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John Hugh Bowers.

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The National Social Science Series

Edited by Frank L. McVey, Ph.D., LL.D.,
President of the University of Kentucky

Now Ready; Each, One Dollar

AMERICAN CITY, THE. Henry C. Wright, First
Deputy Commissioner, Department of Public Charities,
New York City.

AMERICAN TRADE UNIONISM. George M. Janes,
Professor of Economics, Washington and Jefferson
College.

CAUSE AND CURE OF CRIME, THE. Charles R.
Henderson, late Professor of Sociology, The University
of Chicago.

COST OF LIVING, THE. W. E. Clark, Professor of
Political Science, The College of the City of New York.

FAMILY AND SOCIETY, THE. John M. Gh^lette,
Professor of Sociology, The University of North Dakota.

GOVERNMENT FINANCE IN THE UNITED
STATES. Carl C. Plehn, Professor of Finance, The
University of California.

HOUSING AND THE HOUSING PROBLEM. Carol
Aronovici, Lecturer on Social Problems, The University
of Minnesota.

KANSAS COURT OF INDUSTRIAL RELATIONS,
THE. John Hugh Bowers, Professor of Social
Sciences, State Teachers Normal College, Pittsburg,
Kansas.

MAKING OF CITIZENS, THE. J. G. de Roulhac
Hamilton, Kenan Professor of History and Govern-
ment, University of North Carolina, and Edgar W.
Knight, Professor of Rural Education, University of
North Carolina.

MEANING OF CHILD LABOR, THE. Raymond G.
Fuller.

MONEY. William A. Scott.

MONROE DOCTRINE AND THE GREAT WAR,
THE. Arnold Bennett Hall, Associate Professor of
Political Science, The University of Wisconsin.



NATIONAL EVOLUTION. George R. Davies, Assistant
Professor in the Department of Economics, Princeton
University.

PROPERTY AND SOCIETY. A. A. Bruce, Associate
Justice Supreme Court, North Dakota.

PSYCHOLOGY OF CITIZENSHIP, THE. Arland D.
Weeks, Professor of Education, North Dakota Agricul-
tural College.

RURAL PROBLEMS IN THE UNITED STATES.
James E. Boyle, Extension Professor of Rural Economy,
College of Agriculture, Cornell University.

SOCIAL ANTAGONISMS. Arland D. Weeks.

SOCIAL ENVIRONMENT. George R. Davis.

SOCIAL INSURANCE IN THE UNITED STATES.
Gurdon Ransom Miller, Professor of Sociology and
Economics, Colorado State Teachers' College.

SOCIOLOGY. John M. Gillette.

SOME PROBLEMS OF RECONSTRUCTION. Annie
Marion MacLean, Extension Assistant Professor of
Sociology, The University of Chicago.

STATE AND GOVERNMENT, THE. J. S. Young, Pro-
fessor of Political Science, The University of Minnesota.

STATISTICS. William B. Bailey, Professor of Practical
Philanthropy, Yale University, and John Cummings, Ex-
pert Special Agent, Bureau of the Census.

SYMPATHY AND SYSTEM IN GIVING. Elwood
Street, Director of Welfare League, Louisville, and Sec-
retary American Association for Community Organiza-
tion.

TAXATION. C. B. Fillebrown, late President Massa-
chusetts Single Tax League.

TRUSTS AND COMPETITION. John F. Crowell,
Associate Editor of the Wall Street Journal.

WOMEN WORKERS AND SOCIETY. Annie Marion
MacLean.



The Kansas Court

of

Industrial Relations

The Philosophy and History of the Court

By

John Hugh Bowers, Ph. D., LL. B.

Professor of Social Sciences at the State Teachers Nor-
mal College at Pittsburg, Kansas. Author
of Mistakes in College Teaching, Etc.




CHICAGO

A. C. McCLURG & CO.

1922

iW 4/ i. 1



Copyright
A. C. McClurg & Co.
1922



Published November, 1922



Printed in the United States of America



550 4

KzBL



EDITOR'S PREFACE

THE Kansas Industrial Court has been the
subject of praise and vituperation. On
t one side it is declared to be the solution of
^strike difficulties; on the other it is regarded
as a system of slavery. It does, however, take
into consideration the rights of the public and
it is high time. Professor Bowers is frankly
^ a protagonist of the Court and in his book
argues strongly for its provisions. The book
containing his views are offered as a timely
i^discussion of an important contribution to the
3 legal machinery of the modern state.

F. L. M.



AUTHOR'S PREFACE

THE Kansas Court of Industrial Relations
is a Court in the sense that it is a tribunal
established by the legislature of the state for
the administration of industrial justice. The
Court has now been organized less than two
years and has adjudicated thirty-three indus-
trial controversies. Thirty-two of these thirty-
three controversies were initiated by organized
labor or by unorganized groups of laborers.
One case has been brought by employers. The
Amalgamated Association of Street and
Electric Railway Workers, the International
Brotherhood of Electrical Workers, the Inter-
national Brotherhood of Stationary Firemen
and Oilers, the Brotherhood of Railway Car-
men of America, and other labor organizations
affiliated with the American Federation of
Labor, have filed cases for local unions in
Kansas. In many of these cases the national
representatives have appeared in court and
testified or assisted in the presentation of the
evidence. One case was brought by a group
of members of various local unions of the
United Mine Workers of America.



Author's Preface



In thirty-two of the thirty-three cases ad-
judicated, the orders of the Industrial Court
have been complied with by both parties to the
controversy. In the one exception, the case
of the Wolff Packing Company, the company
refused to comply with the order of the In-
dustrial Court and the case was appealed to
the Supreme Court of the State of Kansas,
which appeal is provided for under Sec. 12
of the Act creating the Industrial Court. The
Supreme Court of Kansas has already decided
the points of law in favor of the Industrial
Court Act, and the only remaining feature of
the case is the reasonableness of the award
made by the Industrial Court which will be
decided quite soon, because, in the Supreme
Court, appeals from the Industrial Court take
precedence over other civil cases.

The widespread interest in the Kansas Court
of Industrial Relations has been intensified by
President Harding's Annual Message to Con-
gress, December, 1921, in which he recom-
mends a " Judicial or quasi-judicial tribunal for
the consideration and determination of all dis-
putes which menace the public welfare." The
President goes beyond "arbitration" and uses
the words "judicial determination" in con-
troversies between labor and capital.



Author's Preface



More than to any other one man, the honor
of having established the Industrial Court be-
longs to Governor Henry J. Allen of Kansas
who modestly says : " The Court is the direct
result of public sentiment aroused by the Kan-
sas coal strike." The coal strike in Kansas
in the Fall of 19 19 was not very different
from what it was in other states at that same
time, with the possible exception that in Kan-
sas the miner's leader was obdurate. In Kan-
sas as elsewhere the question at issue was:
When there is a strike in an essential industry
which stops the supply of a vital necessity
of life, and the public is threatened with suf-
fering and even with death; does the public
have a right to see that production is resumed,
and if so, by what methods shall the public
accomplish its protection?

The writer contends : that the state has a
right to protect the public and to see that
essential industries continue functioning in a
regular way; that the state government is the
best agency for the protection of the public;
and that the best instrumentality or tribunal
thus far devised for such service is a special
court such as the Kansas Court of Industrial
Relations.

In presenting the philosophical part of this



Author's Preface



thesis — that is the part that endeavors to ex-
plain the duty of the state to protect the people
— and in narrating the story of how the Court
was made, and the work of the Court, the
writer has endeavored both to collect and to
give fairly all the arguments against the Court
along with the arguments for the Court.

One of the latest notable additions to the
ranks of those who criticize the Court says
that it is weak and can do nothing. This
objection is well answered in the abundance
of good work that the Court has already done
as shown by its records and by the press of
the state. Another critic talks at length about
the many objectionable things that the Court
might do, clothed as it is with such unusual
powers. These two new critics contradict one
another; and they cannot both be right. The
reply to the latter is that other necessary
branches of our government have power to
do unusual and objectionable things which
they never do. A highly civilized state needs
many public servants who have power to do
harm which they never do; and we cannot
dispense with the services of the functionary
because of the danger of maladministration.
All judges have power to do great wrong but
they are seldom accused of misusing that



Author's Preface



power. Civilization demands such a tribunal
as the Industrial Court. It is the task of
patriotic citizens to secure good men for that
service.

For many years the writer has been a
student and teacher of the economic and legal
phases of industrial problems, and has been a
resident of Pittsburg, Kansas, the center of
the field of the controversy, during the entire
time of the conflict out of which grew the
Industrial Court; has been personally ac-
quainted with the significant individuals con-
cerned and has had first hand information
concerning the making of the Court and its
history. The writer is indebted to Governor
Allen for much of the materials consulted, and
to Judge W. L. Huggins, the Presiding Judge
of the Court, for the records of the Court.

The object has been to furnish, within the
space of a small voluine, the information and
argument that the average reader would want
concerning the Industrial Court, refute certain
misrepresentations that have been circulated,
and add, be it ever so little, to the enlighten-
ment which it is hoped will lead to the es-
tablishment of similar tribunals by other states
and by the Federal Government.

J. H. B.



CONTENTS

CHAPTER PAGE

I The Duty of the State and the Indus-
trial Court I

II The Coal Strike 28

III The Making of the Industrial Court. . 39

IV The Court at Work 67

V The Court Approved by the People

of Kansas 95

VI The Right of the State to Adjudicate

Industrial Disputes loi

VII The Proposal to Establish a Federal

Industrial Court I2i



THE NATIONAL SOCIAL SCIENCE SERI



The purpose of this series is to furnish for hi

men and women a brief hut essentially

sane and sound discussion of present-day

questions. The authors have heen

chosen with care from men who

are in first-hand contact with

the materials, and who

will hring to the

reader the newest

phases of the

suhject.



THE KANSAS COURT OF
INDUSTRIAL RELATIONS



CHAPTER I

THE DUTY Of* THE STATE AND THE INDUSTRIAL
COURT

THE government of the state must protect
all the citizens of the state and secure
justice for them. It cannot permit organized
groups of its citizens to enrich themselves at
the expense of other citizens without suffering
from this injustice. While to administer per-
fect justice at all times and to all persons is
obviously impossible, the state which permits
any injustice which it might prevent is to that
extent failing in its duties. So long as men
are imperfect some degree of injustice will be
practiced among us, but the state that permits
injustice to become intolerable will be de-
stroyed. When the people of a state attempt
to govern themselves they are all under obli-
gation to help make that state as efficient as
possible in securing justice for all persons.
Good citizens will not witness injustice with-
out protest.

It is easy for the organized to exploit the
unorganized. In the past the few greedy
strong have organized and exploited the many



The Kansas Court



who were unorganized. Now nearly all classes
organize; some for selfish purposes, some for
unselfish purposes, and some for self-defense.
Some of these organizations have conflicting
Interests, such as capital and labor, and they
fight one another. This conflict the state must,
prevent as a protection to its people.

Just as a well-governed army will not allow
its different units to injure one another in any
sort of conflict; so a well-governed state will
not allow either its soldiers or its citizens to
kill or injure one another in any sort of com-
bat. To waste capital, to waste the time of
workers, and to waste wealth is an injury to
the state which the state should not permit.
Dueling by private agreement was long ago
forbidden by the state; and the modern indus-
trial conflict which wastes time and wealth
and causes useless suffering and injustice must
be prevented.

When the owners of the railroads refused
the demands of the four brotherhoods and the
latter threatened to tie up all the railroads in
the country, they threatened to place in peril
the lives of millions living in our cities. And
when the coal miners struck they imperiled the
lives of millions. However, these labor organ-
izations may not have been blameworthy for



Duty of State and Court



threatening to strike or for striking, because,
if they merited an increase in wages, and had
exhausted all other means of securing consid-
eration, the strike was their only effective
weapon. It is not the purpose here, to say
who was to blame. At that time no state had
yet provided any adequate tribunal before
which their case could be heard and adjudi-
cated. In the realm of law and government
men are conservative and do not provide new
institutions until such are necessary.

It is the purpose of this thesis to show that
our industrial life has evolved a complex con-
dition in which there is need for a tribunal to
adjudicate industrial disputes; that interven-
tion by state authority is the duty of the state
when these industrial conflicts threaten the
welfare of large numbers of citizens; that
when other means of settlement fail the state
is justified in final adjudication of disputes
that affect the welfare of the state; and par-
ticularly to study the merits of the Kansas
Court of Industrial Relations as a tribunal for
such adjudication.

This modern industrial situation has come
about gradually but in recent decades rapidly.
When in the early days each family formed an
economic unit living largely within itself, in-



The Kansas Court



dependent of outside influences, producing
nearly all that it consumed and consuming
nearly all that it produced, there was no need
felt of an Industrial Court. Then about the
worst form of waste was war and the chief
form of oppression was unjust taxation. Fool-
ish kings, unjust rulers and unnecessary wars
were among the worst enemies of the common
man. To escape some of these dreaded
enemies man threw off the rule of inherited
kings and substituted the rule of elected poli-
ticians. These elected politicians have not
always been wise or just, because many who
vote are not wise; nevertheless we prefer the
elected ruler.

Notwithstanding all the failures of repub-
lican forms of government they are preferable
to oligarchies. We are committed to the rule
of the majority and will not tolerate a return
to the rule of the few. In recent decades we
have often found that the selfish few had al-
together too much influence in our govern-
ment. Also the selfish few, when organized,
have had too much economic power. The gov-
ernment recognized this fact when it began to
enact anti-trust laws and similar measures in
the endeavor to curb the growing power of
capitalistic organizations.



Duty of State and Court



For two or three decades we have witnessed
a constant struggle between the closely organ-
ized and powerful few on the one hand and the
loosely organized many on the other hand.
For a time men only feared the evil work of
the greedy few who held so much power both
economic and political. Recently we have
learned that large numbers may also organize
effectively, and in seeking the interests of
those within the organization, may menace all
who are not so organized. We can also fore-
see that if all classes are forced to organize in
self defense, we shall have an endless and
wasteful war of classes, with no power but
government to intervene and to adjudicate
the causes of contention.

We do not want government unduly influ-
enced by any selfish class organization. We
want government by the majority, with the
understanding that the majority must be just
in dealing with the minority. We have seen
that the majority can be unjust in its rel^ion
to the minority; as when the majority party
in power taxes the minority party for a por-
tion of the campaign expenses of the ma-
jority and reimburses its campaign contribu-
tors from the public funds by means of graft
or unjust patronage to partisans.



The Kansas Court



If we could in any way at all secure a stable
government by those of the minority who are
most wise and most unselfish, and then be sure
of keeping those few wise and benign ones in
power, such a government would be better than
the rule of the majority in its immediate re-
sults; but we have no way of insuring the se-
lection of the most wise and most public
spirited minority. We must trust to govern-
ment by the majority, and depend upon
educating the majority to govern themselves
and others wisely and justly so that they will
not rob the minority.

Now the majority must govern through
their chosen representatives and a responsible
executive. Here again both in determining the
results of an election and in bringing pressure
to bear upon those who have been chosen to
office, individuals who are organized have a
great advantage. Economic organizations
have shown a strong tendency to control gov-
ernment in their own interests. This must not
be permitted to work injustice to the unor-
ganized. Government by an economic unit
must not be substituted for government by the
majority. Economic conflicts must not be per-
jnitted to waste the wealth of the state or work
injustice to any class of citizens. To restrain



Duty of State and Court



such economic units and settle such disputes
we need a new tribunal, with power to ad-
judicate differences between economic units
just as the state has adjusted differences be-
tween individuals in the past. The right qf_
the state to investigate and adjudicate, to sut.
pervise and control will not be questioned by
those who understand the nature of the state,
and the categorical proposition that the state
must be supreme in all things that are neces-
sary for the protection of the people and the
administration of justice.

To students of law and government it is
not necessary to argue for the supremacy of
the state or the right of the state to control
individual conduct in the interest of society.
They know that the sovereignty of the state
is axiomatic ; that the state cannot exist on any
other theory.

However, among those few radical labor
leaders and a few employers who at the present
time are opposing the Industrial Court here in
eastern Kansas, we hear loud declarations that
the state has no right to prevent strikes, in-
vestigate the terms of a private contract, regu-
late wages, fix prices, supervise industry or
forbid the cessation of production. They for-
get that the state may find it absolutely neces-



8 The Kansas Court

sary to do any or all of these things to save its
citizens from gross injustice or even from
death itself; and also that it may become neces-
sary for the state to do these things to prevent
anarchy from destroying the state. Such in-
dividuals are like a certain child, who having
heard much about what God forbids and about
what the policeman forbids, remarked : " What
a good time we could have if it were not for
God and the policeman." And as this child
forgot the benefits of God and the policeman,
so these individuals forget the benefits of the
^ state. They forget that if the state is to per-
form its function of protection it must have
power; and that if they destroy the state there
will then be no protection.

For the benefit of such as these we need to
teach the true conception of the state and of
government.

At the foundation of society we find two
-'ideas: the individuality of man and the or-
ganic unity of the race; and in all our think-
ing on political, economic or social problems
we must not lose sight of either one of these
ideas. Man is both an individual and a mem-
ber of society. He is both an individual hav-
ing the rights of an individual and a member
of a living brotherhood having the duties of a



Duty of State and Court



member of the brotherhood — not simply a
narrow class or occupational brotherhood but a
broad state-wide brotherhood.

Each individual must regard himself as a
member of a brotherhood which shall include
all the citizens of the state, and hold his own
interests as subordinate to the welfare of that
brotherhood. The political expression of that
brotherhood is government. A true conception .
of government recognizes the individual and
aims to give the fullest opportunity for indi-
vidual freedom consistent with the common
welfare. The individual must have such rights
as will enable him to exercise his powers both
for wise service and for ethical enjoyment;
but the individual can have no rights that con-
flict with the welfare of the larger brother-
hood. When the interests of the individual"
conflict with the interests of the brotherhood
both are to be duly considered in the final ad-
justment. While the well-being of each indi-
vidual is important the well-being of the whole
brotherhood is more important. The welfare^
of one is subordinate to the welfare of many.
While the individual may not be ruthlessly
taken for fuel to warm the brotherhood ; never-
theless if the life of the brotherhood is in peril
it may be rightly saved by the sacrifice of the



lo The Kansas Court

individual. When a sacrifice is necessary it is
highly desirable that such sacrifice should be
made voluntarily. Hov\^ever, if volunteers are
not forthcoming to save the state it may ex-
ercise its sovereign power and draft those who
are to make the sacrifice. The few are sub-
ordinate to the many but the many are under
obligation to deal justly with the few. The
welfare of all is to be considered at all times.

There is no such thing as a man without a
country. Whatever hurts one hurts all to some
extent; and whatever benefits one benefits all
to some extent. The man who harms the
public, or robs the public, or exploits his fel-
low-men or oppresses his subordinates, also
hurts himself in that selfsame act. The man
who serves his fellow-men also benefits him-
self. The state is the political expression of
the brotherhood in a certain territory. Gov-
ernment is the institution formed by the state
for its protection — that is, for the protection
of all its members.

A man is born into a family and in conse-
quence has certain duties toward that family.
He has no choice in this matter and though he
may ignore these obligations and not perform
them they remain his obligations just the same.
So a man is born into a state with obligations



Duty of State and Court ii

as a citizen of the state. He has no choice in
this matter. He may perform freely his ob-
ligations of citizenship, or he may try to
ignore them, nevertheless they are binding
upon him all the while. A man may not wish
to be regarded as a brother to his fellow-man
but the obligation of brotherhood is not thus
escaped.

A perfect state would be a perfect brother-
hood. We have no perfect state today. A
perfect state would administer perfect justice;
but such is impossible at the present time.
Nevertheless we are under obligation to ap-
proach that ideal as nearly as we can, and each
individual is under obligation to do his part in
the common endeavor to make the state as
good as possible.

It is only by regarding himself as in some
sense a brother to his fellow-man that an in-
dividual can understand his right relations and
perform his ethical obligations to his fellow-
man; and it is only by regarding the state as
a large brotherhood that we can get the right
understanding of the functions of the state and


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Online LibraryJohn Hugh BowersThe Kansas Court of industrial relations; the philosophy and history of the court → online text (page 1 of 8)