The Birmingham age-herald., 1911-01-13
DISSENTING VIEW
 IN TIE BAILEY CASE
Justice Holmes Presents His
 Views On the Suit
CONTRACTS MUST HOLD
Statement Is Made By Justice Holmes That BaiIey's Color Can Make No Difference In Outcome
 Of the Case

Washington, January 12.-(Special)-
 The dissenting opinion of Justice Holmes
 of the United States supreme court, in
 the case of Alonzo Bailey, plaintiff in er-
 TOT, against the state of Alabama, known as the peonage case, in which the United States supreme court declared the Ala bama labor contract law unconstitutional, contains some interesting matter, all though at variance with the majority opinion, which is the law.
 If fine may be imposed for a breach
 of contract, even if the contract be for
 labor, MT. Justice Holmes stated, then.
 in the case of failure to pay the fine
 Imprisonment may be imposed. That may. in way, be regarded as the text of his
 opinion, in which MT. Justice Lurton con
 cured
 MT. Justice Hughes, who wrote the opin- ion of the court, said that the case must be considered and decided in the same way as if it arose in New York or Ida ho, and that the fact that Bailey is a black man is dismissed from judicial con- sideration. '"The statute on it's face," Jus tice Hughes opinion stated, makes no racial discrimination, and the record fails to show its existence In fact" Justice
 Holmes, agreeing to that, declares that he cannot believe that the statute, if 1t had been enacted in the state of New York, would have been regarded as con- trary to the thirteenth amendment of the federal constitution.
 Contracts Not OutIawed "The thirteenth amendment does not outlaw contracts for labor,' the opinion
 proceeds, but liability for breach of con-
 tract. whether in action for damages or
 in fine tends to make contractor do as he said he would. Then, 1t was ar gued, if the imposition of a fine to make
 man keep his contract is peonage, the | justice cannot see why the allowance of | civil action Is not peonage, too. "Peonage is service to a private mas | ter at which a man is kept by bodily compulsion against his will," is MT. Jus tice Holmes definition. But the creation of the ordinary legal motives for right conduct does not produce it. Breach of | a legal contract without excuse is wrong
 conduct, even if the contract Is for la Dor, and if a state adds to civil liability a criminal liability to a fine, 1t simply in- tensifes the legal motive for doing right, l it does not make a laborer slave" | It does not matter if hard labor is add l ed to the Imprisonment imposed in case of failure to pay a fine,, MT. Justice l Holmes held. Imprisonment with hard
 
 l books. The power of the state to make ! breach of contract a crime is not done away with by the abolition of slavery. | If a breach of contract may be made a crime at all 1t may be made crime with all the consequences usually attached to crime.
 An Illusion Produced
 There Is produced a sort of illusion | if a contract to labor ends in compulsory labor in a prison," the justice declared. But compulsory work for no private
 master in a jail is not peonage." He then continues that possible penalty of im- prisonment may be a motive for a con-
 tinuance of labor at contract, but if the
 contract is perfectly fair and proper there Is no reason apparent why the
 state should not throw its weight on | the side of performance. There is no
 relation between its doing so in the man.
 ner supposed and allowing a private mas l ter to use private force upon laborer
 who wishes to leave."
 l Punishment By Statute
 1 The statute does not attach its pun ishment to the mere breach of a con-
 tract to labor; 1t purports to punish | fraudulently obtaining money by a false pretense of an intent to keep the writ | ten contract in consideration of which | the money is advanced. The provi- | SlOn that TeIuSdl IO peTIOTIl, coupled with failure to return the money ad- vanced does not create conclusive pre-
 sumption but only makes the conduct prima facie evidence, which Is only evil dence and may be held by a jury insufficient to make out guilt. (161 Ala.
 B.) This was decided by the supreme court of Alabama in this case and we
 should be bound by their construction of the statute even if we thought 1t
 wrong," Mr. Justice Holmes states. "But
 I venture to add that I think it entire ly right. (State vs. intoxicating liquors,
 so Maine 57) This being so I take 1t | that fair jury would acquit If the only evidence were departure after il | months work. But the matter may well be left to e jury. because their