THE PARTY OF
THE THIRD PART
HENKSf J. ALLEN
SCHOOL OF LAW
LIBRARY
THE PARTY OF THE THIRD PART
THE PARTY OF
THE THIRD PART
The Story of the Kansas
Industrial Relations Court
BY
HENRY J. ALLEN
Governor of the State of Kansas
T
THE PARTY OF THE THIRD PART
Copyright, 1921, by Harper & Brothers
Printed in the United States of America
c-v
ACKNOWLEDGMENT
It is a pleasure to express my appreciation for the assistance
I have had in the preparation of this manuscript from Mr,
Elmer T. Peterson, the associate editor of my newspaper, the
Wichita Beacon. His careful suggestions, his assistance in col-
lecting the material, and his able attention to the details of
preparation have made possible the production of the book
during an exceptionally busy period.
6
~3
CONTENTS
CHAP. PACK
ACKNOWLEDGMENT v
INTRODUCTORY xi
I. THE RESULT OF THE FIRST PUBLIC TEST i
Narrative of the "Referendum," or popular verdict on
the Industrial Court Incidents of the 1920 campaign.
II. A COURT WITH A HEART 16
Stories showing how the new law affected laboring men
The decisions and their effect Incidents in court.
III. THE PERIOD OF UNREST 39
Importance of the industrial problem and the effect of
strikes Background for the new law.
IV. THE KANSAS COAL STRIKE 48
Story of the strike, the receivership, volunteer mining
Reaction of public sentiment.
V. THE MAKING OF THE COURT 62
Kansas situation typical, not exceptional How the strike
led up to the legislative session Narrative of the session
Extracts of addresses and picture of the legislature.
VI. THE CARNEGIE HALL DEBATE 92
Next important event in the history of the Industrial
Court Narrative of the event.
VII. MR. GOMPERS'S SUPPLEMENTARY STATEMENT . . . .114
Comment upon his article.
VIII. LABOR LEADERS AND THE WAR 121
Enlarging upon one of the themes of the debate.
CONTENTS
CHAP. PAGE
IX. WHY THE INDUSTRIAL COURT? 131
First of three chapters that deal with philosophy of the
court Beginning of analytical study.
X. GOVERNMENT AND ITS POLICE POWERS 144
Continuation of analytical study showing that govern-
ment itself is involved, and that the police power is one of
the most important of governmental functions.
XI. INVISIBLE GOVERNMENTS 168
Third of analytical chapters, dealing with the growing
dominance of economic factors or the invisible empire, and
showing how a political democracy must retrieve its power
by means of industrial courts.
XII. WHY RADICALS OPPOSE 185
Discussion of radical opposition to the court Danger of
too much reaction.
XIII. STRIKES AND LOCKOUTS 194
Analysis of the fundamentals of the strike.
XIV. THE FRUIT OF THE KANSAS COAL STRIKE 208
Description of some of the features of the Industrial Court
law.
XV. THE WEAKNESSES OF ARBITRATION 221
Early history of arbitration French Conseils des Pru-
d'hommes Australian, New Zealand, and Canadian laws
Why arbitration as a principle is faulty President's Indus-
trial Conference report and its recommendations.
2LVI. SPECIALIZATION IN INDUSTRY 241
One of the most prolific sources of industrial trouble
The lack of the human touch How the Industrial Court
or code may alleviate this.
XVII. COLLECTIVE BARGAINING 247
Attitude of the Kansas court on this question A brief
discussion of the purposes of collective bargaining.
CONTENTS
CHAP. PACK
XVIII. SOME LEGAL PHASES OF THE INDUSTRIAL COURT . . . 253
Earliest English laws on industrial relations; their crudity
Development of modern legal conceptions as to the strike
and industrial combinations.
XIX. THE PUBLIC WHAT Is IT? 262
The party of the third part Its relation to the forces of
labor and capital.
XX. SLOWING DOWN PRODUCTION 265
Nonproduction the great cause of poverty Fallacy of
reducing per capita production for the sake of making more
jobs Laws of diminishing returns.
XXI. CONCLUSION 275
Government must take a more active hand in industry,
that is inevitable; if not by adjudication, then by ownership
of great industries Adjudication the way of a republic
Summary of the issues of the Industrial Court discussion.
INTRODUCTORY
ARE industrial relations a matter of private
contract?
Is the industrial problem confined within the four
corners of a collective bargain?
A contract is between the party of the first part
and the party of the second part.
In the evolution of civilization and its industrial
implements a third party has come to the front,
and the party of the third part is greater than the
parties of the first and second parts. That third
party is the public, and that means all of us.
Industrial relations have taken on a new meaning
in society. In fact, the public is becoming enmeshed
in them to such an extent that the relations con-
stitute a great public problem.
This book is written in the hope that it may
throw some light on the fundamentals of this prob-
lem. The reasons for the Kansas Court of In-
dustrial Relations go deep into the sources of
government itself, and it has been thought ad-
visable, along with the story of the court, to set
forth some of the basic principles of government as
they affect industrial legislation.
The history of human advancement has been
INTRODUCTORY
largely the history of bettering the conditions of the
laboring man, and nothing should be done by the
state to prevent the continuation of that steady
progress. The laboring man must be given prompt
and complete justice. He must be given the gov-
ernment's guaranty of absolute protection in order
that his progress may be sane and constructive.
But the same principles of justice which are ex-
tended to his side of the quarrel must be extended
also to the side of the employers. It is the duty of
the government to see to it that the strife which has
grown between them shall no longer express itself
in a form of warfare upon an innocent and helpless
public.
"Salus populi suprema lex esto!"
THE PARTY OF THE THIRD PART
THE PARTY OF
THE THIRD PART
THE RESULT OF THE FIRST PUBLIC TEST
THE Court of Industrial Relations in Kansas
has already earned its right to be regarded
as a permanent institution. It has just
completed the first year of its life and has more than
justified the claims which its founders made for it.
^.fter the severest of tests the court has not only
proved its great value in settling labor disputes in
the state of Kansas, but is now ready to submit the
result of its work to the other states in the Union.
In its brief life thus far the court has been pro-
nounced upon by many different classes of people,
and in almost every case the pronouncements have
been highly favorable and even enthusiastic. In
the recent general election more than a half million
voters expressed themselves with reference to the
court and the astonishing result of the referendum
2 THE PARTY OF THE THIRD PART
showed that the court received the approval of
every county in the state, including the industrial
communities.
In Crawford County, the center of the mining
district and the home of Alexander Howat, district
president of the International Mine Workers' Union,
the most notable enemy of the law, the entire legis-
lative ticket which was presented to the public for
indorsement of the court was elected, while Howat's
ticket, consisting of a combination of Socialists,
labor radicals, Non-Partisan League members, and
Democrats, united on a platform of opposition to the
court, was decisively defeated.
From the moment the court was established the
radical union-labor elements began to organize for
the campaign to defeat the Industrial Court. Their
first wish was to repeal the law and, failing in this, to
secure the election of a legislature that would so alter
it or load it down that it would become ineffective.
To this end an ambitious combination was effected
a coalition of radicals, Non-Partisan League farm-
ers, and Democrats. The campaign was directed
against the head of the state ticket and the legisla-
tive candidates, and the workers set out upon a
systematic effort to misrepresent and discredit the
law.
Under direction of Alexander Howat a force of
speakers were brought into the state and many of
them were trained for the task at the headquarters
of the Kansas Federation of Miners, near the coal
THE FIRST PUBLIC TEST 3
mines at Pittsburg, Kansas. They were sent out all
over the state. The leaders went even so far as to
get colored speakers for districts where negro
laborers predominated.
One of the expedients they used was the un-
fortunate fact that the Industrial Court, as now
constituted, administers, in addition to industrial
law, the duties of the old Kansas Public Utilities
Commission, and since the court had allowed in-
creased rates to various public utilities it was ac-
cused of being friendly to the corporations.
Another cunning, though baseless, accusation was
that the court would regulate the growing and
marketing of wheat. Farmers were told that the
court would prevent them from forming wheat
pools or holding their wheat for a better price, and
that it would compel them to market their grain
at the court's pleasure.
These charges created an opposition which, for a
time, threatened the success of the court ticket. In
fact, the strength of the opposition so impressed
other candidates on the Republican ticket that a
great many of them conspicuously avoided any
discussion of the Industrial Court which was bearing
the brunt of the state campaign, yet at the end of
the campaign the Governor had been elected by a
majority of more than 100,000 votes, losing only
3 of the 105 counties.
Every legislative candidate who opposed the
court was defeated. Every man who voted against
4 THE PARTY OF THE THIRD PART
the bill in the special legislative session that enacted
the law was left at home. Senator Montee, repre-
senting Crawford County, the center of the coal-
mining industry, voted against the bill and was
defeated by a man supporting the law. Representa-
tive Shideler of the same county, who supported the
law, was renominated and re-elected, and the other
member of the legislature from that county is
favorable to the law.
By order of state union leaders a special levy of
seventy cents a month per member was made
against the principal unions of the state for the
raising of a fund to defeat the law. Mr. Howat
stated publicly that Farrington, leader of the
Illinois miners' unions, would send $100,000 into
Kansas to defeat the law.
The state Democratic organization worked openly
and conspicuously with the radicals, and the Demo-
cratic national committeeman from Kansas spent
weeks stumping the state, defending the activities of
Mr. Howat and his workers. One of the Democratic
candidates for Governor, in his pre-primary cam-
paign, made an open bid for the radical vote by
upholding the strike. The Howat element fought
the state administration because of the Industrial
Court, and the Democratic leadership fought the
state administration to gain political ends; but the
arguments were used interchangeably by the two
elements.
It is a remarkable fact that the only Republican
THE FIRST PUBLIC TEST 5
legislator who voted against the Industrial Court
bill was defeated by a pro-court Democrat in a
Republican district in the face of a Republican
landslide.
One of the peculiarities of the campaign in the
labor districts was the interest of the women.
Students of the suffrage problem, who have been
investigating the 1920 election results for lessons
on the woman vote, may gain something of value by
analyzing the independent voting of laborers' wives
in Kansas. The striker's wife, like that of the
soldier, bears the brunt of grief and want, and it was
discovered, particularly in railroad districts, that
the wives of workingmen were taking a keener
interest in the law than the men themselves.
At Herington, the seat of great Rock Island Rail-
road shops, I spoke to an audience composed of
railroad men and their wives. I held before them,
as justification for the law, the fact that their present
leadership was costing them more than it was
worth that labor leaders who called strikes never
shared in the suffering they entailed, for their pay
went on just the same. I preached the doctrine
that if the government could find justice for the
laboring man in his quarrels, there was no reason
why a laboring man should pay a percentage of his
wages to keep a lot of professional leaders in easy
circumstances.
After the meeting was over and the crowd had
dispersed a switchman's wife made an extemporane-
6 THE PARTY OF THE THIRD PART
ous speech to a group of railroad employees who had
gathered in a small group. Among other things,
she said:
"You know he told you the truth, and he is the
only man who has ever tried to do anything for us
without charging us for it. You know that what he
said about the leaders is a fact." She then turned
to her husband and said, "Bill, if you had all the
money that you have paid these leaders I could have
had a vacation this summer."
In practically every labor center where I went to
speak in the campaign the members of our com-
mittees prophesied that there would be interrup-
tions and disorder that the radicals had arranged a
program of heckling and various forms of dis-
turbance. In some cases walkouts had been
planned. Yet I received in every place the most
courteous attention and sympathetic hearing.
Noisy threats of radicals did not materialize,
because the conservatives in the labor group for
the most part native Americans insisted that the
discussion should be greeted with a respectful
hearing.
You can generally depend upon the radical in a
case of this kind to make blunders. At Parsons, the
home of the great M., K. & T. shops, the labor
organizations were in the hands of the radicals.
The day before I was to speak there the office of the
central union-labor bodies issued a call which was
published in the local papers. This call demanded
THE FIRST PUBLIC TEST 7
of the Republican central committee that my meet-
ing be annulled and that I be not permitted to hold
any meeting in Parsons. This effort on the part of
a group which is always proclaiming the right of
free speech disgusted the conservatives. In spite
of the forewarnings, my meeting in Parsons was a
distinct success, particularly so far as attendance
and attention were concerned, and, although the
community cast a heavy labor vote, I carried it by
a good majority.
At Newton, the home of a great system of Santa
Fe Railroad shops, I had been advised not to attempt
a meeting. Gloomy forebodings were expressed by
my own friends as to the effect of trying to hold a
meeting there, and on the night I appeared most of
the local candidates found it convenient to be in
another place in the county.
Newton has a great convention hall, which is
rarely filled. It was packed on the night of the
meeting, the attendance being even larger than that
which greeted the Democratic candidate for Presi-
dent two days before. Everybody was nervous
about the outcome, including myself. I realized
that a majority of the voters were supposed to be
against the court. They gave me the most re-
spectful attention and, though I invited questions,
not an interruption occurred. But the meeting
was somewhat sensational as to its aftermath.
Next day it developed that there was a large
representation of shopmen in all crafts who were in
8 THE PARTY OF THE THIRD PART
favor of giving the Industrial Court a chance.
Presuming themselves to be in the minority, they
had kept silent. The day after the meeting their
tongues were loosed and it developed that the
Industrial Court had an astonishing following. Its
friends began to fight for it, and in one in-
stance the fight became an actual physical combat
between a friend of the court and a radical an
unfortunate instance in which the radical emerged
with a broken arm. I carried the county on
election day.
At Ellis, a railroad center on the Union Pacific,
the radicals had created so much disturbance that
the Republican leaders had passed judgment against
the policy of holding a meeting there. One of the
leading radicals had stated openly and persistently
that it would not do for us to attempt to hold a
meeting. As usual, he did all the talking, and it
sounded as though he represented the community.
When I arrived I was met by the members of the
local central committee, who repeated some of the
fearsome warnings of radical outbursts, saying that
they did not believe I would be allowed to get through
with the meeting. I opened the meeting by telling
the audience of these warnings and by inviting any
man in the audience to interrupt me at any time
with any fair question that occurred to him. I urged
all to listen to my explanation of the court and
challenged the radicals by the flat statement that
they were either ignorant of the law and its pro-
THE FIRST PUBLIC TEST 9
visions or maliciously misrepresented it. And I
said I would prove this somewhat general charge.
Not a single interruption occurred and there were no
questions. At the conclusion of the meeting a young
American-born engineer voluntarily arose and pub-
licly said I had proven the charge that he himself
had been misled and intended to vote for me. He
also said he would devote much of his time until
election to make the principles of the law clear to
his fellow workers.
In the election Ellis County, which was previ-
ously Democratic, went Republican for the state
and national tickets, and for the first time in years
elected a Republican legislator.
In Kansas City, Kansas, which probably has the
largest distinctively labor population of any section
of the state, there were warnings similar to those in
Ellis. The police had been told that men were going
to the meeting with eggs concealed about their
persons and that I was to be served up as a sort of
an omelet.
Kansas City in Kansas embraces Armourdale, the
home of several thousand packing-house employees,
and Rosed ale, Argentine, and Armstrong, which are
strong railroad centers.
On Labor Day the radicals in a parade carried the
American banner upside down and bore various
hostile inscriptions, one of which read, "To hell with
the Industrial Court."
When it was decided to hold a meeting at Armour-
io THE PARTY OF THE THIRD PART
dale the city administration was worried and desired
to extend special police protection. The meeting
was a very large one and packed the hall to suf-
focation. Fully half the audience were women.
The distinctive characteristic was intense quietness.
The meeting was half over before there was a ripple
of any sort of response.
Laboring men and their families, who had listened
to radical leaders abuse the court in most savage
fashion for several months, sat with most intense
earnestness that was in the deepest sense inspiring.
The radical leader of the community was there,
occupying a prominent point of vantage. I could
see members of the audience glance at him occa-
sionally, and particularly when I cleared up some
point which he had misrepresented to them. Yet
not a note of partisanship was expressed by the
great audience. It had decided to listen and learn
the facts. No attempt was made to challenge any
statement. There was no particular note of cor-
diality to me as I left, but certainly no indication of
hostility. In my many years of experience I have
never felt more vividly the presence of intelligent
judgment.
However, the candidate for state Senator in that
district, who, while a member of the Lower House,
voted for the Industrial Court bill, was elected to
the Senate and the results showed that I secured
hundreds of labor votes.
One of my purposes in relating the foregoing in-
THE FIRST PUBLIC TEST 11
cidents is to show that in all these audiences there
was present the quiet strength of the labor con-
servative with his American spirit of fair play. He
may not be the major influence of to-day, but he is
sure to be the influence that will ultimately save his
organization from the destructive tendencies of the
radical forces which seem to have captured it, but
not yet captured him personally.
The attempt, by radical leaders, to dominate the
1920 campaign first became conspicuous in the
spring. Early in June President Gompers issued a
statement calling upon all union-labor men to vote
for no one upon a congressional or state legislative
ticket unless it was known that the candidate was
friendly to organized labor. Being "friendly to or-
ganized labor" meant being willing to vote for organ-
ized labor's demands. Mr. Gompers, in his pro-
nunciamento, especially warned against the selection
of men who were "indifferent" to labor and then
added that they wanted in Congress men who held
"honest union cards." In other words, Mr. Gom-
pers's effort was to secure a unionized Congress.
This idea of a bridled and shackled Congress is not
only un-American, but it violates the very principle
of representative government in legislative action as
recognized by all democracies. Edmund Burke
pointed out in his day the fundamental objection to
a Congress made up of men who represent, not the
interests of the people, but the special interests of
classes. His declaration so clearly states the prin-
12 THE PARTY OF THE THIRD PART
ciple that I have thought it valuable to use in this
connection :
The opinion of a constituency is a weighty and respectable
opinion, which a representative ought always to rejoice to hear,
and which he ought always most seriously to consider. But
authoritative instructions, mandates issued, which the repre-
sentative is bound blindly and implicitly to obey, to vote, and
to argue for, though contrary to the clearest conviction of his
judgment and conscience, are things utterly unknown to the
laws of this land, and arise from a fundamental mistake of the
whole law and tenor of our constitution. Parliament is not a
congress of ambassadors from different and hostile interests,
which interests each must maintain as an agent and advocate
against other agents and advocates; but Parliament is a de-
liberative assembly of one nation, with one interest that of the
whole where any local purposes, any local prejudice, ought not
to guide. You choose a member, indeed, but when you have
chosen him he is not a member of Bristol, but he is a member
of Parliament. If the local constituency should have an interest,
or should form a hasty opinion evidently opposite to the real
good of the rest of the community, a member for that place
ought to be as far as any other from any endeavor to give it
effect.
It has been interesting to observe, in various
elections in which both congressional and legislative
nominees have been chosen, the effect of Mr. Gom-
pers's prescriptive program. With the exception of
the success it has attained in a few of the more con-
gested labor districts of the country, this un-
American effort seems to have reacted upon itself
and the result will probably be that future Congresses
of the United States will be less responsive to the
threat of union labor's retaliation than those of the
past.
THE FIRST PUBLIC TEST 13
The manner in which the effort was carried on in
Kansas prior to the 1920 primaries is doubtless
typical of the working of the program elsewhere.
Here, in the August primaries of 1920, for the first
time in the history of the state, the radicals made
an all-embracing program, the effect of which, if
successful, would be to nominate radicals for every
legislative office in both potential parties. The
radical labor leaders and labor journals united with
the Non-Partisan League in an effort to weld to-
gether union labor and farmers. The Non-Partisan
League is the agricultural branch of the radicals and
has a following in some of the communities where
foreign-born populations have colonized.
In districts that were hopelessly Republican the
radicals were instructed to ask for Republican bal-
lots in the primaries that they might, by their
solidarity, swing the party nomination to a radical
sympathizer. There were four congressional dis-
tricts in which this was done in Kansas and these
happened to be districts in which the labor elements
were especially strong.
In the Third District it was pointed out that the
present incumbent had voted for the anti-strike
provisions of the Esch-Cummins law and was
therefore an enemy of labor. This is the district in
which the mining counties are located and much