OIL WORKERS UNIONS v. MISSOURI

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Argument of Mozart G. Ratner

Chief Justice Earl Warren: Number 42, Local No. 8-6, Oil, Chemical and Atomic Workers International Union, Appellants, versus Missouri.

Mr. Ratner you may proceed.

Mr. Mozart G. Ratner: May it please the Court.

This case is here on appeal from the Supreme Court of Missouri, which sustained the constitutionality of Missouri's token seizure no strike law, the so-called King-Thompson Act as applied to the Laclede Gas Company.

The Missouri Supreme Court found that all sides concede.

Missouri's operations affect interstate commerce so that strikes against Laclede by its employees are governed by federal law.

The question presented in this case is whether Missouri is encroached upon federal supremacy by bringing to bear upon a strike and upon strikes by employees of Laclede against that company, its own sovereign power to declare such strikes illegal.

This Court postponed the question of jurisdiction to the argument on the merits.

So that after briefly summarizing the facts concerning the statute's operations and its application to the facts of this case which gave rise to the issue here, I will turn next to the question of jurisdiction.

In Missouri, the Governor derives power to seize a public utility.

Upon investigation and the proclamation by him that a strike is threatened or has occurred, which threatens to interrupt the operation of the utility and thereby jeopardize the public interest, health and welfare.

Upon the proclamation of a seizure by the Governor, it becomes unlawful for the employees of the utility to continue their strike.

Any labor organization which has called the strike comes under immediate obligation to call it off and officers of that labor organization are under a duty to cease supporting it.

The most important fact about this case is the fact that the Supreme Court of Missouri itself has said that seizure by the Governor pursuant to the terms of the Missouri law is a token seizure.

That possession of the utility by the State is nominal only and not actual, that the utility company, a private company itself, continues to operate the utility on its own account, that the State of Missouri does not become the employer of the employees but rather the private company, in this instance, Laclede, remains the employer and the utility's employees remain the employees of a private employer.

Justice Charles E. Whittaker: What about the liabilities for tort doing government state operation.

Mr. Mozart G. Ratner: In Rider versus Julian, the Supreme Court of Missouri held that liability rests with Laclede and not with the State.

That is the most important fact of this case because it demonstrates that throughout the strike by Laclede's employees against Laclede or any utility's employees against any utility which is subject to this Act, the National Labor Relations Act remains fully and completely applicable.

Your Honors know of course that Section 22 of the Taft-Hartley Act exempts the State and its political subdivisions from the category of employer and exempts equally State employees from the category of employee.

So, that National Law is not applicable to enterprises which are owned and operated by the State and State employees.

So, the Missouri Supreme Court's findings in Rider versus Julian and its authoritative construction of the state law removes entirely from the purview of this case that entire class of questions which could conceivably arise under other kinds of seizures statutes in which a State may be exercising its power of eminent domain to take over and operate on its own account a public utility.

It removes even the questions that might arise under statutes where attempt -- where a State attempts to make seizure of work as temporary matter to resolve the labor dispute, if Your Honors please.

If under the State statute, the State becomes the actual employer of the employees and operates the utility on its own account.

Those questions are simply not here.

Here, seizure is simply a talisman.

It is a magic formula which transforms a legal strike protected by federal law into an illegal strike which Missouri prohibits.

And what consequences does Missouri attach to that prohibition?

Severe ones indeed.

The statute says that any employee who dares to continue with strike after the Governor has issued a seizure proclamation may be rehired by the public utility thereafter only as a new employee.

The statute, by its own force, takes from him all of his seniority rights that he may have built up under contracts and service over periods of 20 and more years.

And there are employees with this utility who's served for more than 20 years.

The statute levies on any labor organization which has the temerity to continue a strike after the Governor's proclamation of a seizure, a fine of $10,000 a day for everyday that they do not see to it that the strike has ended.

And the statute levies and every labor organization office a fine of $1,000 should he have the temerity to continue to support a strike after seizure.

It's noteworthy too that under this statute, there is no provision that while seizure is in effect, the company must keep in effect any particular terms or conditions of employment.

For all that appears under this statute and under the proclamations that we have before us in this case, Laclede was free to impose after seizure any terms and conditions of employment that it might mean to laterally choose to impose.

And the statute does serve that immediately the labor dispute is settled, the Governor should terminate the seizure.

Now, of course the consequence of such a statute in operation upon a union is just this.

They're put in a dilemma.

They must either work indefinite on terms that the utility dictates or they must accept the collective bargaining contract as good as the utility offers and no better.

From that dilemma, there is under this statute, no escape.

The facts in this case are simple.

A collective bargaining contract between the company and Laclede expired on the 30th of June of 1956.

You'll notice this is under federal law were given it under State law and on the 1st of July of 1956 a strike began.

Within a couple of days, Rogers, the Governor's deputy warned the union that it better had call of its strike or the Governor would invoke seizure.

On the 5th of July, the Governor seized.

Justice Hugo L. Black: Is that the Governor's office?

Mr. Mozart G. Ratner: Yes Your Honor.

He issued a seizure proclamation.

On the 9th of July a petition was filed for an injunction to prohibit continuation of the strike.

In addition, suits were filed then and shortly thereafter to collect the penalties that the Missouri Act provides for the employees did not call off their strike and the unions did not terminate upon the seizure.

In answer to the petition for injunction, the unions filed an answer and a petition for declaratory judgment alleging that the statute was unconstitutional, alleging that they were suffering irreparable injury by the effect to enforce it by its enforcement against them.

Alleging that the field had been preempted principally that in the Fourteenth and Thirteenth Amendment arguments as well.

The trial court first denied the motion for declaratory -- the petition for declaratory judgment and then amended its decree to grant it.

It found that the decision of this Court in the Amalgamated Bus Employees case involving the Wisconsin statute which bans strikes in public utilities and substituted compulsory arbitration for it was not controlling, it held that Missouri had a right to apply its seizure statute to this dispute and that its application was constitutional.

It found specifically that the employees and the union had continued their strike after seizure.

It found that that's -- the continuation was illegal.

It issued both, an injunction which is in terms perpetual, and a declaratory judgment saying that it was unlawful for the union and the employees to strike as long as the Governor's seizure order was in effect.

It was contended by amicus curiae in the Supreme Court of Missouri --

Justice Hugo L. Black: How -- how did the Court distinguish the Amalgamated case?

Mr. Mozart G. Ratner: Well, the Court distinguished the Amalgamated case Mr. Justice --

Justice Hugo L. Black: Why did they follow the dissent?

Mr. Mozart G. Ratner: I -- I was about to say that in my view the only way that they distinguished it is by preferring the dissent, but my opponent apparently doesn't agree with that because he thinks that there are distinctions.

I will in the course of this attempt to indicate that the distinctions are invalid, that they are figments of imagination really.

But, I think it's clear that the issue in this case was faced and squarely faced by this Court in the Amalgamated case.

And that it was faced again after the Amalgamated case when this Court told Congress that it was Congress' problem and not this Court's problem faced and clearly faced by Congress.

Then Congress again decided that this Court was wrong.

It again shows uniformity.

Justice William J. Brennan: That the Congress decided that -- what?

Mr. Mozart G. Ratner: That Congress decided it again.

Justice William J. Brennan: In what way?

Mr. Mozart G. Ratner: Well, in the Landrum-Griffin bill, Congress faced the question of federal preemption.

It --

Justice William J. Brennan: The Amalgamated case up for discussion in the --

Mr. Mozart G. Ratner: Yes Your Honor I'll come to that a little later.

Justice William J. Brennan: Take it in your own time.

I'm sorry.

Mr. Mozart G. Ratner: The Amalgamated case did come up for discussion.

Indeed, an amendment was proposed to overrule it and it was reject in the face of this Court's statement to Congress that if you're going to make a different rule for public utilities or local emergency disputes, it's up to Congress to make it.

Senator Holland proposed that Congress make it and Congress turned him down.

It is -- this is the most dramatic reaffirmation of -- of the preemption rule as it applies to public utilities and local emergencies disputes.

In my opinion, it is possible to have had it.

But before turning again to the merits in more detail, we say that it was suggested below by amicus curiae though then not by appellee here that this case had somehow become moot, because following the seizure and the issuance of the injunction which compelled the employees and the union to go back to work, the union had caved in, in the face of the dilemma that the Missouri statute put it in and chose rather than to work on Laclede unilaterally imposed terms a contract on the terms that Laclede chose to offer.

And having chosen the contract, the statute then worked in accordance with its terms for the Governor gave up the seizure, the dispute was over, and so it's argued that the injunction by its own terms has expired.

We've chosen not to argue the question whether the injunction has in fact expired.

We read the declaratory judgment into the injunction as though the injunction too carries with it an implication that it prohibits strikes only during the period of seizure.

But we think it perfectly clear that this case that raises that constitutional issue cannot possibly be moot, too much hinges upon resolution of the question.

This is no abstract issue.

These unions are subject to penalties of $210,000 if Missouri has a constitutional right to outlaw their strike.

These officers are subject to penalties of $1,000 of piece.

And it was --

Justice William J. Brennan: Had any such suits been started?

Mr. Mozart G. Ratner: Yes Your Honor.

Such suits are -- were started as I indicated in the statement of fact.

They were started almost contemporaneously with the filing of this injunction suit.

Justice William J. Brennan: Are they continued?

Mr. Mozart G. Ratner: They are continued and Missouri is pressing to collect them.

As a matter of fact, it's the very pressured to collect the damages which appellee says ought to lead this Court now to defer decision of the constitutional question until the penalty case has reached this Court on the theory that this Court will not decide the constitutional issue unless it's necessary to the solution of a real case.

We --

Justice Charles E. Whittaker: In theory, we didn't know, did we, how the Supreme Court of Missouri would decide that penalty suit?

Mr. Mozart G. Ratner: No, Your Honor we do not.

It is entirely conceivable although I think it's unlike that the Missouri Supreme Court will hold that the penalty clauses and conceivably even the Seniority Clause are unconstitutional.

I think that this makes absolutely no difference whatsoever with respect to the issue as to whether we have a justiciable case or controversy in this declaratory suit -- judgment suit at this point.

Nor does it make a difference as to whether this Court should reach constitutional issues here.

And the --

Justice Charles E. Whittaker: I think the judge thought that these are the indications of that.

What is the feeling of that Court?

Mr. Mozart G. Ratner: Your Honor I am not sufficiently familiar with Judge Sparkman's opinions in general to be able to read the implications so firmly.

I did not suspect that our clients could be assured that they would suffer no penalties as a result of their defiance for the seizure order in this case.

And I think that in truth, Missouri's insistent on proceeding with the penalty actions and they are admittedly insisting on proceeding.

And their insistence which Judge Sparkman in his opinion took special no doubt that they will continue to apply this statute to future disputes makes it perfectly clear that they are not prepared to waive the enforcement or to concede the unconstitutionality of the seizure provisions.

If they were, perhaps a different question would arise.

I think that even that would moot this case.

But as long as they are insisting on collecting the penalty, it cannot possibly moot it in my opinion.

And I'm so sure partly because of the decision of this Court in the La Crosse Telephone case.

For in that case, this Court passed upon the constitutionality of Wisconsin's attempt to subject La Crosse's labor relations to Wisconsin sovereign power in a proceeding that terminated with a mere certification which as this Court pointed out certainly does not of itself command action and is really the equivalent of a declaratory judgment for the particular labor organization represents the majority of employees and therefore occupies the status under the law.

And it passed upon it in that case despite the fact that the employer could be compelled to bargain with that union only in a separate unfair labor practice proceeding that would have to be initiated by a charge that wasn't yet in existence.

And despite the fact, and this is what's critical about that this Court in its opinion noted that the Wisconsin Court might never issue an unfair labor practice order against the employer if he refused to bargain with the union on the basis of that certification, because in the interim, the union might lose its majority and Supreme Court of Wisconsin hold the certification thereby in fact.

A contingency which is the precise equivalent of possibility that the Missouri Supreme Court in the penalty action might hold that the penalty is itself unconstitutional.

The point to make is that under Missouri Law, the judgment of constitutionality which is made in this suit, in this declaratory judgment suit, is and will be res judicata in the penalty action.

And the trial court in the penalty action has already so held, and we cite in our reply brief two Missouri cases that indicate the law that the trial court in the penalty suit followed and so hold.

Incidentally, the record in the penalty action to which I refer is incorporated in the record in this case.

So that --

Unknown Speaker: These are some pre-trial file a motion or a --

Mr. Mozart G. Ratner: This was a pretrial motion -- a motion for declaratory judgment was filed in the penalty action.

It was opposed on by the State on the ground that the declaratory judgment of constitutionality which had been made in this declaratory judgment action was res judicata.

The trial court dismissed the motion of the penalty suit on the ground that res judicata obtained.

So, that there can be no question that we are dealing here with mere abstraction, hypothetical cases, interim adjudications, this is as final as it's possible for a judgment to get.

On the merits, this case is governed we think and clearly governed by the Bus Employee's case and its companion, United Gas in 340 U.S. 383.

The argument for the State principally turns as I read, “Upon an attempt to distinguish Amalgamated under theory that Amalgamated wasn't an emergency case and this one is.”

But when they say that and when they hinge their argument upon it, they simply ignore the facts of the United Gas case.

Pages of the brief of appellees devoted to quoting the findings of the Missouri Supreme Court as to the consequences of the strike here.

I would appreciate Your Honors indulgence, turn with me to page 5 of the reply brief for the appellants in this case.

The United Gas, which is of the Bus Employees companion case and decided with it in one opinion, involved the strike which was called the Gas Company and Milwaukee, Wisconsin in October.

It's distinguished from this strike which was called against the St. Louis Gas Company in July.

It began at 6 o'clock in the morning on October the 5th, 1949.

And in its opinion, the Supreme Court of Wisconsin had this to say about the consequences of that strike.

At 11:00 a.m. the public was advised to curtail consumption of gas.

An appeal to consumers of gas was made to shut off the service.

The steam pressure dropped to zero in the boiler room, and no further pumping could be done with the main pumping facilities.

The fires had to be pulled from the boilers reducing the steam pressure and all facilities had to be stopped.

A minimum pressure in the distribution system was kept in order that the air would not get into the mains so as to prevent any explosions as due to the mixture of gas and air in the distribution system.

The send-outs dropped to 25% of what they had been previously.

Low pressure in the system created a dangerous condition fraught with the possibility of infinite injury to the public.

The public was advised by radio broadcast and through newspapers to shut off appliances and to shut off the service immediately.

In the face of then because of those conditions, a temporary restraining order was issued in the United Gas case compelling the union immediately to call off its strike.

At 12:55 p.m. that order was signed.

It was served at 2 o'clock.

And in discussing that order and its enforceability, in the propriety of contempt adjudication predicated upon it, the Supreme of Wisconsin had this to say.

“We impose the requirement of immediate compliance, ‘because of the seriousness of the situation already referred to resulting from the partial or complete stoppage of the essential service of furnishing gas to the public.'”

And to leave no doubt upon the -- about the nature of the power which it was invoked to put an end to this threat to the public health and safety, the Wisconsin Court quoted at length from the decision of the New Jersey Supreme Court of the Telephone case and pointed out that it rested its decision but its judgment was not governed by this Court's decision in O'Brien upon the fact that here was at issue the public health, safety and welfare and that it was invoking the inherent power of the State to enjoin conduct which threaten that public health, safety and welfare.

Now, of course, in its decision in the United Gas, Amalgamated, Bus case, this Court did not upset the finding of the Wisconsin Supreme Court that an emergency existed which justified the indication of the State's police powers if that were an issue.

Nor did it challenge the bona fide, the Wisconsin's finding that health and safety of the public were actually affected and that there actually existed an emergency and that the State was relying upon its power to protect the public, health and safety and not upon a law regulating labor relations.

But nonetheless, it reversed Wisconsin's contempt conviction of the union officials who defied that restraining order, because it found that Wisconsin's power to act against the strike in that emergency had been superseded by the Taft-Hartley Act.

Superseded by Congress's decision of the policy question namely, “Is it better in a free society to let strikes in public utilities run their course, to let collective bargaining go on in public utilities unhampered?

Or is it more important that the people of the community be protected against the consequences of such strikes, which may imperil their health and safety?”

And Congress resolved that policy question said this Court, clearly because it looked among other things not only to the proposals which had made in Taft-Hartley to outlaw strikes in public utilities on the grounds that they were deleterious for the public welfare.

But upon Senator Taft's explanation of why it was that Congress had repudiated all kinds of suggestions for limiting, curtailing and emasculating the right to strike.

Justice John M. Harlan: Can I ask you a question?

Mr. Mozart G. Ratner: Certainly Mr. Justice Harlan.

Justice John M. Harlan: Did the Court in the Amalgamated case discuss the injunction as to unite it independently to the Wisconsin statute?

Mr. Mozart G. Ratner: Well, the Court in the Amalgamated case in the second full paragraph of its opinion sets out in full the facts the United Gas case.

Later on, several paragraphs later, it points out the justifications urged by the Wisconsin Court for its view of State power and those justifications are to be found in the opinion in the United Gas case rather than in the opinion in Amalgamated and at the end of its opinion, this Court reverses the adjudication for contempt.

And subsequently, in one of the St. John's cases -- St. John's I believe against the Wisconsin Board which is a companion to these two, decided however in a separate opinion the -- this Court points out that No. 438 was decided this day. If what Your Honor means is did this Court quote or refer to the findings of the Supreme of Wisconsin that I have read to you in this argument, the answer is it did not quote those findings, nor independently discuss them.

In my opinion, it did so only for the reason that they were completely irrelevant on the -- to the Court's disposition of this case in view of the fact that what it was deciding was not a due process question but a question of federal preemption.

I don't know whether I've answered your question.

Justice John M. Harlan: Well, not quite.

What I was trying to get at was that was there any discussion in the opinion in the Amalgamated case directed itself to the inherent power of Wisconsin independently of the statute to enjoin the -- the strike on the theory of the united strike on the theory that involved violence and sabotage?

Mr. Mozart G. Ratner: The words, “independently of the statute” in your question permit me to answer that question flatly, no, because neither Wisconsin nor Missouri in this case have the enjoined this strike independently of the statute, so that that question is no more here than it was there, but the question as to whether the statute and its application to this emergency is justified by some kind of inherent power in the State; that question was discussed.

That question this Court's (Inaudible) and that question this Court rejected unnecessarily so because the underlying thesis of its opinion was that the policy considerations which lead to the exercise or non-exercise of that kind of power were weighed by Congress and that to allow the State to really weigh them would be to allow the State to repudiate and reverse Congress's judgment on that policy issue.

The shorter the matter is, as this Court summed it up in the second Government, in the -- in the Bus case -- I'm sorry.

Congress expressed itself in favor of uniformity.

It did not allow the diversity inherent in the application of derogated state laws to areas which came within the purview of the federal statute, and public utility strikes certainly do come within the purview of the federal statute.

Let me illustrate.

Suppose that we had this strike in Illinois or this strike in Kentucky.

Illinois would not issue an injunction against this strike.

It has no such statute and there is no precedent for an injunction against the public utility strike of this kind.

To allow Missouri statute to stand to enjoin this strike would result in a diversity of treatment of identically situated department, Public utility workers in Illinois continuing their strike and public utility workers in Missouri being enjoined.

This is precisely the judgment not to allow that kind of diversity which this Court in Guss held that Congress made.

And there's no distinction drawable in my view on the ground that so they hold leads a situation that might otherwise need a remedy, remedy of this.

Well, that is precisely what this Court held in Guss that the consequence of a so-called “no man's land” is to leave conduct which reasonable people might think should not be allowed to continue to go unchecked.

Now, Congress squarely faced that problem in Landrum-Griffin, faced with this Court's decision in Guss, and faced with the rationale of the second Garmon opinion which holds that a State may not lay its hands even on unprotected activity.

Congress tackled the preemption problem.

And it dealt it with as follows.

It said, “We retain uniformity, full and complete uniformity as under the second Garmon case to the extent that federal law applies.

But where the National Labor Relations Board, by declining to assert jurisdiction, in effect withdraws federal law from the field, then there being no potential conflict, we allow diversity.”

The amendment to Section 10 (a) which is set out in our brief demonstrates that Congress was fully aware of the implications of this Court's trilogy in the first Garmon, Guss, and Fairlawn decisions.

Of the second Garmon opinion, and that it legislated in the light.

And we know even more concretely than that that Congress took hold again of this very problem in the light of that decision and in the light of its action to amend this very problem of what shall we do with State power to outlaw public utility strikes.

Senator Holland got on the floor of the Senate during the course of the Taft-Hartley debate.

His proposal, which was designed expressly to overrule the Amalgamated decision and he said so in so many words.

He proposed nothing in this Act of the Labor Management Relations Act of 1947 shall be construed to nullify the provisions of any state or territorial law which regulate or qualify the right of employees of a public utility to strike or which prohibits strikes by such employees.

Senator Holland's amendment was voted down.

It was voted down, if Your Honors please, in the face of this Court's ringing declaration not once but twice in the Amalgamated case that if a special category is to be created for public utility strikes or for local emergency disputes is going to for Congress and not this Court to make.

Justice Felix Frankfurter: Are you -- are you suggesting are you contending that the concern -- that the King-Thompson Act is coextensive with or as extensive as the proposal by Senator Holland?

Mr. Mozart G. Ratner: Oh, no Your Honor not necessarily.

Justice Felix Frankfurter: What is the difference?

Mr. Mozart G. Ratner: The King-Thompson Act is one method, one device of the variety of devices which would have been legalized by Senator Holland's amendment.

Justice Felix Frankfurter: I don't mean the scheme or accepting the strike but the nature of the strike and the nature of the State's interest.

From that point of view, suppose that the Holland's amended proposals made the King-Thompson Act better?

Mr. Mozart G. Ratner: I believe so.

It may be argued that the State's proposal is narrower, because the State's proposal does not come into vogue unless and until there's a proclamation of emergency in the finding of public health and safety or effect.

I do not believe --

Justice Felix Frankfurter: Well is that irrelevant in your eyes?

Mr. Mozart G. Ratner: Pardon me?

Justice Felix Frankfurter: Are those the irrelevant, those -- those qualifications?

Mr. Mozart G. Ratner: No, they're omnipresent.

The Wisconsin statute, for example, Your Honor quoted in your first Footnote of your dissent in the Amalgamated case says in so many words and there can be no question of the validity of the Wisconsin legislature's view of this that a strike in a public utility which threatens to interrupt the operation of the utility creates an emergency.

And the Missouri Legislature --

Justice Felix Frankfurter: But the Chief Justice in his opinion pointed out extensively that it wasn't an emergency.

Mr. Mozart G. Ratner: No, Your Honor the Chief -- I -- I beg your pardon --

Justice Felix Frankfurter: You said no.

Mr. Mozart G. Ratner: I say no, because that is not what the Chief Justice in my opinion said.

Justice Felix Frankfurter: Can you read what he said?

Mr. Mozart G. Ratner: Yes Your Honor I will -- I will read it.

However, let me first point out that what the Chief Justice said that the Wisconsin statute is not limited to emergencies, or to local emergencies.

And he went on to point out that it's not limited to local emergencies, because it's been applied to emergencies more than Wisconsin-wide in scope.

Justice Felix Frankfurter: But the first part is what he limited to emergency.

Mr. Mozart G. Ratner: And the reason for that, he points out in a Footnote, is that the statute has been applied to a strike of clerical workers.

And oddly enough, oddly enough if that's the criteria, the exact situation is present here, because Local 8194 of the oil workers is a clerical use.

Justice Felix Frankfurter: But the statute in this term has a provision that the Wisconsin statute does not.

I'm not saying those differences are described here.

But I do think if you are going to argue in that territory which is full nicety, with a better regard to nicety.

Mr. Mozart G. Ratner: I -- Your Honor -- I -- I don't wish to disregard niceties which I regard as being in which -- which are in the case.

But to suggest that this Court in the Wisconsin case said that the Wisconsin statute was not levelled an emergency or that it was not dealing with an emergency situation, I -- I could not agree with.

I cannot for myself overcome the fact that a contempt adjudication for violating an emergency injunction was reversed.

And that it was reversed as Your Honor pointed out.

The question before the Court of the Amalgamated case was not whether the statute, as applied to some national emergency or non-emergency situation, is constitutional.

Justice Felix Frankfurter: You know what I pointed out what the Court's opinion pointed out as well others.

Mr. Mozart G. Ratner: The Court's opinion Your Honor is also its judgment and decision and its judgment reversed the conviction of contempt for violating an emergency injunction.

And the Court does hold --

Justice Felix Frankfurter: But you write opinions in order to explain -- in order to explain the wherefore of the judgment.

Mr. Mozart G. Ratner: After the language that the appellees so heavily rely on in this case, which points out that Wisconsin is on weak ground indeed in seeking to defend its exercise of power on the ground that this -- that the States are free or should be free to regulate in local emergencies, because Congress dealt only with national ones.

After the -- after pointing out that it's on weak ground because the statute is not limited to local emergencies, and not limited to emergencies involving stoppages either, although that -- not -- doesn't in here.

This Court went on to say in any event.

And as I read the words “in any event”, they mean that even if it were not true that the statute were not limited to local emergencies, it would make no difference because this Court was deciding in so many words that a State was not left free by Taft-Hartley to assert its legislative power to cope with public utility strikes that created local emergency.

Justice Felix Frankfurter: I fully understand the argument, your argument that the difference between Amalgamated in this is not illegally permitted indifference.

I do not understand denying that the Chief Justice did explicitly say, the statute of Wisconsin was not restricted in this statute in its eternity.

Mr. Mozart G. Ratner: Your Honor I -- I attempted to make it clear -- I was not saying that the Chief Justice did not say it was limited -- not limited to local emergency.

He did say that.

But he said it for reasons one of which at least is equally applicable here.

And he did not limit the judgment or the reasoning of the Court which invalidated the Wisconsin statute to the fact that it was not presented, that the question of the State's power to -- to deal with local emergencies was not presented.

He made the point and one of those points at least is equally applicable here.

I can not say that the case is completely on all fours because I have no illustration in this record of Missouri's applying the statute to a multi-state unit.

That's the only distinction as I see it between this case and Amalgamated.

Justice Felix Frankfurter: I think the distinction is in the actual terms of the statute, although I may construe that in the practical fact every stop again in utility involved an emergency due to community dependence on the utility.

All I was suggesting to you Mr. Ratner is that the Chief Justice did rely on the fact as part of his argument that the -- that the Wisconsin statute did not, as a statute, deal with emergency.

Mr. Mozart G. Ratner: Your Honor again I --

Justice Felix Frankfurter: I don't think this happened here.

We could all read English and there it is, plain as it's possible.

Mr. Mozart G. Ratner: I should like only to say that the discussion in this field from its inception pre-Taft-Hartley and Senator Taft's comments make it plain that those people who discussed this issue treat strikes in public utilities which result in stoppage of public utility if ipso facto is creating threats to the public health, welfare and safety, and is ipso facto creating emergencies.

Justice Felix Frankfurter: I haven't suggested anything to the contrary as you talked about something very different to mine.

Mr. Mozart G. Ratner: There is only one other aspect of this case which I think requires comment at this point.

That is the attempt of the Supreme Court of Missouri somehow to charge the union with the acts of violence and sabotage committed by unidentified persons not shown even to the strikers or employees.

And while disclaiming attributing their acts to the union, utilizing those acts to transform a lawful and peaceful strike in which the union exerted every possible effort to protect the public against unforeseen real emergency situations that might arise by creating and setting up emergency crews to take care of calls from the public, to attribute these admittedly unauthorized acts to the union.

This action by a state court itself creates and is an irreparable conflict with the National Act and the National Acts policy.

For it's firmly settled under the National Act that you cannot attribute to a labor organization, acts of violence or sabotage committed by unidentified third parties so as to hold it responsible for them or to illegalize its strike in the absence of clear proof of authorization and ratification by the union of the acts involved.

Justice Potter Stewart: Mr. Ratner.

Mr. Mozart G. Ratner: Yes sir.

Justice Potter Stewart: From the point of view of a State's power a -- which often goes under the ambiguous generality of the -- comprised in the term “police power”.

Is it necessary -- and we're talking about converting a peaceful strike into a -- into a violent strike.

Is it necessary for the State in order to control that violence to attribute the violence to the union?

I'm thinking of this kind of a situation in a utility strikers, let's say, an electric -- electric utility, where because of the strike both parties responsible and doing party each to the -- labor dispute, doing its best to prevent violence.

Now, because of the strike the lights go out all over the city, and through no call of either party, there's a great deal of looting, crime, and violence of all kinds.

Now, isn't that arguably at least the kind of situation which has converted a peaceful situation into a violent situation?

Would that fall under -- on the part of either party to the labor dispute that might arguably support the State's police power to prevent and -- and to protect its citizens?

Mr. Mozart G. Ratner: I think there is no question between us as to whether the State has power in such a situation to protect its citizens.

The only issue between is how?

I say that that circumstance does not empower the State to make the strike illegal.

Justice Potter Stewart: Well does it -- like -- that's a little bit maybe semantics but --

Mr. Mozart G. Ratner: Oh Your Honor I -- I do not know --

Justice Potter Stewart: Does it empower the State --

Mr. Mozart G. Ratner: -- where to go.

Justice Potter Stewart: Does it empower the State to -- to tell that company to get back to work and provide electricity?

Mr. Mozart G. Ratner: Not if telling the company get -- to get back to work means impressing its employees in this labor.

The -- I -- I'm quite serious.

The State has methods of coping with this problem.

Justice Potter Stewart: Well, what would do then?

Mr. Mozart G. Ratner: It can take over the utility for real and for honest.

It can become the owner and the employer.

It can hire employees to put the utility back in operation and keep it in operation if that's the problem.

Or it can call out the national guard or its police forces to apprehend and convict those responsible to the act of violence.

But it cannot say that employees who have done nothing so far as proof and a civilized record or in a court of law would just, done nothing beyond exercise their rights guaranteed by federal law to engage in a peaceful strike shall forfeit those rights because some unidentified third parties have given rise to a very dangerous and very bad situation, which the is the wish of the culprit.

It can not use these employees' rights under federal law as the tools to accomplish an end, no matter how legitimate that end may be of the general public of the State.

It has powers as I indicated are the most important facts in this case, is the fact that Missouri seizure scheme is a subterfuge to illegalize the strike.

If the State of Missouri had taken advantage of the fact that Taft-Hartley leaves the State when it really is the employer, exempt from federal law provisions it might have had a way to cope with the problem, if it had honestly attempted the deal with violence pre-violence.

And this is what it seems to me is the most straightforward and forthright thing to do.

Justice Felix Frankfurter: Could it have taken it over and started to manage it through the -- whatever the superintendent of works is called in Missouri, and after two or three days decided it would be better hand if the old officers would run the utility, it could do that?

Mr. Mozart G. Ratner: Your Honor it was stated --

Justice Felix Frankfurter: In fact, the Section 19 allows them to do that, doesn't it?

Mr. Mozart G. Ratner: Your Honor I don't think that it's the question of who is operating.

The question is, is the State the employer and on this the Supreme Court of Missouri has spoken and is the State running the utility on its own account and on this too the Supreme Court of Missouri is called.

Justice Felix Frankfurter: This isn't the question of running on its account; it's a question of getting it run.

Mr. Mozart G. Ratner: Well Your Honor --

Justice Felix Frankfurter: We've had this problem at the time of the seizures of coal mines by President Truman.

And this Court draws a lot of pages about whether the Government was the employer or whether they were the employees, and I think its sterile talk, because the question that that was an emergency by getting mines running and utilities running.

Mr. Mozart G. Ratner: Well, Your Honor I --

Justice Felix Frankfurter: The only question of who's liable for tort and who's paying the wages, seems to me, not very relevant to that central question.

Mr. Mozart G. Ratner: If that were the issue I would agree with Your Honor.

But now I view that's not the issue, because the National Labor Relations Act defines its applicability in terms of who's the employer.

If the State is the employer, then we don't have a question of federal preemption.

Then the State is free to do as it pleases.

Justice Felix Frankfurter: But you say in order -- in answering Justice Stewart, you agreed as I understood you that if the Governor of Missouri thought the only way to stop violence the fact that there was, was to put the public in control.

Section 19 as I read, Section 19 of the Missouri Act, allows the Governor to exercise, to utilize any agency for the accomplishment of that purpose.

Mr. Mozart G. Ratner: If you -- if I gave the impression that all that was necessary was for Missouri to put the public in control, I misspoke.

Unless you --

Justice Felix Frankfurter: But you said, in order to stop the violence (Inaudible) -- I'm -- I'm -- continuing with the question put to you by my Brother Stewart.

Looting -- I'm not saying anything which could place you in that direction.

Mr. Mozart G. Ratner: (Inaudible)?

Justice Felix Frankfurter: Looting or violence -- the Governor could take hold according to your statement couldn't he?

Couldn't he fee the mine?

Would he have to see them oh no, it's not very fee.

He sees as the mind in order to stop that public evil.

Mr. Mozart G. Ratner: Your Honor I'm not contending in this case or in any case that the State of Missouri isn't acting bona fide to restore public utility service or -- or to stop looting or to prevent acts that sabotage -- I'm not concerned what its motive is.

It has no power to enjoin a peaceful strike by employees of a private company under the decisions of this Court in Amalgamated, Guss and Garmon, as confirmed by Congress in Landrum-Griffin.

Justice Felix Frankfurter: That isn't the case I put to you.

I'm not concerned either stopping the strikes.

The Court has also said that despite the Taft-Hartley Act, can deal to state law.

The state law means anything that the State under the Constitution may -- may de-law under -- under those cases we've also held it may deal with violence either by enjoining or by money damages, etcetera.

Mr. Mozart G. Ratner: Enjoining the violence and in giving money damages against perpetrators of the violence.

With this I have no quarrel.

Justice Felix Frankfurter: In these case, Missouri passed a statute that says when those things happen, the way to deal with it is for the Governor until that, the cessation of violence to be the dominance of the under card.

Mr. Mozart G. Ratner: Your -- Your Honor Missouri has not passed the statute which is restricted to the things that we have been talking about.

As a matter of fact violence and sabotage and so on are -- are totally irrelevant to the application of Missouri statute.

And let me point out.

That the testimony about the acts of violence and sabotage came into this record through company witnesses.

There isn't a scintilla, not an iota of evidence that Mr. Rogers who was the Governor's deputy in this ever heard of any one of those acts.

What brought this statute in operation is incumbent customers weren't getting public utility service.

They weren't getting gas.

That's the problem to which the Missouri statute is addressed.

But again with the question of violence, it seems to me that the issue where the Missouri can come into a position of domination and control of the utility.

The question is what it can do to illegalize a strike?

And I say that to illegalize a strike, it can do nothing as long as it leaves the private employer, the employee err and the private employee is the employee, because Taft-Hartley says that it shall do nothing under those circumstances.

Justice Felix Frankfurter: I don't what -- I don't what the facts in this type of the show but suppose, suppose the Governor, as representations made by him, that the health of the city would suffer unless they get whatever gas and so on would that be -- would that -- would -- could he do nothing under Amalgamated in your view?

Mr. Mozart G. Ratner: I'm sorry Your Honor I don't know what you mean by nothing.

If what you mean is could he enjoin the strike my answer is absolutely not.

Senator Taft when he pointed why Congress was preserving the right to strike made it clear, his statement is unequivocal that we reserve this right and preserve it despite the fact that it causes inconvenience, and in some cases, danger to the people of the United States.

And when Congress wrote the National Emergency Provisions in the Taft-Hartley that Your Honor is just well dealt with in the seizure -- in the National Seizure case.

Justice Felix Frankfurter: They could pass a statute both in the company and in damages or for this -- the union, couldn't they under our decision?

Mr. Mozart G. Ratner: Certainly not.

For continuing the strike?

Justice Felix Frankfurter: I haven't said that.

I said for causing ill health and -- and epidemic.

Mr. Mozart G. Ratner: Your Honor the guise under which the State wishes to assess the damages that cast the statute the motive which lies behind it is irrelevant.

The issue is what is the conduct over which it is exercising legislative control?

If that is a peaceful strike, it makes no difference what the State's justification is.

It can get that power back only when Congress receded to it.

Justice Felix Frankfurter: I wasn't talking about motive.

It is better that the State can authorize the levy of damages through violent, couldn't they?

Mr. Mozart G. Ratner: Against perpetrators of violence I know of no rule except that they can --

Justice Felix Frankfurter: But there's a union.

Mr. Mozart G. Ratner: Who argue -- found guilty of violence.

Justice Felix Frankfurter: But you say that -- that under the Supremacy Clause, it couldn't make provision by according of epidemic by the same responsible people, is that right?

Mr. Mozart G. Ratner: If the provision that it makes is that strikes in public utilities are outlawed, because of if we let them go we're going to have epidemics, my answer is certainly they can't do it.

Congress they decided they shouldn't be able to do if Congress was wrong, Congress will remedy the situation by giving the power back to the State.

Pardon me?

Justice Felix Frankfurter: Where Congress decided that and has it decided almost anything else in the whole preemption area except for this in statute?

Mr. Mozart G. Ratner: Oh, Your Honor what I'm saying is that in the preemption field this Court struggled through to conclusion with a great deal less count than is now available to it as a result of the lack of different amendment.

Justice Felix Frankfurter: But it doesn't bear on this problem.

Mr. Mozart G. Ratner: Oh I think it clearly bears on this problem.

Justice Felix Frankfurter: It doesn't bear on the violence problem.

Mr. Mozart G. Ratner: Well we've got --

Justice Felix Frankfurter: Because that has been left untouched.

Mr. Mozart G. Ratner: But Your Honor this is not a case where the unions are found guilty of violence.

The Supreme Court of Missouri specifically said they're not.

Justice Felix Frankfurter: I understand that.

I'm trying to get your mind directed to differentiating the legal difference between the State's power despite Taft-Hartley to deal with the violence and the State's power to deal with the causing of epidemic.

Mr. Mozart G. Ratner: Your Honor I think it -- that the State may deal with violence with every means appropriate to the treatment of violence except to mean which illegalize conduct protected by this Act and I'd make the point -- in (Inaudible).

There the State has violence.

It's got acts of violence not only by unidentified parties who may have nothing to do with the union and agents' provocatory effect.

There it's got active violence by strikes.

And this Court says that even there and despite its conceded power to deal with violence, the State is not free to prohibit peaceful picket even by the very same people who have engaged in the violence.

Now, Your Honor if we must distinguish between the kinds of conduct in that situation where a man is guilty of violence between whether the State can enjoin them for further acts of violence and enjoining for peaceful picket, it seems to be quite odd that you must distinguish in situations of this kind equal between conduct -- violent conduct for which a union or its members of a strike are responsible.

And that for which they are not and that whatever scope and extent the State's power may be it can not reach to the point where it makes people who are responsible for violence in consequence of somebody else's violence forfeit their federal rights.

Chief Justice Earl Warren: Mr. Welborn.

Argument of Robert R. Welborn

Mr. Robert R. Welborn: Mr. Chief Justice, may it please the Court.

And as much as this Court reserves the question of the jurisdiction to the hearing on the merits, I will first address myself to the proposition of whether or not this is a moot case.

And as much and insofar as I am aware and insofar as counsel for the appellant has considered the matter, the problem of jurisdiction if any seems to arise out of mootness if mootness does exist.

Now, the facts of the situation of this, this cause of action was brought on July the 9th, 1956.

The strike (Inaudible) had begun on June -- July the 1st, 1956.

On July 13th, 1956, after a trial of some three days duration, the Circuit Court issued an injunction against continuation of the strike.

In August 1956, some month after the injunction had been issued a new agreement was entered into between Laclede and the unions here concerned.

On October the 31st, 1956, the Governor of Missouri terminated the seizure of the Laclede Gas Company.

Now we say that these circumstances bring this matter within the purview of Harris versus Battle involving a similar situation under a similar Virginia statute.

We say this brings us within the purview of the Montgomery Ward case in which the Montgomery Ward Company had been seized under the War Powers Act.

And when the seizure had been terminated by the time the case got to this Court.

And the held the case was moot.

The case of Commercial Cable Company versus Burleson which involved the seizure of the telegraph companies in the First World War.

At the time the case reached this Court, the seizure had been terminated.

The Court held the case was moot.

The Court in Burleson, specifically refused to continue to consider the case on the theory that there is a possibility of recurrence of such a seizure, which is exactly the point raised here that there is a possibility of recurrence of -- of seizure.

Now, the appellants have also claimed that they are in jeopardy that there the seniority rights of the employees of Laclede are in jeopardy.

This strike occurred in July 1956.

This is October 1959.

To date, absolutely no action has been taken to deprive any of the employees of Laclede of any seniority rights.

No action is pending for that purpose.

I know of no action that is contemplated for that purpose.

So, I say that any talk about jeopardy to seniority rights is talking about an imaginary thing and not a real threat.

And a Court -- the Court will not consider the case just to put at rest those imaginary fears in the minds of the employees.

Justice Potter Stewart: Mr. Welborn in the -- in the case now here did the -- am I right in my understanding that the Supreme Court of Missouri expressly refrained from passing on either the penalty provisions or the -- or the cancellation of seniority rights in the -- in the statute?

Mr. Robert R. Welborn: The Supreme Court of Missouri quite clearly and expressly declined to consider those questions sir.

Yes sir.

Justice Potter Stewart: Let me ask you another question with respect to this issue of mootness.

Are there any bonds outstanding in this present case, any appeal bond or injunction bond or court bond or --

Mr. Robert R. Welborn: Mr. Justice Stewart there are no bonds at all pending in this case.

No bonds.

Justice Charles E. Whittaker: Well, how do you say Mr. Welborn about Mr. Ratner's argument that there are pending actions done at St. Louis in the Circuit Court against officers of the union and the union for these penalties under the King-Thompson Law?

Mr. Robert R. Welborn: I acknowledge that such actions are pending, Mr. Justice Whittaker.

However an -- in those actions the defendants have filed the identical answer which is what's filed in this case, or for all practical purposes there are identical answer.

So that the issues of the validity of the penalty provisions are directly involved in those penalty suits.

And they would be I think of necessity passed upon in the penalty suits.

Now, there had been some reference to the fact that in the penalty actions, a declaratory judgment, similar to the declaratory judgment here involved, was also filed in addition to the answer.

And that that declaratory judgment was dismissed on motion of the State on the grounds that the decision of this Court in the injunction suit was res judicata of the -- the questions attempted to be raised in the declaratory judgment suit in the penalty cases.

Justice Charles E. Whittaker: But has there ever been a decision on that question by even an intermediate appellate court in Missouri?

Mr. Robert R. Welborn: No sir.

Justice Charles E. Whittaker: And it's therefore now unknown as to whether any appellate court in Missouri would sustain either the seniority laws provision here or these penalties?

Mr. Robert R. Welborn: I would have no way of predicting what a Missouri court would do or what a Missouri appellate court would do in that regard.

Justice Felix Frankfurter: To what extent would the decision of the -- of your Supreme Court in this case be binding on certainly the lower courts of Missouri in the penalty litigations?

Mr. Robert R. Welborn: Well, they -- it would be binding on the lower court to this extent.

Justice Felix Frankfurter: Relevant to the suit in -- in controversy.

Mr. Robert R. Welborn: It would be binding to this extent of course that in the penalty suit, the same contention has made that is here involved that the seizure was illegal.

And to that extent, I am certain that a lower court in Missouri would follow the Supreme Court's holding in this case.

Justice Felix Frankfurter: And what's the -- what bearing does that have or would that have for a lower court judge under suit for penalty?

Mr. Robert R. Welborn: Well, that would at least eliminate that issue.

It would not eliminate all issues of unconstitutionality of the penalty provision, because the validity of the penalty provisions are also attacked on other grounds, that is, excessiveness and there are certain other grounds in addition to the fact that they must necessarily of course be based on the validity of the seizure.

That I would certainly concede --

Justice Charles E. Whittaker: Well I thought it was true that the Supreme Court's opinion in this case expressly excludes from conclusion or decision any issue respecting penalties.

Mr. Robert R. Welborn: It expressly declines to pass on the direct attack on the penalty provisions Mr. Justice Whittaker.

I think it would of necessity however, bear upon the penalty provisions and as much as the penalty -- penalty must be dependent originally I would say upon the validity of the seizure.

Justice Charles E. Whittaker: Well, the seizure could be valid and yet the penalty is to be invalid.

Mr. Robert R. Welborn: That is quite possible yes sir.

I -- I -- I can agree that that is quite possible, but the converse will not be true.

Justice Charles E. Whittaker: No.

Mr. Robert R. Welborn: If the -- if the seizure were invalid, then the penalty would certainly go out the window.

Justice Charles E. Whittaker: Well, all I'm getting at -- all I'm getting at is whether or not any finger can be put to anything in the Supreme Court's opinion that is a determination of the issue of the validity of these penalties.

Mr. Robert R. Welborn: No, sir.

No sir the Supreme Court expressly declined to pass upon it.

Justice Felix Frankfurter: Are you saying, representing the state that -- that they ask first before you were saying, are the -- are the present appellants, in the suit of penalty are the present appellant making objections of constitutional invalidity with the penalty feature apart from their attack, their main attack of the invalidity decision.

Mr. Robert R. Welborn: Yes sir, I'd -- I'd say they are.

Justice Felix Frankfurter: And -- and you, representing the State, are not suggesting or are you suggesting?

Can you say that those claims are not frivolous?

Therefore, since the Court would be, lower courts in Missouri, would be bound as you've properly said if I may say so, they would stop from a -- they would start with the legality of the seizure, wouldn't they?

Mr. Robert R. Welborn: Yes, Your Honor.

Justice Felix Frankfurter: Just so if the seizure was invalid, certainly you can't impose a penalty for --

Mr. Robert R. Welborn: Obviously, yes Your Honor.

Justice Felix Frankfurter: So, starting with what the lower courts, the lower courts of Missouri, would start with the validity of the seizure, are you saying that there are other issues in the penalty suit despite that starting point were not frivolous in attacking the constitutionality either or both under Missouri Law and for federal law?

Mr. Robert R. Welborn: I would say that there are and that they are not frivolous because they were advanced in the Missouri Supreme Court in the appeal of this case.

But the Missouri Supreme Court expressly declined to pass upon it, and I might say for the sake of Your Honor that there is on file in the in the clerk's office with the record in this case, a record of the proceedings in one of the penalty actions which was referred to by the Missouri Supreme Court in its opinion in this case.

And I think that record will just bear out my statement that there are issues other than the validity of the seizure involved in the validity of the penalty provision.

Justice Hugo L. Black: They -- would they be involved if this Court should reverse that Supreme Court of Missouri is holding here and saying the seizure is illegal?

Mr. Robert R. Welborn: Well, Your Honor I -- I --

Justice Hugo L. Black: Nothing would be involved there (Voice Overlap) --

Mr. Robert R. Welborn: Mr. Justice Black that would dispose of the case without any question.

Justice Hugo L. Black: That would dispose of the other constitution effects --

Mr. Robert R. Welborn: That would just -- that would --

Justice Hugo L. Black: -- that you suggest are non-frivolous.

Mr. Robert R. Welborn: That would end everything without any doubt, because everything obviously depends upon the original validity of the seizure provision.

Justice Felix Frankfurter: That's -- that's the foundation of a penalty suit.

Mr. Robert R. Welborn: Yes sir.

Yes sir.

Justice William J. Brennan: Mr. Welborn, my question is that -- a suggestion of witness on the same ground now as to -- is made in this Missouri Supreme Court?

Mr. Robert R. Welborn: Mr. Justice Brennan it was.

Yes and you will find in the Supreme Court's opinion reference to the question of mootness which was raised in the case that's on page 341 of the print of the record.

Justice William J. Brennan: Am -- am I correct that the grounds -- that that suggestion there, no different from those that arose here?

Mr. Robert R. Welborn: I would say that they are identical based primarily I would say on the Harris versus Battle, which is the Virginia case, somewhat similar to this I would say.

Justice John M. Harlan: The State (Inaudible)

Mr. Robert R. Welborn: No sir.

The State could not.

Amicus curiae urged the mootness in the Missouri Supreme Court.

The State indicated on oral argument that it agreed that there was merit to the claim of mootness but it did not urge it in its brief.

Justice Felix Frankfurter: You wanted the decision there but not here.

Mr. Robert R. Welborn: I would not say Mr. Justice Frankfurter.

I --

Justice Felix Frankfurter: In fact, that would be popular.

On page 152 --

Mr. Robert R. Welborn: I -- I felt that in view of the Court's room that I was obligated to express my views to this Court on the question of its jurisdiction.

Justice Felix Frankfurter: It doesn't follow just because it is in moot in the view of the Missouri Supreme Court and is in moot that according to other.

Mr. Robert R. Welborn: I -- I'm aware of that certainly, because that is exactly what was decided in one of the Amalgamated cases where the Supreme Court of Wisconsin held the case not moot but the United States Supreme Court said we don't have to pay any attention to what the Wisconsin Supreme Court said.

We will decide that the case is moot and it did so.

All right, I think that is so much for the question of -- of mootness.

Now, we then get to where I would disagree most strenuously as my fellow counsel in this case, that is, what are the most important facts in this case.

I sincerely say that the most important fact in this case is not that the State of Missouri did not become an employer of the employees of the Laclede Gas Company after the seizure by the State of the Missouri.

I say that the most important facts in this case are the facts that the -- which the Supreme Court of Missouri found to exist in the circumstances which the strike had called for in the City of St. Louis and which evoked the action of the Governor of Missouri under the Missouri Law.

Now, the counsel for appellant had studiously thought to avoid those facts.

Nevertheless, they are facts, and they are facts which can not be disregarded.

They are facts which the Governor of Missouri certainly could not disregard.

Now, the evidence before the -- the Court and the St. Louis Circuit Court showed quite clearly that every acts of tampering with gas-regulating -- pressure-regulating devices, the result of tampering with those regulating devices is that if the pressure on the gas is suddenly increased, flames all -- from mains served on that line if the pressure has greatly increased will erupt to much more than their normal size.

There was evidence that water had been injected into the gas mains.

There was testimony that the injection of water into the gas mains gives rise to serious difficulties and the water may -- shut off the gas supply as a result that in homes the gas will be -- the vent will be left open.

Subsequently, the water descends to a low place in the system, the gas returns, the vents are left open, and the gas escapes into residences or wherever the vent may be left open.

There is evidence in this case that the hospitals in the City of St. Louis relied upon gas for the purpose of heating water for the sterilization of their instruments.

There was a evidence in the record of a call from a doctor who was unable to sterilize his instruments because of the lack of an adequate gas supply.

There was evidence that a seal on one of the large storage tanks had been tampered with, threatening the release of a large quantity of gas into the area.

There was evidence in this case that there was indiscriminate dispersal of gas odorant around the City of St. Louis.

An automobile would go by a bottle would burst and the neighborhood would be immersed in the odor that is used in authorizing gas.

Naturally, this caused the residents to fear that there had been a break in the gas main and that the gas was being allowed to escape into the air and also it complicated any problem of an actual break in the gas main.

Justice Hugo L. Black: Was that enjoined? Is that the injunction we have before us?

Mr. Robert R. Welborn: The specific conduct Mr. Justice Black was not enjoined.

The conduct as such was not enjoined.

Justice Hugo L. Black: Was there any enjoined at all?

All that which you're talking about?

Mr. Robert R. Welborn: The injunction was against the continuation of the strike.

Justice Hugo L. Black: And you're arguing that --

Mr. Robert R. Welborn: I'm arguing --

Justice Hugo L. Black: -- if you can force men to go back to as a reason to keep breakage from happening?

Are -- or is there something that these men did it?

Mr. Robert R. Welborn: The Supreme Court did not so find.

The Supreme Court of Missouri did not so find.

I am arguing, if Mr. Justice Black please, that these matters can give rise to a situation which endangers the public safety to such an extent that the State may make use of applicable machinery to protect the public in such --

Justice Hugo L. Black: Well is that denied --

Mr. Robert R. Welborn: -- a situation.

Justice Hugo L. Black: -- but is that part of what you said denied but it -- your adversary, I didn't so understand.

I didn't understand.

They claim that the State couldn't take applicable measures which is permitted to do not in violation of federal law to forbid increase to the public health.

Mr. Robert R. Welborn: Well, of course we probably get down to the question of when is such action prohibited by federal law?

Justice Hugo L. Black: I would think so, because it seems to me from what you say that on question of your circum -- circumstances like that would be injurious to the public health.

Mr. Robert R. Welborn: I think they were and that --

Justice Hugo L. Black: As I understand it that's not the issue that he's presented.

Maybe he's wrong in this.

He's presented the issue as to whether Congress has decided that so far as the strike is concerned that is peaceful.

The federal court -- the federal agency shall have power to enjoin and announce that nobody else shall, the strike.

Mr. Robert R. Welborn: Yes sir.

Justice Hugo L. Black: That's your real legal issue.

Mr. Robert R. Welborn: That's correct.

The strike, but I think this matter is relevant.

Justice Hugo L. Black: But it shows us color and of course gives --

Mr. Robert R. Welborn: Oh I -- I --

Justice Hugo L. Black: -- the jury appeal --

Mr. Robert R. Welborn: I -- I am not a -- Mr. Justice but I appealed to the jury.

Justice Hugo L. Black: I understand it.

But there's no dispute between you as for that but the State can take all means just wants to do that.

They say that -- that one thing it can't do is it can't decide to stop a peaceful strike.

Mr. Robert R. Welborn: Yes sir.

Justice Hugo L. Black: And that's your sole legal issue, isn't it?

Mr. Robert R. Welborn: That's correct.

And the -- the issue is to what extent may the State of Missouri, in my opinion, the issue is, into what extent may the State of Missouri in circumstances such as I have here described now act in view of the federal statute.

Justice Hugo L. Black: As it did --

Mr. Robert R. Welborn: Yes.

Justice Hugo L. Black: -- act as it did --

Mr. Robert R. Welborn: Yes sir.

Act -- lay an act as it did in view of the federal statutes, and that that is the essential issue here.

In other words, I think those facts are altogether relevant to show that Missouri was acting under this law here in a situation actually of public emergency and acting in a situation where, I would submit, the ordinary policemen would not have been sufficient to have protected the public interest and that we have here in Missouri a law which is designed to operate exclusively in such a situation of public emergency and public danger and that it was so applied in this situation.

Justice Charles E. Whittaker: Do you say that regardless of who is responsible for these untoward events in the system, they resulted in those untoward events which were not events that occurred before the strike?

Mr. Robert R. Welborn: Yes sir.

Justice Charles E. Whittaker: In other words, they occurred only strike time not otherwise?

Mr. Robert R. Welborn: That is correct regardless of -- of who was responsible, it is apparent I would say from the record that the threat to the public arose by a reason the existence of the strike.

And --

Chief Justice Earl Warren: Was there findings by either Court as to the responsibility for those acts?

Mr. Robert R. Welborn: No sir.

Mr. Chief Justice, there is not.

The Supreme Court --

Chief Justice Earl Warren: Did they ignore them or --

Mr. Robert R. Welborn: No, the Supreme Court of Missouri expressly referred to those facts --

Chief Justice Earl Warren: Well what was to say this is --

Mr. Robert R. Welborn: And --

Chief Justice Earl Warren: -- is something about the responsibility for the --

Mr. Robert R. Welborn: Yes, yes sir.

On page 348 of the record, while the evidence is not sufficient to show that the defendants were responsible for this act to sabotage which helped to bring on the emergency, it was sufficient to prove that there was a serious and alarming interruption of utility service and the public interest, health and safety were jeopardized.

Chief Justice Earl Warren: MNow, we have to treat it then just as so though -- the union and -- and the officers involved had nothing to do with this -- with this conduct?

Do you plead it that way?

Mr. Robert R. Welborn: Yes sir.

I -- I do not -- I do not say that there's anything in this record which would attribute those acts to --

Chief Justice Earl Warren: Yes.

Mr. Robert R. Welborn: -- the union and their employees.

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: May I ask -- I beg your pardon, I'm sorry.

Please continue.

Mr. Robert R. Welborn: I -- I do say that they arose following the strike.

And I think must necessarily have been related to the strike.

Justice Felix Frankfurter: I would like to ask you this question.

These matters in just indicated or stated explain for the basis for the Governor's action, is that it?

Mr. Robert R. Welborn: Yes sir, Mr. Justice Frankfurter.

Justice Felix Frankfurter: What I want to know is this, would the -- would the validity of Governor's action namely that it came within the authorization of the statute was that an issue subject to Court reviews or if the Court found none of these things that they have found that the basis for asking of an injunction didn't exist, but this Court has said it in another connection as they have it I think, the jurisdiction of facts on the basis of which he's allowed to move, is that right?

Mr. Robert R. Welborn: That could very well -- well that could very well be true.

In other words, this is in effect on a --

Justice Felix Frankfurter: That's the relevance of all the testimonies?

Mr. Robert R. Welborn: All right, no I --

Justice Felix Frankfurter: And validate his action, is that it?

Mr. Robert R. Welborn: I think to validate his action and place it in the light of the circumstances in which this particular law was applied.

In other words, this by law its terms, becomes applicable only when the Governor issues his proclamation and finding that the public health and welfare are threatened.

And I think that brings us then to the essential difference between this act and the Wisconsin Act, in that this Act is so limited and that this Act is therefore in the nature of emergency legislation, and that it is within the scope of state power despite the federal acts.

Now, in the Amalgamated case, there's no question that the Chief Justice in his opinion stated that the Wisconsin statute is not -- and was not emergency legislation.

There has been reference made to the facts which the Wisconsin Supreme Court found to exist in the Gas case in Wisconsin.

However, I think --

Justice Hugo L. Black: What did it find?

Mr. Robert R. Welborn: I beg your pardon?

Justice Hugo L. Black: What did it find, the fact of which you're talking about?

Mr. Robert R. Welborn: The -- the facts referred to here earlier by -- by the -- the appellant with respect to the emergency situation in -- in Wisconsin.

Justice Hugo L. Black: Did it find that there was a situation?

Mr. Robert R. Welborn: The -- yes sir.

Yes sir, that was the -- that was the --

Justice Hugo L. Black: That it might be injurious to the health?

Mr. Robert R. Welborn: They found this that there was a dangerous condition fraught with the possibility of infinite injury to the public.

However, I say that examination of the Wisconsin case in the light of this statement indicates that that statement is no more than a justification for the temporary restraining order without notice which was issued by the Wisconsin Court.

And that the Wisconsin statute did not require such a finding in order to call for it.

The provisions or the Wisconsin statute that --

Justice Hugo L. Black: But they did make the finding.

Mr. Robert R. Welborn: They did make the findings.

And furthermore, as I read the case in this Court and the United Gas case which was considered with the Amalgamated case, there was absolutely no word of reference to the situation which the Wisconsin Court had found to exist.

In other words, I find no evidence that this Court considered those facts in determination of the United case here.

And as I say, I think that it is because the Wisconsin statute did not require the existence of those facts.

It just happened -- it just happened that the Wisconsin Act had been applied in this case to what was an emergency situation.

But that would not give validity to the Act which was applicable generally to all strikes and public utilities.

It was a just a coincidence.

Chief Justice Earl Warren: I understood Mr. Ratner to say that there was a question as to whether -- whether the Governor was apprised to these facts at the time the seizure was made.

Did I misunderstand in there or is there a question of that?

Mr. Robert R. Welborn: To my knowledge Mr. Chief Justice no issue has been raised as to the Governor's awareness of the facts --

Chief Justice Earl Warren: Not of the facts of the strike, but I mean of all of these things that you have -- have listed this as to the dangerous conditions that had been created as a result of the -- of the strike.

Is it -- maybe -- maybe I misunderstood it, if I did well, we just forget it.

Mr. Robert R. Welborn: I -- I don't -- I -- I don't -- I say that I'm aware of no issues --

Chief Justice Earl Warren: Yes, yes.

Mr. Robert R. Welborn: -- having been raised in that regard.

Certainly the -- the validity of the Governor's action was not the questioned on the grounds of, “Governor, you didn't know anything about this -- this situation.”

Chief Justice Earl Warren: All right.

Mr. Robert R. Welborn: I think that I can say that the Governor did know about the situation.

Justice Potter Stewart: Is there any -- is there any specific findings made by Governor's proclamation (Inaudible) and they appear on pages 15 through 18 in the record that's -- that's -- that's all referring (Inaudible)

Mr. Robert R. Welborn: Yes Mr Justice Stewart.

That is the Governor's proclamation and that is the Governor's finding in the situation.

Now, we say --

Justice Hugo L. Black: But why was the finding necessary for coordination injunction assuming that they can't enjoin the peaceful strike?

Why was it -- why was it necessary for the Governor to make any kind of statement?

It didn't approve that the health of the people was being injured and was being imperiled or jeopardized by such sabotage that you mentioned.

I should suppose it ordinarily a State would have that right for that the special situation, assuming the thing it enjoined is not forbidden to it by the federal law?

Mr. Robert R. Welborn: I -- I think that they would have that right Mr. Justice Black but I do not think that they would be necessarily limited to exercising it in that manner.

I think it would -- if the State has the right, it has also the right to choose the method of its exercise.

Justice Hugo L. Black: Unquestionably it does unless it's forbidden by federal law.

Mr. Robert R. Welborn: Yes sir.

But I -- I don't see that the State must have, well -- sorry about the --

Justice Hugo L. Black: What I was saying, what I don't quite see the great relevance here was the Governor, here the facts or not --

Mr. Robert R. Welborn: Well --

Justice Hugo L. Black: -- about the condition that that's going on.

Mr. Robert R. Welborn: I think --

Justice Hugo L. Black: In that state I always think ordinarily unless there's some federal law that forbids it.

Every State would have to use its court's power to presume.

Justice Felix Frankfurter: Well, it's just part of the mediation of --

Mr. Robert R. Welborn: -- it's part of a -- it's part of the statutory procedure.

Justice Hugo L. Black: It's a part of the procedure I understand.

Mr. Robert R. Welborn: Prescribed at the Missouri statute.

Justice Hugo L. Black: But I do not see myself that the State gets anymore power from the fact that there's a statute to enjoin a peaceful strike that it would have didn't have that statute.

Mr. Robert R. Welborn: Possibly not but I think it provides a -- and orderly procedure perhaps --

Justice Hugo L. Black: I agree -- I agree to that but you finally get back to the one question as to whether it's forbidden to stop a peaceful strike by the federal act.

Mr. Robert R. Welborn: That is exactly where we return, yes sir.

And that is exactly where we get to what is the meaning of the Amalgamated case as applied to the Missouri statute.

And that is where I say --

Justice Hugo L. Black: Well, why is that the Missouri injunction?

Mr. Robert R. Welborn: Well, of course I would disagree with Mr. Justice Black there, because I think what we have before us here is the validity of the statute --

Justice Hugo L. Black: That's right.

Mr. Robert R. Welborn: -- not the validity of the -- injunction.

Justice Hugo L. Black: The validity of that statute that's been applied here.

Mr. Robert R. Welborn: Yes sir.

That's correct.

Yes sir.

And so we have here I think and I think the circumstances of this case demonstrate that we have here a Missouri statute which is an emergency statute which is designed for the protection of the public health, the public safety, the public welfare in an emergency situation.

Justice Hugo L. Black: I suppose there's no doubt with -- no disagreement upon it that you'd enjoin the union on evidence perpetrating sabotage, (Inaudible) injurious to health, enjoined in the people that you wouldn't have violated in the federal statute.

No -- no disagreement, is there?

Mr. Robert R. Welborn: I -- I would not disagree.

I would not disagree.

Justice Hugo L. Black: That's what I thought.

Mr. Robert R. Welborn: Certainly, but then the question is, can Missouri go the further step and take the action which it has done here?

Justice Hugo L. Black: What it can do if it's not forbidden by the federal act?

Mr. Robert R. Welborn: Which, -- yes.

And then the question is, is it forbidden by the federal act.

And which brings us back to the Amalgamated case.

And I say that the Amalgamated case does not control this case.

I say that the Amalgamated case is quite specifically limited to a situation of a statute of general prohibition against strikes in public utilities.

And that that is not what the Missouri statute is.

And that the Missouri statute as an emergency measure in the exercise of the State's highest police power and it's greatest obligation to protect the safety and welfare of its citizens that the statute is not prohibited by any federal law.

And that it is not actually in conflict with any federal law.

Chief Justice Earl Warren: Are you going to discuss the legislative history of the Taft-Hartley Law and the Landrum Act is -- is --

Mr. Robert R. Welborn: Yes, Mr. Chief Justice I -- (Voice Overlap) --

Chief Justice Earl Warren: -- in your own time --

Mr. Robert R. Welborn: I -- I will go to that right now, because actually the -- the legislative history which was so heavily relied upon in -- in the Amalgamated case of course gets down to the statement of Senator Taft as to what the Committee on Labor had accepted and what they had rejected in the drafting of the Taft-Hartley Act.

Now, I think if the statement of Chief Justice has -- the statement of Senator Taft is analyzed, I think it will be seen that his statement refers to statutes such as that involved in the Amalgamated case, that is, a statute which prohibits strikes absolutely, which substitutes compulsory arbitration or collective bargaining, which is what the Wisconsin Act did and which is not what the Missouri Act does.

The Missouri Act prohibits strikes only in the event of seizure to protect the public health and welfare.

The Missouri Act does not impose compulsory arbitration.

The parties are left free to arrive at their own contracts.

There is no feature of compulsory arbitration whatsoever in the Missouri Act.

And I think close reading of Senator Taft's statement indicates that that is the kind of Act which he was talking about, because he spoke of a process of the Government fixing wages and that they didn't want to enact a proposal whereby one of the parties would think they might get a better deal in the compulsory arbitration which may be provided.

He was speaking of compulsory arbitration and the fixing of wages by Government action, which is not what we have here.

And for that reason, I say that that his statement which is actually the -- insofar as I can see the -- the essential part of the legislative history, the Taft-Hartley Act that's here involved, does not preclude the Missouri Act.

Now, there is reference in -- by the appellant and there is reference in the Amalgamated case to the statement of Senator Taft that the Congress did not see that to prohibit strikes, even though there might danger to the public.

But I do not think it be conceived that Senator Taft had in mind danger of the nature here involved and danger of the nature which the Missouri Act is designed to protect against.

I think he had in mind economic danger.

I don't think he had in mind danger to a person, danger to property.

Chief Justice Earl Warren: Was that -- was that brought into under focus though by Senator Holland's proposed amendment?

Mr. Robert R. Welborn: What Senator Holland's proposed amendment of course would have been as broad as the -- as the Wisconsin Act in the Amalgamated case.

In other words, Senator Holland's amendment was not limited to emergency situations.

It was a broad proposal, just as broad at well frankly perhaps to -- to invalidate statutes such as that involved in Amalgamated.

But I say we don't have the statute that --

Justice Hugo L. Black: Invalidate statutes when?

Mr. Robert R. Welborn: Such as were involved in the Amalgamated case.

But I say that we do not have the statute involved in the Amalgamated case.

And --

Justice Hugo L. Black: But what I understood is -- is reign of the fact that if you're to stop the strike by public utility, because there were inherency, and it would be a trouble, such as what's done here.

And here, you're -- you're taking that your Court has the right to prohibit a peaceful strike, if while those strikes are going on.

something happens that nearly everybody knows happens during strikes and -- and they declined Senator Holland's amendment to that effect, didn't they?

Mr. Robert R. Welborn: I think that they declined Senator Holland's amendment which would have created a broad field of State regulation, Mr. Justice Black.

I do not think that they declined State authority in a limited area and I think that at the last session the remarks of Senator Kennedy in our position are somewhat illustrative of that fact, because at that time Senator Kennedy said, “I would oppose this provision -- this amendment, because it would in effect provide a system of compulsory arbitration.”

So that's what the opponent said that the Holland amendment was designed to do.

In other words, to invalidate the -- Wisconsin Act and I say that --

Justice Hugo L. Black: Well, this -- your -- your present statue has the right to compulsory arbitration.

The strike involves Congress with the effect that it could be done (Voice overlap) --

Mr. Robert R. Welborn: Our statute --

Justice Hugo L. Black: -- can be shown that during the strike something is happening in connection with the words that's injurious to public health.

Mr. Robert R. Welborn: I would correct --

Justice Hugo L. Black: -- could be impaired, that I would say with greatly impaired.

Mr. Robert R. Welborn: I would -- I would correct Mr. Justice Black in this respect that our statute does not impose compulsory arbitration in no circumstances.

There is no compulsory arbitration feature in the Missouri statute.

Justice Hugo L. Black: What does it do?

Mr. Robert R. Welborn: It leaves the parties to arrive at their own determination.

Justice Hugo L. Black: It makes -- makes them to go back to work.

Mr. Robert R. Welborn: And -- and work out their agreement which was done in this case.

Justice Hugo L. Black: And tell them -- well suppose, they don't work it out?

Mr. Robert R. Welborn: That eventuality I suppose will be met when it arises.

But so far they have.

Justice Hugo L. Black: Well if the -- the purpose of it is to compel it.

I'm not saying it's (Inaudible)

I don't know.

It -- this is on a very, very sensitive field and one which requires close attention by all the legislative bodies whether you get it, I agree with the Court.

Mr. Robert R. Welborn: Yes sir.

Justice Hugo L. Black: Now, the problem in my mind is that the Congress has protected -- taken for itself, on itself, to decide a peaceful strike all right and you can't forbid them by reason of things that occurred during those peaceful strikes, which is not done by the union would give a chance to have gone otherwise.

Justice Felix Frankfurter: That under your statute, the injunction doesn't have to persist as long as forever.

The injunction -- the Governor may find the condition which led him to ask for an injunction of cease, and yet the strike, that has to be continued or resumed.

Mr. Robert R. Welborn: That would be possible.

Justice Felix Frankfurter: Nothing in the statute and the statute indicates the contrary.

Justice Hugo L. Black: But suppose after these people were forced to go back to work if things continued at a greater pace.

What -- what could you he do then? What would you do then?

What would the courts do then?

It's not likely sometimes to create a feeling of --

Mr. Robert R. Welborn: I --

Justice Hugo L. Black: -- friendship and loveliness and affection.

Justice Felix Frankfurter: You don't have (Voice overlap) --

Mr. Robert R. Welborn: I agree (Voice Overlap) --

Justice Felix Frankfurter: But you don't have to gas based on this subject.

Mr. Robert R. Welborn: I don't know.

I -- I can't say what would happen in that situation.

Justice Hugo L. Black: Well, none of us disagree that this is a serious thing.

It's not a question of jury speech as to how much the health is impaired.

It's a question of whether or not Congress has taken to itself how to say that peaceful strikes shall not to be forbidden by State or anybody else.

Mr. Robert R. Welborn: That's right, yes sir.

Justice Hugo L. Black: And here you say that peaceful strikes can be forbidden if it's found that during a peaceful strike something has occurred, which will injure the public health.

And which I agree with you is -- I -- I don't think anyone -- I don't think it need evidence to show that it's a -- it's a thing that occurs frequently when strikes occur.

Justice Charles E. Whittaker: Well did you say that, I understood it was to be a -- it was a part of your argument that try as you will strikes of this character cannot be and in a true sense peaceful?

Mr. Robert R. Welborn: After these circumstances arise.

Justice Charles E. Whittaker: Well, if they do arise in a strike, it didn't occur before.

Isn't this -- isn't this your argument under or maybe I am not understanding you, that strikes in utilities cannot from the very nature of the things try as hard as both sides will be in any true sense peaceful, is that right?

Mr. Robert R. Welborn: No, no Mr. Justice Whittaker I do not go that far.

Justice Charles E. Whittaker: (Voice overlap)

Mr. Robert R. Welborn: I do not go that far.

Justice Charles E. Whittaker: (Voice Overlap)

Mr. Robert R. Welborn: I -- I do not go to so far as to say that any strike in a public utility must inevitably be a non-peaceful strike.

I do not go that far.

I go -- I say that when a strike in a public utility does obviously and patently threaten public health and welfare as this one, that it is no longer a peaceful strike.

But I do not say that any strike in a public utility cannot be a peaceful strike.

As a matter of fact, I would point out to this -- point out this to Mr. Justice Whittaker that the Missouri law has not been invoked whenever a strike has occurred in a public utility.

There have been 16 instances of strikes in public utilities since the enactment of the King-Thompson law in which the State has taken no action to enforce any of the penalty provisions or any action under the seizure -- seizure provisions of the King-Thompson law for the reason that the situation did not to the mind of the Governor involve a threat to the public health and welfare.

And the Missouri statute is so limited to cases where the Missouri -- where the public health and welfare are threatened.

Justice William J. Brennan: Mr. Welborn may I ask you?

Is your argument the State power to go this far, suppose we didn't have a utility, let's some manufacturer of automobiles or airplanes or anything else whose employees went on strike and the strike was conducted peacefully insofar as the strike of the employees is concern, but it's a small town, the employer and the hardships did ensue in the form of threats, health or actual illnesses or lack of food or fuel and the light, and a situation develops were crime gets out of hand.

Now, in that circumstance, could say that the State had power to have such a statute as here applicable only to utilities, to compel the strikers to go back to work?

Mr. Robert R. Welborn: I do not necessarily say so.

I think that one can counter up situations where state power would be permissible.

Justice William J. Brennan: Well, I wonder how -- how do we differ in terms of State power how do we differ, in that situation for the one that has this?

Mr. Robert R. Welborn: Well, to begin with, we have here a -- a statute we we're dealing with the statute --

Justice William J. Brennan: Well, I'm assuming a statute --

Mr. Robert R. Welborn: -- which is -- which is limited to --

Justice William J. Brennan: No, I'm assuming a statute in the case I put to you.

I assume the State adopts the statute appropriate to reach the situation I have hypothesized.

Mr. Robert R. Welborn: Yes.

Well, that's getting -- that's getting a feel, and I think that there -- there could be a situation where, in other words, State power can protect the health and safety of its citizens is not necessarily limited to matters related to public utilities insofar as labor relations are concerned.

I think that you will find that Missouri, as have a number of States, have limited enactments such as this to public utilities because strikes in public utilities are much more likely to give rise to emergency situations not because they are -- but not because emergency situations must necessarily be confined to public utility strikes.

Justice William J. Brennan: Well, now if this is so, then the question we have to decide here whether this statute can stand in the face of the Taft-Hartley Act.

There's a broader problem than just the one involving utility business.

Mr. Robert R. Welborn: Well, I -- I think that the Court should never undertake to decide a problem broader than that before Mr. Justice Brennan.

Justice William J. Brennan: Now, (Inaudible)

Mr. Robert R. Welborn: It might have -- it might have --

Justice William J. Brennan: (Inaudible) the stream manages to stir ripples that --

Mr. Robert R. Welborn: Might have repercussions in the future?

Yes.

Justice Felix Frankfurter: As soon as the voluntary body, a court I thought was, would determine how far to extend its untruth.

Mr. Robert R. Welborn: It -- it may -- it may extend.

Justice Hugo L. Black: Well, we could (Inaudible) just for this particular company?

Justice Felix Frankfurter: It will do many foolish things --

Mr. Robert R. Welborn: They -- they --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Robert R. Welborn: Yes.

The Court could limit its judgment just as it so had been.

I -- I agree with that, but ordinarily that is not the function of a Supreme Court in passing upon the constitutional issue.

Justice Potter Stewart: In any event, you're asking to decide this case.

Mr. Robert R. Welborn: That's all I want to have decided today, yes sir.

Chief Justice Earl Warren: That's towards your interest is.

Mr. Robert R. Welborn: That's the one I am interested in.

Chief Justice Earl Warren: We wouldn't -- you don't was us decided the --

Mr. Robert R. Welborn: I am quite --

Justice Potter Stewart: What if we decided moot for --

Mr. Robert R. Welborn: I am -- I am quite willing -- I am quite willing for the Court to decide the case.

I have thrown out my thoughts on the issue of mootness because I think it had -- they have some support in the decisions of this case.

But I will say quite clearly and quietly plainly that insofar as the State of Missouri is concerned we are willing to have this case decided on.

Justice Felix Frankfurter: Your wish is not a matter a relevance to our --

Mr. Robert R. Welborn: I am -- I am aware of that Mr. Justice Frankfurter.

I beg your --

Justice John M. Harlan: But that doesn't keep you from having it, does it?

Mr. Robert R. Welborn: Oh certainly.[Laughter]

I -- I am aware of that certainly and I know I can not confer jurisdiction on this Court for my with, but I've expressed my thoughts on the matter.

Justice Felix Frankfurter: You merely, you merely agreed with me that lawyers ought to be relevance?

Mr. Robert R. Welborn: I -- I tried to be Mr. Justice Frankfurter.

Justice Charles E. Whittaker: Do you mean by that, if I may ask you to detract to withdrawing with your agreement on the mootness question?

Mr. Robert R. Welborn: I beg your pardon?

Justice Charles E. Whittaker: Do you mean to water down your argument on the mootness question?

Mr. Robert R. Welborn: My -- my argument on the mootness question stands, Mr. Justice Whittaker.

I do not want it understood that it is in that, because I fear a decision of this Court.

Let me get back to the -- in the Landrum bill, to get back if I may to some area of -- of legislative history about Mr. Chief Justice inquiry.

I -- I think you can see in the Landrum bill that what Congress was talking was strictly these problems which had arisen in the field of unfair labor practices and matters of that nature, which the -- the no man's land situation that arose in the -- after the Guss case and related cases.

I do not think that the fact that the Congress in that act saw fit to indicate that the states may have some greater authority in that field than decisions of this Court have held, indicate in any -- to any extent that the Congress necessarily intended that any other limitations upon state authority be affected.

In other words, they were talking there about unfair labor practice.

They weren't talking about the Amalgamated case.

They we're talking about the Amalgamated case in -- in the Holland amendment.

But the Holland amendment was much broader than the Missouri statute.

And I say that the -- the history, the legislative history I think affords no basis for saying that the Missouri statute is necessarily in conflict with the federal act.

I think that to determine the validity -- the present validity of the Missouri statute, the Court must return to the principle which it has so often enunciated that state action for the protection of the public health and public welfare is not to be considered to be abrogated by an act of Congress in the absence of clear and compelling direction to that effect.

And I say to this Court that we find no such clear and compelling direction.

Any compelling directions to that effect must I think go back to the statement of Senator Taft which was provided on the Amalgamated case and incidentally --

Justice Hugo L. Black: Which statement was that?

What did he --

Mr. Robert R. Welborn: That is the statement to the effect that we rejected proposals for seizure and --

Justice Hugo L. Black: But what was Senator Taft state, you said go back to his statement?

Mr. Robert R. Welborn: His statement.

Senator Taft --

Justice Hugo L. Black: But do you have it right before you?

Justice Potter Stewart: Footnote 21 in the Amalgamated brief.

Mr. Robert R. Welborn: Oh the Footnote 21 --

Justice Hugo L. Black: 21 is in your brief?

Justice Potter Stewart: In the Amalgamated.

Mr. Robert R. Welborn: In the -- in the Amalgamated case the statement of Senator Taft which was quoted by the Chief Justice in the Amalgamated case, in which he at some length discusses what the Congressional Committee had rejected.

And I think it is of some interest and some relevance in the present situation to observe that subsequently Senator Taft disclaimed intention to extend the preemption doctrine as far as the decisions of this Court did extend it.

Justice Hugo L. Black: Which decision?

Mr. Robert R. Welborn: The Amalgamated decision expressly I believe.

He did not say so expressly, but in hearings before the labor committee on the proposed amendments to the Taft-Hartley Act in 1953.

Mr. Justice Taft in a colloquy with a witness who was discussing Wisconsin and Michigan labor statute said this, “I must say that we never intended any preemption of the field.

The Supreme Court has gone beyond what we intended.”

Chief Justice Earl Warren: We'll recess now Mr. --

Print this transcript Transcript: 

Argument of Robert R. Welborn

Chief Justice Earl Warren: Mr. Welborn, you may continue your argument.

Mr. Robert R. Welborn: Mr. Chief Justice, please the Court.

I would just like to say in summary of the position of the State of Missouri in this case that this case, as I think must all preemption cases in this field, be determined on the basis of conflict between the Missouri law and the federal law.

Conflict is the touchstone of preemption.

So, we say, wherein does the conflict lie?

The appellant says that the conflict is clear based on the opinion of this Court in the Amalgamated case.

We say that the Amalgamated case does not control this case.

We say that the implications which were drawn from the statement of Senator Taft and which were the basis for the finding of conflict in the Amalgamated case between the Wisconsin statute and the federal statute do not apply.

We say further that Senator Taft's statement and the implications derived therefrom should be extended no further than the Amalgamated case.

We say that we have, in the instance of a Missouri statute, a statute designed to protect the public health and the public welfare of the citizens of the State of Missouri in emergency situations.

We say that that is a distinguishing feature, a vitally distinguishing feature between the Missouri Act and the Wisconsin Act.

And I would point out to the Court that although as appellant says in this case, there was involved a strike of clerical workers, which the Chief Justice in the Amalgamated case referred to as evidencing not involving an emergency situation where the Wisconsin acted that applied to the strike of clerical workers, but this situation is entirely different, because along with the clerical workers on strike, were all of the operating workers and also the foreman obliquely.

And so, I say that no significance can be derived from the fact that the strike here also included the clerical workers.

We say that this is valid emergency legislation enacted by the State of Missouri pursuant to its inherent police power, that this Court does not invalidate such legislation in the absence of compelling direction from Congress, which we assert does not exist as it applies to this legislation.

And we assert that the appellants have pointed out no expressed conflict between the Missouri statute and the federal law.

And we assert that under the holdings of this Court extending the benefit to the States of the right to protect their citizens in emergency situations.

That the State of Missouri may in this -- in the situation here exercise that emergency power even though the power is evoked to the necessity for the -- for the exercise of the power arises in a labor dispute.

In the Kohler Company case Mr. Justice Reed said, “The States are the natural guardians of the public against violence.

It is the local communities that suffer most from the fear and loss occasioned by coercion and destruction.

We would not interpret an Act of Congress to leave them powerless to avert such emergency without compelling direction to that effect.”

We say that there is no compelling direction to be found in any act of Congress that leaves the State of Missouri powerless to act in these circumstances.

And we assert that this legislation is valid.

Chief Justice Earl Warren: Mr. Ratner.

Argument of Mozart G. Ratner

Mr. Mozart G. Ratner: Thank you.

It has been suggested that under the Missouri law, that the Governor may return the facility which he has seized to the private company when the emergency, which led him to seize the utility, has ceased to exist.

The statute negatives such an interpretation.

It provides that once the Governor has seized a plant or utility, and I'm quoting from paragraph 2 of Section 295180 which appears at the bottom of page 45 of our brief, the last three lines thereof, “shall be returned to the owners thereof as soon as practicable after the settlement of said labor dispute and it shall thereupon be the duty of the utility to continue the operation of the plant, facility or equipment in accordance with its franchise of certificate and certificate of public convenience and necessity.”

Justice Hugo L. Black: When was it returned here?

Mr. Mozart G. Ratner: It was returned after the labor dispute was settled.

Now appellees said that if Missouri -- I mean, if Wisconsin applied its statute to this set of facts, that would be unconstitutional, because Wisconsin statute is a compulsory arbitration statute and that's all that this Court dealt with in the Amalgamated case.

May I point out Your Honors that the Missouri statute has an infinitely worse impact upon collective bargaining than does the Wisconsin Act.

At least, Wisconsin substituted some form of impartial determination by third parties for its destruction of the right to collective bargaining and strikes.

Missouri substitutes unilateral determination by the employer of what the terms of conditions of employment shall be and compels the employees to work endlessly and without limit on the employer's terms until they yield to whatever collective bargaining contract he's willing to offer.

This, it seems to me, is an infinitely great invasion of the right of collective bargaining and far more antisceptical with it than -- then compulsory arbitration which arguably, at least in that case, was suggested to be not incompatible with collective bargaining.

In Bus Employees case, Amalgamated, this Court took cognizance of the fact that Congress had considered and rejected proposals to outlaw strikes in public utilities because those were the places that strikes affected the public interest worst.

The Wisconsin statute declared in its policy that any strike in a public utility, which interrupts public service, and both of these statutes alike dealt with no strikes except those which did interrupt public service, created emergencies which were harmful to the public health and safety.

The statutes were indistinguishable on that strike.

And in their application, at least as far as the United Gas case is concerned, they're indistinguishable in the conditions that were created by the strike.

Unless you are to attribute to this strike, the acts of unidentified third parties.

And those were not -- and according to this record, not shown to be attributed to the strike here.

They are not shown on this record to have had played any part whatever in the Governor's determination to seize.

The first we hear of him is in the testimony of Mr. Burgess, the Vice President in charge of personnel.

In the record in this case, no such statement comes out of Rogers who was a witness in this case and who was the one who conducted the investigation on behalf of the Governor.

So, that there is no distinction, and Amalgamated controls this case unless we are to say that this Court's judgment in United Gas, which set aside the contempt to conviction for refusal to obey an emergency injunction predicated on the State's power to protect the health of the citizens of the State of Wisconsin against the threat to their health and safety, unless we are to say that this Court's action in setting aside that contempt to conviction is not a judgment of this Court, it's to be disregarded, because this Court didn't quote the findings of the Supreme Court of Wisconsin to which I have referred.