1 ber, 203,520 were miners and 689,715 were transport workers. For the same period employees affected by strikes and lockouts aggregated 149,146. Of this number 33,503 were miners and 21,148 were transport workers. The potential working time for the period may be estimated at 3,632,410,200 working days. Of this number, 61,056,000 may be credited to mining and 206,914,500 to transport. The time loss during the six-year period due to strikes and lockouts in all industries was 2,821,796 days of which 818,262 were in mining and 428,475 were in industries connected with general transport. A similar analysis for the period 1907-1912 shows an aggregate of 15,495,084 workers of which 300,546 were in mining and 1,182,154 were in transport. During this period there were 171,134 employees on strike, of which number 42,052 were miners and 28,250 were transport workers. The potential working time for the period may be estimated at 4,648,525,200 days for all industries. Of this number, 90,163,800 days were in mining and 354,646,200 were in transport. The time loss during the period due to strikes and lockouts in all industries was 6,038,675 days, of which number 2,989,582 were in mining and 725,192 were in transport. In the following table, the figures shown above are reduced to percentages to show the ratio of workers in specific industries to workers in all industries and of employees affected in strike and lockout to all workers and to workers in specific industries. A similar comparison is shown between potential working time and time lost in strikes and lockouts during each period. It will be observed that mining workers were 1.9 per cent of all workers during the period 1907-1912 as against 1.7 per cent during 1901-1906 and that transport workers were 7.6 per cent of all workers during the second period as against 5.7 per cent during the first period. In both mining and transport, however, the percentage of employees affected by strike or lockout was less during the period 1907-1912 than during the period 1901-1906. Thus while mining and transport have grown in importance, in comparison with other industries, a smaller proportion of mining and transport workers have been affected in strike and lockout. In point of time lost, however, both mining and transport show an increase during the second period in the ratio of such time to the potential working time in all industries. But of the potential working time in transport, only 0.20 per cent was lost in 1907-1912 as against 0.21 per cent in 1901-1906. The relative importance of mining and transport strikes is apparent from the fact that in the second period the time lost in mining 1 Exclusive of quarry and oil and salt well workers. 2 Number of working days per year per worker is estimated at 300. strikes was 49.5 per cent of the time lost in all industries whereas the time lost in transport was but 12 per cent of the time lost in all industries. RATIO OF EMPLOYEES AFFECTED IN STRIKE OR LOCKOUT TO TOTAL WORKERS, AND WORKING TIME LOST TO POTENTIAL WORKING TIME DURING THE PERIODS 1901-1906 AND 1907-1912. c. Transport. Percentage of potential working time in mining lost in mining strikes and lockouts.. Using the period 1901-1905 as a base, the relative increase or decrease in employees on strike and days lost in comparison with the increase in workers for all industries and for mining and transport is shown in the following table: It will be observed that the increase in employees affected in strikes and lockouts has not kept pace with the increase in the number of workers. The increase in working time lost, however, exceeds the increase in the number of workers except in industries connected with general transport. PENAL PROVISIONS. It may be repeated that the chief interest in the act is not in its administration as a conciliatory measure, but in those restrictive provisions which have served to characterize it as the "Compulsory investigation act." Although it is impossible to measure the influence of the penal provisions of the act in restraining employers and employees from illegally interrupting industry or others from inciting such action, a comparison of prosecutions with violations will indicate the attempt made to enforce these provisions and the importance attached to them. During the period March 22, 1907, to December 31, 1916, there have been 11 prosecutions. Of these, one was to test the constitutionality of the act and to restrain a board of conciliation and investigation from proceeding; one was to enforce an agreement entered into as a consequence of the recommendations of a board; seven were prosecutions for illegal strikes or for inciting such action; two were for illegal lockouts. In all, charges have been laid against nine employees for violating the provisions of section 60 in the encouragement of strikes, and against eleven employees for violating the provisions of section 56 in going on strike illegally. Charges have been laid against three employers for violating the provisions of section 56 in illegal lockouts. In the cases of eleven employees the charges were either dismissed or withdrawn; in the cases of nine employees the charges were sustained. Charges against two employers were sustained; charges against one employer were dismissed. The aggregate of fines imposed, exclusive of costs, was $1,660. As stated previously, there have been for the same period 204 illegal strikes and lockouts, affecting 80,278 employees whose time loss was 3,015,844 days. Of this number two disputes, affecting 95 employees whose time loss was 390 days, may be considered lockouts. Undoubtedly there have been violations of section 60 in addition to those prosecuted. Assuming the minimum penalty of $10 per day per striking employee, it will be seen that more than $30,000,000 in uncollected fines have accumulated during the period stated. If the maximum penalty is assumed, the amount exceeds $150,000,000. In the face of this record of prosecutions and violations during a period of nearly 10 years it does not seem probable that a wholesome respect has been fostered for such provisions, nor that a fear of the imposition of penalties serves in any considerable degree as a restraining influence. On the contrary, there is a strong indication that whatever success has attended the administration of the act has been due to the conciliatory efforts of the Department of Labor through its fair-wage officers and its boards of conciliation and investigation; to the dislike for publicity rather than to the fear of fine or imprisonment; to the existence of a means of negotiation rather than a means of restriction. 8809-17- -2 CONFLICTS BETWEEN FEDERAL AND STATE JURISDICTIONS IN COMMERCE CASES.1 BY A. J. PILLSBURY, CHAIRMAN OF INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA. SYNOPSIS. The interest of the Federal Government in, and responsibility for, employees injured while in the service of commerce is incidental, indirect, and relatively immaterial, whereas that of the States in which they and their families reside is proximate, immediate, and vital to the social welfare of each Commonwealth. Our 48 free and independent State sovereignties differ one from another in spirit, habits, customs, standards of living and ways of viewing questions of domestic policy, and a compensation law that may fit comfortably in one State might chafe or gall in another. No one law could serve acceptably for all. The Federal Government is huge. Upon the National Capital focus the hundred thousand interests of a hundred million people, and it is impossible that such a government can legislate to fit the individual needs of the several States. All compensation laws are still in a state of flux and evolution, and needed amendments that, in any State, may be effected at any session of a legislature might conceivably involve 10 years of effort if dependent upon Congress. The crux of the issue has been missed by both sides to the controversy. That crux is that compensation for industrial injuries, however and wherever suffered, has, and should have, no essential constitutional connection with commerce, either interstate or intrastate, but is one department of, and belongs to, a general scheme of local, domestic, social insurance against the hazards of poverty, with which the Federal Government should have only an incidental con cern. Therefore it is neither feasible nor desirable that there be uniformity of compensation legislation throughout the United States in relation to injuries sustained while in the service of transportation by railroad or by water. Federal jurisdiction over injuries sustained in the service of transportation by railroad can, without amendment of the Federal Constitution, and by right ought to be relinquished to the States, and the same principle holds equally true of service in transportation by water if it can be legally effected. There are no practical difficulties in the way of such relinquishment. The hindrances are all technical, artificial, legalistic. 1 Substance of a paper read at meeting of International Association of Industrial Accident Boards and Commissions at Boston, August, 1917. TWO FIELDS OF CONFLICT INSTEAD OF ONE. In a paper presented a year ago upon the subject of conflicts between Federal and State jurisdictions in commerce cases I confined myself wholly to such conflicts as arose out of transportation by railroad. At that time it seemed to me to be altogether unlikely that the jurisdictions of the several States over injuries happening upon their own navigable waters would be seriously interfered with. The fact that the doctrine that the jurisdiction of a State over its own ships follows them wherever they go on the high seas was also well established led me to the conclusion that the whole field was fairly covered by State jurisdiction. When, on February 3, 1917, the Supreme Court of California, in a very able opinion, sustained the jurisdiction of our commission in unequivocal terms, I felt that our assumption of jurisdiction was doubly assured. I had left the Supreme Court of the United States out of my reckoning. Its recent decision in the case of Southern Pacific Co. v. Jensen precipitated chaos where order was evolving. A fundamental necessity before any remedial action can be taken is to ascertain precisely the existing state of the law governing transportation by rail and by water, respectively. THE LAW REGARDING TRANSPORTATION BY RAILROAD. The recent decisions of the Supreme Court of the United States in the two Winfield cases2 did not materially alter the status relating to transportation by railroad, but only cleared up a few not very doubtful points. The Federal statute is exclusive where, at the instant of the happening of an injury, the employee is engaged in an act of interstate commerce or one so closely connected with it as not to be separable from it. Where negligence can not be imputed no liability exists. The risks of the employment all rest upon the employees. On the other hand, where, at the instant of the happening of the injury, the employee is engaged in an act of intrastate commerce, or an act clearly separable from interstate commerce, the jurisdiction of the State is exclusive and plenary and Federal authority can not take cognizance of such injuries unless the Constitution of the United States is so amended as to permit it, which is so unlikely as to be well nigh unthinkable, or the United States Supreme Court reverses 1 At the meeting of the International Association of Industrial Accident Boards and Commissions, held at Columbus, Ohio, Apr. 25-28, 1916. Paper reprinted in Bulletin 210 of the U. S. Bureau of Labor Statistics, pp. 33-55. 2 New York Central R. R. Co. v. Winfield, and Erie R. R. Co. v. Winfield, May, 1917. In these cases, the Supreme Court, with two justices dissenting, held that when an employee engaged in interstate commerce was injured, his only right to recover arose from the provision of the Federal employers' liability act. The power of the States to supplement such legislation was denied. |