate in the use of apt 
phraseology to carry out such purpose. The mem­
bers of the House of Representatives were required 
to be chosen by the people of the several States. 
Article I, § 2.”

Having once created the Constitution the people could, 
of course, delegate the power to amend and while it is 
true that the legislature performs a quasi-Federal func­
tion in ratifying a constitutional amendment because its 
power refers back to the Constitution itself (Leser v. 
Garnett, 258 U. S. 130, 137), the legislature is actually 
performing its duty under a mandate from the people as 
expressed in the Constitution.

The appellees and the District Court expressed in vary­
ing manner distrust and disapprobation of State legisla­
tures and pointed out that they do not always truly repre­
sent the wishes of their constituents. It is for this reason 
that they urge that the framers contemplated that popular 
rights, as distinguished from State rights, could only be 
released to the Federal government by the more direct 
method of ratification by convention. It is urged by the 
appellees that the expressions of the authors of the 
Federalist and the fathers of the Constitution assembled 
in convention sustain this theory.

We submit that the citations of the appellees do not 
bear out their contention. On the contrary, in line with



9

the opinion of this Court in Hawke v. Smith, supra,, Mr. 
Iredell in addressing the North Carolina Convention which 
ratified the Constitution said:

“Any amendments which either Congress shall 
propose, or which shall be proposed by such general 
convention, are afterwards to be submitted to the 
legislatures of the several States, or conventions 
called for that purpose, as Congress shall think 
proper, and upon the ratification of three-fourths 
of the States, will become a part of the Constitution. 
By referring this business to the legislatures, ex­
pense would, be saved; and in general, it may be 
■presumed, they would, speak the genuine sense of 
the people. It may, however, on some occasions, be 
better to consult an immediate delegation for that 
special purpose. This is therefore left discretion­
ary.” 4 Elliot’s Debates, 176-178. (Italics ours.)

In the light of modern historical research too much 
weight should not be given to the theory that Hamilton 
himself desired popular ratification. It is probable that 
the convention method of ratifying the original constitu­
tion was proposed instead of ratification by the Legisla­
tures because it was hoped that the more substantial 
people would take an active part in conventions although 
they were frequently absent from the legislative councils.

Luther Martin, the Attorney General of Maryland, a 
delegate to that Convention, in reporting to the Speaker 
of the House of Delegates of Maryland concerning the pro­
ceedings of the Convention, said:

“ The people of the several states never made any 
objection to the manner the articles of federation 
were framed or ratified, or to the mode by which 
alterations ‘were to be made in that government— 
with the rights of their respective states they wished 
not to interfere. Nor do I believe the people in 
their individual capacity, would ever have expected 
or desired to have been appealed to on the present 
occasion, in violation of the rights of their respec­
tive states, if the favorers of the proposed consti-



1 0

tution, imagining they had a better chance of forc­
ing it to be adopted by a hasty appeal to the people 
at large, who could not be so good judges of the 
dangerous consequence, had not insisted upon this 
mode. Nor do these positions in the least interfere 
with the principle, that all power originates from 
the people, because when once the people have 
exercised their power in establishing and forming 
themselves into a state government, it never de­
volves hack to them, nor have they a, right to resume 
or again to exercise that power until such events 
take place as will amount to a dissolution of their 
state government.”  (Italics author’s.)

Secret Proceedings and Debates of the Federal 
Convention, etc., from the notes taken by 
Robert Yates, etc., Albany, 1821, pp. 80, 91.

Hamilton believed that the Legislatures were controlled 
by the more radical elements of the revolutionary party 
who looked with suspicion upon a strong Federal govern­
ment. See Beard on the Rise of American Civilization, 
Yol. 1, pp 32S et seq.

But whatever the purpose in mind of Hamilton in urg­
ing ratification by conventions, it is clear that he must 
have regarded the Legislatures as the mouthpiece of the 
people themselves. As an attorney practicing in New 
York he must have known for example that statutes 
adopted by the Legislature of New York during the period 
covered by the Constitutional Convention all commenced 
with the words: “Be it enacted by the people of the
State of New York, represented in Senate and Assembly, 
and it is hereby enacted by the authority for the same, 
that * *

In view of the exceptions to the power of amendment 
expressly contained in Article V of the Constitution, no 
other exception can be implied. Exclusio unius est ex- 
elusio alterius.



11

The proceedings of the Constitutional Convention of 
1787 demonstrate that it was not the intention of the 
framers to restrict the amending power except as there 
particularized.* And it is questionable whether in the 
face of the action of the people any Court could refuse 
to recognize an amendment even if it were in derogation 
of those limitations.

Article Y, with the exception of the two restrictive 
clauses protecting the slave States and equal representa­
tion in the Senate respectively, was in substance the same 
section proposed to the convention by Mr. Madison and 
seconded by Mr. Hamilton. In defense of the proposal, 
Mr. Hamilton on September 15th stated to the conven­
tion that he desired to make easy the power of amending 
the Constitution to avoid the difficulty which had been 
experienced in amending the Articles of Confederation. 
Ferrand’s Records of the Federal Convention, Vol. II, pp. 
559 et seq.

Nor can it be argued that the Tenth Amendment re­
stricted in anywise the power of amendment provided by 
Article V. On its face the Tenth Amendment did not pur­
port to do any such thing. It provided the viewpoint 
from which the provisions of the Constitution should be 
read and not a limitation upon the machinery which the 
Constitution created.

(b) The people, through their Legislatures, had the 
right and the power to restrict the police powers of the 
States,

This Court has already held that it was within the 
power of the people to restrict the police powers of the 
States by the Eighteenth Amendment. Rational Prohibi­
tion Cases, 253 U. S. 350, 386. A further reference to the * 122

* Ferrand, The Records o f  the Federal Convention, Vol. I, pp. 22, 121-
122, 202, 203, 231; Vol. II, pp. 84, 159, 174, 188, 467, 468, 557-559, 602, 
623-631; Vol. Ill, p. 601; Elliot’s Debates, Vol. Ill, pp. 636 and 637; 
Vol. IV, pp. 176-178; the Federalist, N o. 43.



12

proceedings of the Convention of 1787 demonstrates that 
restrictions of the police power were within the contem­
plation of the framers. Thus Mr. Sherman’s motion to 
add as a further proviso to Article V “that no State shall 
Without its consent be affected in its internal police” was 
rejected. Ferrand’s Records of the Federal Convention, 
Vol. II, pp. 629-630.

By the Fourteenth Amendment the people had made a 
notable restriction on the police powers of the States. 
And yet, as we have shown above, the Fourteenth Amend­
ment was adopted by the same procedure as that followed 
in the proposal and ratification of the Eighteenth Amend­
ment with the exception that ratification by the requisite 
number of States was obtained only by the insistence of 
Congress that it would recognize some of the States which 
had seceded only upon the condition of ratification of the 
Fourteenth and Fifteenth Amendments.

Ames, The Proposed Amendments to the Consti­
tution of the United States During the First 
Century of its History, 298.

Both the Fifteenth Amendment and the Nineteenth 
Amendment likewise directly affected and limited the 
political autonomy of the States in the limitations which 
they placed upon the States’ right to discriminate between 
certain classes of persons with respect to their qualifica­
tion to vote. Those amendments were also adopted in 
the same manner as the Eighteenth Amendment. This 
Court held that they were properly part of the Constitu­
tion. Laser v. Garnett, 258 U. S. 130. In that case Mr. 
Justice Brandeis said at page 136 :

“ The suggestion that the Fifteenth was incorpo­
rated in the Constitution, not in accordance with 
law, but practically as a war measure which has 
been validated by acquiescence, cannot be enter­
tained.”



13

It is clear from this that the Court did not sustain the 
Nineteenth Amendment upon any different theory than it 
had sustained the Fifteenth Amendment. Emergency and 
acquiescence were not deemed to have validated the 
amendments of the reconstruction period but rather the 
method of adoption.

(c) The people, acting through their Legislatures, had 
the right and the power to place a restraint upon their 
own personal liberties.

The Thirteenth Amendment is evidence of the fact that 
a constitutional amendment may restrict rights of per­
sons and operate directly on personal rights and the status 
of individuals. That amendment was self-executing, as 
was the Fourteenth Amendment (Civil Rights Cases, 109
U. S. SpO), and as was the Fifteenth Amendment (Nixon
V. Herndon, 273 U. S. 536).

It is argued by the appellees that at the time of the 
adoption of the Thirteenth Amendment slavery was to all 
intents and purposes a thing of the past. It is true that 
the Emancipation Proclamation had freed the slaves, but 
it may well be open to question whether without consti­
tutional ratification of the Presidential decree this free­
dom would have been recognized by the Courts. But the 
Thirteenth Amendment went much further than merely to 
give legal sanction to the emancipation of Negro slaves. 
It for all times protected all people from involuntary 
servitude except in expiation of crime. Thus “peonage” 
was held to be equally repugnant to the amendment de­
cades after its adoption and after the Emancipation 
Proclamation.

Bailey v. Alabama, 219 U. S. 219.

It should be borne in mind in the case of the Thirteenth, 
Fourteenth and Fifteenth Amendments, as with the Eight­
eenth Amendment, that Congress wras given the power to



14

make such laws as might be necessary effectively to pro­
cure enforcement. This was clearly an abdication of 
State and popular rights in favor of the Federal govern­
ment.

In his brief in Rhode Island v. Palmer, supra, Mr. 
Hughes said at page 41:

“ The effect of the Thirteenth, Fourteenth and 
Fifteenth Amendments upon the institution of 
slavery within the States, an ‘internal concern’ of 
which the framers of the Constitution were not un­
mindful, cannot be overlooked, and we submit that 
this consideration conclusively disposes of the com­
plainant’s contention.”

We submit that the plain intention of the framers of 
the Constitution and the traditional interpretation of 
Article V invalidate the reading of that article advanced 
by the appellees. Constitutional amendment is an im­
portant safeguard to constitutional government. It is a 
political matter with which the Courts should not inter­
fere unless the action of the proposing and ratifying 
agencies is flagrantly in derogation of the ordinary mean­
ing of the words employed in Article V.

Respectfully submitted,

ARTHUR B. SPUNGARN, 
JAMES MARSHALL,

Amici Curiae.



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GJmirt of tip llntlrti §tat?0
October Term , 1930.

No. 606.

UNITED STATES OF AMERICA,

against
Appellant,

WILLIAM H. SPRAGUE and WILLIAM J. HOWEY,
Appellees.

A ppeal, prom  t h e  D istrict Court op th e  U nited States 
for t h e  D istrict op New  J ersey.

N O TICE O F MOTION AND P ETIT IO N  FOR LEA V E  
TO  F IL E  B R IE F  AS AM ICI CURIAE.

ARTHUR B. SPINGARN, 
JAMES MARSHALL,

Petitioners.

T he H ecla  P ress, 225 V arick  St., N. X . Tel. W A lker 6-1480.



S a l !



§upmtu> (Enurt nf t ty  United States
October Term, 1930.

United States of A merica,
Appellant,

against

W illiam H. Sprague and W illiam 
J. Howey,

Appellees.

No. 606.
Appeal from the 
D istrict Court of 
the United States 
for the District of 
New  Jersey.

S irs:

Please take notice that upon the argument of the 
above-entitled cause the undersigned will present to this 
Court a t the Capitol, W ashington, D . C., the annexed 
petition for leave to file a brief herein as amici curiae.

Dated, N ew  Y ork , January 8, 1931.

Yours,

A R T H U R  B . S P IN G A R N , 
J A M E S  M A R S H A L L .

T o :

Hon. Thomas D . Thacher,
Solicitor General of the United States.

Frederic M. P. Pearse, Esq.,
A ttorney for Appellees,

786 B road  Street, Newark, N . J.





(Eourt nf thr Imlrb &tatp0

To the Honorable the Chief Justice and the Associate 
Justices of the Supreme Court of the United States:

The petitioners, A rthu r B . Spingarn and James M ar­
shall, pray that they m ay be permitted to file a brief in 
the above-entitled cause as amici curiae. They are the 
counsel for N ational Association for the Advancem ent of 
Colored People, a  corporation organized under the Mem­
bership Corporation Law  of the State of New York. 
A m ong the objects o f the Association are the fo llow in g :

“ to advance the interests of colored citizens; to se­
cure for them  im partial suffrage; and to increase 
their opportunities for securing justice in the 
courts, education for their children, employment ac­
cording to their ability, and complete equality be­
fore the law .”

The U nited States D istrict Court for the D istrict of 
New Jersey has quashed the indictm ent herein on the 
ground that the Eighteenth Am endm ent to the Constitu­
tion of the U nited States was not validly adopted. The 
Court argued that the submission by Congress of the 
Eighteenth Am endm ent to the Legislatures of the several 
States for ratification constituted “ an abuse of discretion

October, Term , 1930.

Wn



4

on the part of Congress in its capacity as an administra­
tive agent.” It was held that Congress should have sub­
mitted the proposed amendment to conventions to be held 
in the several States for the purpose of passing upon the 
amendment, because the amendment transferred powers 
from the States to the United States; that in such a con­
tingency Article V of the Constitution looked to the ratifi­
cation by State conventions as the sole means of ratifica­
tion, and that the Tenth Amendment to the Constitution, 
which declared the people to be the reservoir of all powers 
not expressly delegated to the United States, made it 
requisite that a constitutional amendment intending to 
deprive the States or the people of the States of their 
inherent powers must be approved by the people them­
selves and not by their Legislatures.

The Negro citizens of this country have an important 
stake in this decision. If it is true that the Eighteenth 
Amendment was not constitutionally adopted because the 
surrender of State powers to the Federal Government 
could only be accomplished by action of State conventions, 
then it might similarly be argued that the Thirteenth, 
Fourteenth and Fifteenth Amendments were unconstitu­
tionally adopted. These three amendments likewise in­
volved the surrender of State powers to the Federal 
Government.

The Thirteenth Amendment, abolishing slavery, the 
Fourteenth Amendment, requiring due process of law on 
the part of the States and imposing a penalty upon such 
States as failed to recognize the rights of the newly 
emancipated Negroes, and the Fifteenth Amendment, 
which guaranteed the right to vote, were all adopted in 
the same manner as the Eighteenth Amendment.

The Solicitor General has consented to our filing a brief 
as amici curiae herein. The appellees have withheld their 
consent.

Because of the importance of this question to the 
colored citizens of this country, because of their interest



5

in this decision, which transcends the question of the 
traffic in liquor and relates to those fundamental rights 
which they attained only as the result of four years of 
bitter warfare, we deem it desirable to file a short brief 
which will reflect their views on these subjects, and we 
therefore respectfully pray for leave to file a brief herein 
as amici curiae, a copy of which we submit herewith.

And your petitioners will ever pray.

ARTHUR B. SPINGARN, 
JAMES MARSHALL,

Petitioners.

Dated, New York, January 5, 1931.

[43112-a]









Fhe State of South Carolina
IN THE SUPREME COURT

NO.

A P P E A L  FR O M  B E A U F O R T  C O U N T Y  

Hon. L. D. Lide, Judge

T H E  S T A T E , Respondent,

against

B E N J A M IN  H E Y W A R D , Appellant.

f^aic

/R ere­
ad con-

T R A N SC R IP T  OF RECORD r^said Cir-
jeu bstitu tin g  

_______ ■ aid Benjamin

Joseph Murray, Jcf^Paul B. Cardin,
' Columbia, S / County and that he 

A tto rn e f>M agistrate’s Constable, 
st warrant for one Willie 

Randolph/jant) charging the said 
Ham ptomeanorj an(j ^ a t  they took 

Atto7i) h0y ; p auj Middleton, going 

lg  the arrest of said W illie  
^abrook community of Beau-

i )



I N D E X

Page
Statement _________________________________________________  1
A g r e e m e n t_________________________________________________  3
Testim ony for The S ta te : _______________________________  3

H. W . R a n d a ll_______________________________________  3
Paul M id d le to n ______________________________________  24
J. E. M c T e e r _________________________________________ 33

Motion by Defendant for directed verdict of
not guilty as to m u rd e r____________________________  39

Ruling of Court on motion for directed v e rd ic t_______  40
Testim ony for D efense: ________________________________  40

Alberta H e y w a r d ___________________________________  40
James H. B a ile y ____________________________________ 43
Benjamin H e y w a rd _________________________________ 41

Agreem ent as to Transcript of T e stim o n y ______ _ 73
testim on y for The State in R ep ly :

""Marcus G r e e n _______________________________________  75
1 of Motion by Defense for Directed 

’ A; of not guilty as to  charge of murder __ 76
’ ial Judge on motion for directed

Charge of m u r d e r ______________________  78
to the j u r y ______________________________ 78

b y  Defense and Refused by
\ _ ________________     93

% _______________________________  99
otion for new t r ia l_______  99
\ ____________________________  99

______________________________ 104



S T A T E M E N T

A t  the regular spring term, 1925, of the Court of 
General Sessions for Beaufort County, S. C., the grand 
jury of said County returned a true bill to an indictment 
charging Benjam in Heyward, the appellant here, with  
the murder o f Paul B. Cardin in said County on the 6th 
day of January, 1925. Thereafter the said Benjamin  
Heyw ard was apprehended and at the spring term, 1940, 
o f the Court o f General Sessions for said Beaufort 
County presided over by his Plonor, Judge L. D. Lide, the 
said Benjam in Heyward was placed on trial under said 
indictment charging him with said murder, was con­
victed and sentenced to death. A t his trial the State was 
represented by Randolph Murdaugh, Jr., Esq., acting as 
Solicitor for his father, Honorable Randolph Murdaugh, 2 

Solicitor o f the 14th Judicial Circuit and the defendant, 
Benjam in Heyw ard, was represented by the Honorable 
Claude M. A m an of the Beaufort County Bar. A fter the 
conviction and sentence of the said Benjamin Heyward, 
his attorney, Honorable Claude M. Am an, gave due notice 
of his intention to appeal to the Supreme Court of South 
Carolina from  such trial, conviction and sentence. There­
after said Attorney withdrew from said case and con­
sented to an Order along with the Solicitor of said Cir­
cuit which was duly granted by the Court substituting :i 
Joseph M urray, Esq., as Attorney for said Benjamin  
Heyward.

The record shows that the deceased, Paul B. Cardin, 
was a Rural Policeman in Beaufort County and that he 
accompanied W . H . Randall, a Magistrate’s Constable, 
who was posssessed of an arrest warrant for one Willie 
Heyward, a brother o f Appellant, charging the said 
W illie Heyw ard with a misdemeanor, and that they took 
along with them a small negro boy, Paul Middleton, going 
out for the purpose of making the arrest of said W illie ( 
Heyward who lived in the Seabrook community of Beau-

( 1 )



2 SUPREME COURT

The State vs. Benjam in Heyw ard

fort County and in the same general location where the 
Appellant lived but in a different house; that the Appel­
lant was at his home when the deceased, M r. Randall and 
the negro boy arrived and parked their automobile to the 
front and side o f the home of Appellant where they 
stopped fo r  the purpose o f getting inform ation as to the 
house in which said W illie Pleyward lived ; that upon 
stopping their automobile the deceased, Paul B. Cardin, 
went to the front door of the home o f Appellant while 
the Constable went to the rear door, leaving the negro 
boy in the car at a point from  which he could see the 
front door and also hear anything that m ight be said ; 
that the Officers had no w arrant for the arrest o f Appel­
lant and were not looking for him and only stopped at 
his house to get inform ation as to where W illie Heyw ard  
lived ; that upon the said Paul B. Cardin, the deceased, 
reaching the front door o f Appellant, the door was 
opened and a shot gun was fired from  the inside of the 
house by the Appellant and the deceased, Paul B. Cardin, 
received a load of number four shot in his stomach from  
which he immediately died.

Upon being arraigned the said Benjam in Heyw ard  
plead not guilty to the indictment against him charging  
him with murder and interposed the pleas o f self defense 
and the defense o f the hom e; and also plead that the 
killing of the deceased was both accidental and justifi­
able.

The first twenty-three pages of the Official Court 
Stenographer’s transcript o f proceedings show that his 
Honor, Judge Lide, placed each of the petit jurors called 
to serve upon their voir dire and that they were examined 
by the Presiding Judge and the Attorneys and that every 
effort was madei to secure a fa ir and impartial jury.

A t  the close of the testimony for the State a motion 
was made by the Attorney for a directed verdict of not



guilty in his favor as to the charge of murder and the 
motion was refused. Again at the close of all o f the 
testimony a motion was made on behalf of the Appellant 
for a directed verdict of not guilty in his favor as to the 
charge of murder against him and the motion was again 
refused.

The jury returned a verdict of guilty and at the 
request o f M r. Am an they were polled by the Clerk. 
They each answered in the affirmative the question 
whether they understood that when they brought in a 
verdict of “ guilty”  it meant death for the defendant by 
electrocution. Before sentence was passed M r. Am an  
made a motion for a new trial which was refused.

The complete testimony of the State and the Appel­
lant has been printed and submitted herewith along with 
all proceedings in this Transcript of Record, with the 
exception of repetition of questions and answers and 
other extraneous m atters not pertinent to an under­
standing of the case here presented.

A G R E E M E N T

To avoid the necessity of bringing the doctor back from  
Alabam a it was agreed by the attorneys for the prosecu­
tion and defense that Paul Carden was found dead at the 
door of the home o f the defendant, Benjamin Heyward, 
also that he had been shot and died as a result of that 
shot.

T E S T IM O N Y  FOR T H E  ST A T E

H. W . R A N D A L L , white, a witness for The State, 
being duly sworn, testified as follow s:

D IR E C T  E X A M IN A T IO N :

By M r. Randolph Murdaugh, J r .:
Q. You are M r. Hubert Randall?

SUPREME COURT 3

Appeal from Beaufort County



4 SUPREME COURT

The State vs. Benjamin Heyward

A . Y es, sir.
Q. M r. Randall, what official position do you now hold 

with Beaufort County?
A . Deputy Sheriff.
Q. In 1925, what position did you hold with Beaufort 

County?
A . I was working as M agistrate’s Constable.
Q. Did you know M r. B. Paul Carden?
A . Y es, sir, I did, sir.
Q. W h at official position did he hold in Beaufort 

County?
A . He was a rural police.
Q. State whether or not, in 1925, he was a rural police?
A . Y es, sir, he was.
Q. State whether or not, you had occasion to go with 

M r. Carden on the 6th of January, 1925, to a certain  
place in Beaufort County?

A . Y es, sir, I did, sir.
Q. A nd you went with him to a certain place in Beau­

fort County?
A . Y es, sir.
Q. W ho else went with you all ?
A . A  colored boy I had in town working for me by  

the name of Paul Middleton.
Q. W h at was the purpose of your trip, sir?
A . W e had a w arrant for one W illie Heyw ard . . . .
M r. A m a n : M ay it please the Court, I object, and let 

him introduce the w arrant in evidence first.
The C ou rt: The warrant would be the best evidence.
M r. M urdaugh: Have you got the w arrant?
The W itn ess : Y es, sir, you have it.
Q. State whether or not, this is the warrant you had 

at the time, sir, for W illie Heyw ard (H anding warrant 
to witness) ?

M r. A m a n : M ay it please the Court, I object to the



SUPREME COURT 5
Appeal from  Beaufort County

introduction o f this warrant in evidence.
The C ourt: Let me see it. (The warrant was handed 

up to the Court by M r. M urdaugh).
M r. A m a n : M ay it please the Court, it is not directed 

against the defendant in this case, but it is direcetd 
against W illie Heyward, and the Sheriff let me examine 
it yesterday.

The C ourt: O f course, I do not know his purpose and 
I think his question so far is competent.

Q. Did you have that arrest warrant at that time, 
sir?

A . Y es, sir.
Q. W ho is that arrest warrant for?
A . It is for W illie Heyward.
Q. W ho is W illie  Heyw ard?
A . He is a brother o f Ben Heyward.
Q. W here did W illie Heyward live in Beaufort County 

in 1925?
A . Near Seabrook.
Q. M r. Randall, state where Willie Heyward lived in 

connection with the defendant, Ben Heyward?
M r. A m a n : M ay please the Court, I object to the in­

troduction of this testimony. Now, the Solicitor has 
asked M r. Randall if he had a warrant for one W illie  
Heyward, and he said, yes, sir. Now, he started to dis­
cuss the w arrant and I objected to the introduction of 
the w arrant because this defendant, Ben Heyward, is 
charged with murder. I can’t see the relevancy of this 
w arrant issued against another person charging a 
separate offense would be competent in this case.

The Court: It certainly would not be competent to 
prove anything against this defendant in this case.

Mr. M urdaugh: Now, Mr. Randall, state to the jury  
the location of W illie Heyw ard’s house in Beaufort 
County in January, 1925, in connection with the defend-



(5 SUPREME COURT

The State vs. Benjam in Heyward

ant, Ben H eyw ard’s house at that tim e?
A . W e  went out there and we did not know the exact 

location o f W illie H eyw ard’s house.
M r. A m a n : M ay please the Court, I object.
The C ou rt: That is competent.
The W itn ess: W e had inform ation the section it was 

in and we were told that the two H eyw ard’s . . . .
M r. M urdaugh: Don’t tell anything that you were told. 

Now , just tell what you did?
A . W e stopped at the first house, M r. Carden got out 

to go up and knock to find out if we were at the right 
house.

Q. W h o was with you, M r. Randall ?
A . Paul Middleton.
Q. Now , go ahead.
A . I started around to the back of the house, but be­

fore I got to the bank o f the house, I heard him ask, 
“ W hat you going to do with that gun?” and that instance 
the gun fired.

Q. Now, you say at that instance the gun fired?
A . Y es, sir, I ran back to the front of the house, M r. 

Carden was lying on the ground shot in the stomach, I 
called him, he did not answer, I reached down and took 
his pistol out of his holster, at that time that man (in ­
dicating as to the defendant) was running across the 
fie'd towards the back of the house with a shotgun there.

Q. You were pointing at Ben Heyw ard?
A . Y es, sir, he was running back over to the second 

house, he was joined by another man and they started 
back, this man (indicator g  as to the defendant) was in 
the lead coming back to the house and I shot at him a 
couple o f times and missed him.

Q. State whether or not, he was coming back towards 
where you and Mr. Carden were at that tim e?

A . Y es, sir.



SUPREME COURT

Appeal from Beaufort County
7

Q. W hat did he have in his hand?
A . A  shotgun.
Q. Then what did you do?
A . A t  that time I was behind the chicken house, both 

at that time were running down towards the swamp, I 
called this Paul Middleton to help me put Mr. Carden’s 
body in the car, but as we swung around with the car 
this Ben Heyward had worked his way up along a hedge­
row and he shot at our car by shooting at us again.

Q. M r. Randall, state whether or not, the place where 
the shooting occurred was in Beaufort County?

A . Y es, sir, it was.
Q. M r. Randall, tell the jury what you were doing at 

the time M r. Carden was shot?
A . W hen I started to walk around to the back of the 

house I stopped to light a cigar.
Q. State whether or not, you and Mr. Carden had any 

idea the defendant in this case was in that house?
M r. A m a n : M ay please the Court, I object.
The C ourt: I would not put it that way.
Q. State whether or not you went there to see Ben 

Heyward ?
A . No, sir.
Q. State whether or not Mr. Carden went there to see 

Ben H eyw ard?
A . W e stopped there for information only.
Q. State whether or not Mr. Carden said any words to 

the defendant, Ben Heyward, other than what you re­
peated a while ago?

A . No, sir, other than what you going to do with that 
gun.

Q. State whether or not Mr. Carden had entered the 
house in which Ben Heyward was in?

A . No, sir, he had not.
Q. I believe you testified a moment ago that Ben Hey-



8 SUPREME COURT

The State vs. Benjamin Heyward

ward came back and shot at you again?
A . Y es, sir, that is right.

29 Q. M r. Randall, state whether or not, on the second 
occasion when Ben Heyw ard shot the second time if  
any of those shots hit you all?

M r. A m a n : M ay please the Court, I submit the ques­
tion suggests an anwser and it is not competent. I sub­
mit it would be best to just let the witness tell what 
happened.

M r. M urdaugh: Just tell what happened the second 
time, that is, whether car was hit the second tim e?

A . This boy got one stray shot and it stung Paul 
s0 Middleton.

Q. And a shot from  the second shot stung Paul Middle- 
ton?

A . Y es, sir.
Q. And at the time you went back to get the body after  

the gun was shot?
A . Y es, sir, and this was when we started to swing  

around with the car that the second shooting occurred.
Q. State when you got back there, where was his 

pistol?
A . In his holster.

81 Q. W as it in his hand?
A . No, sir, in the holster.
Q. Did you move it?
A . He was apparently dead when I asked him , I 

called to him and he never showed any signs o f life at 
all.

Q. Do you know a man by the name of W illie H ey­
ward, M r. Randall?

A . Y es, sir.
Q. State whether or not W illie Heyw ard was with Ben 

Heyw ard when the second shooting occured?
M r. A m a n : M ay please the Court, this is not charged



SUPREME COURT 9

Appeal from Beaufort County

against the defendant, Ben Heyward.
The Court: It is competent.
The W itn ess: He had gone to the woods.
M r. M urdaugh: State whether or not it was Ben Hey­

ward that fired the gun and not Willie Heyward.
A . That is right, sir.
Q. M r. Randall, state whether or not there was any 

mob present at that time?
A . N o, sir.
Q. State whether or not there was a large crowd of 

men present that had guns and weapons in their hands?
A . No, sir.
Q. Just how many were present?
A . W hen we first stopped there, I was along with Mr. 

Carden, T had this b oy; it was this man and the other 
man joined him when he ran over to the house.

Q. State whether or not you and Mr. Carden had 
anything against Ben Heyw ard?

A . No, sir, we stopped there for information only,
Q. State whether or not you had anything against 

Ben Heyw ard and if you knew him?
A . Y es, sir, I had seen him around Greys Hill, we had 

a store over there and I have seen him around there.
Q. W ho drove the car off Mr. Randall?
A , I did, sir.
Q. And this boy, Paul Middleton, you say, accom­

panied you there?
A . Y es, sir, and he was the boy working for me on 

the farm  at that time.
Q. The colored boy?
A . Y es, sir, he was a colored boy.
Q. Did he fire any shots in this case?
A . Yes, sir, when Ben Heyward fired at the car, as 

we were leaving, he reached over and grabbed the pistol 
from off the seat and he shot at him two or three times.



10 SUPREME COURT

The State vs. Benjamin Heyward

Q. W here was Paul Middleton at that tim e?
A . He was holding M r. Carden on the back seat o f the 

car.
Q. You say he was holding M r. Carden on the back 

seat of the car at that tim e?
A . Y es, sir.
Q. A nd I believe you stated that Paul Middleton was 

only a passenger in the car at that tim e?
A . Y es, sir, I was carrying him back to the country 

there.
CROSS E X A M IN A T IO N :

By M r. Claude M. A m a n :
Q. M r. Randall, I believe they had a Coroner’s inquest 

in this case over the dead body of M r. Carden?
A . Y es, sir.
Q. And you testified at that inquest?
A . Y es, sir.
Q. A nd that testim ony was given a couple of days 

afterw ards?
A . Y es, sir.
Q. How  long afterw ards?
A . I cannot tell you exactly how long afterwards.
Q. And I believe you also testified in this Court in 

March, 1932, did you not?
A . Y es, sir.
Q. You told the Solicitor a moment ago you went back 

and took the pistol from  out o f M r. Carden’s holster?
A . Y es, sir.
Q. Did you testify  in this case in March, 1932?
A . In the trial o f W illie H eyw ard?
Q. Y es, sir.
A . Y es, sir.
Q. And you testified in that trial?
A . Y es, sir.



SUPREME COURT 11
Appeal from Beaufort County

Q. A nd what you told then was the truth?
A . Y es, sir.
Q. Read here and see what you told? (Handing testi-

41
mony to the w itn ess).

M r. M urdaugh: Your Honor Please, i f  Counsel is at­
tem pting to introduce that testimony in evidence it will 
be perfectly all right with me.

M r. A m a n : M ay it please the Court, I will be glad to 
ask Counsel on any point when I need any advice.

The Court: Go ahead.
M r. A m a n : I will state first, your Honor, I am not 

attem pting to put this testimony in evidence, but the 
gentleman on the witness stand has stated very frankly 42 

that he testified in the trial of the case o f The State 
against Willie Heyward, I wrote Mr. Mars for the testi­
mony, he sent it to me and if it is wrong Mr. Mars is 
responsible for it. I will go ahead.

The Court: Yes, sir.
Mr. A m a n : Here is the question and your answer. I 

wi 1 start right here and read it to you. “ Q. Don’t say 
anything about what he told you. Tell what happened 
after you got to W illie Heyward’s home? A . W e went 
out to Willie; H eyw ard’s place, Mr. Carden got out to go 43 
to the front of this house, we stopped at the place we had 
been inform ed was W illie Heyward’s house, Mr. Carden 
went to the front1 of the house, I started to the rear but 
just before I got to the rear o f the house I heard Mr. 
Carden say, ‘W hat you going to do with that gunr’ and 
just about that time the gun fired?”

A . Y es, sir, that is right.
Q “ I ran back to the front of the house, Mr. Carden 

way lying on the ground shot in the stomach with his 
pistol” . . .  I am going to stop right there and let you 
read the rest of your answer?

A. “ W ith  his pistol lying by his side” .

4 4



12 SUPREME COURT

The State vs. Benjamin Heyward

Q. W h y didn’t you say “ holster”  then?
A . W ell, just a m atter of slip.
Q. You admit you made that statem ent there?
A . Y es, sir, I did.
Q. A nd at the last trial, you never had the pistol in 

M r. Carden’s holster?
A . M r. Carden had a holster with a snap on it.
Q. W h y didn’t you tell this in the trial of W illie H ey­

w ard?
A . Just something- left out.
Q. Do you think the Court Stenographer left it out?
A . No, sir, I do not.
Q. A nd since the last trial you put the pistol in the 

“ holster” ?
A . No, sir, it was lying in the holster by his side.
Q. A nd in this trial you put the pistol in this holster?
A . No, sir, but it was in the holster.
Q. M r. Randall, what did you go out in that section 

for?
A . To serve an arrest warrant on W illie Heyward.
Q. Now , another question in m y mind is this. You  

told the Solicitor that you were constable for the M agis­
trate, did you not?

A . Y es, sir.
Q. Did the M agistrate appoint you to serve this w ar­

rant?
A . No, sir.
Q. Don’t you know under the law that the Rural Police 

were the Constables for the M agistrates?
A . No, sir, I was working as Constable for M r. Chorey 

at that time.
Q. Don’t you know that the law in force in 1924 and 

1925, that the Rural Police were the M agistrate’s Con­
stables?

A . No, sir.



SUPREME COURT 13

Appeal from Beaufort County

Q. H ave you ever had a warrant where you were ap­
pointed to serve by M r. Chorey?

A . Y es, sir. 4g
Q. Is it in existence?
A . Y es, sir, if you could find nis file and probably find 

a number of them?
Q. Could you find any one of them?
A . Y es, sir, if you could find his file.
Q. You say, i f  you could find his file?
A . I was asked by M r. Carden to accompany him out 

there, and if I had not been, I had a perfect right to go 
with him out there.

Q. I do not think that was the law at that time and I 50 

will leave it for the jury to say about that?
A . Just what I was doing at that time.
Q. M r. Randall, you went to a man’s house and why 

did you go around to that man’s house?
A . W e had inform ation that he lived in that section.
Q. W h y did you go behind Heyward’s house instead 

of going in front if you were just going there for in­
formation ?

A . W ell, the two houses just a short distance apart, 
he went to the front and I thought I would go around 6] 
to the rear there where . . .

Q. A nd you did not say that before?
Mr. M urdaugh: Your Honor please, he has not finished 

answering that question yet.
The W itn ess: These colored houses all out there in 

that settlement, ,we had to stop at some house, there was 
this second house behind this one and we did not know 
which house he lived in.

Mr. A m a n : Now , come back and answer my question 
that I asked you. W hy if you went to that man’s house ^  
to ask for information did you go to the back of that 
house?



14 S U P R E M E  COURT  

The State vs. Benjam in Heyw ard

A . I started to the other house.
Q. Did you tell them that at the other trial ?
A . I do not recall about that.
Q. Did you tell them at the inquest?
A . M r. Am an, I do not recall about that. I know that 

I was going- over to the other house.
Q. I am going to read you this testim ony again. “ W e  

went out to W illie H eyw ard’s place, M r. Carden got out 
to go to the front o f this house, we stopped at the place 
we had been inform ed was W illie H eyw ard’s house?’’

A . Y es, sir, that is right.

Q. “ M r. Carden went to the front o f the house, I 
started to the rear?”

A . Y es, sir.

Q. Now , you never said anything about going to any  
other house?

A . No, sir.

Q. In this second trial, you say, you were going to this 
other house. Now , you are adding on to your testim ony?

A . No such thing.
Q. I would like to ask you this question. Now , if you 

went to a m an’s house to ask fo r  inform ation why didn’t 
you go to the front of the house ?

A . One generally goes to the front and one to the rear.
Q. Now , I am going to finish reading this to you. “ M r. 

Carden was lying on the ground shot in his stomach 
with his pistol by his side?”

A . In his holster by his side.
Q. Here it is the way I ju st read it to you?
A . I said in his holster by his side.
Q. And why did you go to the back there?
A . W ell, two houses there and we were looking for  

W illie Heyward.
Q. Isn ’t it true that you and M r. Carden made a m is­

take and went to the wrong house ?



SUPREME COURT 15

Appeal from Beaufort County

A . No, sir, we did not.
Q. W ell, you have just testified that you had a war­

rant fo r  W illie H eyw ard?
A. Yes, sir.
Q. W ell, whose house did you go to?
A . W e went to Ben Heyward’s house.
Q. W ell, then, you made a mistake?
A . W e never made a mistake and we were trying to 

find him.
Q. Isn ’t it true that you and Carden went to the wrong 

house ?
A . It is not.
Q. W ell, who did you have a warrant for?
A . For W illie Heyward.
Q. W hose house did you go to?
A . Ben Heyward.
Q. Then you made a mistake?
A . I  did not.
Q. Let me go back1 over this as I know the jury would 

like to gat this cleared up. I am going to ask you this 
question one more time. Isn’t it true that you and Mr. 
Carden went to the wrong house to serve this warrant 
against the wrong man?

A . W e did not.
Q. W ell, I am going to ask you this question one more 

time unless his Honor tells me not to ask it. W hy did 
Mr. Carden the rural policeman go to the front door of 
W illie Heyward with a pistol, and you went around to 
the back door where this man lived?

A . I have already answered that question two or three 
times.

The C ourt: Answ er it again.
The W itn ess: Every time we go to a house . . .
Mr. A m a n : You mean one goes to the front and one 

to the rear of the house?



16 SUPREME COURT

The State vs. Benjamin Heyward

M r. M urdaugh: Y ou r Honor please, I insist that the 
witness .be allowed to finish answering the question.

M r. A m a n : I thought he was through.
The W itn ess : That was just your thought, sir.
M r. A m a n : A nything else you want to say.
The W itn ess : N ot anything else to answer yet.
Q. Did you or M r. Carden have any legal right, and 

you assisted M r. Carden, have any legal right to go to 
Ben H eyw ard’s house?

M r. M urdaugh: Y our Honor please, I object to that.
The Court: That would be a question of law, M r. 

Am an.
Q. M r. Randall, do you know where M r. Davidson’s 

house is located?
A . Y es, sir.
Q. W a s M r. Carden drunk or sober that m orning?
A . He was sober and I never did see him drinking.
Q. Did you see him on that m orning in the presence 

of M rs. Davidson and her daughter, open his trousers 
and do anything in their yard?

A . I did not.
Q. M r. Randall, do you know James H . Bailey one 

time Sheriff o f Beaufort County?
A . Y es, sir.
Q. Do you know who was Sheriff of Beaufort County 

at that tim e?
A . It was right after the election and he remained in 

office until the 10th of the month.
Q. Do you recall seeing M r. Bailey a short time after  

this?
A . Y es, sir.
Q. Do you remember telling M r. Bailey who had killed 

Carden?
A . No, sir, I do not recall that.
Q. Do you recall telling M r. Bailey that W illie H ey-



Appeal from  Beaufort County

ward had killed Carden?
A . No, sir, M r. Am an, I do not recall that.
Q. W ill you deny that you may have told Mr. Bailey 

that?
A . I will not.
Q. And will you deny it?
A . I will not.
Q. A t that time you left that house, you were un­

certain who had killed M r. Carden?
A . I did not know the man’s name.
Q. Do you know now who killed him ?
A . I know him since we got him by his name.
Q. Do you know now who killed him by his looks?
A . Y es, sir, because I have seen this man around 

G ray’s Hill a lot and I knew the man that was running 
olf from  the house.

Q. M r. Randall, how large was that house?
A . Just a very small house.
Q. A nd this was a cold day?
A . No, sir, I do not recall about that.
Q. A nd we do have cold weather here?
A . And we have warm weather here also.
Q. Do you know whether that house had any sashes in 

it or not?
A . I do not recall.
Q. And did not have any windows in it, and it just 

had sashes in it made out o f boards?
A . I am not prepared to answer that question.
Q. M r. Randall, do you know whether or not the door 

and windows were closed when you arrived there that 
day?

A . The front door was closed.
Q. W ere the windows closed?
A . I do not recall whether they were closed or not.
Q. And his back door was closed?

SUPREME COURT 17



18 SUPREME COURI 
The State vs. Benjam in Heyw ard

A . His back door was open when I finally went around 
there.

Q. Did you have occasion to go back out there four or 
five days after M r. Carden was killed?

A . I was out in that section a good bit.
Q. How long after M r. Carden was killed before Ben 

H eyw ard’s house was burned?
A . I do not know a thing about that.
Q. A nd how long after that before it was burned?
A . I told you I did not know, sir.
Q. And w asn’t Ben H eyw ard’s house burned five or 

six days after that date?
A . I went back out there with his fam ily five or six  

days after that.
Q. A nd as a m atter of fact, w asn’t all three o f those 

houses burned about a week after it?
A . I could not tell you.
Q. Do you deny it?
A . I could not tell you.
Q. Do you deny it?
A . I do not know a thing about it.
Q. A nd do you know whether they killed his stock?
A . I do not know, sir.
M r. M urdaugh: Y our Honor please, counsel is using 

the stenographic record in the trial of W illie Heyward.
The Court: I think it is perfectly all right.
M r. A m a n : I am going to use the stenographic record 

in a minute, your Honor please.
The C ourt: Go ahead.
Q. How far was the house that belonged to Ben H ey­

ward from  the house that belonged to W illie H eyw ard?
A . Mr. Am an, I say as fa r  as from  M r. W oodford’s 

Filling Station.
Q. And how many yards?
A . Maybe one thousand yards, and almost you might



SUPREME COURT 19

Appeal from Beaufort County

say in the same section.
Q. Now , M r. Randall, you stated in the trial of Willie 

Heyward immediately after Mr. Carden was shot, you 
ran back and picked him up?

A . No, sir, I just said that I went back to him.
Q. H ow  long did you leave him there on the ground?
A . M aybe three or four minutes.
Q. Three or four minutes?
A . Y es, sir.
Q. You told the Solicitor a minute ago while you were 

moving M r. Carden’s body they were shooting at your 
car?

A . I said one shot was fired, as I ran across the field, 74 
then I got into the road to go and another' shot was fired 
at me.

Q. A nd when you turned back to the road you. were on 
the left hand side of your car?

A . Y es, sir.
Q. And driving in that direction? (Counsel indicating 

to the v /itn ess).
A . Y es, sir.
Q. That is driving E ast?
A . Y es, sir. 7r,
Q. And they were behind you and to your side there?
A . Y es, sir.
Q. And how did you see from that section with a 

hedge between you?
A . Yes, sir, I could see.
Q. Tell this jury and take as much time as you want, 

how you could drive to the East, look back over to the 
South-East and see a man shooting at you from  the 
South-East?

A . I saw the man running through this hedge, I made 
a swing this way, my car was headed towards the house 
and just as I made the swing he shot again.



2 0 SUPREME COURT

The State vs. Benjam in Heyw ard

Q. H ow  fa r  did he shoot at you from , M r. Randall?
A . I was close enough for the shot to hit the car.
M r. A m a n : Y our Honor please, I was looking at this 

indictment, I thought they had some charge contained 
in there, “ assault with a deadly weapon” . I withdraw  
all m y questions, as to the shooting, and I move to strike 
out any testim ony except in respect to the indictment 
charging murder.

Q. Now , M r. Randall, I am not going to ask you any 
more along that line.

M r. M urdaugh: I f  I understood, M r. Am an, I have 
not got him charged with anything about a “ deadly 
weapon” .

M r. A m a n : And you have only got him charged with 
m urder?

M r. M urdaugh: I have got him charged with killing 
this man.

M r. A m a n : I know the Solicitor did not allege, but 
there m ight have been a count in the indictment that he 
shot him also.

The C ourt: Y es, sir, your questions have been com­
petent so far, M r. Am an.

M r. A m a n : Now , M r. Randall, I am going to give 
you an opportunity to clear this up for your own bene­
fit. I am going to read you this again.

M r. M urdaugh: It would be better fo r  him to ask the 
questions.

The Court: No, he can read it to him.
M r. A m a n : “ W e went out to W illie H eyw ard’s place, 

M r. Carden got out to go to the front o f this house, we 
stopped at the place we had been inform ed was W illie  
H eyw ard’s house, M r. Carden went to the front o f the 
house, I started to the rear, but just before I got to the 
rear of the house, I heard M r. Carden say, ‘W h at you 
going to do with that gun?’ and just about that time the



SUPREME COURT

Appeal from Beaufort County
21

gun fired, I ran back to  the front of the house, Mr. Car­
den was lying on the ground, shot in his stomach with 
his pistol lying by his side, I grabbed up his pistol” . . .

A . That is right, sir.
Q. And that is still true?
A . Y es, sir.
Q. And his pistol was on the ground?
A . Had to be on the ground, because it was in the 

holster on the ground.
Q. I thought you testified before it was not in the 

holster ?
A . Y es, sir, it was in the holster and he wore his pistol 

in his holster.
Q. M r. Randall, let me read you the balance of your 

answer. “ I shot at him two or three times, he went 
over to another house two or three hundred yards back 
of that house, and just as he got to that house a man 
came out o f that house to join him, and they both turned 
to start back to this house, but one of them did not come 
all the way back, that is, the first one that ran from the 
house, as he was not the one in advance coming back 
to the house, I ran back to a little house, which was a 
little chicken house, where I got close enough to see him 
as he was coming back, but this second man was there 
and hollered to him to come back. Now, at that time I 
called this boy out of the car to come on and get Mr. 
Carden off of the ground, we got him up to start on 
towards the car and just as we started towards the car 
both of these negroes started towards the swamp, they 
both got out into an open place and both fired at us” .

A . That is right, sir.
Q. Now, let me get this cleared up, Mr. Randall. Now, 

was M r. Carden’s pistol exposed so you could see it?
A . No, sir, not i f  he had on a coat.
Q. Could you see the pistol at all if he pulled off his



22 SUPREME COURT

The State vs. Benjam in Heyw ard

coat?
A . Y es, sir, if you had pulled off his coat you could 

have seen his pistol.
Q. Could you see it just like it w as?
A . No, sir.
Q. And he did have it hooked into his belt just like 

th is? (Counsel indicating to the w itness).
A . Y es, sir.
Q. And could have been exposed?
A . Y es, sir.
Q. I am trying for the benefit o f the jury to find out 

some thing from  you. You could have seen his pistol?
A . It could have been exposed, M r. Am an.
Q. M r. Randall, are you positive this is all the state­

ment that M r. Carden made. N ow , I would like for you 
to be very careful. A re  you positive that the only state­
ment that you heard was th is : “ W h at you going to do 
with that gun?”

A . That’s right, sir.
Q. That’s the only statement M r. Carden made?
A . Y es, sir, the only statem ent M r. Carden made.
Q. A re you positive o f that?
A . Y es, sir.
Q. And are you positive of that?
A . Y es, sir, I am.
Q. So you now tell the Court, that you are absolutely 

positive and swear that the only statem ent M r. Carden 
made?

A . That was the only statement I heard him make.
Q. A nd if he had made any other statem ent you 

would have heard it?
A . I think I would have, sir.
Q. A nd you are reasonably certain you could have 

heard it?
A . Y es, sir, i f  it had been made in the same tone of



SUPREME COURT 23

Appeal from Beaufort County

voice, I am reasonably certain I could have caught it.
M r. A m a n : I think with that statement, your Honor 

please, that he made no other statement. 8g
M r. M urdaugh: The State does not contend that he 

made any other statement.
M r. A m a n : M ay please the Court, the Solicitor does 

not contend that he made any other statement.
Q. M r. Randall, I am going to clear this up. You are 

satisfied if he had made any other statement to Ben 
Heyward you would have heard it?

A . Y es, sir, i f  it had been made in the same tone of 
voice I would have heard it.

Q. And you are satisfied he never made any other oo 
statement?

A . N ot in the same tone of voice.
M r. A m a n : M r. Solicitor, do you contend that he made 

any other statem ent?
M r. M urdaugh: I contend that he made no other 

statement there.
The C ourt: I f  that is the only question before the 

Court then I hold the question is competent.
Q. M r. Randall, the business that you and Mr. Carden 

were going on, was to make an arrest out there?
A . Y es, sir.
Q. A nd you went out there to arrest a man by the 

name of W illie Heyward?
A . Y es, sir.
Q. Charged with a misdemeanor?
A . Y es, sir.
Q. And it was involving some $10.00 or $12.00?
A . Yes, sir, I do not exactly recall the am ount; but it 

was somewhere in the neighborhood of $13.00.
Q. And you went to this house to make an arrest?
A . Y es, sir, M r. Am an, if you will let me go into this 

a little bit, I can . . .

92



24 SUPREME COURT

The State vs. Benjam in Heyw ard

Q. Let me handle this ease and you answer m y ques­
tions. I say, you went to this house to make an arrest?

A . Yes, sir.

R E D IR E C T  E X A M I N A T IO N :

B y M r. Randolph Murdaugh, J r . :
Q. M r. Randall, there has been a lot o f talk and a lot 

of argument on cross-exam ination about where the pistol 
was, that is, whether it was on the ground or in the 
holster. N ow , will you take this belt, this pistol and the 
holster and' put it on me just like M r. Carden had his on 
that day?

M r. A m a n : M ay please the Court, I object to that.
The C ou rt: That would not be competent.
M r. M urdaugh: Y our Honor please, i f  M r. A m an does 

not want the ju ry  to know about it then I do not care 
about it.

The C ourt: I f  counsel objects to the testim ony then 
the Court will exclude it.

Q. M r. Randall, there has been a lot o f talk on this 
cross-exam ination, whether the gun was in the holster 
or on the ground ?

A . It was in the holster.
Q. Let me ask you this question. State whether or not 

it was in the holster?
A . Y es, sir.
Q. State whether or not it was on the ground?
A . Y es, sir.
Q. A nd state whether or not that is the same thing  

you told before?
A . Y es, sir, and I ju st left out “ holster” the last time.

P A U L  M ID D L E T O N , colored, a witness’ for the State, 
being sworn, testifies as follow s:



SUPREME COURT 25

Appeal from Beaufort County

D IR E C T  E X A M IN A T IO N :

By M r. Randolph Murdaugh, Jr.:
Q. Y our name is Paul Middleton?
A . Y es, sir.
Q. Paul, in January, 1925, for whom were you work­

ing fo r?
A . M r. Hubert Randall.
Q. Talk out loud so all of the jurors can hear you.
A . Y es, sir.
Q. Do you recall making a trip during January, 1925, 

with M r. Randall and M r. Carden?
A . Y es, sir.
Q. W here were you going, Paul?
A . I w as on m y way home, sir.
Q. And you were on your way home?
A . Y es, sir.
Q. Tell the jury what happened during your trip, that 

is, where did you go, what happened and everything 
about it?

A . He was carrying me on back out home, that is, Mr. 
Randall, but after he got out to the road where I was 
to go down, he asked me if I wanted to go out there with 
them . . .

Q. Don’t tell anything that he told you, or any con­
versation you all had?

A . Then, he said, come on and go and he would carry 
me down to the farm  when he got back, I did not know 
which way he was going, but when he got there, he 
stopped at one house, I did not know whose house it was, 
but after the car stopped, Mr. Randall and Mr. Carden 
got out o f the car to start up to the house.

Q. Paul, did you see M r. Carden and Mr. Randall the 
entire time after they got out of the car and the wrhole 
time they were there at the house?



2 6 SUPREME COURT

The State vs. Benjamin Heyward

A . Y es, sir.
Q. State whether or not M r. Paul Carden or M r. 

H ubert Randall had anything in their hands at that 
tim e?

A.. No, sir, they never had anything in their hands at 
all.

M r. A m a n : M ay please the Court, I wish) your Honor 
would instruct the witness not to make a statem ent when 
the question suggest an answer, and also, when it does 
not clearly come within the rule.

The C ourt: Be careful, M r. Solicitor.
Q. Paul, tell the ju ry  anything that M r. Randall had 

that day, or if M r. Carden had anything that day?
A . M r. Carden had his pistol in his holster, and Mr. 

Randall had his in his holster on his side. M r. Carden 
went up there to the door and rapped, then the door 
opened, and I heard him ask, “ W h at you doing w ith that 
gun” ?

Q. Do you know who that question was addressed to 
at that tim e?

A . No, sir, I do not know who he was talking to at 
that time. Now , just at that time I saw the shotgun 
sticking out o f the door and shot M r. Carden in the 
stomach.

Q. W here was M r. Randall at that tim e?
A . M r. Randall stopped at the rear o f the house to 

light a cigar.
Q. A t  the time the shot was fired, where was M r. 

Carden’s pistol?
A . In his holster on his side.
Q. Go ahead?
A . Just then M r. Randall went to M r. Carden, he took 

his pistol off of him, he went around the house where he 
could see this man was running from  this house towards 
another house and it was not so very far over there.



SUPREME COURT 27

Appeal from Beaufort County

Q. Tell the jury where Mr. Randall got Mr. Carden’s 
pistol from?

A. Lying on the ground by his side.
Q. State whether or not it was in the holster?
A. Yes, sir, in the holster and his holster was hung 

on his side.
Q. Go ahead and tell where it was?
A. Just then Mr. Randall ran back of the house and 

he shot at this man several times going across the field.
Q. Shooting at whom?
A. Ben over there. (Witness indicating at to the de­

fendant, Ben Heyward).
Q. Now, go ahead?
A. Just as he got to the other house another man came 

out there to join him. And both of them shot at Mr. 
Randall, then there was a hedge-row back of the house, 
and one of these men ran in by the hedge-row, and one 
of the men came back there, and then Mr. Randall asked 
me to1 put Mr. Carden in the car, this man ran up to the 
hedge-row, and then he shot into the car, and then he 
shot into the car and one shot hit me in the jaw.

Mr. Aman: May please the Court, I object to all of 
this testimony.

The Court: I think it is competent.
Mr. Murdaugh: Who shot at you the second time?
Mr. Aman: May please the Court, I object to that, and 

I admit that Mr. Carden was found dead.
Mr. Murdaugh: I have alleged murder in the indict­

ment, and this testimony is for the purpose of showing 
the malicious intent in the shooting of Mr. Paul Carden.

The Court: It is competent.
Mr. Murdaugh: Who fired the second shot, that is, the 

shot that hit you in the car ?
A. I do not know which one made the shot, sir.
Q. Tell whether or not Ben Heyward was there out



28 SUPREME COURT

The State vs. Benjamin Heyward

in the hedge-row at that time?
Mr. Aman: May please the Court, I think in view of 

his answer to the question just asked, that the testimony 
should be stricken out and the jury instructed to disre­
gard it.

Mr. Murdaugh: Your Honor please, let me ask him this 
further question.

The Court: Go ahead.
Mr. Murdaugh: Was there a front porch to that house?
A. Yes, sir.
Q. State where Mr. Carden was standing at the time 

he was shot?
A. Right in front of the door.
Q. State whether or not, he was entirely on the 

ground, or he was standing on the porch at the time he 
was shot?

A. On the ground.
Q. State whether or not Mr. Carden had attempted to 

go into the door of that house?
A. No, sir, he never attempted to go in at all.
Q. State whether or not, Mr. Carden nicely rapped on 

the door?
A. Yes, sir, he rapped upon the door.
Q. You know whether or not that was in Beaufort 

County?
A. Yes, sir, I guess so.
Q. You do not know?
A. No, sir.
Q. Did it happen out there near Seabrook?
A. Yes, sir.
Q. And Seabrook is in Beaufort County?
A. Yes. sir.
Mr. Aman: Your Honor please, I will admit that.
Mr. Murdaugh: If counsel admits that, I will not ask 

any further questions along that line.



SUPREME COURT 29

Appeal from Beaufort County

CROSS EXAMINATION:

By Mr. Claude M. Aman:
Q. Old man, what is your name?
A. Paul Middleton.
Q. Paul, where have you been the last few weeks ?
A. I been in jail, sir.
Q. What jail?
A. Beaufort County jail.
Q. Do you mean over here?
A. Yes, sir.
Q. What have you been in jail for?
A. For murder, sir.
Q. Have you been tried yet?
A. Yes, sir, I entered into a plea of guilty.
Q. Whom did you kill?
A. Ethel Heyward.
Q. Your wife?
A. No, sir.
Q. How did you kill her?
A. My girl friend.
Q. How did you kill her?
A. I shot her.
Q. You shot her?
A. Yes, sir.
Q. What did you shoot her with?
A. A shotgun.
Q. Where did you hit her?
A. I did not know where I hit her.
Q. How much time did you get?
A. I have not been sentenced yet.
Q. Now, Paul, how old are you?
A. Around twenty-eight years old.
Q. Then, you must have been around fifteen or sixteen 

years old at the time this thing happened?



30 SUPREME COURT

The State vs. Benjamin Heyward

A. I was around fifteen years old then.
Q. The day this thing happened?

17 A. Yes, sir.
Q. I believe you were working for Mr. Randall at that 

time?
A. Yes, sir.
Q. And Mr. Randall had a farm at that time ?
A. Yes, sir.
Q. Now, Paul, did you know what Mr. Carden and Mr. 

Randall were going up there for that day?
A. No, sir.
Q. You say, you had been working for Mr. Randall

18 and he picked you up that day for the purpose of carry­
ing you home?

A. Yes, sir.
Q. Now, when Mr. Randall walked behind the house 

he had his pistol with him?
A. Yes, sir, the pistol was on his side.
Q. Mr. Randall had a pistol and it was one of those 

big automatic pistols?
A. I could not tell you what he had.
Q. I mean one that you squeeze and it shoots?
A. I did not see.

19 Q. You say Mr. Carden went to the front door?
A. Yes, sir.
Q. And he knocked?
A. Yes, sir.
Q. Did you hear Mr. Carden say whether or not he 

knew Ben Heyward?
A. No, sir.
Q. Did he say he did not know him?
A. I did not hear him say.
Q. Now, old man, I believe I asked you, and it is my

20 recollection of your testimony, that Mr. Randall carried 
you out there with him that day and you did not have



SUPREME COURT 31

Appeal from Beaufort County

anything to do with making the arrest that day?
A. No, sir.
Q. Did you know what Mr. Randall was going out 

there for?
A. No, sir, I sure did not know what he was going out 

there for.
Q. Did you hear them make the statement that they 

were going to arrest any one?
A. No, sir.
Q. You never heard either one say anything about 

going to arrest any one?
A. No, sir.
Q. How far was the car parked from the house? First, 

I will ask you whether it was Mr. Randall’s car or was 
it Mr. Carden’s car?

A. It was Mr. Carden’s car I thought and I am not so 
sure about that, though.

Q. How far was this car parked from the front door 
of Ben Heyward’s home?

A. I did not measure it.
Q. Well, you were sitting in Mr. Carden’s car when it 

was parked out there?
A. Yes, sir.
Q, How far were you sitting in Mr. Carden’s car from 

the front of Ben Heyward’s home. Now, point out some 
distance back there?

A. About as far as the distance to that corner there. 
(Witness indicating to counsel and the jury the distance 
the car was from the home of Ben Heyward).

Q. Let me ask you this. Did you hear Mr. Carden 
make any statement at all before the shooting?

A. No, sir.
Q. Did you ever hear Mr. Carden make any statement 

at all to Heyward?
A. I heard him say, “what you doing with that shot-



32 SUPREME COURT

The State vs. Benjamin Heyward

gun” .
Q. Did you hear M r. Carden make any other state­

ment?
A . No, sir.
Q. Now , then, after he said, “ what you doing with  

that shotgun ?”  and how lo n g  w a s  i t  b e fo r e  th e  shootin 
occurred?

A .  Just then I  saw the g u n  barrel s t ic k in g  o u t  o f  the 
door.

Q . Could M r . R a n d a ll see  h is  g u n  s t ic k in g  o u t , ar-'
why didn’t he see it?

A . He was in the back of the house there a t the time.
Q. So just as M r. Carden spoke the gun fired, is that 

right?
A . Y es, sir, or short’y afterwards.
Q. N ow , I believe that was all M r. Carden said?
A . Y es, sir, all I heard him say.
Q. So the m an’s door was shut when you got there?
A . Y es, sir.
Q. A nd his windows were closed?
A . I could not tell you.
Q. W a sn ’t it in the winter tim e?
A . Y es, sir.
Q. Did the car drive up to the front of the house or 

the side?
A . Right off on the side of the house both ways.
Q. Sort of straighten that out fo r  me old man. Now , 

if his house was right there, which w ay did M r. Carden’s 
car go up to the house? (Counsel indicating to the 
w itn ess).

A . The car sorter came around to the back o f the 
house, because there is a road running back of that house, 
but before you get to the back of the house the road 
turned going in both ways of the house like that table 
there, the car was practically like that table there, that



SUPREME COURT 33

Appeal from Beaufort County

is, it was edgeways of the house and I could not see in­
side of the door there.

Q. You could not see in the door there?
A . I could not see in the door and could not see inside 

o f that house there.
Q. But you were almost in front of that house there?
A . Y es, sir.
Q. Now , say this was the house, and you were sorter 

over in this direction over here? (Counsel indicating 
to the w itness).

A . Y es, sir.
Q. A n d  you are positive all was said, “what you 

going to do with that gun ?”
A . Y es, sir.
Q. One other question I would like to ask you. Had 

you ever seen Ben Heyward before that day ?
A . No, sir, I really had not.
Q. H ad you ever heard of him before?
A . Y es, sir, I had heard of him before.
Q. A nd you did not know him?
A . No, sir, he was a stranger to me and I never did 

know anything about him.
Q. A s  a m atter o f fact, Mr. Carden did not know him ?
A . I could not right’y tell you whether he did or not, 

sir.
MR. J. E . M cT E E R , white, a witness for the State, be­
ing duly sworn, testifies as follow s:

D IR E C T  E X A M IN A T IO N :

By M r. Randolph Murdaugh, Jr.
Q. M r. McTeer, you are the present Sheriff of Beau­

fort County?
A . Y es, sir.
Q. W ho was Sheriff of Beaufort County in 1925?



34 SUPREME COURT

The State vs. Benjam in Heyw ard

A . M y father.
Q. A nd you succeeded your father?
A . Y es, sir, I did.
Q. M r. M cTeer, in the fall o f 1939, did you have oc­

casion to make a trip to Cleveland, Ohio?
A . Y es, sir, I did.
Q. W hen you arrived at Cleveland, state whether or 

not you had occasion to see the defendant, Ben H ey­
ward ?

M r. A m a n : I object, m ay please the Court, to the in­
troduction of this testim ony and I ask that the ju ry  be 
excused to the ju ry  room.

The C ourt: Gentlemen, you can retire to your room  
there. (Jury retires to the jury ro o m ).

M r. A m a n : So that your Honor m ight be advised, 
this defendant was apprehended by the Sheriff o f the 
State of Ohio. Now , the Sheriff here did, as I am in­
formed and believe, secure the necessary papers after  
certain proceedings to bring him back to Beaufort,
S. C. I submit this to your Honor, that this defendant 
would be prejudiced, or it would be prejudicial to the 
defendant, for your Honor to allow the State to intro­
duce any testim ony as to the defendant fleeing, or that 
he was apprehended away from  here and brought back 
here.

The C ourt: It would be competent to show that the 
defendant fled. Now, is that the purpose of your ques­
tion?

M r. M urdaugh: No, sir, your Honor, please I do not 
care where the defendant was. I want to prove a cer­
tain statem ent, or confession he made to the Sheriff.

The C ourt: That would be competent.
M r. A m a n : W ell, I am wi ling to admit any state­

ment that Sheriff McTeer makes, of course, subject to 
any objections I m ight make as to the competency of



SUPREME COURT 35
Appeal from Beaufort County

it. I would ask your Honor while that this defendant 
might have a fa ir and impartial trial that it be left out 
where this defendant was apprehended. I am perfectly 
willing to adm it any confession that he made to the 
Sheriff, or any statement subject, of course, to the rel­
evancy it m ay have. I am asking your Honor to leave 
out where he was apprehended in another state.

M r. M urdaugh: Y ou r Honor, please, I do not care 
where he was apprehended, and he might have made the 
confession right here in the Beaufort County jail.

The Court: Suppose, Mr. Solicitor, you confine your 
questions to what the defendant said.

W itn ess : He made two confessions, one there and 13s 
one here.

The Court: I suggest that you confine your questions 
to what the defendant said.

Mr. M urdaugh: W ill your Honor permit me to say 
this. He made two confessions, one there, and then if he 
made a second one without stating where he was.

The C ourt: Yes, sir. Bring the jury back. (The jury  
brought b a ck ).

Mr. M urdaugh: Sheriff McTeer, on or about Novem­
ber 1, 1939, or along about that time, did you have oc- 139 
casion to see Ben Heyw ard?

A . Y es, sir.
Q. State whether or not, you had occasion to see Ben 

Heyward in the presence of Mr. Harper, the Highway 
Patrolman and m y father?

A . Y es, sir, I did.
Q. State whether or not, Ben Heyward made a state­

ment to you in their presence?
A . Yes, sir, he did.
Q. State, Sheriff McTeer, whether or not that state- 

ment was made freely and voluntarily?
A. Y es, sir, it was.



36 SUPREME COURT

The State vs. Benjamin Heyward

Q. State whether or not, you promised him any hope 
o f rew ard?

A . I did not.
Q. State whether or not, you made any threats against 

him ?
A . I did not.
Q. And Sheriff, did you warn him ?
A . Y es, sir.
Q. Before he made the statem ent?
A . Y es, sir.
Q. W h at did you warn him, Sheriff M cTeer?
A . I warned him that I had a w arrant for his arrest 

for the killing of Paul Carden, and any statement he 
made m ight be used for or against him , he did not have 
to say anything if  he did not w ant to say anything.

Q. To whom were the statem ents made?
A . M r. Harper, the H ighw ay Patrolman and Mr. 

Randolph Murdaugh, the Solicitor.
Q. W ill you turn to the jury and tell them what state­

ment he made to you?
A . Ben Heyw ard told me that he did shoot a man that 

came up to his front door, he said, when he was working  
over in Ham pton County, he and some other man by the 
name of “ Robinson” had gotten into an altercation and 
“ Robinson” had threatened him ; he later came home, 
and he was later told by a colored man that “ Robinson” 
was coming to kill h im ; that he saw this white man 
come up to his house and he shot him . N ow , the first 
confession he made to me, that he saw a mob of men 
coming up to his house, but later on I had another talk 
with him.

Q. W as that all of the first confession?
A . That was all of the first confession, except he told 

me how he escaped.
M r. A m a n : M ay please the Court, I object to that.



SU PR EM E COURT  

Appeal from  Beaufort County

37

The W itn e ss : He told me that after he shot the man 
he ran off that night to stay in the woods and the next 
day . . . .

145
M r. A m a n : M ay it please the Court, I object.
The C ourt: To w hat?
M r. A m a n : The Court has ruled any testimony out 

in regard to fleeing.
M r. M urdaugh: Your Honor please, this is entirely 

competent in the examination of the Defendant.
The W itn ess: He ran into the woods, the next day 

some people brought him some food and told him he had 
killed a policeman of Beaufort County, and he said, then 
he was so terrified that he continued to flee, and he hc 
said he did not know he was shooting a policeman, but 
he thought he was shooting a man by the name of 
“ Robinson” and that was his freely and vountarily con­
fession to me.

Q. W h at was that about the mob?
A . He said, when he ran out to the woods a mob of 

people approached his house and that was his first con­
fession to me.

Q. Did he state how many were in the mob?
A . He did not, but he stated a considerable bunch of 347 

people.
Q. State whether or not, Ben Heyward made another 

confession to you?
A . Y es, sir.
Q. State whether or not, that statement was made 

freely and voluntarily?
A . Yes, sir, he called me over to the jail.
Q. Did you offer him any hope of reward to get any 

such statem ent?
A . No, sir. 14g
Q. Did you offer him any inducements?
A . No, sir.



38 SUPREME COURT

The State vs. Benjam in Heyw ard

Q. W ho was present?
A . N o one was present but Ben and I.
Q. W ill you turn to the ju ry  and tell them what that 

statem ent w as?
A . He made practically the same confession that he 

thought he was killing a man by the name of “ Robinson” , 
and w asn’t a mob of men and only two or three men on 
the outside and w asn’t a mob of men.

Q. Anything else?
A . Only that admission and how he got away.

CROSS E X A M I N A T IO N :

By M r. Claude M. A m a n :
Q. Sheriff, I would like to ask you just one question 

and it is th is: Heyw ard stated that he had had some 
trouble w ith a man by the name of “ Robinson” ?

A . Y es, sir.
Q. I believe he stated that someone communicated a 

threat to Heyw ard that “ Robinson” was going to kill 
him and do him harm ?

A . Y es, sir, he said a negro from  Stuart Point came 
and told him that.

Q. And that he had heard w hat?
A.. That he heard “ Robinson” was going to come to his 

house and kill him.
M r. A m a n : M ay please the Court, I do not question 

one word what the Sheriff has said.
M r. M urdaugh: The State’s next witness is M r. 

Harper, the H ighw ay Patrolman. You will admit that 
M r. Harper will testify to the same thing that the Sher­
iff ju st testified to.

M r. A m a n : M ay please the Court, I will admit that 
M r. H arper will state the same thing that the Sheriff 
did.



SUPREME COURT 39

Appeal from Beaufort County

M r. M urdaugh: I would like to ask the Sheriff one 
other question, your Honor please.

The C ourt: Come back to the witness stand, Mr. 
Sheriff.
M R. J. E . M cT E E R , recalled to the witness stand for 
further D IR E C T  E X A M IN A T IO N :

By M r. Randolph Murdaugh, J r .:
Q. Sheriff, do you know who this fellow “ Robinson” 

is?
A . No, sir, I never heard of him.
Q. Do you know whether he is a white man, or is he 

a colored man?
A , Heyw ard said he was white.
M r. M urdaugh: That is the State’s case.

M O T IO N  FO R D IR E C T IO N  OF V E R D IC T

A t the close of the testimony for the State in chief the 
follow ing took place:

M r. A m a n : I have a motion to make, your Honor 
please.

The C ourt: Let the jury go to the jury room. (Jury 
retired).

M r. A m a n : Now , m ay please the Court, I move for a 
directed verdict as to murder upon the following 
grounds:

1. M y motion is made upon the ground, may please 
your Honor, i f  you will turn to Vol. One, Section No. 
933 of the Criminal Code, which provides as follow s: 
“ Right to be informed of ground of arrest, etc., 
Penalty. Every person arrested by virtue of process, oi 
taken into custody by an officer in this State, has a right 
to know, from  the officer who arrests or claims to de­
tain him, the true ground on which the arrest is made; 
and an officer who refuses to answer a question relative



40 SUPREME COURT

The State vs. Benjamin Heyward

to the reason for such arrest, or answers such question 
untruly, or assigns to the person arrested an untrue 
reason fo r  the arrest, or neglects on request, to exhibit 
to the person arrested, or any other person acting in his 
behalf, the precepts by virtue of which such arrest is 
made, shall be punished as for a m isdem eanor” . I ask  
that that section of the Code be made a part o f m y ground  
fo r  a directed verdict.

2. I want to move on the second ground, that there 
has been no m a'ice shown, either express or implied. 
N ow , I submit to your Plonor that it is a cardinal rule 
of the criminal law o f the State o f South Carolina, that 
in order to sustain and make out an indictment fo r  
murder that you have to prove malice aforethought.

R U L IN G  OF C O U R T O N  M O T IO N  FO R  D IR E C T IO N  
OF V E R D IC T

The Court: I think, M r. A m an, you have made every  
point you could make, you have argued the case with a 
great deal o f force and I agree with you on several pro­
positions of law that I expect to charge the ju ry  on. I 
am thoroughly convinced that I will have to  submit this 
case to the ju ry  and I will have to overrrule your motion  
for a directed verdict. Bring the ju ry  back.

T E S T IM O N Y  O F T H E  D E F E N S E

A L B E R T A  H E Y W A R D , colored, a witness for the De­
fendant, being duly sworn, testifies as fo llow s:

D IR E C T  E X A M IN A T IO N :

By M r. Claude M. A m a n :
Q. W h at is your name?
A . Alberta Heyw ard.



SUPREME COURT 41

Appeal from Beaufort County

Q. Alberta, where were you living in January, 1925?
A . I was living at Seabrook at that time.
Q. W hose place did you live on? m
A . I lived on Ben Heyw ard’s place at that time.
Q. W asn ’t Ben Heyward your husband?
A . Y es, sir.
Q. And you were living with him?
A . Y es, sir.
Q. Now , that was Ben Heyward’s home where Mr. 

Carden was killed?
A.. Y es, sir, that was his home.
Q. Alberta, were you at home that day?
A . N o, sir. 162
Q. W here were you that day?
A . I was working on the island that day working for 

M r. Good Brown.
Q. A lberta, you at home the day before Mr. Carden 

was killed?
A . I was there the day before.
Q. W as your husband there at home the day before?
A . Y es, sir, he was at home.
Q. Did a white man come to your house that day?
A . Y es, sir. 163
Q. W ho was the white man?
A . I do not know the name.
Q. How m any men were with him?
A . I saw one in front, but how many more I am not 

sure about that.
Q. Did he come in the car?
A . Y es, sir.
Q. W h at did he ask for?
A . Asked for Ben H eyw ard; I told him that Ben was 

not there at home at this time. 1 6 4

Mr. M urdaugh: Your Honor please, I object to any 
conversation she had with any white man the day before



42 SUPREME COURT

The State vs. Benjam in Heyw ard

the shooting.
M r. A m a n : M ay please the Court, I am not offering  

the conversation.
The C ourt: I will let her testify  to that.
M r. Am an :Did any white man come to the house before 

M r. Carden was killed?
A . Y es, sir, they were there in a car.
Q. Now , I say, did they white men inquire for any­

body?
A . They inquired for Ben.
Q. Did these w hite men appear to be in a good humor 

or did they appear to be m ad?
M r. M urdaugh: Y ou r Honor please, I object to that.
The C ourt: W ell, let her answ er that.
M r. M urdaugh: Your Honor please, she first testifies 

that Ben Heyw ard was there at home and then she 
changed and said he was not.

M r. A m a n : M ay it please the Court, I will clear that 
up.

The C ourt: I will let her answer the question just  
how they appeared.

Q. Did these men appear to be in a good humor, or 
did they appear to be angry?

A . They looked like they were angry.
Q. W h at time of day did they come there?
A . In the afternoon.

CROSS E X A M I N A T IO N :

By M r. Randolph Murdaugh, J r . :
Q. This was before your husband shot down Paul 

Carden in cold blood?
A . Y es, sir, it was the day before.
Q. N ow , you are not testifying that M r. Paul Carden 

came out there the day before?



SUPREME COURT 43

Appeal from Beaufort County

A . No, sir.
Q. A n d  you are not trying to say that Mr. Paul Carden 

came out there the day before the shooting?
A . No, sir.
Q. And you are not trying to say that Mr. Randall 

came out there the day before the shooting?
A . No, sir, I could not say it was Mr. Randall and I 

do not know M r. Randall.
Q. You just do not know who it was that came out 

there ?
A . No, sir.
Q. And you are not saying he came out there?
A . I do not know who it was but it was a man. no
Q. And you do not know anything about the shooting?
A . No, sir, I was not there.

M R. J A M E S  H. B A IL E Y , white, a witness for the De­
fendant, sworn, testifies as follow s:

D IR E C T  E X A M IN A T IO N :
By M r. Claude M. A m an :
Q. You are M r. James H. Bailey?
A . Y es, sir.
Q. M r. Bailey, during the first part of January, 1925, 

did you hold any official position in Beaufort County?
A . Y es, sir, I did.
Q. W h at was it?
A . Sheriff o f Beaufort County.
Q. M r. Bailey, at the time Mr. Carden was killed, you 

were out in the country some place?
A . Yes, sir.
Q. W hat day did you come back?
A . The day after.
Q. M r. Bailey, the next day, or a few days thereafter, 

did you go out to the place where Mr. Carden was 
supposed to have been killed?

A . Y es, sir, I did.

172



44 SUPREME COURT

The State vs. Benjamin Heyward

Q. W h at condition did you find out there ?
M r. M urdaugh: Y our Honor please, this was after  

the time all this thing happened.
The Court: I will let him answTer it.
Q. W h at condition did you find out there?
A . I did not go out there for the purpose of m aking  

any investigation, M r. Am an.
Q. Did you see the house where M r. Carden was 

killed?
A . I saw where the house had been.
Q. H ow  m any days was this after the killing?
A . I do not know how m any days it was.
Q. W h at had happened to the house?
A . It was gone.
Q. N ow , you say it was “ gone” and did somebody 

move it?
A . It had been either torn down, or it had been 

burned.
Q. Now  the next house over there was his brother’s 

house, W illie Heyw ard?
A  Y es, sir.
Q. W here was that house?
A . It was gone also.
Q. W here was the other house, that is, the third  

house ?
A . I did not see any third house. I just do not recall 

seeing but two houses.
Q. M r. Bailey, as Sheriff you w ent out of office about 

the 10th or 12th of January?
A . I turned over the records of the office to M r. M e- 

Teer on the 10th day of January, 1925.
Q. A nd that was four days after the killing?
A . Y es, sir.
Q. And you did not have any chance to investigate it?
A . N o, sir.



SUPREME COURT 45

Appeal from Beaufort County

CROSS E X A M IN A T IO N :

By M r. Randolph Murdaugh, J r .:
Q. M r. Bailey, you are not trying to say that Mr. 

Hubert Randall, or anybody connected with this shoot­
ing had anthing to do with burning down those houses?

A . W ell, the only thing, I do not know anything of my 
own knowledge and I only know what was rumored 
around.

Q. And you are not trying to tell the jury that Mr. 
Randall burned the houses down?

A  No, sir, I am not trying to tell them.
Q. A nd you are not trying to connect it with anybody 

connected with M r. Carden?
A . I do not believe the Court will allow me to testify  

to anything only o f my own knowledge.
M r. M urdaugh: Your Honor please, I move to strike 

out the testimony of Mr. Bailey, because what he has 
sworn to in this case is not competent and he did not go 
out there and make any investigation.

M r. A m a n : I would like to ask him one more question.
The C ourt: Go ahead.
Mr. A m a n : Did you know where Mr. Carden was shot?
M r. M urdaugh: Your Honor please, I move to strike 

out his entire testimony, because he does not even know 
where M r. Carden was shot.

The Court: The jury will consider that testimony. I 
refuse the motion.

Mr. M urdaugh: M r. Bailey, you went out there, you 
found two or three houses burned down and you are not 
certain about that?

A . I only know from  hearsay.
Q. A nd you do not know of your own knowledge who 

burned them down?
A . No, sir, I did not see them.



46 SUPREME COURT

The State vs. Benjam in Heyw ard

Q. A nd you only saw two or three houses burned 
down?

A . I was fam iliar with the whole country, I know  
where all the houses were supposed to stand and I missed  
them when I went out there.
B E N J A M IN  H E Y W A R D , colored, the Defendant, being  
sworn, testified in his own behalf as fo llow s:

D IR E C T  E X A M IN A T IO N :

By M r. Claude M. A m a n :
Q. W h at is your name?
A . Ben Heyward.
Q. W here were you born, Ben?
A . Seabrook, S. C.
Q. How old are you?
A . I will be forty-five years old on the 29th day of 

M ay coming.
Q. Now , Ben, did you own a home at Seabrook?
A . Y es, sir.
Q. W h at size farm  did you ow n?
A . Y es, sir, I had just a one horse farm .
Q. Did you do any work outside?
A . Yes, sir.
Q. W hom  did you work fo r?
A . I worked fo r  M r. Keyserling at Seabrook, also M r. 

McLeod, also M r. Jim Butler and M r. Bellamy.
Q. Ben, where were you during the late summer of 

1924, and what were you doing?
A . I was working for a man by the name of “ Robin­

son” .
Q. And you were living at home at this same place?
A . Y es, sir.
Q. Did you have a crop that year?
A . Y es, sir.

184



SUPREME COURT 47

Appeal from  Beaufort County

Q. A fte r  laying by time what did you do?
A . A  man by the name of Mr. Robinson who lived up 

in Ham pton County had a job there with the State High- 
way Departm ent, but the Contractor was by the name of 
“ Glover” . . . .

Q. M r. A m a n : I can’t understand you and you will 
have to start back over again?

A . A  man by the name of M r. Robinson who lived in 
Ham pton County was the labor foreman on the State 
H ighw ay Road, the Contractor was by the name of Mr. 
“ Glover” who lived in Augusta, Ga., I say, Mr. Robinson 
was the labor foreman for Mr. Glover, and Mr. Robin­
son came up to m y home inquiring for labor . . .  186

Q. Tell the jury where your home is?
A . A t  Seabrook.
Q. Right close to M r. McLeod’s farm ?
A . It joined m y house. He asked what be my name, 

and I said, Ben Heyward, and he said he heard I was 
a good hand . . .

M r. M urdaugh: Y our Honor please, I do not mind 
counsel proving that he worked for him, but I object to 
any conversation he had with Mr. Robinson.

The Court: I am going to admit it, Mr. Solicitor, and 187 
give the defendant the benefit of any doubt about it.

Q. Go ahead?
A . He (M r. Robinson) asked me to come out on State 

Highw ay road around about the latter part of 1924, be­
cause the job was up in Hampton County, which was 
about a half mile out from  the depot at Yemassee, he 
asked me to come up there for the purpose of looking 
the job over. I let three or four days go by thinking about 
the job, but final y I went up there to look the job over, 
he had the road staked off to show the exact size of the lgg 
job, the road at that time was shallow and narrow and 
the job would run from $25.00 to $30.00 depending on



48 SUPREME COURi

The State vs. Benjam in Heyw ard

the size of it.
Q. W hat did he want you to do?
A . To build up the State H ighw ay job for him. He  

asked me if I knew where I could find him some more 
hands, I told him I was well acquainted with a lot of 
hands around home, and he said, i f  you can get a lot of 
hands, here is a lot o f money that you can earn be­
cause you look to be a pretty good worker, so I went to 
work the first week, next week I went back I told m y  
brother, also Allen Simmons and David Jenkins . . .

Q. A bout how many people did you get to go and help 
you?

A . W asn ’t so m any and I could not recall how m any  
people I got. I do know that I got m y brother, also 
David Jenkins and M r. Allen Simmons and m y brother 
got Ben Boling . . .  I guess eight or nine people.

Q. A nd you went up there to work for M r. Robinson?
A . Y es, sir.
Q. And you were doing this work by the piece work?
A . Y es, sir, I was working by the piece.
Q. W hen did you leave M r. Robinson’s em ployment?
A . It was about three or four days after Christmas.
Q. Now , where did you have a conversation with M r. 

Robinson?
A . On the job.
Q. W hat did you have a conversation about?
A . Concerning some money that M r. Robinson owed 

me on the last job and he refused to pay me.
Q. How  much was that?
A . $120.00.
Q. W hen you went back to see M r. Robinson where 

did you go to see him ?
A . I went back to Yem assee to see him about my  

money.
Q. W h at did he say?



SUPREME COURT 4 “

Appeal from Beaufort County

A . He asked if I was talking to him, and I said, Mr. 
Robinson, I thought I would ask you for the money I 
have earned working for you, and he said, you have been 
the cause of many of my hands leaving here, and I said,
M r. Robinson, I could not tell your hands to quit your 
job because I have no control over your hands, and I 
said, if you pay me M r. Robinson I would not say any­
thing more to you and he abused me.

Q. W h at did he say?
A . He said, he was not going to pay me anything, and 

I said, M r. Robinson, if you work for a man and you are 
not satisfied with his work, the law says you pay him 
off and let him go, and he said, you see I do not have to 194 

pay you anything at all, and I said, I will go down and 
see the policeman, and he said, don’t you know I can 
have you killed, and I said, M r. Robinson, you don’t have 
to do that, and he said, I have men to kill you and will 
not be much trouble in doing it.

Q. Then what happened?
A . I started down to the Chief of Police down at 

Yem assee, that is, the little town called Yemassee.
Q. W ho was the Chief of Police at that time in 

Yem assee? X95

A . The chief officer at Yemassee who was the police­
man. Now , just as I started to go down, M r. Robinson 
got in his car, but before I got to the Chief of Police, 
quite natural I saw M r. Robinson and a crowd of men 
coming, and I said to m yself, Mr. Robinson done said 
what he was going to do, I got scared and ran when I 
saw the men, I ran and dodged into a car box where I 
stayed until about eleven or twelve o’clock, I came out 
to hit the road to go on to Seabrook and when I got home 
I told m y brother . . .  1!l6

Q. W hen you got home, that is, did any more of that 
labor come back home and quit Mr. Robinson?



50 SUPREME COURT

The State vs. Benjam in Heyw ard

A . W ell, let me tell you this. In a day or two after I 
got home m y w ife told me that a man had been there 
looking for me . . .

Q. Don’t tell anything anybody told you. Now , after  
you left Yem assee did any o f those men you had working  
up there go back to work there above Yem assee?

A . W ell, A llen Simmons, I do not know whether he 
went back up there but as I say, a man by the name of 
Allen Simmons told me . . .

Q. Don’t tell what he told you. N ow , this crowd of 
men that you carried up there, did they quit working  
for M r. Robinson?

A . Y es, sir, all quit absolutely.
Q. N ow , Ben, you say some man came and delivered 

you a message from  M r. Robinson?
A . Y es, sir, Allen Simmons.
Q. W h at did he say?
A . He said the man that you worked for, and he was 

angry, and I said, he would not give me m y money, and 
I asked him why he was angry, and he said, because he 
could not keep any men on the job.

Q. W h at did Allen Simmons tell you that M r. Robin­
son was going to do?

A . He said M r. Robinson was looking for me to kill 
me.

Q. W here did he say he saw M r. Robinson?
A . On this side of the ferry right close to m y house.
Q. You say he told you that?
A . Y es, sir, he told me that.
Q. H ow  long before M r. Carden’s death before Mr. 

Robinson was looking for you to kill you from  what Allen 
Simmons told you?

A . The day before.
Q. Ben, do you remember the day that M r. Carden 

was killed?



SUPREME COURT 51

Appeal from Beaufort County

A . Y es, sir, but I do not remember the exact date of 
the month.

Q. W h a t I am trying to ask you is this. Were you at 
home the day M r. Carden was killed?

A . Y es, sir, I was at home
Q. And you had been at home all day?
A . Y es, sir, I had been at home all day, sir.
Q. And you were at home that morning?
A . Yes, sir.
Q. N ow , state in your own words, and tell his Honor 

and the ju ry  what happened to you that day?
A . That day I was at home, a car drove up to the 

house, a man got out of the car, I was scared because I 202 

thought M r. Robinson was coming up to the house, I 
was sitting on the inside of the house, I looked out the 
crack, and, therefore, I looked at this man, he looked to 
be Mr. Robinson and I was satisfied it was Mr. Robin­
son . . .

Q. Let me ask you this question. That morning be­
fore M r. Carden was killed did any white man come to 
your house that morning?

A. M r. Robinson came there that morning.
Q. Teil the Judge and the jury what happened when :03 

Mr. Robinson came up there that morning?
A . M r. Robinson came up there, he claimed all his 

hands had quit, and I said, M r. Robinson if you do not 
pay them they will quit anybody, and he said, I am 
going to get you because you caused all my hands to quit 
my job, as I have a man picked out and he is going to kill 
you.

Q. Then w hat happened?
A. I said, M r. Robinson, I am sorry and I asked to go 

on to Mr. Bailey. 204

Q. Now, on that morning that Mr. Carden got killed 
that afternoon, you say Mr. Robinson was at your house?



52 SUPREME COURT

The State vs. Benjamin Heyward

205

206

207

208

A . Y es, sir.
Q. A nd he told you that he had a man picked out to 

kill you?
A . Y es, sir.
Q. How m any men were in the car with him that 

morning-?
A . M r. Robinson was the only one.
Q. Did he talk to you?
A . Y es, sir, he did.
Q. You never did go outside?
A . No, sir.
Q. You kept the door and the windows closed?
A . Y es, sir.
Q. Ben, what time was that?
A . I never had any clock in m y home, and I could not 

exactly tell you what time it was.
Q. Ben, later did anybody else come to your house?
A . Y es, sir.
Q. About what tim e, Ben?
A . It was around five o’clock.
Q. W h y do you think it was about five o’clock and 

close to sundown?
A . I could not see the sun, the sun had done gone out 

o f the tree-tops and you could not see the sun shining.
Q. And you were on the inside of the house?
A . Y es, sir, I was inside o f m y house.
Q. W h at kind of boards was your house built out o f?  
A . W ith  old boards nailed together and you could look 

through and see good.
Q. W h at kind of windows did you have in your house? 
A . Little board windows nailed together.
Q. N ow , you say the second car came to your house 

about five o’clock in the afternoon?
A . Y es, sir.
Q. And every door and window was shut in your



SUPREME COURT 53

Appeal from Beaufort County

house?
A . Yes, sir, but I could see through the cracks.
Q. A nd the doors were closed?

209
A. Y es, sir.
Q. You were not asleep when that car came up?
A . I was awake, those men rapped at the house, I 

made to get out the back door, but there was a man stand­
ing at the back door with a pistol on him, then I was 
scared, I ran back to go out the front door, there was a 
man standing there, I was there in the house, with my 
two little babies, one was three years old and other was 
one month old, I got scared when the men rapped there, 
in that time M r. Robinson, as I figured it was Mr. Robin- 210 

son, he bolted the door open and knocked the door open, 
and then I swung around and shot, then I pulled the 
back door open to run over to my brother’s house, but 
whether I hit him I do not know, because other people 
were shooting, I could not tell you, he ran into the door 
to knock it open, and I thought if he was a policeman 
he wouYl present him self to me and in that way I would 
have surrendered.

Q W ho did you think it w as?
A . M r. Robinson indeed, sir. 211

Q. Ben, you were satisfied it was Mr. Robinson?
A . M r. M cTeer told me on the way coming from  

■Cleveland . . .
Q. Ben, you need not tell where you were coming 

from.
A . I thought it was Mr. Robinson at the time I fired, 

sir.
Q. Ben, state whether or not you believed your life 

was in danger?
A . Y es, sir, I believed my life was in danger. 212
Q. And you believed you would be killed?
A . Y es, sir, he did shoot in my home. A t the time the



54 SUPREME COURT

The State vs. Benjamin Heyward

second car came up there I was kinder nodding in the 
chair there in m y home that afternoon.

2 13  Q. N ow , Ben, I believe you have ju st testified that 
when this second car came up there, i f  I understood your 
testimony, you were asleep in the chair there by the fire?

A . Y es, sir.
Q. And you were asleep in the chair at that tim e?
A . I was sitting up to the fire kinder nodding with m y  

two little kids in m y lap.
Q. A nd the first thing you heard was something there 

on the outside o f your house ?
A . Y es, sir, the first thing these people came up there

2 1 4  and surrounded the house.
Q. A nd you say you went to the back door and there 

was a man standing there?
A . Y es, sir.
Q. W h at could you see?
A . I could see this man standing back there.
Q. And then you say you went to the front door?
A . Y es, sir.
Q. W hen you got to the front door what happened?
A . Another man standing at the front door.
Q. You saw him while he was standing there?

2 1 5  A . Y es, sir, I could see him through the cracks.
Q. Did you pick your gun up?
A . I never picked the gun up until he broke in the 

door and started into the house.
Q. H ow  did you have your gun, Ben?
A . This way. (W itness indicating).
Q. N ow , Ben, I would like to ask you if  this did not 

happen very suddenly?
A . Y es, sir, all at once.
Q. Do you know who you shot?
A . I could not tell you who I shot, but when he bolted 

the door open to come in, I ran to the back door where



SUPREME CUURT

Appeal from Beaufort County

55

I saw this man standing there, I started to the front 
door, I was scared nearly dead after Mr. Robinson had 
sent a man there saying he was going to kill me, and if  
he had presented him self like an officer I would have 
surrendered when he presented himself, he ran in, I 
turned that way, I believe I been done killed and with 
all that exictement that had been going on there at home.

Q. Now , Ben, I want this jury to know one thing and 
that is this. Now , right after this killing where did you 
go?

A . I went on over to m y brother’s house, as 1 ran over 
to m y brother’s house there was a crowd of men and I 
did not know who they were other than Mr. Robinson and 218  

at that time they were shooting over towards my 
brother’s house and I said to my brother I believe they 
done killed m y babies.

Q. N ow , Ben, where did you go that night or the next 
day?

A . I ran into the woods.
Q. I would like to ask you this question. Did you ever 

try to get to Beaufort?
A . Y es, sir, I tried to get to Beaufort but I was headed 

off by a crowd of people. 219

Q. W h at you trying to get to Beaufort for?
A . I was acquainted with Sheriff Bailey and I was 

trying to get to  Beaufort to surrender to Sheriff Bailey.
Q. W here is Smith Island?
A . R ight opposite where I live.
Q. How fa r  is it from  your house?
A . A  mile and a half from  where I lived.
Q. Do you know who was actually the Sheriff at that 

time ?
A . I did not know at the time but I found out that 220 

Mr. McTeer went into office a short time after that
cime.



56 SUPREME COURT

The State vs. Benjamin Heyward

Q. W h at is on Smith Island?
A . That was where M r. M cTeer’s farm  was located.

2 2 1  Q. And you could see over on Sm ith Island?
A . Y es, sir.
Q. I believe you stated this was your home ?
A . Y'es, sir.
Q. Ben why didn’t you leave home to go to work that 

day?
A . Because it was cold and m y w ife went away.
Q. W ere you afraid to leave home?
A . Yes, sir, I was afraid to leave home.
Q. W h y  were you afraid to leave hom e?

2 22  A . M r. Robinson said he was going to have a man to 
kill me.

Q. A nd you were afraid to leave home?
A . Y es, sir, I was afraid to leave home that day.
Q. Now , Ben, did you know M r. Carden?
A . No, sir, I did not know the man.
Q. H ad you ever seen M r. Carden before that day?
A . No, sir, not to m y knowledge, sir.
Q. Had he ever spoken to you in his life?
A . N ot that I know of.
Q. I would like to ask you this direct question. Did

223
you fire at M r. Carden because you were mad with him, 
or because you thought it was M r. Robinson and you 
further thought your life was in danger?

A . I thought it was M r. Robinson and I also thought 
m y life was in danger. I just did not know M r. Carden 
at all.

Q. Ben, did you know you had hit anybody when you 
fired?

A . I did not know whether I had hit anybody or not. 
I just know I shot and the shotgun went o ff.

224 J
Q. N ow , Ben, there has been considerable discussion 

here about the pistol. N ow , where was his pistol when



SUPREME COURT 5 7

Appeal from Beaufort County

you shot, Ben?
A . W hen this man ran into the door he knocked it 

open, had his hand to his pocket, he took it out and I 
wheeled around and shot.

Q. And when you shot he was taking the pistol out?
A . Y es, sir.
Q. W here was M r. Carden’s pistol, that is the man 

that you thought was M r. Robinson at the time you 
fired?

A . M r. Carden’s pistol w as in his hand when he came 
into m y home and M r. Carden had his pistol there. 
(W itness indicating).

Q. And you thought it was Mr. Robinson?
A . Y es, sir.
Q. Ben, did you have one earthly reason to hurt one 

hair in M r. Carden’s head?
A . No, sir, no indeed, sir. Mr. Carden had not done 

anything to me, I did not know Mr. Randall and neither 
one of these gentlemen had done anything to me.

Q. Now , Ben, you say you were asleep, you did not see 
them when they came up, and the first thing you knew 
when they surrounded your house?

A . Y es, sir, absolutely.
Q. Had you committed any crime or done anything 

to violate any law for which any warrant could have 
been issued for you?

A . No, sir, I had not.
Q. And no warrant could have been issued for you?
A . No, sir.
Q. And you had not done anything for which a war­

rant could have been issued for you?
A . No, sir, I did not think so. I f  Mr. Carden had 

presented him self like a policeman I would not have 
been scared like I was on account of M r. Robinson threat­
ening m y life and he had me scared almost dead, sir.



58 SUPREME COURT

The State vs. Benjam in Heyw ard

Q. Ben, is there any other statem ent that you would 
like to make to> the jury?

A . W ell, not any more than after it happened, I tried 
to. get here to surrender but I could not get here. Now , 
I heard a large crowd o f people were after me and they  
were going to blow me down in m y tracks and I would not 
have time to tell m y story at all.

Q. N ow , what w as in your mind, that is w hat did you 
believe when you wheeled and fired the gun?

A . I just knew I was dead because when M r. Robin­
son came and bolted m y door I just knew I was going  
to be killed, sir.

Q. W here were you standing when that happened?
A . I was standing in m y house, sir.
Q. You were standing in your house?
A . Y es, sir. On m y real estate and I pay tax for it.

CRO SS E X A M I N A T IO N :

By M r. Randolph M urdaugh, J r .:
Q. Y our name is Ben H eyw ard?
A . Y es, sir.
Q. Ben, how long did you work for M r. Robinson up 

in Ham pton County around Yem assee there?
A . Y es, sir, well I only started to work up there after  

I finished m y crop for that year.
Q. A lon g  about September or October of that year?
A . Y es, sir, somewhere along there.
Q. H ow  long did you work for M r. Robinson?
A . I worked for M r. Robinson about three months.
Q. W h at size man was M r. Robinson?
A . M r. Robinson was a man not quite as tall as M r. 

M cTeer, and he was about that size if I do not make 
any mistake.

Q. You say he was alm ost as tall as M r. M cTeer?



SUPREME COURT 59

Appeal from Beaufort County

A . Y es, sir.
Q. A nd about the same size?
A . Y es, sir, just a little smaller than the Sheriff.
Q. And M r. Robinson was just a clean cut looking 

m an?
A . Y es, sir.
Q. A nd you would have known Mr. Robinson after 

you worked for him fifty or sixty days, and you would 
know M r. Robinson when you saw him?

A . Y es, sir, except through all the excitement, and on 
account o f the excitement I did not have time to think, 
sir.

Q. N ow , Ben, on that particular day you say you 
were scared because Mr. Robinson had been there that 
m orning?

A . Y es, sir.
Q. A nd threatened to kill you?
A . Y es, sir.
Q. And he never shot you while he was there that 

m orning?
A . No, sir, he said he had a man to  kill me.
Q. A nd M r. Robinson never broke into your house 

when he came there that morning?
A . No, sir.
Q. Did you have your doors locked to your house?
A . They were shut just the same as it was in the 

first place.
Q. How  was the front door shut?
A . It was latched with a window latch.
Q. Now , on that particular evening that you shot 

down the rural policeman in cold blood, you say, Mr. 
Robinson broke into your house?

A . N ow , sir, to your Honor, when this man bolted my 
door he had me in my excitement because he had come 
into m y home, but if he had made himself known I



60 SUPREME COURT

The State vs. Benjam in Heyw ard

would have taken tim e under the circumstances, but 
I was excited and quite natural I shot right there.

Q. A nd the man that you shot, you thought it was M r. 
Robinson ?

A . Y es, sir.
Q. And he looked like M r. Robinson?
A . I thought at the tim e it was M r. Robinson.
Q. A nd you went to the back door, then you went to 

the front door, but you did not take tim e to see who it 
was in the front o f your house that afternoon?

A . I was just looking at him and I never took time to 
look at his face.

Q. And how fa r  from  the top of his head could you 
see down?

A . I could see from  right along here down. (W itness  
indicating).

Q. A nd he was a slim man?
A . How  you say?
Q. The man that broke into the door and the man 

you saw through the cracks?
A . I did not take tim e to see who he was.
Q. And the man you saw through the cracks was a 

small m an?
A . Just a small man along about the average size, but 

there was another man out there in front at first. Now, 
for me to tell who it was I did not know who it was.

Q. And the man that stopped in front of your house 
was the man who broke into your door?

A . A s  well as I can say it m ust to have been him.
Q. How  m any men drove up to your house at that time 

and how m any men came up there when you thought it 
was M r. Robinson?

A . N ow , to your Honor, sir, when I thought it was 
M r. Robinson, four men in all.

Q. And didn’t you tell the Sheriff a big mob of men



SUPREME COURT 61

Appeal from Beaufort County

came up there?
A . Y es, sir, I did.
Q. Now , as a m atter of fact, Ben, you looked out the 

back door you saw one, then you came to the front door 
you saw one and all you saw ? Now don’t you know that 
is true?

A . This man was right around there to the front door 
there, but when I looked across the State Highway road 
I saw a whole lot o f men over there and not right there 
at home. Now , after M r. Robinson had excited me so, 
and i f  he had presented himself like a policeman I would 
have been very glad to have submitted to arrest and he 
had me very muchly excited.

Q. N ow , just what kind of shot did you shoot him 
with?

A . I was using No. 4 shot.
Q. A n d  you bought this particular shell for this pur­

pose?
A . No, sir, I bought No. 4 shot.
Q. A nd you have got a man in his grave today that 

came up to your house and knocked on the door?
A . H e bolted in the door.
Q. A nd you have got a man lying in his grave that 

came up to your door?
A . He never presented himself to me, kind, sir.
Q. Now , don’t you know that the only statement that 

was made at your house from the man whom you thought 
was M r. Robinson and the only words that were spoken 
there that day, “ what you going to do with that gun?”

A . He knocked my door in.
Q. I ask you to admit that or to deny it?
A . I was excited when he knocked my door in.
Q. And that was the only statement that was made 

there that day?
A . W hen he said, “ what you going to do with that



62 SUPREME COURT

The State vs. Benjam in Heyw ard

gun ?”  he knocked m y door in and that is the tim e the 
gun fired.

Q. A nd I believe he was on your fron t porch when he 
knocked your door in?

A . He done knocked the door in.
Q. And was he on the inside of your door?
A . Y o u  say on the inside o f m y door?
Q. A nd he was standing on the same floor you were 

on?
A . Y es, sir.
Q. A n d  how far was he away from  the door when 

you shot him?
A . The porch was about ten feet wide, I say, about 

seven feet when he came up to the door there.
Q. W hat did you do?
A . W hen he came up to the house I thought it was 

M r. Robinson and; I did not know . . .
Q. I just want you to tell me what you done at that 

tim e?
A . I am going to tell you. W hen he came up to the 

door, if he had presented him self like an officer quite 
natural I would have been very glad to deliver m yself to 
him and I was so scared I could not talk to him. N ow , 
when he knocked m y door in I shot like that and I was 
scared alm ost dead. (W itness indicating).

Q. H ow  did you have your gun?
A . I had the gun like that when he bolted the door in, 

I thought it was M r. Robinson and I shot like that. 
(W itness indicating).

Q. Now , you had your gun right along here about 
your hip when Paul Carden came up there?

A . No, sir, not right along there. (W itness indicat­
ing) |

Q. B ut you had it right along here? (Counsel indicat­
in g ).



SUPREME COURT 63

Appeal from Beaufort County

A . N ot quite up to m y hip.
Q. And you had it below your hip?
A . Y es, sir.
Q. Now , the man you say broke in your door, he was 

on a level with you, that is on the same floor with you 
and just like we are facing each other right here?

A . Y es, sir, he was facing in this direction. (W itness  
indicating).

Q. And he was on a level with you?
A . Just a minute, sir. Now, when he knocked my  

door, to your Honor, sir, and wasn’t  but one step up to 
the house. Now, when he knocked my door in I was 
standing about middle ways of the door, he done it so 
quick'y when he rushed up to the door and m y house 
was about that high o ff the ground. (W itness indicat­
ing) . Now , when he knocked my door in . . .

Q. I thought you said a moment ago he was inside the 
door?

A . H is body was in.
Q. W ell, where was his head?
A . He was about middle ways of the house and he 

came on as close as he could get in there.
Q. Now , standing in that place, as you were, you were 

about that much higher that the man you were going to 
shoot?

A . Y es, sir, but he wasn’t in here at . . .
Q. Let me ask you this question. Take that gun, put 

it up against your leg and point it towards m e? (Counsel 
indicating).

A . W hen he got in there I shot that way.
Q. In other words, if you had shot him like that the 

bullets would have gone straight in here? (Counsel in­

dicating) .
A . I do not know which way it would have gone, sir.
Q. W ell, then point the gun at me?



64 SUPREME COURT

The State vs. Benjam in Heyw ard

A . I never pointed the gun because I shot like that. 
(In d icatin g).

2 5 3  Q. Put the butt of the gun like you said it was and 
point the end o f the gun at m e?

A . I never pointed it.
Q. W ell, point the gun at me.
A . W ell, I swung it around like that.
Q. W ell, stop the sw ing and point it at m e?
A . I never took any aim on him.
Q. I do not mean that you took any aim but stop your 

hands from  where you shot him.
M r. A m a n : M ay please the Court, he has testified that

254 he did not point the gun at him.
M r. M urdaugh: W ell, stop your hands at the place you 

shot from ?
A . Just like that. (W itness indicating).
Q. Now , i f  you shot when, he was in that position and 

the shot would have gone right straight on through that 
m an’s body?

A . Y es, sir, but that was the way I was shooting, sir.
Q. Don’t you know the wound that was in M r. Paul 

Carden’s body was a wound that was going down like 
that, that is, leading from  top to bottom of his stomach

255 like that. Now , don’t you know that of your own know­
ledge if you had shot him standing in the door, he was 
standing on the ground that the wound would have been 
different?

A . W ell, to your Honor, sir, if M r. Carden the man 
over here he had notified me he was an officer I would 
not have been so scared.

Q. Can you explain why the wound in that m an’s 
body was ranging in this direction? (Counsel indicating).

A . W ell, to your Honor, sir . . .256
M r. A m a n : N ow , your Honor please, the witness 

stated on direct examination, and he has also stated on



SUPREME COURT 65

Appeal from Beaufort County

cross examination, that he was swinging the gun around 
and he does not know how he shot him.

The Court: Has there been any testimony about the 
range of the shot?

M r. A m a n : No, sir.
The Court: I do not think the testimony would be 

competent.
M r. M urdaugh: Your Honor please, I am asking this 

for the purpose o f contradiction.
The Court: Go ahead.
M r. M urdaugh: You were standing on a level with 

him, that is, the man you shot was on a level with you. 
Now , if he was on a level with you and he was not over 258 
six or eight inches higher than you?

A . I do not know how high he was. I know his body 
was partly inside m y home when I shot him.

Q. I believe you stated on your direct examination 
that you left your home and went over to M r. M cTeer’s 
farm  ?

A . Y es, sir, I ran through the woods for over a month.
Q. Answ er m y question. Did you go over there?
A . Y es, sir, I ran all around over in there, sir.
Q. Now , when you got over1 there to that island know- 2 59 

ing that M r. McTeer had been elected to the high office 
of Sheriff of Beaufort County, that you did not go to 
his house and tell M r. McTeer, I shot a man and I do 
not know who he was ?

A . W ell, to your Honor, sir . . .
M r. A m a n : M ay please the Court, you excluded that 

when I was attem pting to bring it out.
M r. M urdaugh: Y our Honor please, you allowed him  

to bring out the conversation he had over there with 
M r. McTeer. 260

The W itn ess: Dear, sir, will you let me explain that?
The C ou rt: I will let him answer that question.



66 S U P R E M E  CO U RT

The State vs. Benjam in Heyw ard

M r. M urdaugh: Now , you went over to M r. M cTeer’s 
place ?

A . Y es, sir, and I am going to answer that question 
to the very best o f m y knowledge. I was running through  
the woods scared o f m y life, because all of the people 
told me if they saw me they were going to blow me down 
in m y tracks, but I heard that M r. M cTeer he run for  
Sheriff and that he would protect me from  the mob, but 
they also told me if  they saw me they were going to blow  
me down in m y tracks. I m et a man by the name of 
Allen Simmons, he told me not to let anybody see me 
because if they do they are going to shoot you down in 
your tracks and the best thing for me to do was to stay  
in the woods until everything cooled down. N ow , at that 
time I was trying to make it here to Beaufort to give up 
to Sheriff Bailey but there was a large crowd all around 
out there in that county that I was not able to make it 
here to give up.

Q. How  long did you stay in the woods before you told 
anybody about shooting this man down in cold blood.

M r. A m a n : M ay please the Court, I object to that.
The Court: Y es, sir, I will exclude that.
M r. M urdaugh: How  long did you stay in the woods 

before you told anybody you shot M r. Paul Carden?
A . Somebody told me.
Q. H ow  long did you stay in the woods ?
A . W ell, some people told me, do you know you shot a 

policeman, I said no, I shot a man by the name of Robin­
son— I mean M r. Robinson that came up there and broke 
in m y house,, and I know it was M r. Robinson and not a 
poi iceman. N ow , I know it was for two or three days 
before I knew whether it was M r. Randall or M r. Carden 
or anybody else.

Q. N ow , how m any years was it before you told any  
one you had shot M r. Carden?



SUPREME COURT 67

Appeal from Beaufort County

M r. A m a n : M ay please the Court, I object to that.
The Court: I think it was competent.
M r. A m a n : Now , he is asking him something that 

happened a long tim e afterwards why he did not tell 
any one he shot M r. Carden.

The Court: I will exclude it and give him the benefit 
o f the doubt.

M r. M urdaugh: Now, Ben, don’t answer this question 
until the Court rules upon it. Now , you say you stayed 
in the woods to keep the mob from catching you.

A . Y es, sir.
Q. H ow  many years did you stay in the woods?
M r. A m a n : M ay it please the Court, I object to that.
The C ou rt: A sk him how long a time he stayed in the 

woods.
Q. How  long a time did you stay away from the alleged 

mob and how long did you stay in the woods?
A . I will answer your question to the best o f my know­

ledge. Now , it was in M ay before I slept in a house at 
all. Now , when it was that I slept in a house it was in 
Philadelphia, Pa. I know that I lived in this country on 
an island a little better than a month and a half when I 
got away from  around here in a row boat, and me and 
m y brother went on this little Island called Edisto.

M r. A m a n : M ay please the Court, don’t you think all 
this testim ony m ight be prejudicial.

The C ou rt: The defendant himself made the statement 
and it was not in response to the question. Now, he only 
asked h ’m how long he remained in the woods.

M r. M urdaugh: Now, Ben, just tell me how long it 
took you to get away from  this mob to keep them from  
killing you?

A . It was about five months before I got away from  
here.

Q. And how many people were chasing you in this



68 SUPREME COURT

The State vs. Benjam in Heyw ard

mob?
A . I could not tell you how many. I know it was five 

months before I could get away from  here.
M r. A m a n : M ay please the Court, that is prejudicial 

and would not have anything to do w ith this charge of  
murder.

The Court: M r. A m an, so fa r  the question is com­
petent.

M r. M urdaugh: N ow , for over five months this mob 
followed you?

A . Y es, sir.
Q. Do you know what size mob it was that was follow ­

ing you?
A . To the best o f m y knowledge I was on this Island  

for a little better than a month. The mob was out there 
while I was on the Island and while I was out in the 
woods.

Q. Just tell me how m any people out there in the 
woods follow ing you?

A . I never counted them and a crowd of people followed  
me.

Q. A nd a crowd of m en?
A . Y es, sir.
Q. And these men followed you from  the tim e you 

fired that shot into the house for a period of m onths?
A . Y es, sir, for that time.
Q. And for how m any m onths?
A . I tell you that after I got o ff  this Island and then 

I went on over to Edisto Island.
Q. A nd the same fellows were follow ing you from  

there?
A . N o, sir, but at that time m y w ife was living in 

that same house.
Q. W ait a minute and ju st answer m y question. Now , 

you, say there was a crowd o f people that stayed around



SUPREME COURT 69

Appeal from Beaufort County

your house after you shot M r. Carden and they all 
followed you on through the woods?

A . They m ust to have. I just do not know who it was 
and they m ust to have followed me.

Q. A nd when you saw the people coming behind you 
and you went on through the woods?

A . Y es, sir, they were shooting at me going through 
the woods there.

Q. I believe you made certain statements to Mr. Mc- 
Teer, the Sheriff?

A . Y es, sir.
Q. A nd you made those statements in the presence of 

M r. M cTeer and M r. H arper?
A . Y es, sir, to your Honor, I did not deny that.
Q. Just answer my question. Didn’t you make certain 

statem ents to M r. McTeer, the Sheriff, Mr. Harper, the 
H ighw ay Patrolman and to m y father concerning this 
whole thing?

A . I made a statement to M r. McTeer.
Q. In, the presence of two other gentlemen?
A . One gentleman on my way back home.
Q. On your way back?
A . Y es, sir.
Q. Now , in the statement that you made to M r. J. E . 

McTeer, didn’t you tell him that Marcus Greene came to 
see you and told you a fellow Robinson was coming to 
see you. Now, as a result of his telling you that, that is, 
what Marcus Greene told you about Robinson and you 
shot this man when he came to your house?

A . Yes, sir, please let me answer you. I told Mr. 
M cTeer that I was not going to tell him a story about it 
and I am going to tell the truth about this matter.

Q. Now , go ahead and tell the truth?
A . Dear sir, I am standing here among the head 

officers, I am not going to tell any story about it, be-



70 SUPREME COURT

The State vs. Benjam in Heyw ard

cause I know all these head officers are surrounding me. 
N ow , here is what I told M r. M cTeer, Marcus Greene

2 77  sent word by Allen Simmons that M r. Robinson was over 
in this country looking for me to put me to death, I did 
not see M arcus Greene, but the m essage came to m e that 
M r. Robinson was looking for me to put me to death, and 
in a short space o f time M r. Robinson came up to m y  
house, and he said, he was going to have me killed.

Q. Now , m y question was directly in regard to Marcus 
Greene, and didn’t you tell S h eriff J. E . M cTeer that 
M arcus Greene told you that M r. Robinson was going  
to shoot you?

278  A . Please pardon me, sir.
Q. Don’t you know you never mentioned Allen Sim ­

m ons?
A . I know that M arcus Greene sent word to me.
M r. M urdaugh: Now , I have asked this witness one 

simple question and with your H onor’s premission I  
would like to have that question answered.

The C ourt: Now , M r. Solicitor, ask the question again. 
You wait until he gets through asking the question, so 
you will understand it and answer it the best you can.

M r. M urdaugh: I just w ant you to relate what
279

happened, that is, what you told M r. J. E . M cTeer that 
M arcus Greene told you. Now , don’t you know you did 
not mention Sim m on’s name and tell the truth about it. 
N ow , at the time you told M r. M cTeer didn’t you only use 
the name of Marcus Greene?

A . M arcus Greene sent word to me and I did not see 
M arcus Greene. N ow , as I say I did not see Marcus 
Greene, but he sent wTord to me that M r. Robinson was 
looking fo r  me, which was quite natural it would get me 
excited after I received this message because I knew, my  
life was in danger. Now , that is what I told M r. Ed. 
M cTeer, that I did not see Marcus Greene, but he said



SU P R E M E  COURT  

Appeal from  Beaufort County

71

he sent word that he was looking for me to kill me.
Q. W here is this boy Simmons today?
A . N ow , 14 years since I was away from  here and 

where he is living at this time, I do not know, sir.
Q. W here is Marcus Greene today?
A . Hard for me to tell, and I haven’t seen Marcus 

Greene since M r. McTeer brought me back here.
Q. Do you know whether a subpoena was issued for  

Marcus Greene and the Simmons fellow to come here 
and to help you testify  in this case?

A . A fter  I told M r. Am an I heard that Marcus Greene 
sent the message I do not know whether he issued one 
or not.

Q. A t  the time you actually made the shot in this case, 
Ben, you could see the face of the man you were shooting 
at?

A . Now , M r. Solicitor, to your; Honor, sir, at the time 
I made the shot I eou'd not state the exact size of the 
man.

Q. But you were looking him straight in the face 
when you made that shot?

A . No, sir, I did not
Q. You did not turn your back and look in the opposite 

direction?
A . I f  I was looking in his face I would have known 

who I was shooting. Now, I was not looking towards 
him at all.

Q. And you did not see who you were shooting at?
A . N ow , sir, I did not know who it was. I thought it 

was M r. Robinson because I did not think an officer 
would come in there like that, sir.

Q. W hen did you pick up your gun?
A . W hen I saw the man standing on the porch.
Q. And you did not look through the crack to see who 

that man was?



72 SUPREME COURT

The State vs. Benjam in Heyw ard

A . I f I had thought that man was an officer I never 
would have picked up the gun.

Q. I did not ask you that.
A . I just would not have picked up any gun.
Q. Just answer m y question, did you take tim e to see 

who you were shooting at before you pulled the trigger  
when he was standing out there on the ground ?

A . He had done bolted the door, sir.
Q. Did you look through the crack at that tim e?
A . W hen he bolted the door I thought it was M r. 

Robinson.
Q. Did you look through the crack when you saw this 

man from  down here to see who it was?
A . I saw a man out there, who it was I do not know, I 

thought it was M r. Robinson when he bolted the door 
and quite naturally I shot then.

Q. Just answer m y question. N ow , didn’t you tell 
M r M cTeer a big mob o f men were around your place 
there at that tim e, and you can answer that question, 
yes or no?

A . I am going to answer that question to the best of 
m y knowledge, I was scared and those men were there . . .

Q. I did not ask you that. I asked you whether or 
not you told M r. M cTeer that?

A . I told M r. M cTeer I thought M r. Robinson sent 
those men up there to mob me. I also told him i f  the 
man had looked like a policeman and he had presented 
him self like a policeman I would not have been scared.

Q. W ho told you to tell if the man had looked like a 
policeman, and just who told you to tell that?

A . I told that to M r. M cTeer before anybody called 
m y attention. N ow , I told M r. M cTeer that i f  he had 
presented him self . . .

Q. You  have already answered that five or six times. 
I just asked you if  you did not tell M r. M cTeer . . .



SUPREME COURT 73

Appeal from Beaufort County

A . W ell, I told M r. M cTeer he did not present him self 
like a policeman and I would have known he was a police­
man and nobody going to shoot me.

Q. Now , later on, you made another statement to Mr. 
M cTeer?

A . Yes, sir, I was calling his attention to it.
Q. Now , at that time you told M r. McTeer only two or 

three men came up there ?
A . H ow  was that?
Q. W ait a minute and let me get through before you 

answer this question. W ell, didn’t you . . .
A . I made the statement to him . . .
The C ou rt: W ait till he gets through and answer his 2 90  

question, yes or no
M r. Murdaug'h: Didn’t you tell Mr. Ed. McTeer, that 

is, you told him in the, jail the second time you talked to 
him only two or three men drove up there in that car, 
now answer that question, yes or no?

A . A s  fa r  as I know it was over three or four men, 
and that is true as far as I know, sir.

R E -D IR E C T  E X A M IN A T IO N :
By M r. Claude M. A m an :
Q. Ben, the Solicitor asked you the question and I am 291 

going to ask you this. Didn’t you tell Mr. McTeer that if  
he had— I mean if you had known he was a policeman at 
your house that you would not have shot him ?

A . Y es, sir, why indeed, sir.
Q. And didn’t you tell Mr. McTeer that long before 

you ever knew me?
A . Y es, sir, I did.
Q. And it was long before you ever employed me?
A . Y es, sir.
M r. A m a n : It is admitted by the Solicitor that the 2g2 

transcript o f the case of The State vs. W illie Heyward  
tried in Beaufort County at the March Term of 1932,



74 SUPREME COURT

The State vs. Benjam in Heyw ard

that is, the Transcript of Testim ony on page 2 was made 
by M r. M ars, the official Court Stenographer is ver-

293 batim , as to all the statem ents made by M r. Hubert Ran­
dall, the witness.

(The follow ing is a transcript of page two of the 
testim ony o f M r. H ubert Randall in the trial o f the case 
of The State vs. W illie  H eyw ard, above referred to) :

“ Q. Don’t say anything about what he told you. Tell 
what happened after you got to W illie  H eyw ard’s home?

A . W e went out to W illie H eyw ard’s place, M r. Carden 
got out to go to the front of this house, we stopped at 
the place we had been inform ed was W illie H eyw ard’s,

2 9 4  M r. Carden went to the front of the house, I started to 
the rear, but ju st before I got to the rear o f the house, I 
heard M r. Carden say, “ what you going to do with that 
gun ?” and ju st about that tim e the gun fired, I ran back 
to the front o f the house, M r. Carden was lying on the 
ground shot in his stomach with his pistol lying by his 
side, I grabbed up his> pistol and ran back to the back of 
the house, at that tim e a man was running across the 
field back of the house, I shot at him tw o1 or three times, 
he w ent over to another house two or three hundred yards 
back of that house, and just as he got to that house a 
man came out of that house to join him, and they both 
turned to start back to this house, but one of them did 
not come all the w ay back, that is, the first one that ran 
from  the house, as he was not the one in advance coming 
back to the house, I ran back to a little house, which was 
a little chicken house, where I got close enough to see 
him as he was coming back, but this second man was 
there and hollered to him to come back. N ow , at that 
tim e I called this boy out o f the car to come on and get

„ M r. Carden o f f  of the ground, we got him up to start 
towards the car and just as we started towards the car 
both of these negroes started towards the swamp, they



SUPREME COURT 75

Appeal from  Beaufort County

both got out into an open place and both fired at us” . 
M r. A m a n : That is the case for the Defendant. 
T E S T IM O N Y  FO R  T H E  S T A T E  IN  R E B U T T A L  

M A R C U S  G R E E N E , colored, a witness for The State, 
being sworn testified as follow s:

297

D IR E C T  E X A M IN A T IO N :

B y M r. Randolph Murdaugh, J r .:
Q. Y our name is Marcus Greene?
A . Y es, sir.
Q. M arcus, where do you live?
A . Dale.
Q. Marcus, during January of 1925, or in the fall of 

1924, state whether or not you knew a man by the name 
o f Robinson?

A . No, sir.
Q. State whether or not you knew a man by the name 

of Robinson who was constructing a highway at 
Yem assee, South Carolina, up in Hampton County?

A . No, sir.
Q. State whether or not during that time i f  you knew  

a darkey by the name of Isiah Simmons?
A . No, sir.
Q. Isiah Simmons, Adam  Simmons or Allen Simmons?
A . No, sir.
Q. State whether or not you sent any message to Ben 

Heyw ard by Isiah Smalls, or Adam  Simmons, or Allen  
Simmons to the effect that Robinson was looking for  
Ben Heyw ard to kill him ?

A . No, sir.
Q. Did you ever make any such statement as that?
A . No, sir.
Q. State whether or not you received a subpoena issued 

by the Defendant to come here and testify for the Defend-

298

299

300



76 SUPREME COURT

The State vs. Benjam in Heyw ard

ant in this ease?
A . No, sir.
Q. Marcus, how long have you lived in D ale?
A . From  1925 up until now.
Q. W here did you live before then?
A . Stuart Point.
Q. State whether or not you are the only Marcus 

Greene in that section?
A . Now , sir, I do not know any other M arcus Greene.
Q. H ave you ever heard of a man by the name of 

Adam  Sim m ons?
A . No, sir.
M r. M urdaugh: That is the State’s case.

R E N E W A L  O F M O T IO N  B Y  D E F E N D A N T  F O R  A  
D IR E C T E D  V E R D IC T  A S  TO  M U R D E R

M r. A m a n : M ay please the Court, in order to preserve 
any legal rights the defendant m ay have, I desire' at this 
tim e to renew m y motion on behalf o f the defendant for  
a directed verdict as to the charge of murder.

F irst : Upon the ground that The State has failed to 
prove malice, either express or implied.

Second: Upon the further ground that your Honor 
will take judicial notice, without counsel going into an 
argum ent about it, that to constitute the crime of murder, 
that of necessity is predicated and based upon malice.

T h ird : Upon the further ground, a threat which has 
been established from  the testim ony in this case, but I 
am not going to take your H onor’s tim e to rehash a 
threat communicated to the defendant, that is, both in 
the confession related by S h eriff M cTeer and the threat 
communicated in person to the defendant that a man was 
going to kill him.

F ourth : Upon the additional ground that in three or



SUPREME COURT 77

Appeal from Beaufort County

four hours after the threat was made the deceased, Mr. 
Carden, in violation of the Section of the Code of the 
State which requires an Officer when present to make 
his presence known, and under the testimony which your 
Honor is fam iliar with in the record from  M r. Randall 
and from  the colored boy, because both have testified 
that M r. Carden did not hail. Now, both have testified 
that the door was closed, the windows were closed and 
that M r. Carden did not hail and announce I am an 
officer and I have a warrant for you to come out.

F ifth : Upon the additional ground that the colored 
boy testified that M r. Carden did go and knock on the 
door but he did say that he did not elaborate with the 
defendant and did not attem pt to serve any w arrant on 
him.

S ixth : Upon the additional ground that M r. Randall 
testified that M r. Carden was armed with a revolver 
which he testified under oath and I be’ ieve he further 
testified that he had on an overcoat. Mr. Randall further 
testified that if M r. Carden had put his coat like that, 
that his pistol could have been seen and that Mr. Carden 
without complying with the Statutory provisions did 
attem pt to break and go in, and in violation of the law  
because one of the State’s witnesses testified that he 
struck the door. Now , the undisputed testimony, may 
please the Court, of the Defendant that he was asleep, in 
the house when this car arrived there that these men 
were riding in. Now , the defendant testified that the 
first th'r.g that he saw when he attempted to run out o f 
the back door was the lower part of a m an’s body when 
he went to the door for the purpose of attempting to 
escape and run away from  his home. Now, he further 
testified that he heard a noise, the door was crushed in 
and there is not one word of testimony to contradict the 
defendant’s testim ony that M r. Carden crushed in his



78 SUPREME COURT

The State vs. Benjam in Heyw ard

door. So, then, upon that undisputed statem ent of facts, 
and under the law, I move for a directed verdict, because

309 the law  is that a man has a right to defend him self when 
a threat has been communicated to him, that is, believing 
from  all the circumstances present at that tim e that his 
life was in danger, or he was in danger o f having in­

flicted upon him serious: bodily h a rm ; that he has a legal 
right to use so much force as m ay be necessary to protect 
him self from  death or serious bodily harm  even to the 
extent o f taking human life.

Seventh : Upon the additional ground, m ay please the 
Court, but I will not take the tim e of the Court to ela-

310 borate upon it, the law of the defense o f the castle.
E ig h th : Upon the further additional ground, may  

please the Court, I submit to your Honor in passing upon 
this motion this is the stage of the case where your 
Honor can pass on the testim ony. N ow , i f  your Honor  
believes from  this testim ony that a threat had been com­
municated to Ben Heyw ard prior to the day of the un­
fortunate killing of the deceased, that Heyw ard was m is­
taken when M r. Carden came to the door believing that 
it was M r. Robinson, or whatever his name was, he fired 
and killed M r. Carden, as he has testified, then that

311
would be an accidental killing and your Honor would be 
in m y humble judgm ent required to direct a verdict of 
not guilty.

R U L IN G  OF T H E  T R IA L  J U D G E

I have carefully considered the testim ony. I am sure 
it is m y duty to submit the case to the jury. I will en­
deavor to submit the applicable principles o f law to the 
ju ry , and, therefore, the motion is overruled.

312 J U D G E ’S C H A R G E  TO T H E  J U R Y  

M r. Foreman and Gentlemen of the Jury, the State of



SU P R E M E  COURT  

Appeal from  Beaufort County

79

South Carolina by this indictment, charges the defend­
ant, Ben PIeyward, with murder. You will observe in 
the indictment, the name o f another defendant, but you 
will not consider that. You will only consider the indict­
ment as against the defendant, Ben Heyward.

Now , this indictment says that on the 6th day of 
January, 1925, with force and arms, in and upon one,
B. Paul Carden, the defendant feloniously, w ilfully and 
of his malice aforethought did make an, assault; that the 
said Ben Heyw ard him the said, B. Paul Carden, then 
and there feloniously, willfully and of his malice afore­
thought with a shotgun did shoot and wound giving to 
the said, B. Paul Carden one mortal wound of which said 314 

mortal wound the said B. Paul Carden did die, and so 
the charge is that, the defendant, Ben Heyward, him the 
said B. Paul Carden'then and there, and in the manner 
and by the means aforesaid, feloniously, wilfully and of 
his malice aforethought did kill and murder against the 
form  of the statute in such case made and provided and 
against the peace and dignity o f the State.

Now, that’s the charge that the State makes against 
the defendant, Ben Heyward in this indictment. In 
other words, the charge is murder, but upon the principle 315 
the greater includes the lesser, the charge of murder also 
includes manslaughter, and as I will exp’ ain to you more 
fu lly later there are two kinds of manslaughter, volun­
tary and involuntary.

The defendant had plead not gui'ty and this plea puts 
the burden of proof upon the State, and also under it 
the defendant is entitled to the benefit of any and every 
defense founded upon the evidence.

Hence, I charge you at the very outset, that the burden 
is upon the State to prove the guilt of the accused bey- 3]g 
ond a reasonable doubt before he can be convicted of 
either murder or manslaughter, for he is presumed to be



8 0 SUPREME COURT

The State vs. Benjam in Heyw ard

innocent, he comes into Court clothed with the presump­
tion of innocence and that presumption continues 
throughout the entire trial o f the case, unless and until 
it is removed by evidence satisfying the ju ry  of his guilt 
beyond a reasonable doubt.

Now , I have used the phrase, “ reasonable doubt” , I 
will use it again and more than once. The phrase “ reason­
able doubt” means what the words imply, not any sort of 
a doubt, not a fanciful or whim sical1 doubt, but a reason­
able doubt, some times defined as a substantial doubt 
arising out o f the evidence, or lack of evidence in the 
case. A  doubt for which a reason can be given.

A s  I have already charged you, an indictment for  
murder also includes the lesser crime o f manslaughter, 
that is to say, the lesser crime of unlawful homicide 
known as manslaughter.

Now , the word “ homicide” merely means the killing  
of a m an, it m ay be law ful or unlawful according to the 
circumstances. The tw o kinds of unlawful homicide are 
first, murder and second, m anslaughter; and as I have 
said to you already, there are two kinds o f manslaughter. 
I will, therefore, define each of these crimes, to -w it: 
murder and manslaughter, and state the principles o f  
law  relating thereto.

N ow , murder Is defined ini our Code in these words to 
which I direct your attention. Murder, and I am here 
reading the words o f the statute, “ M urder is the killing  
of any person w ith malice aforethought, either express 
or implied” .

N ow , I will repeat that to you again. “ M urder is the 
killing of any person w ith malice aforethought, either 
express or implied” . Hence, in order for one to be con­
victed of murder the State m ust not only prove the kill­
ing, but that it w as done w ith malice aforethought and 
such proof m ust be beyond a reasonable doubt.



SUPREME COURT 81

Appeal from Beaufort County

W hat is malice? Malice is frequently defined as a 
term  of art, that means a technical word importing  
wickedness and excluding just cause or excuse. It is 
something which springs from  wickedness, from  de­
pravity, from  a depraved spirit, from  a heart devoid of 
social duty and fatally bent on mischief.

Now , you will remember that in the definition, it says 
with malice aforethought, either express or implied.

Now , the words express or implied do not mean 
different kinds o f malice but merely the ‘manner in 
which the on'y kind known to the law can be shown to 
exist, that is, either by positive evidence or by inference. 
Express malice is where one person kills another with a 3 22  

sedate, deliberate mind and formed design, and such 
form ed design being evidenced by the external circum­
stances disclosing the inward intention. Malice is also 
inferred or presumed from  a wilful, deliberate and in­
tentional doing of an unlawful act without just cause or 
excuse. In other words, in its general signification 
malice means the doing of an unlawful act intentionally 
and without justification or excuse; but even if the facts 
proven a re . sufficient to raise a presumption of malice, 
such presumption would be rebuttable and it is for the 323 
ju ry  to determine from  all the evidence whether or not 
malice has been proven beyond a reasonable doubt. 
W h 'le  malice is presumed from  the use o f a deadly weap­
on yet where, as in this case, the circumstances surround­
ing the homicide are brought out, the presumption 
vanishes and the burden is on the State to prove malice 
by evidence satisfying the jury beyond a reasonable 
doubt. And you will remember that in the definition it 
says murder is the killing of any person with malice a- 
forethought. You will observe that there must be 324 
“ malice aforethought” and while the law does not re­
quire that malice shall exist for any appreciable length



82 SUPREME COURT

The State vs. Benjam in Heyw ard

of time before the commission of the act, it m ust be a- 
forethought, there m ust be a combination of the evil in­
tent and the act producing the result.

A fte r  having thus defined murder, I will state the 
punishment thereof provided by law. I invite your at­
tention to the reading o f Section No. 1102 of the Code 
of Law s o f South Carolina, 19 3 2 : “ W hoever is guilty of 
murder shall suffer the punishment of death: Provided, 
however, That in each case where the prisoner is found  
guilty o f murder, the ju ry  m ay find a special verdict re­
commending him or her to the mercy of the Court, where­
upon the punishment shall be reduced to imprisonment 
in the penitentiary w ith hard labor during the whole 
lifetim e of the prisoner” . I will read that section again. 
“ W hoever is guilty o f murder shall su ffer the punish­
ment o f death: Provided, however, That in each case 
where the prisoner is found guilty of murder, the ju ry  
m ay find a special verdict recommending him or her to 
the mercy of the Court w'hereupon the punishment shall 
be reduced to imprisonment in the penitentiary w ith hard 
labor during the whole lifetim e of the prisoner” .

You will observe from  this section that the ju ry  are 
expressly given the right in their discretion in case they 
find a defendant guilty o f murder to recommend him to 
mercy and this reduces the punishment to life imprison­
ment.

M r. Foreman and Gentlemen of the Jury, as I have 
already indicated an indictment for murder includes the 
lesser crime of unlawful homicide [known , as m an­
slaughter. In other words, a defendant indicted for  
murder m ay be convicted of manslaughter, i f  the evi­
dence so warrants you.

N ow , what is manslaughter? The statute law of the 
State says, “ manslaughter is the unlawful killing of an­
other without malice, express or implied” . You will



SUPREME COURT 83

Appeal from  Beaufort County

notice that the absence of malice is what distinguishes 
manslaugther from  murder.

Now , as I said awhile ago, manslaughter is divided 
into two classes: involuntary manslaughter and volun­
tary manslaughter. The word involuntary means “ un­
w illing” and the word voluntary means “ willing” . W hat  
is involuntary m anslaughter? It is a homicide due to 
gross or reckless negligence, or negligence in the use o f  
a deadly' instrumentality or w eapon; that is, involuntary 
manslaughter. I will repeat that definition again. In­
voluntary manslaughter is a homicide due to gross or 
reckless negligence, or negligence in the use of a danger­
ous instrum entality or weapon.

N ow , the punishment provided by law where a de­
fendant is found guilty of involuntary manslaughter is 
imprisonment for not less than three months nor more 
than three years in the discretion of the Court.

Now , voluntary manslaughter is the felonious taking 
of the life o f another in sudden heat and passion upon 
sufficient legal provocation, that’s voluntary man­
slaughter. The word voluntary means “ willing” . I 
repeat now, “ that voluntary manslaughter is the felon­
ious taking of the life of another in sudden heat and 
passion upon sufficient legal provocation” .

W hat is a sufficient legal provocation? Depends, o f  
course, in large measure upon the circumstances of each 
case, but it carries with i f  the idea of some physical ag­
gression of assau t. Merely by way of illustration and 
for that purpose only, I may say, that where an assault 
is made with violence and circumstances o f indignity  
upon a m an’s person and the party so assaulted kills the 
aggressor the crime will be reduced to voluntary man­
slaughter if it appears that the assault' was resented im ­
mediately and that the aggressor was killed in the heat 
of blood, for it will be observed that the killing must be



84 SUPREME COURT

The State vs. Benjam in Heyw ard

in sudden heat and passion, and if  the passion in fact 
has cooled, or i f  there was sufficient time between the

3 3 3  provocation and the killing for passion to cool, the kill­
ing would not be attributable to heat of passion, but to 
malice, and the sufficiency of' cooling tim e would depend 
upon whether there was tim e, all circumstances being 
considered, for a man of ordinary reason to cool.

N ow , voluntary manslaughter is punishable by hard 
labor in the penitentiary not exceeding thirty years, nor 
less than two years in the discretion o f the Court. W here  
a defendant is convicted o f voluntary manslaughter the 
punishment is not more than thirty years, nor less than

3 3 4  two years in the discretion of the Court.
I charge you further, M r. Forem an and Gentlemen of 

the Jury, that the law recognizes the right of every per­
son to defend him self from  death or serious bodily harm, 
and to do this, he m ay use as much force as is necessary 
even to the point o f killing his adversary. In other words, 
self-defense is a complete defense and entitles one 
charged with unlawful homicide to an acquittal, if the 
legal elements o f the plea are shown by the evidence.

N ow , to make out self-defense there are certain things 
which the law requires to be shown. The first one of

3 30  these is, that the defendant was without fault in bring­
ing on the difficulty, or the necessity for taking human  
life. Obviously, one cannot through his own fault bring  
on a difficulty and then claim the right of self-defense. 
That’s the first element.

N ow , the second element is this:. That at the time the 
defendant fired the fatal shot he believed that he was in 
imminent danger o f losing his own life  or sustaining  
serious bodily harm , and that’s the second element. The 
third element is th is : That a reasonably prudent man, a

33b , ,
man of ordinary firm ness and courage m  like circum- 
stances would have reached the same conclusion. You



SUPREME COURT 85

Appeal from  Beaufort County

will observe that, it must be shown that the defendant 
believed that he was in imminent danger, not that he 
was actually in such danger, because he had the right to m  
act on appearances, and i f  under the circumstances as 
they appeared to him, he believed he was in such' danger 
as a reasonably prudent man— a man of ordinary firm ­
ness and courage would have entertained the same belief, 
this would be sufficient.

In this connection, I charge you that if you find from  
the evidence that threats had been made against the de­
fendant and communicated to him, such threats should 
be considered by you, along with the other evidence in 
the case, in determining whether defendant had reason- 3 3 s 
able cause to apprehend an attack fatal to life or fraught 
with serious bodily injury.

I charge you further that ordinarily, M r. Foreman and 
Gentlemen of the Jury, when a person is attacked outside 
of his home, he is required to retreat to avoid taking  
human life, because the law o f self-defense is founded on 
necessity. But the dwelling house of a man, where he 
lives, is his home or castle, and if he is assaulted or at­
tacked therein, he is not bound to retreat, but m ay stand 
his ground and repel force by force in the defense of his 339 
person; and indeed m ay pursue his adversary until he 
has secured him self from  all danger. And if  under these 
circumstances he k.lis his adversary it would be excus- 
abie homicide.

I charge you further, M r. Foreman and Gentlemen of 
the Jury, that self-defense— any defense o f that kind, is 
what we call in law an affirmative defense and the bur­
den is on the defendant to establish it b y  the preponder­
ance or greater weight of the evidence, but not beyond 
a reasonable doubt. 340

I charge you further, that while the plea o f self-defense 
must be established by the preponderance of the evidence,



86 SUPREME COURT

The State vs. Benjam in Heyw ard

still if you have any reasonable doubt, as to whether or 
not the plea has been made out, you m ust give the de­
fendant the benefit o f that doubt and acquit him. And  
not withstanding the plea of self-defense, or any other 
affirm ative defense, the State m ust make out every  
material element in the case beyond a reasonable doubt. 
And if upon the testim ony arising from  the whole case, 
you have any reasonable doubt as to the guilt of the de­
fendant it would be your duty to acquit him.

I charge you further, M r. Foreman and Gentlemen of 
the Jury, that accidental killing is not an affirm ative  
defense, but the burden is upon the State to show an in­
tentional killing. In other words, the State m ust show  
beyona a reasonable doubt that the homicide was not 
accidental, but was intentional before the defendant could 
be convicted of either murder or manslaughter.

I charge you further, M r. Foreman and Gentlemen of 
the Jury, that a person has the right to resist, an unlaw­
ful arrest, even to the extent of taking the life of the 
aggressor, i f  it be necessary in order to regain his liberty 
or to prevent such arrest.

I charge you further, that an officer would not have 
the right to make an arrest without a w arrant against 
the person sought to- be arrested, unless some crime had 
been committed by him in the presence o f the officer or 
upon certain inform ation that a felony had been com­
mitted by him.

N ow , M r. Foreman and Gentlemen of the Jury, I have 
charged you m ost of the principles of law governing you 
in consideration of this case, but I am now going to 
charge you further at the request o f the defendant, cer­
tain requests to charge as we denominate them. You  
will take these requests in connection with what I have 
already charged you. I am going to charge you the first 
twelve o f these requests as stating correct law  applica-



SUPREME COURT 87

Appeal from  Beaufort County

ble fo r  your consideration. I am going to. read them  
and you follow me closely, as I read each one of these 
twelve requests. You will observe, of course, that some 
of them have been charged you in substance, but I am  
reading them again fo r  your inform ation.

M r. A m a n : M ay please the Court, at this tim e I w ith­
draw on account of your Honor having covered them  
down to fifteen.

The C ourt: I will charge request number fifteen.
M r. A m a n : I ask your Honor to do this, that is, 

starting at request number fifteen so much as your 
Honor m ay charge of the law, and as your Honor con­
ceives to' be the law and for your Honor to charge them  
in your own language.

15. M r. Foreman and Gentlemen of the Jury, I charge 
you that Section No. 993 of the Code of the Criminal 
Procedure of this State provides as fo llow s: I invite your 
attention which is taken from  the law of the State as 
contained in the Code. “ Every person arrested by virtue 
of process, or taken into custody by an officer in this 
State, has a right to know, from  the officer who arrests 
or claims to detain him, the true ground on which the 
arrest is made” ; and this Section further provides 
punishment to the officer who fails to so advise the 
person who m ay be arrested, and the officer fails to give 
him that inform ation. That is the law and I so charge 
you.

I charge you sixteen and I am going to make an addi­
tion.

16. I further charge you that Section 3527 of the 
Civil Code of 1932, for the State of South Carolina, in 
Volume 2, provides that it shall be unlawful for a Sher­
i f f  or his Deputy, to break and enter any house1 to arrest 
a person until after such person shall refuse to open the 
door, or to open his home and come out to surrender, and



88 SUPREME COURT

The State vs. Benjam in Heyw ard

even then such S h eriff m ust have a process to arrest 
such person. I charge you that with the following! addi­
tion : I charge you further, M r. Forem an and Gentlemen 
o f the Jury, that if any officer should break or enter into 
a house in violation of this law, the owner of the home 
would have the right to use such force as m ight be reason­
ably necessary to eject him from  the premises, even to 
the extent o f taking his life. In other words there m ust 
be a request by the officer to the person sought to be 
arrested to surrender him self and a refusal before such 
officer would have any right to break or enter the house 
to make the arrest, and in the absence o f such request 
or refusal, the owner of the home would have the right 
to defend him self from  such an unlawful arrest, and for  
the purpose of so protecting him self m ay use whatever 
force is necessary even to the extent of taking the life  
of him who is seeking to make such unlawful arrest, i f  
that be apparently necessary to a man of ordinary cour­
age in the circumstances.

20. I charge you, as a m atter of law, no one has a 
right to kill another in self-defense unless such killing  
is apparently necessary to  prevent some personal injury  
to him self, or to save his life, or to repel the invasion of 
his hom e; we have alw ays heard the old adage, “ A  m an’s 
home is his castle” , and that he has a right to defend it, 
which is true, but he must defend it in a reasonable 
manner, and upon this point, I charge you as a m atter o f 
law, where one is assaulted in his own home, or the home 
is attacked, in the actual resistance of the attem pt to com­
m it a felony upon, or in, the dwelling or place o f abode, 
where he is, the defendant, Benjam in Heyw ard, would be 
justified in using such means as are necessary to repel 
the assailant from  the home, or prevent forcible entry, 
even to taking the life o f the deceased, and in these cir­
cumstances the law  would excuse' the defendant, and you



SUPREME COURT 89

Appeal from  Beaufort County

should find him not guilty.
25. No man is required to run away from  his assail­

ant for there can be no doubt that the word “ run” is g_3 
accepted as being entirely different in meaning from  the 
word “ retreat” , when applied to1 the required conduct of 
one claim ing to act in self defense, or in defense of his 
home. A s  I have already charged you, when a man is 
assaulted or attacked in his own home, he does not have
to retreat.

26. The. mere doing of an act prohibited by law w ith­
out the intent involved in the definition of the particular 
crime does not constitute the crime. I charge you that.

27. W hile m otive is not an essential' element o f crime, 3 54  

that is to say, a bad motive will not make an act a crime, 
nor will a good motive prevent an act from  being a crime, 
yet, it is a principal of the criminal law that a crime 
cannot be committed if the mind of the! person doing the 
act is innocent. I charge you that.

The C ourt: I charge you Number twenty-eight with 
a s ight modification.

28. I f  you, therefore, find from, the evidence that the 
defendant, Ben Heyward, did not intend to take the life
of the deceased, that is to say, that his death was con- 355 
trary to the intention and expectation of the defendant, 
Benjam in Heyw ard, but he only intended to use such 
force as was reasonably necessary to secure his protec­
tion from  seriously boddy harm at the hands of the 
deceased and to a person of ordinary firm ness and reason, 
the degree of force actually used was reasonably neces­
sary, under all the surrounding circumstances and ap­
pearances for the defendant’s complete protection, the de­
fendant must be acquitted, although death resulted for  
under such circumstances there would be no criminal in- ggg 
tent rendering the defendant liable to criminal punish­
m ent and as already charged you the defendant cannot



90 SUPREME COURT

The State vs. Benjam in Heyw ard

be required or expected, under the law , in defending  
him self, to use ju st as much force as was used against 
him and no more, but he has the right to use so much 
force as reasonably appears to be necessary for his com­
plete self-protection, nor can he, for the same reasons, 
be required to make a nice calculation as to the degree or 
quantity of force which m ay be reasonably necessary fo r  
his protection, or the defense of his home.

29. W hile the State is bound to prove every material 
allegation o f the indictment beyond all reasonable doubt, 
in order to obtain a  conviction, the accused, if he should 
seek to excuse the killing by relying upon the plea of 
self defense, threats or defense o f his home, he is only 
required to establish such plea by the preponderance or 
greater weight of the evidence, and is not, therefore, 
held to as high degree of proof as the State and if the 
ju ry  have a reasonable doubt as to where the weight of 
the testim ony lies on the issue of self defense, threats, 
or the right to defend his home, they m ust acquit the 
accused, for such doubt would be a reasonable doubt to 
which he is entitled. The accused is entitled to the 
benefit of every reasonable* doubt arising from  the whole 
case after considering the testim ony for and against any 
defense relied upon by the accused; it is a m atter o f no 
consequence whether or not the preponderance of the 
evidence is in his favor, if the ju ry  entertain a reason­
able doubt as to guilt, for under such circumstances it is 
their sworn duty to acquit the accused.

30. The weight of authority and reason sustain the 
view  that prim a facie witnesses are presumed to tell the 
truth. This is not a presumption of law, but a prim a  
facie presumption of fact, the strength or weakness o f 
which depends upon the circumstances, such as for ex­
ample, the character of the witness, his opportunity of 
knowing the facts and circumstances which m ay, in the



SUPREME COURT 91

Appeal from  Beaufort County

judgm ent o f the triers of the facts, be deemed sufficient 
to strengthen, weaken or rebut the presumption.

31. The law presumes innocence rather than w ron g; 
hence the presumption that one charged with crime or 
other w rong is innocent. A  witness who w ilfully testifies 
falsely is guilty o f perjury. There is no logical reason  
why the presumption of his innocence of perjury should 
not be indulged, at least prima facie, in favor o f the 
truth of his testimony.

32. The defendant, Benjam in Heyward, having taken 
the witness stand in his own behalf, he becomes a witness 
in the case subject to the usual duties, incidents, liabi­
lities, lim itations and tprtesumptions applicable to (an 3 02  

ordinary witness, and in accordance with the principles 
stated, the prima facie presumption is that he told the 
ju ry  the truth.

The C ourt: N ow , M r. Foreman and Gentlemen of the 
Jury, you are the judges of the facts in this case; it is 
m y duty to explain the law to you; it is your duty to 
take the law as given by the Court and apply it to the 
evidence as you heard it from  the witnesses on the stand.
I repeat that all questions of fact in this case are for 
you. W h ile it is my duty to rule on the admissability o f 363 
the testimony, the weight of the evidence is entirely for 
you. It is your duty to weigh the evidence and to deter­
mine what the facts are from  the testimony as you 
heard it from  the witnesses on the stand. Hence, you 
necessarily m ust pass upon the credibility o f the 
witnesses, and, o f course, you have the right to believe 
one witness and disbelieve another, if in your judgm ent 
there is sound reason for so doing; and in the determina­
tion of the credibility, means whether you believe him or 
not, that is what credibility means. In determining the 
credibility of the witnesses, you have the right to take 
into consideration their opportunity for observation and



92 SUPREME COURT

The State vs. Benjam in Heyw ard

knowledge of the m atters concerning which they have 
testified, and any prejudice or bias they m ay have; in 

365 fact, anything which in your good judgm ent tends to 
show whether or not the witnesses are telling the truth. 
Y ou r objective being to find the truth, whether it comes 
from  a witness for the State, or for the defendant, and 
having determined the credibility o f the witnesses, and 
having determined what the facts are in the case, you 
apply the law as charged by the Court, to the facts as 
found by you and thus arrive at a proper verdict. Indeed 
the very word verdict, without any addition to it, means 
the truth. It  comes from  tw o Latin words m eaning to 

306 “ speak the truth”  that is what the word “ verdict”  means.
M r. Forem an and Gentlemen of the Jury, it is your 

duty and mine, a solemn duty in this and in all other 
cases . . .  I repeat, that it is your solemn duty and mine, 
within our respective spheres to see that both the State 
and the defendant have a fa ir  and impartial trial ac­
cording to the law and the evidence, always remembering  
that the defendant is entitled to the benefit o f any and 
every reasonable doubt, on any and and every phase of 
the case.

N ow , speaking of your duty to pass upon the credibility 
o f the witnesses. I charge) you at the request o f the de­
fendant with some modification these w o rd s:

I charge you further to consider the manner in which 
a witness testifies; the bias of the witness, and his general 
demeanor, on the witness stand; the willingness o f the 
witness to answer on certain phases of the case and his 
unwillingness to answer on other phases o f the case at 
bar, i f  there be such a witness in the case.

I charge you also, in weighing the evidence, i f  the 
6 testim ony of any witness who appears to be biased, and 

whose manner of testifying appears to be concealing 
certain parts o f the testim ony and withholding part o f



SUPREME COURT 9 3

Appeal from  Beaufort County

the facts, you may take this into consideration.
I charge you further on this proposition that you have 

a right to take into consideration the fact that if
. . 369

witnesses m  this case appear to have certain interests 
and are interested in the result o f this' case that you are 
to weigh their testim ony in the light of this circum­
stance; you have a right to consider relation, prejudice, 
hatred or other reasons that a witness m ay have for his 
actuating motive in testifying fo r  or against the defend­
ant,, that is, i f  you so find from  the evidence or appear­
ances o f the witness on the examination.

I repeat, the weight of the evidence and the credibility 
of the witness is for you. I f  you have a reasonable doubt 3 70  

as to whether the defendant is guilty or not guilty it 
will be your duty to acquit him. If, however, the State 
has proved his guilt beyond a reasonable doubt, it 
would be your duty to convict him. I f  you find him  
guilty and there is a reasonable doubt as to whether he 
is guilty of murder or manslaughter you should give him  
the benefit o f that doubt and find him guilty o f the lesser 
offense o f manslaughter. I f  you find him; guilty of man­
slaughter and there is a reasonable doubt as to whether 
he is guilty 0 1  involuntarly manslaughter or manslaughter 3Y1 
you give him the benefit o f that doubt and find him guilty  
of involuntary manslaughter.

T H E  F O L L O W IN G  R E Q U E S T S  TO C H A R G E  B Y  T H E  
D E F E N D A N T  W E R E  R E F U S E D

Request No. 17. I charge you further, as a m atter o f 
law, that an officer who has lodged with him a warrant 
charging only a misdemeanor, if he approached a person 
unknown to the officer, or a person who does not know „_o 
the officer, the law requires the officer to make his 
presence known by stating to the person proposed to be



94 SUPREME COURT

The State vs, Benjam in Heyw ard

arrested that he is an officer, that he has a process 
directing the arrest of the defendant, and if  the defend­
ant inquires upon what charge he is being arrested, to 
state to the defendant the charge set forth  in the w ar­
ran t; and I charge you further, as a m atter o f law, if  
such officer failed and neglected to perform  the duties 
required of him by law and entered, attempted to enter 
and break into the home of the defendant, Benjam in  
Heyw ard, with a drawn pistol, then the defendant would 
be justifed  in using so much force as m ay be necessary 
to protect his home, or to protect him self from  death, 
or serious bodily harm , or the invasion of his home, and 
i f  in so doing the defendant believed it necessary to kill 
the deceased, then the killing would be excusable under 
the law, and it would be your duty return a verdict o f  
not guilty.

Request No. 18. I charge you further as a m atter of 
law, that even though an officer have a w arrant fo r  a 
person that unless the person resists the arrest, or is 
about to do the officer some violence, that the officer  
would not be justified in entering into the defendant’s 
home w ith a drawn pistol, and if you believe from  the 
evidence in this case that the deceased did enter or at­
tem pt to break and enter the defendant’s home with a 
revolver in his hand without previously m aking the state­
ment that he was an officer and had a warrant fo r  the 
defendant and that defendant had refused to come out 
and surrender and if you believe from  the evidence in 
this case that the officer, without m aking his presence 
known or that he had a w arrant for the defendant, did 
enter or attem pt to break and enter into the door o f the 
home of the defendant, and that the defendant believed 
him self in imminent danger o f serious bodily harm or 
death or the invasion of his home and believed that it 
was necessary to kill the deceased, then the killing would



SUPREME COURT 95

Appeal from  Beaufort County

be excusable, under the law of this State, and it would 
be your sworn duty to return a verdict o f not guilty.

Request No. 19. I further charge you as a m atter o f 
law, that if you should find from  the evidence in this 
case that the deceased officer did not have any warrant 
or process to arrest the defendant, Benjam in Heyw ard, 
that the officer went to the home of Benjam in Heyward, 
the defendant, without making his presence known or 
inquiring of the occupant of the house as to who lived 
there, but w ith a drawn pistol attempted to enter or 
entered, or broke and entered, into the home of the de­
fendant, Benjam in Heyward, with a pistol in his hand, 
the defendant, Benjam in Heyward, would have a right to 
believe from  the appearances and conduct of the deceased 
that the deceased was there armed and for the purpose 
of inflicting serious bodily harm, or taking the life of 
the defendant; then in that event the defendant, Ben­
jam in Heyward, would have a legal right to use so much 
force as m ay be necessary, even to taking the life o f the 
deceased, to prevent serious bodily harm to his person or 
to save his life or to prevent the deceased from entering 
or invading his home and the killing would be excuable, 
under the law of this State and it would be your solemn 
duty to return a verdict of not guilty.

Request No. 21. I have charged you as to the law of 
self defense, as to the law of threats, and as to the right 
of the defendant, Benjam in Heyward, to defend him self 
in his castle, or home, as to the law of the duty of an 
officer in making an arrest, and under what circum­
stances an officer may break and enter a home; I further  
charge you as a m atter of law, that in considering this 
case you have a right, and it is your duty to take into 
consideration all that transpired during the day of the 
killing of the deceased, as well as at the moment the 
deceased entered, or attempted to enter, the defendant’s



96 SUPREME COURT

The State vs. Benjam in Heyw ard

castle, or home w ith a drawn revolver; take into con­
sideration whether or not the deceased stated he had a 
warrant for the defendant, Benjam in Heyw ard, whether 
or not the deceased had made a mistake and gone to the 
w rong home to arrest the w rong man, and determine 
from  the evidence in this case if  the purpose of the de­
ceased was unknown to the defendant, and if, under the 
law as I have charged you, and facts as you find in this 
case, the defendant, Benjam in Heyw ard, had reason to 
believe his life was in danger, or he was about to have 
inflicted upon him serious bodily harm, or his home was 
being invaded. I charge you as a m atter of law  that if  
you believe from  the evidence in this case that the de­
fendant did not know the purpose of the deceased, and 
the defendant feared for his life, or the infliction of 
serious bodily harm, or the invasion o f his home, and 
that i f  resisting within his own home the defendant, 
Benjam in Heyw ard, believed it was necessary to take 
the life  o f the deceased to protect his home, save his life  
or to prevent serious bodily harm being done to his per­
son, if you believe that from  the evidence in this case it 
will be your solemn duty to return a verdict o f not 
guilty.

Request No. 22. I charge you as a m atter o f law that 
i f  you find from  the evidence in this case that a few  
hours prior to the tim e the deceased was killed, and on 
the same day, that a white person went to the home of 
the defendant, Benjam in Heyw ard, and threatened to re­
turn to the defendant’s home and take his life or do 
him serious bodily harm , and if you further find from  
the evidence in this case that the deceased who was a 
rural policeman went to the defendant’s home with a 
warrant fo r  a person other than the defendant, Ben­
jam in Heyw ard, and that the said officer neglected to 
make his presence known or to advise the defendant,



SUPREME COURT 97

Appeal from Beaufort County-

Benjam in Heyw ard, that he had a w arrant for another 
person, and that the deceased attempted to enter, did 
enter, or attempted to break into defendant’s home and 3g5 
the deceased was killed at the time, and you should fu r­
ther find from  the evidence in this case that the purpose 
of the deceased was unknown to the defendant, and the 
deceased suddenly appeared at the door of defendant’s 
home with a revolver in his hand and the defendant be­
lieved he was there to carry out the threats to take de­
fendant’s life, or to do him serious bodily harm, made 
to the defendant a few  hours prior, the defendant, Ben­
jam in Heyw ard, would have a right to act upon the ap­
pearances, and if he believed him self to be in danger o f 380 

serious bodily harm or death then the defendant would 
have a right, i f  he believed it necessary, to protect him ­
self from  the infliction of serious bodily harm or death 
or to protect his home, to kill the deecased, and under 
those circumstances the law would excuse the defend­
ant, Benjam in Heyw ard, and it would be your duty to 
write a verdict o f not guilty.

Request No. 23. I charge you further, as a m atter of 
law, that if you should find from  the evidence in this case 
that the deceased was an officer and that he had a w ar- 387 
rant for the arrest of a person and that he went to the 
w rong home and where the person for whom he had the 
w arrant did not live and the officer failed and neglected 
to make his presence known, and neglected to state that 
he had a warrant for the particular person and attempted 
to enter, entered, or attempted to break and enter into 
the home with a drawn revolver in his hand, as a matter 
of law, that officer would forfeit the protection and 
authority thrown around him by the law, and would him­
self become a trespasser and the aggressor, and would ggg 
place him se’ f  upon the same plane as an individual who, 
without authority, attempted to enter, entered, or broke



98 SUPREME COURT

The State vs. Benjam in Heyw ard

into the home o f a private citizen with a drawn revolver, 
and in such case the master o f the home would have a 
right, from  the appearances, to believe, under those cir­
cumstances, that the deceased intended to do him ser­
ious bodily harm , kill him, or was invading his home 
with a felonious purpose and, under those circumstances, 
the defendant would have a right to use so much force as 
m ay be necessary to save him self from  serious bodily 
harm , death, or the invasion of his home, and, under 
such circumstances, the law  would excuse the defendant 
and it would be your sworn duty to find the defendant 
not guilty.

Request No. 24. I charge you as a m atter o f law that 
i f  you should find from  the evidence in this case that 
one or more white persons had appeared at the defend­
ant’s home during the day that the deceased was killed 
and made threats to return to defendant’s home and 
take the defendant’s life, or to do him serious bodily 
harm , and that during that same day, without w arning  
to the defendant, that a white person about the same 
size suddenly appeared at the door of the defendant’s 
home and entered, or attempted to enter and break into 
defendant’s home with a pistol in his hand and that the 
defendant, Benjam in Heyw ard, honestly believed him self 
in danger and in defense of his life, or to prevent him self 
from  suffering serious bodily injury, or the invasion of 
his home, the defendant, Benjam in Heyw ard, would have 
a right to use so much force as necessary, even to tak­
ing deceased’s life, to save his own life, or to save him ­
self from  the infliction of serious bodily harm, or to re­
pel an invasion of his home, then the killing o f the de­
ceased would be accidental insofar as the defendant was 
concerned, and the law would excuse him for apparent 
necessity, and it would be your duty to return a verdict 
of not guilty.



SUPREME COURT 99

Appeal from  Beaufort County

M O T IO N  O F D E F E N D A N T  FO R  A  N E W  T R IA L

The ju ry  having returned a verdict o f “ guilty” and 3g3 
before sentence was passed, M r. Am an made a motion 
for a new trial upon the following grounds:

1. That the State has failed to prove malice, either 
positively or by implication.

2. Upon the second ground, I believe the ju ry  m is­
understood your Honor’s charge as to the right o f the 
defense of the castle, and as to the right o f self defense 
within the home individually.

3. And upon the further ground, may please the Court, 
taking all the testimony collectively that it does not 394 

support a verdict o f murder.
A fte r  argument for and against the motion the Court 

ruled as fo llow s:
The Court: M r. Am an, you made a splendid defense 

for the defendant and he has had a fa ir  and impartial 
trial. Now , under the law  Of the land, I feel that it is 
m y duty to refuse the motion.

E X C E P T IO N S

395
1. The Trial Judge erred, it is respectfully submitted, 

in overruling the motion of Appellant for a directed ver­
dict of hot guilty in his favor as to the charge of murder 
at the close of the testimony for the State upon the 
ground that the testimony showed conclusively that the 
deceased had come to his death while in the act of an 
unlawful invasion of the home of Appellant; the error 
being that under the testimony the Appellant had the 
inherent legal right to defend his home against any un­
lawful invasion therein and to protect and defend him - 3gg 
self and his children from  death or serious bodily harm, 
which" under the testimony Appellant had reason to ex-



100 SUPREME COURT

The State vs. Benjam in Heyw ard

pect m ight result from  such unlawful invasion of his 
home.

2. The Trial Judge erred in overruling the motion of  
Appellant for a directed verdict in his favor as to the 
charge of murder at the close o f all of the testim ony for  
the State upon the ground that the testim ony negatived  
any semblance o f malice either express or remotely im ­
plied on the part of A ppellant; the error being that as 
the State had completely failed to prove any malice on 
the part o f the Appellant, and as malice was a necessary 
element to be proven in order to make out a case o f 
murder, the Appellant was, as a m atter of law, entitled to 
a directed verdict o f not guilty as to the charge of 
murder against him.

3. The Trial Judge erred and abused his discretion in 
overruling the motion o f Appellant fo r  a directed ver­
dict o f not guilty in his favor at the close of all o f the 
testim ony upon the ground that the State had failed to 
prove malice on the part o f Appellant either express or 
im plied; the error being that upon the failure o f the 
State to prove malice the Appellant was entitled, as a 
m atter o f law, to a directed verdict as to the charge of  
murder against him and such charge should not have 
been submitted to the jury.

4. The Trial Judge erred and abused his discretion in 
refusing the motion of Appellant made at the close of all 
of the testim ony for a directed verdict o f not guilty as to 
the charge of murder against him upon the ground that 
the positive and undisputed testim ony showed that a 
threat against the life o f Appellant had been communi­
cated to him prior to and on the day of the homicide and 
that Appellant had a legal right to act upon the reason­
able appearances from  the facts shown by the testim ony  
in protecting him self from  such threatened death or 
bodily harm  then apparently imminent and to defend



SUPREME COURT 101

Appeal from Beaufort County

him self and his home from  such unlawful invasion there­
of as the testimony pointed to be inevitable and when 
the State had failed to prove malice either express or 
implied on the part of Appellant; the error being that 
under the testimony, facts and circumstances shown by 
the testim ony, Appellant had a legal right to act upon 
the reasonable appearances shown to be present at the 
time he fired the fatal shot in defending him self against 
such threatened death or bodily harm and the Trial Judge 
abused his judicial discretion in refusing to direct a 
verdict of not guilty as to the charge of murder against 
Appellant when no malice had been proven.

5. The Trial Judge erred in refusing to charge the 
ju ry  the law with respect to the rights o f a person in 
defending him self and his home, when such person has 
had a threat against his life communicated to him, against 
any unlawful invasion of such home as requested by 
him in his S E V E N T E E N T H , E IG H T E E N T H  A N D  
N IN E T E E N T H  requests to charge; the error being that 
such requests to charge embodied correct principles o f 
law  and should have been submitted to the jury in order 
to assist it in reaching a verdict, and without such prin­
ciples of law being charged the jury was left confused or 
uninstructed as to important principles of law and A p ­
pellant deprived o f his right to have such law explained 
to the ju ry  as he had requested.

6. The Trial Judge erred in refusing to charge the jury  
the S E V E N T E E N T H  request of the A ppellant; the error 
being that said request embodied a correct principle of 
law regarding the duty of an officer unknown to a per­
son sought to be arrested and when such person is un­
known to such officer.

7. The Trial Judge erred in refusing to charge the 
jury the E IG H T E E N T H  request of the A ppellant; the 
error being that said request embodied a correct principal



102 SUPREME COURT

The State vs. Benjam in Heyw ard

of law regarding the duty of an officer when undertak­
ing to make an arrest o f a person within his home and 
the refusal o f the Trial Judge to charge the ju ry  as re­
quested was highly prejudicial to the right o f the Appel­
lant in that the law contained in such request to charge 
was not fully explained to the jury.

8. The Trial Judge erred in refusing to charge the 
ju ry  the N IN E T E E N T H  request of the Appellant with  
respect to the duty of an officer in m aking an arrest of 
a person for whom he has a w arrant charging such per­
son with a misdemeanor and when such person who is 
in his home at the time the arrest is sought to be made, 
is unknown to the officer.

9. The Trial Judge erred in refusing to charge the 
ju ry  the S E V E N T E E N T H , E IG H T E E N T H  A N D  N IN E ­
T E E N T H  requests of the Appellant w ith respect to the 
rights o f a person in his home who has had a threat 
against his life communicated to him against an unlaw­
ful invasion o f such hom e; the error being that such 
requests to charge the ju ry  embodied correct principles 
of law  applicable to the facts and circumstances shown 
by the testim ony in the case and Appellant was deprived 
of the right to have the law applicable to the charges 
against him fully explained to the ju ry  and such requests 
should have been charged.

10. The Trial Judge erred in refusing to charge the 
ju ry  the T W E N T Y -F IR S T , T W E N T Y -S E C O N D , 
T W E N T Y -T H IR D  A N D  T W E N T Y -F O U R T H  requests 
of the Appellant with respect to the law applicable to the 
testim ony in the case regarding the rights of the Appel­
lant in defending him self and his home from  an unlawful 
invasion thereof when it was shown that Appellant had 
prior to and on the day of the homicide received threats 
against his life and the undisputed testim ony showed 
that Appellant acted upon reasonable appearances in the



SUPREME COURT 103

Appeal from Beaufort County

belief that someone was breaking into his home fo r  the 
purpose of carrying into execution the threats which had 
been communicated to him at the time he fired the fatal 
sh ot; the error being that said requests to charge con­
tained correct principles of law which, under the testi­
mony and facts, should have been explained to the jury  
in order for it to apply such law to the facts in reaching  
a verdict.

11. The Trial Judge erred and abused his discretion in 
refusing the motion of the Appellant for a new trial 
after the jury had returned a verdict of guilty of murder 
and before sentence was passed when there had been no 
testim ony offered tending to prove malice either express 
or implied upon which the jury could have based a ver­
dict o f guilty o f m urder; the error being that as malice 
was and is a necessary element to be proven in order to 
make out a case o f murder or a case in which the ju ry  
would be justified in bringing out a verdict o f guilty of 
murder and when The charge of murder was left in the 
indictment after no malice was shown and there being 
no testimony upon which the jury could base a verdict o f  
murder, the charge being wholly unsupported by the 
testimony, the Trial Judge should have set aside the 
verdict o f the ju ry  and granted Appellant a new trial as 
asked for.

12. The Trial Judge further erred, it is submitted, in 
refusing a new trial to Appe’lant upon his motion on 
the ground that that the verdict of the jury was wholly 
unsupported by the testimony in the case and that such 
verdict was capricious and should have been set aside 
and a new trial granted to Appellant when it was con­
clusively shown that there was no malice on the part of 
Appellant in any of his actions in connection with and 
leading up to the homicide.



104 SUPREME COURT

The State vs. Benjam in Heyw ard

A G R E E M E N T

W e agree that the foregoing shall constitute the 
Transcript o f Record for appeal to the Supreme Court. 
December 28, 1940.

Joseph Murray,
Attorney for Appellant.

Randolph Murdaugh,
Attorney for Respondent.

414

415

416





ASHLEY PRINTING CO. 

COLUMBIA, S. C.



IM M IGRATION AND NATURALIZATION SER V IC E  
D EPARTM EN T O F JU STIC E  

B EFO R E TH E BOARD OF IM M IGRATION APPEALS

In the Matter 
of

Harry R enton Bridges.

B R IE F  ON B EH A LF O F NATIONAL LAW YERS GUILD  
AS AMICUS CURIAE

National Lawyers Guild as A micus Curiae,
By Committee on Civil R ights and L iberties, 

Osmond K . Fraenkel, Chairm an,

Committee on Labor Law,
Benedict W ole, Chairm an.





IM M IGRATION AND N ATURALIZATION  SER V IC E  
D EPARTM EN T O F JU STIC E  

B EFO R E TH E BOARD OF IM M IGRATION APPEALS

In the Matter 
of

Harky B enton Bbidges.

B R IE F  ON B EH A LF O F NATIONAL LA W YERS GUILD  
AS AMICUS CURIAE

The National Lawyers Guild is a country-wide associa­
tion of lawyers devoted to the democratic way of life, 
mindful that this way of life is most commonly endangered 
by denials of civil liberties and the rights of labor. There­
fore the National Executive Board of the Guild has re­
quested its two committees dealing with those subjects, 
with the permission of this Board, to submit a brief in 
this case because they feel that it presents issues of great 
importance in their fields.

The interest of the Committee on Labor Law derives 
not only from the fact that the alien here involved is a 
noted labor leader, but rather because there is a wide­
spread impression that this proceeding was instigated by 
employer interests hostile to him because of his labor 
activities, and that the statute which made this proceeding 
possible after the prior determination not to deport was 
motivated by the same considerations. While this may not 
be the place to discuss these aspects of the case their exist­
ence makes it all the more imperative that full considera­
tion be given to the various legal and constitutional points 
raised by the alien. The Labor Law Committee is, more­
over, concerned with the Presiding Inspector’s discussion



2

of wliat constitutes affiliation, because of the serious con­
sequences to organized labor of the all-embracing standard 
stated by him.

The chief legal point we wish to discuss is in the field 
of civil liberties, within the domain of the other Committee 
of the Guild sponsoring this brief, namely, whether Con­
gress can constitutionally deport an alien found to have 
been a member of or affiliated with an organization of the 
proscribed class when there is no evidence that the advocacy 
by that organization of its views produced a clear and pres­
ent danger to government.

We shall in this brief not discuss the evidence relied 
upon by Judge Sears to show membership in or affiliation 
with particular organizations, nor the evidence relied upon 
to establish that these advocated the forcible overthrow 
of the government, except to point out that there was no 
attempt to show that such advocacy produced any clear 
and present danger of overthrow.

PO IN T I

Since the alien was engaged in the exercise of a con­
stitutional right he cannot be deported for its exercise.

This alien is charged with being deportable because of 
membership in or affiliation with certain organizations, not 
with any personal improper conduct or even with the ex­
pression of any views in violation of the statute. Nor do 
the charges which allege the advocacy by certain organiza­
tions of proscribed doctrines further allege that such advo­
cacy creates any clear and present danger of violent revolu­
tion. And the evidence produced by the Department to 
show the character of these organizations does not justify 
any such conclusion.

This is evident from Judge Sears’ Memorandum of 
Decision. In discussing the objectives of the Communist 
Party he refers to the Communist Manifesto of 1848 (31),



3

to the 1920 Theses of the Third International (32) and 
Lenin’s State and Revolution published in 1917* (33). The 
only references to the relation of these foreign documents 
to the United States are in extracts of testimony (34-36) 
which have no relation to any particular time. They show 
nothing from which it is possible to infer that there was a 
clear and present danger of violent overthrow of the gov­
ernment in any period during which it is charged that the 
alien was a member of or affiliated with the Communist 
Party or its allegedly subsidiary organizations.

It is our view that the Constitution permits the expres­
sion of opinion, or the distribution of the opinion of 
another, no matter what may be the nature of the opinion 
expressed, at least in the absence of a showing that such 
advocacy would result in a clear and present danger to 
the state. We recognize that the courts have not always 
adhered to so rigorous a view of the constitutional guar­
anty. At least in time of war the United States Supreme 
Court has approved the punishment of the expressions of 
opinions, but, even then, only when such opinions were 
uttered under circumstances justifying the finding “ of a 
clear and present danger” that serious harm to the state 
would result. See Schenck v. United States, 249 U. S. 47. 
Certainly no less favorable an interpretation of the Con­
stitution is permissible today.

As was said by Justice Brandeis concurring in Whitney 
v. California, 274 U. S. 357 at 376, mere advocacy of doc­
trines

“is not a justification for denying free speech where 
the advocacy falls short of incitement and there is 
nothing to indicate that the advocacy would be imme­
diately acted on. The wide difference between advo­
cacy and incitement, between preparation and attempt, 
between assembling and conspiracy, must be borne in 
mind. In order to support a finding of clear and

*13 Encyclopedia Britannica, 14th Edition, 9i"4. The date, 1932, in“NOR“52 
o f  the memorandum is apparently that o f a particular issue o f  that publi­
cation.



4

present danger it must be shown either that immediate 
serious violence was to be expected or was advocated, 
or that the past conduct furnished reason to believe 
that such advocacy was then contemplated.”

The rule “ if authority is to be reconciled with freedom” 
must be, in the words of Mr. Justice Brandeis, that “ Only 
an emergency can justify repression” and that “no danger 
flowing from speech can be deemed clear and present, 
unless the incidence of the evil apprehended is so imminent 
that it may befall before there is opportunity for full dis­
cussion. If there be time to expose through discussion 
the falsehood and fallacies to avert the evil by the processes 
of education, the remedy to be applied is more speech, 
not enforced silence.” Whitney v. California, supra, at 
page 377. Consequently “ It is therefore always open to 
Americans to challenge a law abridging free speech and 
assembly by showing that there was no emergency justify­
ing it”—and by emergency Mr. Justice Brandeis meant 
something related to the offense charged, not merely a 
vague state of public concern.

That the clear and present danger test is the minimum 
protection to which a person charged with crime based on 
opinion or advocacy of opinion is entitled is clear from 
its citation, with approval, in every recent free speech 
case before the United States Supreme Court.*

Herndon v. Lowry, 301 U. S. 242.
Hague v. C. I. 0., 307 U. S. 496.
Schneider v. Irvington, 308 U. S. 147.
Thornhill v. Alabama, 310 U. S. 88.
Carlson v. California, 310 U. S. 106.
Cantwell v. Connecticut, 310 U. S. 296.

Moreover, we submit, that there could be no criminal 
punishment for mere membership in or affiliation with an 
organization advocating proscribed views in the absence 
of proof that the person charged with crime had knowledge

* Since this brief was submitted the Court reiterated this view in B ridges  
v. Superior Court, decided Decem ber 8, 1941.



5

that these views were illegal.* For guilt by association 
is repugnant to the Constitution. deJonge v. Oregon, 299 
U. S. 353.

The activities in which this alien was engaged are, there­
fore, activities protected by the free speech provisions of 
the. Constitution. And that the person who has engaged in 
these activities is an alien can make no difference. It is 
well settled that an alien is entitled to the benefit of consti­
tutional safeguards whether thrown around property rights 
(Russian Volunteer Fleet v. United States, 282 U. S. 481), 
the right to earn a living (Truax v. Raich, 239 U. S. 33; 
Vick Wo v. Hopkins, 118 U. S. 356), or in criminal prosecu­
tions (Wong Wing v. United States, 163 IJ. S. 228).

The protection of the Constitution extends to aliens also 
in deportation proceedings; so that he is entitled to a fail- 
hearing (United States ex rel. Vajtauer v. Commissioner, 
273 U. S. 103, 106), and to have evidence disregarded which 
was illegally seized (Ex parte Jackson, 263 Fed. 110; see 
also United States ex rel. Bilokumsky v. Tod, 263 U. S. 
149, 155).

No reason can be advanced why Congress should have 
the right to disregard any of the mandates of the Consti­
tution merely because it is deporting an alien. The notion 
that Congress has an arbitrary right to expel resident aliens 
is at variance with the essential nature of our government.

Surely Congress would not be upheld should it attempt 
to deport all aliens who had. red. hair or all aliens who 
were born in a particular country (at least so long as we 
were at peace with that country) or all aliens who spoke 
'a particular language. Nor is there any reason to suppose 
that Congress would have the right to deport aliens who 
had committed, certain.; acts .now held to be the exercise of 
a- constitutional: right, such as participation in peaceful 
picketing (see Thornhill v. Alabama, 310 IT; S.-88) or dis­
tribution of’ leaflets (see Schneider v. Irvington, 308 IT. S. 
147) or participation in a meeting called by the Communist

* And there was neither charge nor proof that the alien had such knowledge.



6

Party (see deJonge v. Oregon, 299 U. S. 353). We submit 
that Congress cannot have the power to deport an alien 
for exercising a right guaranteed to the alien by the 
Constitution.

We suppose counsel for the Department will rely on 
United States ex rel. Turner v. Williams, 194 U. S. 279, 
and Fong Yue Ting v. United States, 149 U. S. 698. But 
in the Turner case the Court was dealing with the right to 
exclude, a wholly different matter from the right to expel. 
For the Constitution does not give an alien rights until 
he or his property have become subject to it. The position 
contended for by us here would in no way limit the power 
of Congress to exclude aliens or to expel those who have 
entered illegally. But the careful language of Chief Justice 
Fuller in the Turner case shows that he understood that 
the constitutional rights of an alien lawfully here could not 
be disregarded even in a proceeding to deport him.

And while there is general language in the Fong Yue 
Ting case, which purports to uphold the broadest possible 
powers to expel (149 TJ. S. at 711), that statement was 
unnecessary to the decision of that case. For the alien in 
that case was deported for violation of a reasonable regis­
tration regulation, not for the exercise of any constitutional 
right. The statement of the majority should, therefore, 
be confined to the facts of the particular case. As was 
pointed out by Chief Justice Fuller in his dissent:

“ The argument is that friendly aliens, who have law­
fully acquired a domicile in this country, are entitled 
to avail themselves of the safeguards of the Constitu­
tion only while permitted to remain, and that the power 
to expel them and the manner of its exercise are 
unaffected by that instrument. It is difficult to see 
how this can be so in view of the operation of the 
power upon the existing rights of individuals; and to 
say that the residence of the alien, when invited and 
secured by treaties and laws, is held in subordination 
to the exertion against him, as an alien, of the absolute 
unqualified power asserted, is to import a condition 
not recognized by the fundamental law” (149 U. S. at 
763).



7

A more recent statement on the same subject is to be 
found in Oppenheimer, The Constitutional Eights of Aliens, 
1 Bill of Eights Eeview 100 at 107 to 111.

We submit, therefore, that an alien may constitutionally 
be deported for membership in or affiliation with an organ­
ization challenged for its expressions of opinion only when, 
on a showing of all the facts, there is a clear and present 
danger that his continued presence in the country would 
be dangerous to its safety. That involves more than a 
mere showing that the organization, to which he is found 
to have belonged, at some time in the past then advocated 
or still advocates the overthrow of the government by 
force. There having been no showing here of any clear 
and present danger of violent revolution the alien is not 
subject to deportation.

PO IN T II  

Wliat is affiliation?

The Memorandum of Decision of the Presiding Inspec­
tor finds that the alien Mr. Bridges is subject to deporta­
tion both because he was a member of the Communist 
Party and because he was affiliated with the Communist 
Party. Although Judge Sears does not define the word 
“ affiliation” , an examination of his decision reveals that 
he has not only disregarded the established precedents deal­
ing with the meaning of affiliation, but that his reasoning 
arfd conclusions take a form which make them inherently 
dangerous to the welfare of organized labor.

Judge Sears found (168-169) that certain incidents dem­
onstrated that Mr. Bridges

1. had a “ sympathetic or co-operative attitude” toward 
the Communist Party, the Marine Workers Industrial 
Union and other Communist organizations,

2. had a “ co-operative and sympathetic attitude” toward 
various Front Organizations of the Communist Party



8

and certain Communist-sponsored program s and poli­
cies, and

3. “ co-operated with known members of the Communist 
Party and affiliated organizations, and very often 
shared their views, upon political, social, and, particu­
larly, labor q u e s t i o n s (Italics ours.)

Since Judge Sears had previously stated that while 
affiliation has a broader meaning than membership, it has 
a narrower meaning than sympathy (12), presumably his 
finding with regard to a sympathetic attitude on the part 
of the alien as above described is unimportant. If his 
finding is to be given any weight it is on the ground that 
a co-operative attitude toward the organizations and indi­
viduals mentioned, and a sharing of their views, amounts 
to affiliation. In our opinion this is a conclusion contrary 
to law and to the facts. However, before further discus­
sion on this point, it might he well to consider the specific 
incidents upon which Judge Sears bases his conclusions.

Stating that he does not rely upon any single incident, 
Judge Sears places his reliance upon a course of conduct 
comprising “ a large number of instances where the views 
and conduct of the alien were not only strikingly similar 
but. were actually the same as the conduct and views 
espoused by the Communist Party.” Judge Sears states 
further that his conclusion is strengthened by the fact that 
Mr. Bridges consistently opposed discrimination against 
members because o f Communist membership, and fought 
against “ red baiters”. Since, .according to Judge Sears, 
unions were fighting the infiltration of Communists into 
the labor movement in general and. the Communists were 
pursuing a policy of penetration into labor unions against 
•the Will o f the unions and their leaders,; Me. Bridges’ 
position amounted to- co-operation' with " the: Communist 
Party. Judge Sears' asserts that Mr. Bridges, in taking 
a position that the-cry. of communism was the tool of the 
“ reactionary labor leaders” to destroy labor organizations



9

did not take into account the sincerity or lack of sincerity 
of those who raised the cry of communism. From all of 
this Judge Sears concludes that “Bridges’ unswerving 
attitude of non-discrimination and his uniform condemna­
tion of Bed Baiters is strongly corroborative of the findings 
of membership or affiliation made on an analysis of par­
ticular episodes” (170).

Judge Sears emphasizes the fact that the alien’s views 
and conduct were the same views and conduct espoused by 
the Communist Party but makes no claim that this conduct 
was harmful to the trade union of which the alien was the 
leader. On the contrary, he states (167) that

“ I have no doubt that Bridges’ leadership was good 
in the eyes of his fellow unionist. He helped to estab­
lish better employment and working conditions as a 
result of the 1934 strike. He undoubtedly greatly aided 
the maritime workers in securing higher wages. He 
is entitled to credit in these respects. He may well 
have shown good judgment and even wisdom in' nego­
tiations and in determining for or against strikes or 
mediation or arbitration.”

Since the episodes upon which Judge Sears bases his find­
ings of affiliation all involved actions taken by the alien 
as a labor leader, and since these actions were by Judge 
Sears’ own admission beneficial to the union which the 
alien led, the fact that the Communist Party and known 
members of the Communist Party approved of the actions 
and views of the alien or held similar views and engaged 
in similar conduct with regard to trade union matters, 
certainly cannot be cited against the alien. The logical 
conclusion of Judge Sears’ reasoning would be to force the 
alien to refrain from conduct which was good for his union 
just because the Communist Party approved of such con­
duct or engaged in similar conduct.

So, too, in the case of Bridges’ attacks on “ red baiting” 
and discrimination against union members who are Com­
munists. Judge Sears has not presumed to say that red 
baiting tactics and disci’imination of the type mentioned



10

do not weaken the trade union movement. He has not 
challenged the sincerity of the alien’s belief that red bait­
ing and discrimination of this sort are harmful to a union. 
Yet since Judge Sears bases a finding of affiliation on such 
conduct, we must conclude that, in his opinion, Bridges 
should have deliberately refrained from taking a position 
against something which he thought was harmful to the 
union. A finding which compels this sort of conclusion 
cannot be permitted to stand.

The Communist Party in its platform may have encom­
passed eleven different principles, ten dealing with trade 
union matters and one with political matters. If the ten 
principles were sound from a trade union point of view 
and the alien advocated them, according to Judge Sears’ 
reasoning the alien would be affiliated with the Communist 
Party. Such reasoning endangers the position of all labor 
leaders, and in fact all union members, in whose judgment 
the value of these principles to the trade union movement 
is clear.

Since Judge Sears did not find that the alien’s actions 
were considered by the union harmful to it and that the 
alien, knowing that such actions might be harmful to his 
union, pursued them for the benefit of some other organiza­
tion, there is no basis to Judge Sears’ conclusion.

Judge Sears’ reasoning and conclusions with regard to 
“ affiliation” has danger not only for the labor movement 
but for all persons. A person may be in entire sympathy 
with most of the aims of an organization which is found 
to come within the meaning of the statute, but may be in 
sharp disagreement with the organization on the question 
of the advocacy, the belief in, or the teaching of the over­
throw bv force or violence of the government of the United 
States. Because of sharp disagreement on this one point, 
he may deliberately refrain from becoming a member of 
the organization. According to Judge Sears’ definition 
of affiliation, if such a person thereafter engaged in conduct 
to help bring about the things in which he believes, always 
remembering'liis fundamental disagreement with the pro-



i i

scribed organization on the v e r y  issue which m akes it a 
proscribed  organization, he must be deemed to be affiliated 
with the organization. Any definition which brings about 
such fantastic results must be discarded.

Not only has Judge Sears disregarded elementary logic 
and reason in concluding that the alien was affiliated with 
the Communist Party, but he has also disregarded estab­
lished precedent in arriving at this result. Dean James 
M. Landis, acting as trial examiner on behalf of the Depart­
ment of Labor in a previous deportation proceeding against 
Mr. Bridges, considered the meaning of “ affiliation”. He 
stated (In the Matter of Harry R. Bridges, Findings and 
Conclusions of the Trial Examiner, p. 11):

“ ‘Affiliation’ is plainly a word that speaks in terms 
of a stronger bond than ‘association’. In the corporate 
field its use embraces not the casual affinity of an 
occasional similarity of objective, but ties and connec­
tions that, though less than that complete control 
which parent possesses over subsidiary, are neverthe­
less sufficient to create a continuing relationship that 
embraces both units within the concept of a system. 
In the field of eleemosynary and political organization 
the same basic idea prevails. Thus thinking in terms 
of affiliation as distinguished from membership must 
have regard to a bond of this general nature existing, 
explicitly or implicitly, between the alien and the pro­
scribed organization.”

On the same subject Circuit Judge Chase said (K ettu n en  
v. R eim er, 79 F. [2nd] 315, 317):

“It is enough for present purposes to hold that it is 
not proved unless the alien is shown to have so con­
ducted himself that he has brought about a status of 
mutual recognition that he may be relied on to co­
operate with the Communist Party on a fairly perma­
nent basis. H e m ust be m ore than m erely  in sym pathy  
w ith its. aims or even  w illing to aid it in a casual in ter­
m itten t w ay. Affiliation includes an element of de­
pendability upon which the organization can rely which, 
though not equivalent to membership duty, does rest



12

upon a course of conduct that could not he abruptly 
ended without giving at least reasonable cause for the 
charge of a breach of good faith.” (Italics ours.)

In the case of Tolsky v. Wilson (S. D. N. Y.), June 22, 
1920, unreported, Judge Hand stated:

“ Perhaps it (affiliation) may also include an irregu­
lar connection of a single individual with the society, 
not amounting to membership. However this may be, 
it seems to me pretty clear that it involves a mutual 
recognition of permanent co-operation between the 
organization and the person affiliated and not a spas­
modic or casual assistance. Mere sympathy with the 
aims of the society, even accompanied by efforts to 
further its aims, does not fall within that word.”

Nowhere in the Memorandum of Decision of Judge Sears 
is there any indication that he has taken into account 
the pronouncements of the various courts with regard to 
the meaning of “ affiliation” . The “mutual recognition of 
permanent co-operation between the organization and the 
person affiliated”, to which Judge Hand referred, supra, 
is obviously lacking in this case. The “ element of depend­
ability upon which the organization can rely which, though 
not equivalent to membership duty, does rest upon a course 
of conduct that could not be abruptly ended without giving 
at least reasonable cause for the charge of a breach of 
good faith” which Circuit Judge Chase used as a test of 
affiliation, Judge Sears has disregarded.

Dean Landis, during the previous deportation proceed­
ings, considered the actions of the alien in an effort to 
determine whether these actions amounted to affiliation 
with the Communist Party. Thus he considered the alien’s 
opposition to red baiting; his acceptance of aid and assist­
ance, and, in fact, solicitation of aid and assistance from 
the Communist Party in his industrial struggles; his asso­
ciation with Communists, deriving primarily from his re­
quests for and acceptance of such aid; his admiration of 
the sincerity of the activities in the trade union movement



13

of certain persons, regardless of the fact that they were 
avowed Communists; and his willingness to work with them 
in the realization of his trade union ideas. After consider­
ing these facts he concluded as follows (In the Matter of 
Harry B. Bridges, Findings and Conclusions of the Trial 
Examiner, pp. 133-134):

“ This evidence, however much it may disclose lack 
of judgment or associations that may be regarded by 
others as reprehensible or unfortunate, falls short of 
the statutory definition of affiliation. Persons engaged 
in bitter industrial struggles tend to seek help and 
assistance from ̂ every available source. But the inter­
mittent solicitation and acceptance of such help must be 
shown to have ripened into those bonds of mutual co­
operation and alliance that entail continuing reciprocal 
duties and responsibilities before they can be deemed 
to come within the statutory requirement of affiliation. 
Judge Chase in Kettunen v. Benner, 79 F. 2nd 315, 
and the other judges in the cases heretofore reviewed, 
insist upon the application of this standard. To ex­
pand that statutory definition to embrace within its 
terms ad hoc co-operation on objectives whose pursuit 
is clearly allowable under our constitutional system, 
or friendly associations that have not been shown to 
have resulted in the employment of illegal means, is 
warranted neither by reason nor by law.”

No stronger indictment against Judge Sears’ findings can 
be made than the indictment which is inherent in these 
conclusions of Dean Landis.

Judge Sears’ finding that the alien was affiliated with the 
Communist Party must be reversed because the conduct 
of the alien upon which Judge Sears relies is not the type 
of conduct which meets the test of “ affiliation” fixed by the 
courts, and because his finding is so all-embracing as to 
greatly interfere with the constitutional right of free 
association.



1 4

CONCLUSION

It is respectfully submitted that the findings of Judge 
Sears constitute a denial of constitutional rights of free 
speech and free association and that they should be 
rejected.

N ational L awyers G uild as A micus Cu riae,

By Committee on Civil  B ights and L iberties, 
Osmond K. F raenkel , Chairman,

Committee on L abor L aw ,
B enedict W olf, Chairman.

T lie  H e c la  P r e s s  : : N e w  Y o r k  C ity
39