Earl Warren: Dovie Ray Baker et al., Petitioners, versus (Inaudible) Railroad Company. Mr. Davis.
Harvey L. Davis: Mr. Chief Justice Warren, may it please the Court. This case is here on writ of certiorari to a Texas Court of Civil Appeal. There are two basic questions involved there. The first is whether the petitioners were denied their right to a trial by jury to determine whether Claude Baker, the deceased husband and father of petitioners was an employee of the railroad, the respondent, within the meaning of the Federal Employers' Liability Act. And the second basic question is whether Claude Baker was such an employee of the railroad as a matter of law. These are the pertinent facts. Claude Baker was hired and he was paid by the W. H. Nichols & Company as a member of a crew to do a type of maintenance work called “grouting” along the main line roadbed of the Texas & Pacific Railroad. He was killed by the negligence of one of the railroad trainman while he was working on the roadbed. Now, this maintenance work of grouting consists of pumping into the roadbed by means of a hydraulic pump, a mixture of sand, cement and water to fill in voids under the roadbed and to force up water pockets and its purpose is to strengthen and to stabilize and straighten the roadbed. The location for the grouting work was laid up by the engineering department of the railroad, and Claude Baker's job was to handle the cement. He would pour cement into the cement mixture and other employees would pour the sand and water in it. Baker would throw the cement sacks at his feet and occasionally would take the pile across the railroad tracks to be disposed of. After Baker was killed, his widow filed for compensation insurance under the laws of Texas and was awarded a compensation award of some $7000 -- almost $8000, I believe it was. Then her attorneys filed a common law suit for negligence against the railroad. However, in the subsequent investigation of the suit, facts were discovered which led the attorneys to the belief that Baker was in fact and under the law an employee of the railroad and therefore the pleadings were amended to allege a cause of action against the railroad under the Act. Now, the theory of the pleading was that the W. H. Nichols Company was not an independent contractor but was under the law and in fact an employee or an agent of the railroad and therefore Baker was an employee of the railroad and entitled to the benefits of the Act.
Potter Stewart: May I ask you -- excuse me, Mr. Davis, so I can understand a little bit the Texas law? It's true, I expect, is it, the -- the Texas Workmen's Compensation statute permits a widow such as the plaintiff here to sue a -- an alleged third party tortfeasor or -- at common law --
Harvey L. Davis: Certainly.
Potter Stewart: -- even after she has collected the compensation under the statute?
Harvey L. Davis: Yes, sir.
Potter Stewart: Is there any subrogation of anybody to complain?
Harvey L. Davis: The right of subrogation is allowed to the insurance company, I believe.
Potter Stewart: Up to the amount that they pay?
Harvey L. Davis: We don't dispute that whatsoever.
Potter Stewart: Up to the amount that they paid or --
Harvey L. Davis: Right.
Potter Stewart: And is it also true that the Texas Workmen's Compensation statute by its terms, accepts a workman who is covered by the Federal Employers' Liability Act?
Harvey L. Davis: No, it accepts employees of railroads though.
Potter Stewart: Employees of railroad.
Harvey L. Davis: Right. And the only effective compensation insurance in this case as far as the law is concerned is that it has some evidence that -- that it may be construed as some evidence that Nichols was not an independent contractor. However, there are cases directly in point where it has been held by the Court that the holding of compensation insurance by such a contractor indicates that it was an attempt to evade the provisions of the Federal Employers' Liability Act. And we believe that fits this case here.
William J. Brennan, Jr.: Well, what would be the situation if you did have a recovery under the Federal Employers' Liability Act? As I understand workmen's compensation was almost $8000?
Harvey L. Davis: Yes sir.
William J. Brennan, Jr.: Then what happens to that $8000?
Harvey L. Davis: If it's on common law negligence, there's no question that there is a right of subrogation by the insurance company.
William J. Brennan, Jr.: So even to an award under the Federal Employers' Liability Act?
Harvey L. Davis: There is -- there is no law on that point, Your Honor. We don't contest it -- we've never raised any contest about whether the insurance company may or may not get it back. They pled intervention and we did not answer their plea. However, the respondents did answer and denied that they had the right to get it back. We are unable to see whether it is any of the concern of the respondent, whether the insurance company gets it back or not. It is their liability that we seek. And then the compensation insurance is completely irrelevant to the liability of the respondent in this case.
Charles E. Whittaker: (Inaudible)
Harvey L. Davis: Right.
Charles E. Whittaker: -- then that would be to say that this would be (Inaudible) Federal Employers' Liability Act case, isn't it, because they have to (Inaudible)
Harvey L. Davis: No, it wouldn't exclude it. But now in this case -- I'll answer it this way. In this case, the petitioner, the widow did not know that there was a legal case that her employee under the law was an employee of the railway. It was the lawyers who determined that that possibility arose. She collected the compensation insurance believing he was only an employee of the Nichols Company.
Charles E. Whittaker: (Inaudible)
Harvey L. Davis: No sir. There --
Charles E. Whittaker: (Inaudible)
Harvey L. Davis: No, sir. There are no -- there are cases directly in point on that that it is not a stopple. Further, the respondents have not pled that as a defense and have not argued except, I believe, they put it in their brief in this final brief. We discovered during the investigation of the case that the respondent through its Inspector Slaton, exercised actual control and have the right to control almost all of the minute details of the work of Baker and the other employees of Nichols. And also, in considering the written contract between Nichols and the railroad, we discovered that they had an indemnity clause, the effect of which was to completely exempt the railroad from any liabilities for doing this maintenance work. And therefore, we concluded that it was in the teeth of Section 55 of the Act and was void.So our first and our main point is that the petitioners were deprived of their right of a jury trial because of the substantial evidence that was introduced in the trial that the employee, Claude Baker, of the Nichols Company, doing maintenance work on the railroads main land tracks was not an independent contractor. Now, the test to determine whether the Nichols Company was an independent contractor that have been approved by this Honorable Court, are primarily whether the railroad have the control or the right to control the details of the work. That was approved in the Bond case cited on page 19 of our brief. Now, there's substantial evidence in the record to show that the workmen were told to obey Slaton and that they did obey him. Slaton being the respondent's inspector. That Slaton told them when and where to move these hydraulic jacks that only Slaton would mark the points where the hydraulic jack point would be inserted in the roadbed for pumping the grout mixture. That Slaton told them how to mix the grout mixture, when to thicken it, when to thin it and he admonish the inattentiveness of the men if they allowed the grout mixture to escape from the roadbed that he watch to see that they didn't put too much grout mixture in the roadbed so as to hump the tracks and get it out of level and that he took care to see that the operation of the grouting work did not interfere with the trains. Now, we believe that the jury was entitled to find these things as facts to show that the railroad through Slaton exercised actual control and had the right to control the details of the work. But the trail court refused to submit any issues under the Federal Employers' Liability Act to the jury and held as a matter of law that the Nichols Company was not an independent contractor.
Charles E. Whittaker: (Inaudible)
Harvey L. Davis: Yes sir.
Charles E. Whittaker: (Inaudible)
Harvey L. Davis: No, sir. One or the other. And in that regard, the Court of Civil Appeals in its opinion on page 217 in the record and as summarized on page 28 of our brief, admitted that the petitioners exercise actual control of the details of the work but then they held that that exercise of actual control was quote immaterial and then they disregard at all the evidence that we had introduced about the right of the railroad to control the details of work and held as a matter of law that the railroad did not have the right of control relying on the written contract alone which said that there was no right of control by the railroad. This proposition of law, we feel, is completely unfounded and wrong on its phase and there is no case in the books that says actual control is not material and would not be a jury issue. They cited the Cimorelli case which is also discussed on 28 -- on page 28 of our brief as authority but the Cimorelli case did not hold that or mean that at all. The Cimorelli case held that if the railroad had the right of control of the details of the work, they then did not even have to exercise acts of control for the contractor to be held not independent. Throughout the opinion of the Court of Civil Appeals, they violated the rule laid down in this -- by this Court to consider only the evidence favorable to the petitioners and the inferences therefrom and determining whether there is jury issue. Instead, they looked at the evidence favorable to respondent and the inferences therefrom and held as a matter of law that the Nichols Company was not an independent contractor. We feel that there is no question that there was a jury issue and on that point, we would ask that this case be remanded for a jury trial of the issues of whether Nichols was an independent contractor. However, I believe also that there are enough factors in this case where this Court can hold as a matter of law that Nichols was not an independent contractor. We be -- believe first that Nichols was not an independent contractor because this maintenance work was a non-delegable duty of the railroad to perform either by their own maintenance man or by others but it's their statutory duty by the federal statute and the state statutes. That plus the fact that the effect of this contract was to permit the railroad to have this work perform -- this non-delegable work perform with complete indemn -- indemnity to it and therefore exempt itself from liabilities under the Federal Employers' Liability Act. There is direct authority for that proposition in the case -- in the Erie case cited on page 41 of our brief. Now, the Texas court opinion on that point attempts to do a way with the argument by labeling the maintenance work as special or extraordinary using the terms of the witnesses for the respondent. However, the only case they cite for that is the Norman case cited on page 23 of our brief. And in the Norman case, every issue, that was -- that is involved in this case was stipulated in favor of the railroad by count. For instance, in the Norman case, they stipulated that the contractor involved in that case was really an independent contractor. They stipulated that the contract was in fact not made to evade or exempt the railroad from the liabilities of the Act and they also stipulated that the 1939 amendment to the Act should not be considered with reference to determining who were employees of the railroad. We submit that the use of the adjectives, special or extraordinary, cannot possibly change the fact that this was maintenance work imposed upon the railroad by statute as a matter of law as a duty not to our deceased but to the public that they had to maintain it and calling it special grouting work or extraordinary work doesn't change it. It was maintenance work. There is no doubt about it. It had to be done either by grouting or by some other means to strengthen and stabilize and keep the railroad tracks straight.
Tom C. Clark: What is grouting?
Harvey L. Davis: Grouting is the pumping of this cement mixture under pressure into the roadbed.
Tom C. Clark: It's not the man that we see the Mexicans (Inaudible) working along the railroad, it's not that?
Harvey L. Davis: Well, Mr. Justice Clark, I'm not sure. I'm -- I'm not familiar with -- with all the working aspects but if you see a cement mixture alongside of the track with common laborers inserting these things in the track under the directions of the -- of the railroad maintenance employees, it probably is grouting.
Tom C. Clark: All right.
Harvey L. Davis: But --
Tom C. Clark: It's done with machines, I take it.
Harvey L. Davis: In machine. Now these machines, hydraulic mudjacks are ordinary machines used in highway construction. There's nothing special about them. It doesn't require any skill to operate them. All of which we believe indicates that they could have had this maintenance work done by their own employees at the chores. The only thing in the record that indicates that there is any skill was the pattern for the placing of the points and these were laid out in the engineering department of the railroad and also Inspector Slaton marked these points for the man to insert the hydraulic pressure.
Charles E. Whittaker: May I ask (Inaudible)
Harvey L. Davis: No I don't believe we have any cases. There are some -- there are some other state courts that have held that they are non-delegable and there is -- there are two federal cases that have held precisely that they're non-delegable. The -- one --
Tom C. Clark: (Voice Overlap) --
Harvey L. Davis: -- of them is the Mark case.
Tom C. Clark: (Inaudible)
Harvey L. Davis: I -- I don't know. Now, on that point, the respondents in their brief say that the record shows they never have done it and that they always know other railroad driver have done. However, the reference in record that is made is about two pages of testimony dealing with pole driving rather than grouting and all of their statements about the history of grouting really referred to pole driving. There has been an error on the exact testimony there.
William J. Brennan, Jr.: Are you using non-delegable in the sense that it's unlawful for them the contract out the billing (Voice Overlap)?
Harvey L. Davis: No. No, in the sense that it is their statutory duty to see that it is performed.
William J. Brennan, Jr.: So that if it's performed by an independent contractor and some third party is injured, it's no defense that it was done by an independent contract?
Harvey L. Davis: That plus the fact that they cannot exempt themselves from liabilities for having it done by immunity-indemnity such as they've tried to do here.
William J. Brennan, Jr.: Well, but that -- that requires a finding -- is that under Section 55? That it was done with the purpose and intent --
Harvey L. Davis: Yes sir.
William J. Brennan, Jr.: -- of avoiding.
Harvey L. Davis: Yes sir.
William J. Brennan, Jr.: Well, are you suggesting that on this record as a matter of law, we should conclude that this -- that this contracting was done with the purpose and intent of avoiding obligations of the (Voice Overlap)?
Harvey L. Davis: Yes, I am, Your Honor. Under the authority of the Hubert case which was decided by this Court --
William J. Brennan, Jr.: That was very different.
Harvey L. Davis: Well, the --
William J. Brennan, Jr.: What -- what is there in this record to support -- perhaps you're right that it may support a jury finding that it was done on that, right? But what is there to support a finding that that was the reason this contract was -- was entered into to avoid obligation on the federal court.
Harvey L. Davis: I don't -- I don't claim or say that they may have had the actually intent to exempt --
William J. Brennan, Jr.: Well, don't they have to under the --
Harvey L. Davis: I don't think so.
William J. Brennan, Jr.: -- under the wording of --
Harvey L. Davis: No, I believe that if it's a necessary operation and practical effect to that. I think that what he Hubert case says, we quote the language in the Hubert case which says that --
Hugo L. Black: Which part of Section 51 are you relying to?
Harvey L. Davis: The part that provide for the employees of the railroad --
Hugo L. Black: And the duty on the part of the railroad to take care of his car and engines, appliances, machinery, truck, roadbed, works and so forth.
Harvey L. Davis: Yes, sir.
Hugo L. Black: That was in the evidence, is it not?
Harvey L. Davis: No, the only evidence was the testimony of respondent and witnesses that they didn't -- it was -- they didn't make the contract to -- to get around the Act. We don't have any evidence as to what their actual intent was but the combination of the non-delegable duty being performed over contract where the railroad can have no liability whatsoever for their maintenance work that they have to do. The necessary and practical effect of the contract is to exempt them from any liabilities under the Act.
Speaker: (Inaudible)
Harvey L. Davis: Well, no. I believe if this Court says and hold that this is non-delegable work and that the effect of the -- of the contract is to completely indemnify the railroad and the performance of that work. And Section 51 also says that they are to perform it that it could be held so. However, I would like to approach -- give another approach as to the possibility of holding the Nichols Company, an independent contractor as a matter of law and that is on the analogy of the Sinkler case decided in this Court last year. Baker was doing the railroad work here as part of the unitary enterprise and he was exposed to all of its inherent danger just as other maintenance workers were. And therefore we believe he should be classified as an employee of the railroad under the Act. Now, in the Sinkler case, you consider the accommodating scope of the word agent. Here, we think you should consider the accommodating scope of the word employee. In the Sinkler, the railroad was held liable for the negligence of a truly independent contractor because that independent contractor was engaged with them in a common enterprise. Here, Nichols and Baker and the other employees were engaged in the railroad in a common enterprise, maintenance work. And in this case, it is the railroad itself who is negligent. In the Sinkler case, it was the independent contractor who was negligent. And further in this case, the railroad maintained the control and the right to control these workers. That was not done the in the Sinkler case.
Charles E. Whittaker: (Inaudible)
Harvey L. Davis: Right, Your Honor. No question that he -- but he was an employee. But the question was, was this independent contractor an agent of the railroad?
Charles E. Whittaker: (Inaudible)
Harvey L. Davis: Right. I think that theory is sound and I think it's just as sound to say that because he was doing this maintenance work, shoulder to shoulder with the rest of the employees of the railroad that for the purposes of the Act, he should be considered an employee also. We believe that the movement of the trains and maintenance work are equally as much the railroad work. Therefore, in conclusion, I would like to point out these factors whereby this Court may hold that Baker was an employee of the railroad as a matter of law. He was doing the railroad work. He was exposed to all of the inherent risk of a railroad worker. He was doing a part of the railroad unitary enterprise. The work was a franchise obligation. It was non-delegable. They had to have it done. The necessary operation and effect of the contract between Nichols and the company was to exempt the railroad of some of its obligations under that and the details of the Act were actually controlled by the railroad -- details of the work, pardon me.
William J. Brennan, Jr.: Apart from your (Inaudible)
Harvey L. Davis: Well, that's our -- that's our main and first argument.
William J. Brennan, Jr.: (Inaudible)
Harvey L. Davis: Yes, that's our first argument.
William J. Brennan, Jr.: (Inaudible)
Harvey L. Davis: Right. That's right. However, we are also urging that he is an employee as a matter of law. I will reserve the rest of my time for rebuttal.
Earl Warren: You may.
Hugo L. Black: Suppose he is not an employee, what would you say about any other words (Inaudible)
Harvey L. Davis: No the Act -- the Act says he should be an employee.
Hugo L. Black: As an officer, agent or employee?
Harvey L. Davis: Well, agent would do but we believe being a common labor that employee best fits his category. The Nichols Company might be contained --
Hugo L. Black: You're doing something for them that the statute requires them to do --
Harvey L. Davis: Right.
Hugo L. Black: -- arguing them?
Harvey L. Davis: Yes. Thank you.
Earl Warren: Mr. Case.
D. L. Case: Mr. Chief Justice and Honorable members of the Court. I would like to call the facts to the Court's attention before going into the question of law. Thus, the evidence of this case shows that the respondent entered into a contract in writing with the Nichols Company as a result of advertising four bids. Two bids were received and the bid of Nichols was accepted by respondent. The deceased was an employee of the respondent. The testimony is uncontroverted. That respondent hired its own employees including deceased, told them when to go to work or come to work, when to take off for lunch, when to quit for the day, paid their salaries or wages, withheld for social security and then all the other things that are usual and customary in an employer-employee relationship. The history of this case is that it has been tried for the jury twice. As the Court knows in Texas, our practice is to submit cases to the jury on special issues. In both cases, the jury convicted respondent of certain acts of negligence approximately causing the death and in both cases convicted the deceased of certain acts of negligence approximately causing his death. Petitioners seek the benefit, I assume, Federal Employers' Liability Act in order to get the benefit of the comparative negligence. Now, as I view the petitioner's argument, their first approach is that the work in question was non-delegable.
Earl Warren: Mr. Case -- Mr. Case, before you get into the law --
D. L. Case: Yes, sir.
Earl Warren: -- would you mind commenting on -- on the argument of counsel to the effect that this contractor had the right to or not the contractor but an assistant engineer of the railroad company had the right even to discharge the contractor that he not only had the right to but he did direct to both the contractor and his work in the manner in which their -- their work was done.
D. L. Case: Yes, Your Honor.
Earl Warren: And all of those other things that are -- are in there. You didn't mention those in your statement of facts and I -- I think it's rather important to be considered.
D. L. Case: Yes. I'll be glad to add immediately, Your Honor. The contracts did not spell out in detail itself the exact work to be done. That is it didn't say between mile post one and mile post ten you can do this grouting. It gave the general limits. The plans and specifications that were set out with the invitations to bid did give into a considerable more detail and work to be done. Now, the contract on its face says that the contract of Nichols shall occupy the status of an independent contractor and not to be a subject to the detail control of the respondent. The testimony is undisputed that the respondent specified in the contract and in the invitations to bid, the general limits within which the work would be done. The work was not done continuously and consecutively throughout those limits. Respondent's engineering department determined the areas of unstable tracks and advised the contractor of the areas in which the work was to be done. Now, before I forget it on the question of the right to discharge the contractor as well, simply, there's no provision in the contract to that effect and under the law of our State, he has reasonable time within which to do the work and a contractor is not terminable at will. I think it is a misstatement of the law by the petitioner as to the contract as being subject to being discharged at will. Now, as to the manner in which the grouting is done, I think that the petitioner misconceives the actual manner in which the work is done and that that leads to some confusion as to the exercise of control. It was the obligation under the contract for respondent to select the areas to be grouted and to advise the contractor of those areas. Now, apparently, petitioner conceives of grouting as being in the nature of an Easter egg hunt to seek out a particular water pocket here and one there and inject, excuse me, and inject the mixture in only those parts. The record does not bear that out. The limits of unstable track are specified by the engineering department and are designated to the contractor and within those limits, the embedment are right away as fill solidly with the material. It's not a matter of finding a little spot here and one across the track over there but within limits of so many feet or yards to build a track that's set forth of the material. Now, the testimony that the --
Earl Warren: That doesn't mean the whole roadbed in that vicinity is concrete is it?
D. L. Case: No, that means that you pump as much of the material into the roadbed and that whole section as a roadbed will absorb.
Earl Warren: Yes, for stabilizing the -- the rails -- ties.
D. L. Case: Yes, that's correct, Your Honor.
Earl Warren: Yes.
D. L. Case: Now, as I conceive or understand the testimony with reference to the engineering department or to inspect or marking the tracks or ties that was a designation of the area in which the work was to be done and understanding the true nature of the grouting work, I believe the record supports the testimony of the respondent's witnesses that is even the testimony of the petitioner. And there is no conflict. That the inspector merely designated the area in which the points were to be inserted in the mixture pumps as distinguished from saying bring it over here, here is the spot and here's the spot over here. Now, as far as, I believe the points of testimony also that respondent's inspector had told them to move or at what distance rather to set the machines with reference to the tracks right away. Under our statutes in Texas, there is a minimum distance of clearance required for any obstructions adjacent to a track and certainly, any instructions that the inspector gave in that connection were with regard to safety in the normal operations of respondent's operations. Now, as far as the law is concerned, this Court and the other federal courts have recognized that particularly in Bond against Railroad that the giving of necessary instructions or information and the inspection of the progress of the work to see that the work is done in accordance with the contract, does not constitute a taking over of control or test of control so as to transform the otherwise independent contractor into an employee. We submit that the evidence relied upon by petitioners is nothing more than that character of information which the contract called upon respondent to give the petitioner and that character of supervision or surveillance as it had arrived to maintain to see that it got what it bargained for. So we say that there was no jury issue on the correct -- the actual exercise of the right of control. But in addition to that, we say that it is not the exercise of the right of control which is important or controlling. It is the right of control. The contract itself spells out the rights and duties of the parties. It is the right of control and not the exercise of control as the Court said in Bond against Railroad and that we submit to Your Honors that that is sound law for this reason. The relationships of the parties are entered into solemnly by written contracts. They tried to fix their respective positions. They say who shall have the right of control and who shall not. If because some -- some particular employee of the railroad on some occasion make some suggestion or give some instruction whether authorized by his employer or not, to an employee of the contractor, if that by it said changes the whole relationship then there can be no --
William J. Brennan, Jr.: Well, wouldn't that depend or would that depend on the extent to which it was done. For example, notwithstanding the language of this -- of the agreement between the railroad and the contractor if in fact all the directions of the method and manner of doing the work in terms of an ordinary foreman employed by Nichols would provide that direction, were provided by some railroad employee. I don't suppose it at least be a question of such control that a jury might find the petitioner here was an employee of the railroad. I'm not suggesting that's this case --
D. L. Case: Yes.
William J. Brennan, Jr.: -- but it could be, could it not?
D. L. Case: As I have conceived it, it may be evidence that the contract is not what it says on its face than it is and it may be evidence that the contracts or written contract was entered into for the purpose of evading the --
William J. Brennan, Jr.: Well, as a part from that even if it were not, even for another door. They entered into the contract and then whatever may be the circumstance, the actual direction and control of the manner of doing the work is assumed by a railroad employee rather than by a Nichols foreman or supervisor.
D. L. Case: It may mark the notification of the contract if --
William J. Brennan, Jr.: Well, wouldn't that -- wouldn't that have a bearing on the -- on the fact question whether he was or was not an employee of the railroad?
D. L. Case: I don't believe that it would, Your Honor unless it is a case of an oral agreement so that the acts done show what the agreement was or unless it may be evidence that the written contract was merely a sham or a substance of that nature. I think that the parties --
William J. Brennan, Jr.: I don't quite understand why it has to be a sham.
D. L. Case: Well --
William J. Brennan, Jr.: However, your formula -- formulate the way you say it. Now wouldn't there be a fact question than in any event under the standard for determining employment relationship which this Court said down in Robinson?
D. L. Case: Well, I believe the Bond case as it is the right of control and not the Act.
William J. Brennan, Jr.: Which case?
D. L. Case: Bond against Railroad, cited in --
William J. Brennan, Jr.: The other case in this Court?
D. L. Case: Yes. Yes, Your Honor and I'm relying on that case and other similar to it. And I take it that otherwise, if by an isolated answer even (Voice Overlap) --
William J. Brennan, Jr.: -- that's what you say this record shows that in any event, if any railroad employee had anything to do with directing how this grouting was to be done, that was true only in isolated instances?
D. L. Case: I say not in isolated case, Your Honor. I don't think the record shows how many times whether it was once or every day or several times a day when I say that the railroad employee did was to give information as to where the work was to be done and to see that the railroad got the job that it contracted for and that it amounts to nothing more than that.
Potter Stewart: Inspection, really.
D. L. Case: Yes, that's correct, Your Honor.
Earl Warren: Mr. Case, may I -- may just ask a question to see how far your argument goes? Suppose we change the facts of this case just a little. As I -- as I understand that these men were working at this grouting on the railroad tracks and a train passed and through the negligence of somebody injured the deceit or killed. Now, suppose that instead of him being injured, the train was wrecked and the train crew itself was -- was injured and it could be traced directly to this contractor, the negligence that caused it. Would the railroad be liable to those -- under the FELA?
D. L. Case: I think to its own employees, it has a non-delegable duty to maintain a safe place in which they are to work.
Earl Warren: All right.
D. L. Case: And that your answer is that -- the answer to your question is that -- I'm not familiar with a particular case but it maybe that the railroad would be liable.
Earl Warren: Yes. Well --
D. L. Case: I suppose under the Sinkler case that the railroad would be liable.
Earl Warren: Well then if it is -- if it is a non-delegable responsibility for that purpose, why wouldn't it be for this other -- that -- I just want to get the distinction between the two.
D. L. Case: Well, I can answer Your Honor only by -- in this manner that it has never been held insofar as I know that a railroad owes a non-delegable duty to its employees to perform work of this character only by its employees. In Dougall against Spokane Railroad, certiorari denied. It was specifically held that the railroad does not have a non-delegable duty to perform work only by -- if that work was the cleaning of the embankment and work -- generally out doing work held that it -- there was not a non-delegable duty to perform that work only with its own employee so that there could not be an independent contractor relationship in any event.
Earl Warren: The maintenance of track seems to be such a fundamental thing that I would imagine if anything was non-delegable, it would be keeping the roadbed in such condition position that it could be traveled with safety.
D. L. Case: Well, in the Dougall case, it was as far as I can tell from reading the records substantially, just ordinary maintenance. Now, I would like to reply to Mr. Davis in that connection about whether this is ordinary or extraordinary and what significance it's has.
Hugo L. Black: I wonder if it would bother you. I --
D. L. Case: Not at all, Your Honor.
Hugo L. Black: I don't want to use your time but would you mind telling me precisely how you find from this record this man was injured and what caused it?
D. L. Case: How I feel?
Hugo L. Black: This man here in this case.
D. L. Case: I feel that it's his own failure to keep a proper lookout for his own safety was the cause of it.
Hugo L. Black: What -- what about his injury?
D. L. Case: He had his back turned towards the oncoming train. It is true there were two trains passing at about the same time in the vicinity of where the accident occurred. This was a double track. And he apparently had his back turned to the train which struck him. He was at a safe distance from the track if he had remained there rather than looking to his rear before he turned and walked on to the track, he obviously walked on to the track and was killed.
Hugo L. Black: Now, what do you understand is the evidence -- could be found from the evidence was the plaintiff's version of what caused him to be hurt?
D. L. Case: The plaintiff, as I understand the case, relied on numerous acts and his pleadings and then they requested the issues which he request to submit. He relied on speed, failure to give warning by whistle or other signal. And I'm not certain of this but he may have claimed that the dissident's attention was diverted by the train coming from the opposite direction on the opposite track but in essence, his claim is that the railroad engine crew failed to keep a proper lookout, fail to warn him and that's about it and perhaps speed.
Hugo L. Black: Nothing in connection with the way the track was at the time of the accident.
D. L. Case: That's correct. That was assessed as though it were an ordinary crossing case as far as the acts of negligence are that they were allowed.
William J. Brennan, Jr.: Well -- I though -- did the jury find here those negligence of the railroad and negligence of the deceased. And you don't question those findings here, do you?
D. L. Case: No, I don't question at all.
William J. Brennan, Jr.: No. The only issue before us is whether he was an employee.
D. L. Case: That's correct.
William J. Brennan, Jr.: And if he was then I gather he'd be what, entitled to restatement of this verdict, is that it?
D. L. Case: If (Voice Overlap) if he were an employee, you mean as a matter of law?
William J. Brennan, Jr.: Well if he was -- as far as there's a basis upon which a legally finding may be sustained of employment and then there's no issue of negligence or his negligence or the railroad's negligence to be litigated again, is it?
D. L. Case: I think that there has been no submission of the issue submitting the theory of comparative negligence.
William J. Brennan, Jr.: I see.
D. L. Case: And in any event that the case, if reversed, it would have to be reversed and remand it for this trial.
William J. Brennan, Jr.: Oh, I -- on the issues of negligence also?
D. L. Case: I think so, in order for the jury to be able to compare the negligence otherwise, you'll see it hardly how the jury could file a percentage of negligence.
William J. Brennan, Jr.: Yes.
D. L. Case: On the delegability of this work, I would like to return to that again for a moment and use the analogy of the railroad contracting, let's say American car and a founder company for box cars. I think it would hardly be asserted that the railroad couldn't contract with the manufacturer of box cars to build its cars to its best cases and certainly, it owes just as much of an obligation to the public to maintain its equipment as it does on its right of way. Therefore, on the basis of Dougall and the others cited in our brief and on the basis of factors, I see no reason why the work can't be delegated. And the very act itself requires the plaintiff to first establish that her decedent was an employee, the word employee being used in its usual and ordinary sense. That is also stated in Dougall. I believe it's stated in Bond and in Robinson and others cited in our brief. On this question, so we say that there is no question of non-delegable duty and as far as any evidence of it, there being any purpose or intent or scheme on the part of respondent to evade the provisions of Section 5 of the Act, there simply is no evidence. I believe counsel for petitioners stated here that he agreed that there was no evidence of intent but says that it comes from the necessary effects of the contract. I think to say that is to beg the question. First, he must show that he had an employment status with the railroad otherwise, if the mere fact that you entered into a contract with an independent contractor, and if it's sustained as an independent contract of necessity, he doesn't come under the Act. In that case, every independent contract would be a scheme or device to evade the Act. There simply is no evidence of intent and in the case relied upon by petitioners, the Court specifically stated that the alleged employee had the burden of proving employment or proving a scheme or device to evade the provisions of the Act. The petitioner simply has not met that burden of proof. And as far as the -- I was going to say something about the extraordinary maintenance character of the work. I would think the way that got in to this lawsuit is that the petitioner pled in this petition that was extraordinary maintenance. Apparently, rely -- rely -- that it was ordinary maintenance, apparently relying on the dicta in miles whether it's an old issue of facts, I don't know. If it was and if there were an evidence whatsoever, raising an issue of the intent on the part of respondent to evade the provisions of the Act then under our procedural rules, the petitioner has waived any right to a jury determination because the rule requires if an issue is not submitted that the person requesting it or desiring a benefit of its finding request such issue and failing to do so waives any determination of the issue.
William J. Brennan, Jr.: That's the state procedure.
D. L. Case: State procedure and I submit --
William J. Brennan, Jr.: (Inaudible)
D. L. Case: I beg your pardon.
William J. Brennan, Jr.: (Inaudible)
D. L. Case: I think so, Your Honor but I think there is nothing you need about it. It's all gathered in somewhat Rule 51 if the federal rules. So I think there's nothing. No advice on it as opposed to the federal procedure.
Hugo L. Black: Do you think there's any more responsibility on the railroad to operate its trains under the Act than there is to maintain its right of way and tracks in good condition?
D. L. Case: Well, certainly --
Hugo L. Black: Under the Act.
D. L. Case: Certainly, under the Federal Employers' Liability Act is one inquiring that. Assume that it does have the non-delegable duty certainly to the public to operate its trains. And it may be --
Hugo L. Black: Well, what about the maintenance of its train? What distinction do you draw the Act provide for the negligence of the employees in operating and so forth and provides for the liability of the company of negligence, keeping its engines, appliances, tracks and so forth. How can you draw a distinction and say that independent contractors and employees -- with the employees of the railroad operating the train but would not be employees of the railroad or agents of the railroad for maintaining the tracks?
D. L. Case: The only answer that I can give in the fact is historical work -- historical nature of the work. Railroads historically have operated its own trains. In this case, there is no evidence that this railroad or any other railroad has historically done grouting work. It may be that there are certain types of maintenance work or unloading and loading of cars that because of the historical relationship of railroad and employee could not be delegated.
Hugo L. Black: The Act -- the Act itself controls, I suppose, it wouldn't be governed by history or unless it is governed by history, what distinction can you draw between saying that the employee of the independent contractor operating the train, an employee of the railroad, an employee of an independent contractor keeping up the tracks as the law requires, is it not? I'm not talking about this Section 55 --
D. L. Case: Yes. Well, I think it may have a necessary relationship to Section 55, Your Honor. The cases that have said that have found that it was railroad work and that the people were employees, have a history for example and some of the cases where the work was formerly done by the railroad and valuable facilities were donated by the railroad to the contractor to do the work which was formerly done by the railroad and the contractor was made up largely of the railroad's former employees. And it's called logic, looking only at one section and not the other, I suppose that there's no basis for a distinction unless it is historical. That's the only answer I can give. Is my time over, Your Honor?
Earl Warren: When the red light is on. The white is five minutes.
D. L. Case: Now, on the question of applying Sinkler to this case, there is no historical background in the act of Congress or in any of the decisions of this Court.
William J. Brennan, Jr.: (Inaudible)
D. L. Case: That's correct.
William J. Brennan, Jr.: (Inaudible)
D. L. Case: It was simplified under the Sinkler case that the other railroad was the agent of the defendant.
William J. Brennan, Jr.: Under the language of the agent (Inaudible)
D. L. Case: Yes, that's correct and all of the cases historically in this Court and other federal courts. It definitely established that the word employee is used in its natural, normal and ordinary sense. And the session such as Robinson holding the foreman porters were not railroad employees, was in existence at the time of the 1939 Amendment and if Congress had intended to extend the scope and coverage of the Act to persons who were not -- would not normally be considered as employees, I assume that it could have done so and would have. There's certainly no basis for extending it as I can see it in the legislative history.
William J. Brennan, Jr.: What about Linstead?
D. L. Case: I beg your pardon.
William J. Brennan, Jr.: What about Linstead?
D. L. Case: Linstead. As I recall, Linstead was the fellow that was taking a --
William J. Brennan, Jr.: (Inaudible) employees working on (Inaudible)
D. L. Case: Oh yes, in that case, it was simply a matter of they were doing the acts -- they had loan an engine and caboose and crew to the CNO as I understand the case and they operating under the rules of the CNO and under the supervision of their superintendent.
William J. Brennan, Jr.: (Inaudible)
D. L. Case: Lone servant, Your Honor, is what that was.
William J. Brennan, Jr.: Yes, but they were employees before.
D. L. Case: Yes, temporary lone to the other.
William J. Brennan, Jr.: (Inaudible)
D. L. Case: Yes, that's right. As a lone service, as I understand it. My time is up, I'll take it, Your Honor. Thank you. I would like to call the Court's attention if I may impose on --
Earl Warren: Yes you may.
D. L. Case: -- your time to a case which -- in which I understand an application is now pending in this Court which has not been cited by petitioner. It's a case of Byrne against Pennsylvania Railroad and I don't have the official citation, I have only a copy, photostatic copy of the opinion in the Circuit Court.
Earl Warren: Well, what --
D. L. Case: A Court of Appeals --
Earl Warren: -- what was the petitioner's name?
D. L. Case: B-Y-R-N-E --
Earl Warren: Byrne.
D. L. Case: -- against Pennsylvania that held that a certain person was an employee of the railroad and it will distinguish it by saying that that is a lone servant case and not a case such as this. I do not have the official citation.
Earl Warren: Is it a federal case or --
D. L. Case: It's a federal case that was --
Earl Warren: (Voice Overlap) --
D. L. Case: -- the opinion was December the 16th, 1958 for the Third Circuit.
Earl Warren: Third Circuit.
D. L. Case: Yes. Thank you, Your Honors.
Harvey L. Davis: May it please the Court. I believe probably the Byrne case opinion being officially reported may be waiting on the Court's decision in this case.
William J. Brennan, Jr.: (Inaudible)
Harvey L. Davis: The Bond case on the -- on our --
William J. Brennan, Jr.: (Inaudible)
Harvey L. Davis: Yes.
William J. Brennan, Jr.: (Inaudible)
Harvey L. Davis: Yes, the Bond case, the issue of a jury whether there was evidence for a jury trial was not at all involved, that's our main point here that there was evidence to go to the jury. That was involved in the -- in the Bond case. Now, in the Bond case, the Supreme Court held that there was no evidence of control or right to control and that the operations of Bond could be performed without being involved with the railroad's operation. In this case, it is completely different. Part of my argument about the non-delegable duty is the fact that the operation here, the maintenance of track is so interwoven with the railroad's operation that the -- that the railroad as of necessity has to have the right to control the detail of the work of these -- of these men. It's so intimate with their own statutory obligation.
William J. Brennan, Jr.: I understand that a part from non-delegable is -- assuming that's -- that's irrelevant. Your insistence is still (Inaudible) exercise of this jury question, isn't that it?
Harvey L. Davis: Right.
William J. Brennan, Jr.: Whether or not he's an employee (Inaudible)
Harvey L. Davis: Right. Now, counsel for respondent has picked up the evidence favorable to them and said that there was no right of control. However, it doesn't seem to be any question that there is sufficient substantive evidence here or an inference is there from whereby the issues to the jury -- issues should have gone to the jury to let them decide whether there was any control or right to control. And also, as far as the exercise of actual control, we don't say that that is the prime and most important element but we do say that there is evidence in this record of actual control whereby the jury could have found as a fact that there was actual control and that is part of the -- of the element of -- of independent contract.
Hugo L. Black: Where did the work have to be done?
Harvey L. Davis: Pardon?
Hugo L. Black: Where did the work have to be --
Harvey L. Davis: The work had to be done on the railroad property, on their main line roadbed. It was maintenance work that had to be done there and it had to be done by the railroad by the statue. And I don't believe there can be any distinction historically or otherwise between the operation of the railroad and this maintenance work. And there are four or five cases directly in point where the courts have held. In Cimorelli, Barlion, Roth, (Inaudible) and Mark cases all have held that these so-called independent contractor employees were employees of the -- of the railroad. Two of those cases were maintenance cases. And the Dougall case cited by counsel relied again on that Norman case where all the issues in favor of the railroad were stipulated by the parties. We also requested an issue on comparative negligence in this case in the trial but the Court refused to submit. The Court in fact kept every aspect of the federal act from the jury and -- my time is up.
Earl Warren: You may finish your statement. That one --
Harvey L. Davis: Well --
Earl Warren: -- that one statement.
Harvey L. Davis: I -- I was just going to start on something new. So my time is up. Thank you.
Earl Warren: All right.


Earl Warren: -- 87 of the Amalgamated Association of State Electric Railway and Motor Coach Employees of America petitioner versus Missouri. Mr. Dunau you may continue your argument.
Bernard Dunau: Thank you sir. May it please the Court? The King-Thompson Act bluntly identifies its point of conflict with the National Act. It states in so many words that it shall be unlawful after a takeover of a utility to strike as a means of enforcing demands against the utility or against the State. It prohibits a strike to enforce bargaining demands. What this Court said 12 years ago in the Amalgamated Association case applies with precise equality to this case. It would be sufficient to state that the Wisconsin Act in forbidding peaceful strikes for higher wages in industries covered by the Federal Act has forbidden the exercise of rights protected by Section 7 of the Federal act. Missouri says, well, no we are treating with an emergency and that makes a difference, but the same emergency with which Missouri treats is the situation which this Court said, Wisconsin could not treat with. In the Wisconsin case we had a transit strike as we had here. We had an interruption of surface transportation in Milwaukee, Wisconsin as we had an interruption of surface transportation in Kansas City, Missouri.
Speaker: [Inaudible]
Bernard Dunau: I think Wisconsin blankets this case, yes sir. It could hardly make a legal difference; there can hardly be a legal difference between a strike which interrupts surface transportation in Milwaukee, and a strike which interrupts surface transportation in Kansas City. Now --
Speaker: [Inaudible]
Bernard Dunau: So long as the State does not choose to become the owner and exclusive operator of that utility, I do not see what the State can do by the way of prohibiting this strike or curtailing it in any way which would not conflict with the Federal Act.
Speaker: [Inaudible]
Bernard Dunau: My -- the implications of my first part of my statement is if precisely if Missouri wants to own and operate the transit system in Kansas City or if the city wants to own and operate it, just as New York City owns and operates the subway systems then that the situation is outside of the scope of the Federal Act and the State can then do as it chooses within constitutional limits with respect to a strike in that system. Short of true governmental ownership and operation I do not see a way of regulating or prohibiting a strike of public utilities which would not conflict with the Federal Act.
Speaker: [Inaudible]
Bernard Dunau: No, if the end result was a genuine permanent exclusive ownership I do not think that it would make a difference that the occasion for the State's decision was a labor dispute. But I emphasize that it has to be a genuine permanent taking over not an ad-hoc interim seizure for the purpose of getting over a labor dispute and then a return of the enterprise to private ownership or any such stopgap measure that I think is simply a crude camouflage which tries to conceal the conflict of the Federal act we cannot on a --
Potter Stewart: Well do you mean a genuine take over in the sense and the fact that a condemnation for which conversation would have to be paid.
Bernard Dunau: That's correct sir. I don't mean, for example that a State even if for the period of seizure it would operate it, but then plans to turn the utility back to the private owner at the end of the labor dispute that that is the kind of takeover which would be permitted under the Federal act. I mean that the State owns, operates, and will continue so far as one can tell permanently to own and operate the facility.
Speaker: [Inaudible]
Bernard Dunau: Yes sir. Now, in the Amalgamated Association case there were two cases decided. The second of the two cases was one in which Wisconsin sought to prohibit a strike interrupting gas service. Wisconsin was told it had no power to prohibit a strike interrupting gas service. Now, if we are to indulge in comparisons of so called emergencies, I would suppose that a strike which interrupts gas service would be more critical to a community than a transit strike. Yet, Wisconsin was told it could not prohibit a gas strike. I cannot see therefore how Missouri can prohibit a transit strike. Now the Missouri's argument seems to me to be based upon reading one part of this Court's decision and refusing to read another part of this Court's decision in Amalgamated Association. When Wisconsin was arguing for the right to regulate public utility strikes it said these are local emergencies which should remain within the police power of the state. To that argument the Court said two things. One, your statute is not emergency legislation and two, it would make no difference even if it were. The state concentrates on the first alternative and refuses to look at what this Court said by way of the alternative ground for decision. Specifically what this Court said alternatively was in any event, congressional imposition of certain restrictions on petitioner's right to strike far from supporting the Wisconsin Act shows that Congress has closed the State regulation, the field of peaceful strikes in industries affecting commerce and where as here the state seeks to deny entirely a federally guaranteed right which Congress itself restricted only to a limited extent in case of national emergencies, however serious, it is manifest that the state legislation is in conflict with federal law. So it seems to us that this Court said, albeit alternatively that you cannot enter this field by labeling your situation an emergency and it is old law that where you have alternative grounds for decision neither is obiter, both are authoritative adjudications. And, I think the untenability of trying to predicate state power on emergency is emphasized by the undisputed fact shown in this case that the principal component of this so called emergency was that a strike would curtail retail sales in downtown Kansas City. Once you start on this emergency trail there is no place you stop. The state says well we are different from the Wisconsin Statute because we do not provide for compulsory arbitration, that is a difference. It is a difference which it seems to us and makes the Wisconsin statute worse, not better from a conflict point of view, because the premise of the National Act is that in order for a union and an employer to bargain as equals the union must have a right to strike. If it does not have a right to strike bargaining is just talk, there is no means by which it can move the employer to change his position. Wisconsin took away the right to strike, but at least it offered a substitute in place of a compulsory arbitration. Missouri takes away the right to strike and offers nothing in it's place. It seems to us that it is a worst conflict. It does not ameliorate the situation to take away what the Federal Act has granted and to substitute nothing in its place.
Arthur J. Goldberg: [Inaudible]
Bernard Dunau: In this specific case here it was 14 months that the strike was prohibited. In other seizure cases, seizure has lasted from about eight days to a maximum of eight months.
Arthur J. Goldberg: [Inaudible]
Bernard Dunau: They remain in status quo by virtue of the executive order.
Potter Stewart: But discussions, negotiations can go on.
Bernard Dunau: Collective bargaining can go on but without the right to strike which for us makes collective bargaining a mockery. You cannot bargain collectively, you cannot do anything --
Potter Stewart: [Inaudible] discussions.
Bernard Dunau: Yes, sir. But yes, discussions can go on and have in fact gone on in this case. Now the state says, well it makes a difference that we seized, that we are only prohibiting the strike during the period of seizure and this differentiates it from the federal -- from the Missouri -- from the Wisconsin situation. Well just like compulsory arbitration Congress canvassed seizure as a method of regulating labor disputes and just like compulsory arbitration, it rejected seizure as a way of solving labor disputes. Now I cannot put that more succinctly than it was put by this Court in Mr. Justice Black's opinion in the Steel Seizure case, when this Court held that the President could not seize the steel mills to avert a national emergency and predicated that judgment primarily on the fact that in the Taft-Hartley Act, Congress had withheld the power to seize in order to provide a means of getting over a labor dispute. Now specifically what was said in that opinion is this, “The use of a seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment. Prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure like that of compulsory arbitration would interfere with the process of collective bargaining. Consequently the plan Congress adopted in that Act did not provide for seizure under any circumstances. The power to seize which Congress withheld from the President to avert a national emergency, it did not grant to a State Governor to avert a local emergency. Seizure, compulsory arbitration, any other shortcut to industrial peace was blocked by Congress. Congress said we put our faith in collective bargaining backed by the right to strike.” This Court, 12 years ago said, “the creation of a special classification for public utilities is for Congress, not for this Court.” It in effect invited the people who thought that there should be state regulation or prohibition of public utility strikes to go to Congress and people have been going to Congress ever since. Bills have been introduced in 1951, 1954, 1958, 1959 and then the present session of Congress 1963, to authorize the states to regulate or prohibit public utility strikes. In 1954, in 1958 and 1959 those bills came on for a vote on the Senate floor. In each of those years those bills were roundly defeated. Congress has refused to authorize state intercession in this field, notwithstanding this Court's indication to go to Congress. It seems to us that if it's a good idea to have state regulation of public utility strikes, the place to make the argument and to sell that idea is across the mall, not here. I don't think there is any serious question of mootness in this case. This utility has been seized three times. Each time that it has threatened to strike it has been seized. This underlying labor dispute is still unresolved. Should this union go out on strike? Every factory which impels seizure the three previous times would still operate to impel seizure a fourth time. It seems to us that what we have here is a recurring threat of prohibition of the strike through seizure anytime this union will go out on strike. When you have this kind of a recurring threat, I do not see how you can have a mootness, a stilling, a non-live controversy. Furthermore, because of the very fact that these orders are temporary, temporary in the sense that a labor dispute does not go on forever and therefore seizure does not go on forever, and by the nature of a kind of dispute you have, you can never get to this Court in time to test the validity of the seizure if it's mere lifting will be sufficient to moot the controversy. In this case we thought we would finally make it, because the men were saying they were not going to settle till they had a determination of their right to strike. We held out, that did us not a one wit of good, the Governor then vacated seizure, if this controversy can be mooted by vacation of seizure it means one can never get to this Court to test the validity of the King-Thompson Act so long as you are willing to comply with the injunction while it is in force. You have to risk violating the injunction, getting thrown in jail for criminal contempt, and that is the only road by which you will get to this Court. Now, it seems to us that with a history of recurrent seizures, with the short-term orders which are necessarily involved with a combination of recurrence and a short-term order is the classic situation for saying that a controversy is not mooted. I think the other cases in which this Court has held that the controversy was mooted by virtue of the lifting of the seizure. In the two other cases, there was an actual settlement of a labor dispute. Here we do not have a settlement of the labor dispute. Here we have a real risk that if the union were to go out on strike tomorrow in this labor dispute, you would have seizure tomorrow unless the Governor chose not to because of the existence of this litigation. Now the other thing, it seems to me with respect to the other two cases, as I think it was possible to say on the records in those cases that we could awake a recurrence, we did not have to anticipate seizure. Now, we did not have to anticipate that there will be a recurrence. I think that basis for decision is no longer entertainable. I think this record shows that unless this case remains alive notwithstanding the lifting of seizure there is no way you can reach this Court to test the validity of the King-Thomson Act, and I think this Court's decisions both in the recurrent, in the situations of threatened recurrence and in the short-term order doctrine have posed the possibility to a wrongdoer being able to continue doing what he wants to do and at the point where you can finally decide whether what he is doing is valid or invalid, he pulls the case out under you by stopping what is the challenge act.
Earl Warren: Mr. Nessenfeld.
Joseph Nessenfeld: Mr. Chief Justice, may it please the Court. Addressing myself first to the mootness issue, it is the position of the State of Missouri that this case is in fact as moot as was Local No. 86, which this Court decided several years ago. It was moot because there was no subject matter then in existence upon which the judgment of this Court could operate. What the appellant's overlook is the nature of this case and the nature of the relief sought. In this case, the parties were the State of Missouri as the plaintiff, the union and the various officials and members as the defendants. The state sought an injunction. The state obtained an injunction. There was no declaratory relief sought or granted. The union then appealed, seeking relief from the restraint imposed by that injunction that is all they could seek on appeal by the action of the governor and releasing the property to the company not in order to avoid mootness. That I think is a reflection upon the Governor of Missouri. He did so because it was the mandatory duty of the Governor under the opinion of the Missouri Supreme Court in this very case to release the property just as soon as in his judgment, based on his investigation of the facts then existing, some 14 months later in the initial seizure, that there was no dire, immediate, imminent threat of jeopardy or disaster to the citizens of the state or the Community of Kansas City.
Earl Warren: Has this labor dispute been settled?
Joseph Nessenfeld: No Your Honor.
Earl Warren: What changed the conditions, what were the changed conditions?
Joseph Nessenfeld: The record does not reflect the change in conditions and I am unaware of that.
Earl Warren: But you said there was --
Joseph Nessenfeld: The Governor made an investigation. The Governor made a determination, Your Honor. It was -- he made the initial determination that there was jeopardy. It could well have been, Your Honor, that he may have decided this late date that he was erroneous in his initial determination. That is possible, but that's neither here nor there but has now made a determination based on the facts now existing that there is no threat of jeopardy and therefore no need for the State of Missouri to retain possession and operate the system in Kansas City.
Earl Warren: So the question of moot depends entirely upon the decision of the Governor for undisclosed reasons?
Joseph Nessenfeld: I couldn't put it that way Your Honor. I think in this case the decision of mootness is based on the fact that the parties are no longer restrained. They are no longer affected, there is no judgment affecting them, there is no legal controversy. The only controversy in existence now is the academic one of this law, is whether it's valid or invalid. There may or may not be other ways of testing the validity of the law but it certainly isn't by means of an appeal from a judgment which no longer in existence.
Earl Warren: Suppose that they decided to strike tomorrow would the Governor be -- would it be open to the Governor to seize the company again?
Joseph Nessenfeld: All I could say Your Honor is this. If in the judgment of the Governor, he believes that there is such a dire, imminent threat of disaster as to warrant and justify seizure he could do so. I seriously doubt that he would, because I am certain they took that in consideration in releasing the property.
Earl Warren: What were the stated grounds for the emergency?
Joseph Nessenfeld: The stated grounds were simply that in his judgment that there was a threat of imminent jeopardy through the public interest, health and welfare.
Earl Warren: There were no specifications of that?
Joseph Nessenfeld: There were no specifications. The law does not require that he specify the grounds. His action of course is subject to this review as the [Inaudible] Court has held and the Trial Court held that he was justified on the evidence in making that determination.
Earl Warren: What did the evidence show?
Joseph Nessenfeld: The evidence showed -- well all I can do is repeat what the Missouri Supreme Court, how they summarized the evidence in the opinion.
Earl Warren: Well it sometimes helps to have the facts disclosed here in the argument.
Joseph Nessenfeld: Well Your Honor that is quite true. However it is, as we see it, the appellants have taken the position in this case that irrespective of whether the facts in this case justify the Governor in seizing the property, irrespective of whether the Trial Court was justified in upholding the Governor is finding of jeopardy, that even if the evidence disclosed jeopardy of the most dire character, their position nevertheless is that the law is invalid as a matter of law and that is --
Earl Warren: You just said to me that the Court had determined on the evidence that there was such a --
Joseph Nessenfeld: That is true Your Honor.
Earl Warren: I merely ask you, what is the evidence?
Joseph Nessenfeld: Well there was evidence of confusion, evidently chaos?
Earl Warren: What kind of confusion?
Joseph Nessenfeld: In -- oh well, all I can do is read what the Supreme Court said in their opinion. The Court [Inaudible] the record in this case that the further continuance of the concerted work stoppage by defendants on the circumstances shown could well, might well have resulted in extreme danger to the health, welfare and safety of the inhabitants of Kansas City, Missouri and an unrest, general confusion, disorganization, excitement, tension, inability to reach places of employment of the retail district of the city, reduction of employment and loss of wages by innocent victims of the strike, congestion of traffic, destruction of business, reduction and impairment of law enforcement agencies and the creation of havoc, disaster and general chaos in the community. And that is what the Court said, that the trial Court could have found. I can't point specifically to any specific testimony in the record. I say it is conceivable that the Court may well have been wrong in the finding jeopardy here, but that certainly doesn't invalidate this law. That is what they want here, they said in their reply brief they will not settle the cases unless the law is thrown out. That is all that's holding up settlement here Your Honor. So that the [Inaudible] makes no difference how much jeopardy there was? It's the law which is the subject of their attack, not the facts of this particular case and if the laws that are thrown out, it certainly couldn't be thrown out on the ground of -- as the Lower Courts made an error in the determination of the fact.
Arthur J. Goldberg: General what is the [Inaudible]
Joseph Nessenfeld: Yes.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: That is true Your Honor.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: I did not believe with a fair instance Your Honor.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: In this particular case, whether he sees it three times, because there are three disputes, I think that is true.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: Transportation strikes, there were some, I think, not in Kansas City.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: No, I'm not aware of it and in further answer to your question Mr. Justice Goldberg, I might say this that until the present opinion by the New Jersey Supreme Court clarified and I think they made the point clear, the real meaning of the stuatute, the Governors of the states were I would say unaware of the extent of their authority to act and the circumstance under which they are justified enacted and --
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: I don't think that that was testified in that way Your Honor. I believe that in this case, type of case of this kind that there would less likelihood of the transit company being siezed in the future than there was in the past, because of the stress laid in the opinion of the Missouri Supreme Court not once, but three or four times on a necessity that there be an imminent drift of dire disaster.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: He did.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: He did Your Honor.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: I think what has changed is the emphasis, the color placed upon the language and meaning of the act, I think there has been a change Your Honor. The language of the act itself hasn't said it in words, but I think that as construed by the Court in this case, something has changed which maybe subjective, but it does have some bearing upon the future conduct of our Governors.
Earl Warren: If you were to prevail in this case and immediately thereafter the union has struck?
Joseph Nessenfeld: Yes sir.
Earl Warren: What conditions would not be available now to justify the Governor's action that existed there?
Joseph Nessenfeld: Well, certainly Your Honor I'm unaware of the conditions in Kansas City, I can't --
Earl Warren: Well, but you said that it's all because of the change in conditions.
Joseph Nessenfeld: The conditions that was found by the Governor, Your Honor.
Earl Warren: And I ask what conditions would have been changed?
Joseph Nessenfeld: I can't speak for the Governor, I don't know what he found. This record certainly doesn't reflect anything other than what occurred in the first several days after this strike and further strike took place. Everything that's in this record is pretty ancient and much could have happened in somewhere in those 14 months since then.
William O. Douglas: I notice that the jurisdictional statement in this case was filed on November 20th and that his order was entered on December 28th?
Joseph Nessenfeld: Yes sir.
William O. Douglas: And that we noted jurisdiction three days, after three days or before or three days after I guess it was.
Joseph Nessenfeld: Yes sir.
William O. Douglas: His order became effective. I wonder if there is an element of a contest here?
Joseph Nessenfeld: I don't think there is, Your Honor. I see no point on that. Of course, at the time the Governor acted, the true effect of what he did wasn't immediately apparent and it became apparent in the light of the decision of the Court in this case, which held that any release by the Governor would operate of itself to relieve the parties of their restraints imposed by the Judges.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: Yes, sir.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: True.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: It has certainly litterally [Inaudible]
Arthur J. Goldberg: Yes.
Joseph Nessenfeld: No question about that, Your Honor.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: Subject to judicial review.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: That is true.
Arthur J. Goldberg: [Inaudible]
Joseph Nessenfeld: I may add Your Honor, it's not only a stike but also of the lock out is [Inaudible]. This statute works both ways. As I say, we do feel that this case, there is no subject matter presently in existence upon which any Judge under this Court could now offer. Now addressing myself in the brief time remaining to the merits; all that is involved in this case are certain sections of the act, not the act as a whole. The Missouri Court held that the act was seperable and that irrespective of the validity or invalidity of any of the remaining portions, they didn't concede or make any intimation that means the rest of it was invalid. But and so, these sections authorizing seizure and no strike during the pendency of the seizure stood on their own feet and were not related to necessarily, were independent of any provisions with respect to the State Mediation Board, powers, duties and functions of appreaing panels, also hearings or what have you. So, the real question here on preemption is simply whether Congress by the enactment of the Labor Management Relations Act of 1947 intended or manifested clearly and explicitly an intent to [Inaudible] of a State of of Missouri or any State for that matter, the right in power to act on behalf of the public, not on behalf of either the Union or the employer, but on behalf of the public to protect the public in the event of an emergency, which threatens imminent disasters to the public health welfare and safety of the public and to by virtue of such threat to take possession of the property or utility not necessarily a transit, but gas or electric or other such more basic utility and to operate the same in the public interest, during the period of such State seizure and possession.
Earl Warren: Did the state operate it?
Joseph Nessenfeld: In my judgment, the State did Your Honor.
Earl Warren: What affirmative act of operation did it use?
Joseph Nessenfeld: The State -- Governor first appointed Mr. Daniel C. Rogers as the Chairman of State Mediation Board as his agent to take possession of property, and in his executive order he gave him broad powers and directed that the internal rules and regulations of the company utility remain in existence, and the company then acted as the agent of the state in operating the utility during the pendency of the seizure. The law does not require that happen in that way, Your Honor.
Earl Warren: Is there any change in personnel or any direction of the company by the Governor or his agents?
Joseph Nessenfeld: There was no change in personnel, Your Honor. As I said, the law does not require it be done in that way. This was one of the alternatives facing the Governor and it seems to me is a very practical way of handling the situation.
Earl Warren: How is it done on the other occasions, when he seized the company? Did the state on any of those other occasions operate the company?
Joseph Nessenfeld: In any other way, Your Honor, no. That's the way it was done. As I say, the law does not require to be done in that way and possession. The fact that possession is conceded, it's admitted in the answer of the appellant's, that possession in this case carries with it the right of control and the right of control carries with it the right to decide how it should be operated during the tendency of the seizure.
Byron R. White: [Inaudible]
Joseph Nessenfeld: No, Your Honor, it did not.
Byron R. White: Well, what is an employer -- an employer or somebody who is paid among other things?
Joseph Nessenfeld: Yes.
Byron R. White: The state didn't pay anything?
Joseph Nessenfeld: The state did not pay.
Byron R. White: The only -- what you are saying is the state is excluded from being an employer?
Joseph Nessenfeld: No, Your Honor. Our position simply isn't that the -- by virtue of the exclusion of the state as an employer from the national act that the state can do what it has done here. We don't contend the state is the employer of these --
Byron R. White: So the inclusion has nothing to do with the -- you put no weight on the exclusion?
Joseph Nessenfeld: We put no substantial weight on the exclusion, Your Honor.
Byron R. White: And your point is that typically the incident and this comes down to the emergency?
Joseph Nessenfeld: It comes down to the emergency aspect with these added facts that when the state having taken possession as it did, no question about it, with the right and operating it as it did, when the state does so, no one whether they be employees or otherwise should have the right by concerted action.
Byron R. White: But this doesn't fall within any express language in the act? You are asking us to construe the act in a -- add another exception to it, as well as to add to the exception which covers state as the employer?
Joseph Nessenfeld: We are not asking you to add any exceptions at all, Your Honor. We are simply saying that Congress in the act itself did not expressly manifest an intent to prohibit this type of action by the state.
Byron R. White: Well, I thought potentially that was your intention with concerted activities with the act expressly?
Joseph Nessenfeld: Section 7 does protect concerted activities.
Byron R. White: I thought the act expressly says nothing shall interfere with the right to strike.
Joseph Nessenfeld: I don't think the act is quite that broad, Your Honor.
R. Justice Brennan: Is it Section 13 of the –-
Byron R. White: Except that otherwise the hearing provided, the word is otherwise --
Joseph Nessenfeld: Section 13 provides that nothing in this act except that [Inaudible] construes it was either to interfere with or impede or diminish in any way the right to strike or to affect the limitations or qualifications on that right. Now we contend there is no such thing as an absolute right to strike, anymore than an absolute right to do almost anything. For example, a man -- facts of the example, may not shout Fire! In the crowded theatre, but he may shout Fire! If there is no one around. In this case, when the state in order to protect the public as a mutual, has nothing to do with the controversy between the employer and employee itself, but when there is a disaster threatening to the public and the state steps in to take action, then no one be the employers or otherwise shall have any right or should have any right to take any action concertedly to interfere with what the state is doing to protect the public interest and welfare.
Byron R. White: And when the State takes possession in the name of what it ceases to be a public emergency situation, the right to strike should give way?
Joseph Nessenfeld: The right to strike doesn't give way, as such it is postponed.
Byron R. White: But I suppose the employers in these situations would still be subject to an unfair labor practice charge if they interfered with the right to strike even in those situations?
Joseph Nessenfeld: Yes sir. This act leaves untouched any right as between employer and employee in support, when I say this act, I am speaking solely of these particular sections and they are, because this act means these sections involving seizure and barring the strike, their pendency in seizure as construed by the Court in this case. This act does not in any way affect the rights of either the employer or the employee into safety.
R. Justice Brennan: You've said several times Attorney General, I think that there was possession, there was operation.
Joseph Nessenfeld: Yes sir.
R. Justice Brennan: Now what exactly was the first -- what was possession, did any state officers move in?
Joseph Nessenfeld: Possession, by moving in you mean into the offices of the --
R. Justice Brennan: Did any state officials or anyone appointed by State, go in and take up --
Joseph Nessenfeld: Yes sir.
R. Justice Brennan: Head quarters of the offices of the transit company?
Joseph Nessenfeld: Mr. Rogers, the Chairman of the State Mediation Board was appointed the agent of that company for the purpose of taking possession.
R. Justice Brennan: I know, but did he go in, did he open an office, did he -- what did he do?
Joseph Nessenfeld: He didn't go in the office, I don't think. I think he went in the office, but he didn't stay in the office, let's put it that way.
R. Justice Brennan: Well exactly what did he do about running the company?
Joseph Nessenfeld: He appointed to the company as an agent --
R. Justice Brennan: Let the management go on just as it had been going on?
Joseph Nessenfeld: The management went on as it had been.
R. Justice Brennan: Did he participate in any policy decisions?
Joseph Nessenfeld: No sir.
Byron R. White: Then I suppose, the company's taxes went on to.
Joseph Nessenfeld: Sir?
Byron R. White: The Company's property tax liability went on too.
Joseph Nessenfeld: Yes, that's true.
Hugo L. Black: What real change was there in the operation itself?
Joseph Nessenfeld: In the operation itself, there was no substantially real change.
Hugo L. Black: Was there anything that --
Joseph Nessenfeld: I am not aware of it, Your Honor. Other than the fact that they were subject -- they knew they were subject through the overriding control of the Governor's agent.
Hugo L. Black: And they were subject to that under the law, before that happened, right?
Joseph Nessenfeld: No, Your Honor, they were never subject to that.
Hugo L. Black: [Inaudible] you had the power to pass it, put them under supervision [Inaudible] they were under the law, weren't they?
Joseph Nessenfeld: They were under the law, everyone is under the law Your Honor, but they were not subject to the jurisdiction of the Governor's agent. The Governor is the one who took possession and --
Hugo L. Black: Maybe the Governor is the one that on paper took possession.
Joseph Nessenfeld: Call it paper, call it what you will Your Honor?
Hugo L. Black: Well, was there anything else?
Joseph Nessenfeld: No, there was technical --
Hugo L. Black: It has to be met on what it is --
Joseph Nessenfeld: There was legal possession --
Hugo L. Black: Maybe it's all right, maybe it's all right, but that's all in one assessment.
Joseph Nessenfeld: There was legal possession.
Hugo L. Black: Well there was --
Joseph Nessenfeld: But as I say Your Honor, the point I am trying to stress to the Court is that the act does not require it to be administered in this manner. Maybe they made a mistake in doing it this way --
Hugo L. Black: Well, that is a question of whether that's right and whether that violated the Labor Act, under the preemptive field, it is a different question.
Joseph Nessenfeld: Yes, Your Honor.
Hugo L. Black: But what difference is the [Inaudible] that the State of Missouri passing the law and saying, you shall not strike and saying you shall not strike, at the same time delivered a paper to somebody and said, we take legal or theoretical fictional possession. What's the difference?
Joseph Nessenfeld: I think there is substantial difference Your Honor, because in this case, the right to strike is affected only during the temporary emergency period.
Earl Warren: 14 months in this case?
Joseph Nessenfeld: It so happened in this case, it never has happened this long before.
Byron R. White: Now the strike is over –-
Joseph Nessenfeld: You mean all other cases?
Byron R. White: I mean that is [Inaudible]
Joseph Nessenfeld: It cannot last longer than the strike. That is the outside maximum, but under the decision of the Court in Missouri, it should be terminated, possession should be terminated at a prior date and the union has the right under the opinion to request the Governor or the Court if the Governor refuses to terminate the possession, if conditions are such as no longer to require state possession, if the immanency of peril, disaster and jeopardy are no longer there.
Hugo L. Black: Would you not have had precise to the same defense, whatever it is, if Missouri simply passed the law and said that during an emergency period of the public utility, for that could be closed by a strike, with great interest of the public welfare, there should be no strike.
Joseph Nessenfeld: No, Your Honor, the important thing here is the nature and character of the emergency.
Hugo L. Black: Well, I understand that but you could have the emergency without going through the paper operations. It may be that you have a right under the law.
Joseph Nessenfeld: Yeah, I understand that --
R. Justice Brennan: I would like to you discuss your right, hold it free from a fictional possession.
Joseph Nessenfeld: Well Your Honor, as I see it, there is no real way for a State in these circumstances simply bypassing the law to say that during the pendency of an emergency there shall be no strike because there must be some means of first determining the existence of the emergency.
Hugo L. Black: Well, I suppose the law said that during -- the Governor is hereby given the right to determine whether there is an emergency which will affect the people adversely in connection with the public utility and to declare that there is one, when he does so declare, there shall be no strike during an emergency.
Joseph Nessenfeld: Well, that in effect is what was done here.
Hugo L. Black: Well that is right, that's what I wanted you to discuss forgetting the fictiional transfer.
Joseph Nessenfeld: Yes, Your Honor. The important thing here is that this act was enacted under the police power of the State to protect the public interest. And we feel that no law enacted under the police power for that purpose should be deemed to be preempted by any federal statute unless there is some specific express mandate in the federal statute, which would so require. And in this case, where the Statute -- as the Statue does, sorry the red light is on.
Earl Warren: You may finish your statement Mr. --
Joseph Nessenfeld: There were a statute, as this statute Your Honors limits the right to strike solely to the extent of an emergency, not an ordinary emergency, not any emergency created by any utility strike and not any emergency resulting from the interruption of services, but an emergency of such a nature, of such a drastic nature as to impair to a drastic extent and place the public health, welfare and safety of the public in imminent jeopardy and in those circumstances, those limited circumstances holding unlike the Wisconsin in which any utility strike constituted an emergency irrespective of jeopardy. And this -- in these particular -- in this type of case, where the emergency is such that it must be as such to pose a threat of imminent disaster to the public and that type of case the State must be held not to be helpless because otherwise it is no man's land, no one can act – shall -- the answer is that Rome shall burn while Nero is fiddling, that's the effect of it is. If the State can't act, if the State is rendered impotent and helpless to protect its citizens in the event of some dire drastic emergency, let's say not in this particular case, but what if it were of drastic nature, so the State can't act at all as is the position of the appellants here. And I say that something is wrong and I don't think that Congress could conceivably have intended by the mere enactment of the Labor Relations Management Act to have taken over the field to such an extent that the State has rendered completely helpless to protect its citizens by exercising its police power. Thank you.