text:
TEXTILE WORKERS v. LINCOLN MILLS(1957)
A union entered into a collective-bargaining agreement with an employer providing that there would be no strikes or work stoppages and that grievances would be handled pursuant to a specified procedure, the last step of which was arbitration. Grievances arose and were processed through various steps in the grievance procedure until the union's demands were finally denied by the employer. The union requested arbitration, and the employer refused. Thereupon, the union sued in a Federal District Court to compel arbitration. Held:
Arthur J. Goldberg argued the cause for petitioner. With him on the brief were Benjamin Wyle and David E. Feller.
Frank A. Constangy argued the cause for respondent. With him on the brief were M. A. Prowell and Fred W. Elarbee, Jr. [353 U.S. 448, 449]
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner-union entered into a collective bargaining agreement in 1953 with respondent-employer, the agreement to run one year and from year to year thereafter, unless terminated on specified notices. The agreement provided that there would be no strikes or work stoppages and that grievances would be handled pursuant to a specified procedure. The last step in the grievance procedure - a step that could be taken by either party - was arbitration.
This controversy involves several grievances that concern work loads and work assignments. The grievances were processed through the various steps in the grievance procedure and were finally denied by the employer. The union requested arbitration, and the employer refused. Thereupon the union brought this suit in the District Court to compel arbitration.
The District Court concluded that it had jurisdiction and ordered the employer to comply with the grievance arbitration provisions of the collective bargaining agreement. The Court of Appeals reversed by a divided vote. 230 F.2d 81. It held that, although the District Court had jurisdiction to entertain the suit, the court had no authority founded either in federal or state law to grant the relief. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem and the contrariety of views in the courts. 352 U.S. 821 .
The starting point of our inquiry is 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C. 185, which provides:
From the face of the Act it is apparent that 301 (a) and 301 (b) supplement one another. Section 301 (b) makes it possible for a labor organization, representing employees in an industry affecting commerce, to sue and be sued as an entity in the federal courts. Section 301 (b) in other words provides the procedural remedy lacking at common law. Section 301 (a) certainly does something more than that. Plainly, it supplies the basis [353 U.S. 448, 452] upon which the federal district courts may take jurisdiction and apply the procedural rule of 301 (b). The question is whether 301 (a) is more than jurisdictional.
The legislative history of 301 is somewhat cloudy and confusing. But there are a few shafts of light that illuminate our problem.
The bills, as they passed the House and the Senate, contained provisions which would have made the failure to abide by an agreement to arbitrate an unfair labor practice. S. Rep. No. 105, 80th Cong., 1st Sess., pp. 20-21, 23; H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 21. 3 This feature of the law was dropped in Conference. As the Conference Report stated, "Once parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board." H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., p. 42. [353 U.S. 448, 453]
Both the Senate and the House took pains to provide for "the usual processes of the law" by provisions which were the substantial equivalent of 301 (a) in its present form. Both the Senate Report and the House Report indicate a primary concern that unions as well as employees should be bound to collective bargaining contracts. But there was also a broader concern - a concern with a procedure for making such agreements enforceable in the courts by either party. At one point the Senate Report, supra, p. 15, states, "We feel that the aggrieved party should also have a right of action in the Federal courts. Such a policy is completely in accord with the purpose of the Wagner Act which the Supreme Court declared was `to compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made . . . .'"
Congress was also interested in promoting collective bargaining that ended with agreements not to strike. 4 [353 U.S. 448, 454]
The Senate Report, supra, p. 16 states:
Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike. Viewed in this light, the legislation does more than confer jurisdiction in the federal courts over labor organizations. It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.
To be sure, there is a great medley of ideas reflected in the hearings, reports, and debates on this Act. Yet, to repeat, the entire tenor of the history indicates that the agreement to arbitrate grievance disputes was considered as quid pro quo of a no-strike agreement. And when in the House the debate narrowed to the question whether 301 was more than jurisdictional, it became abundantly clear that the purpose of the section was to provide the necessary legal remedies. Section 302 of the House bill, 5 the substantial equivalent of the present 301, was being described by Mr. Hartley, the sponsor of the bill in the House:
The question then is, what is the substantive law to be applied in suits under 301 (a)? We conclude that the substantive law to apply in suits under 301 (a) is federal law, which the courts must fashion from the policy of our national labor laws. See Mendelsohn, Enforceability of [353 U.S. 448, 457] Arbitration Agreements Under Taft-Hartley Section 301, 66 Yale L. J. 167. The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. See Board of Commissioners v. United States, 308 U.S. 343, 351 . Federal interpretation of the federal law will govern, not state law. Cf. Jerome v. United States, 318 U.S. 101, 104 . But state law, if compatible with the purpose of 301, may be resorted to in order to find the rule that will best effectuate the federal policy. See Board of Commissioners v. United States, supra, at 351-352. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.
It is not uncommon for federal courts to fashion federal law where federal rights are concerned. See Clearfield Trust Co. v. United States, 318 U.S. 363, 366 -367; National Metropolitan Bank v. United States, 323 U.S. 454 . Congress has indicated by 301 (a) the purpose to follow that course here. There is no constitutional difficulty. Article III, 2, extends the judicial power to cases "arising under . . . the Laws of the United States . . . ." The power of Congress to regulate these labor-management controversies under the Commerce Clause is plain. Houston & Texas R. Co. v. United States, 234 U.S. 342 ; Labor Board v. Jones & Laughlin Corp., 301 U.S. 1 . A case or controversy arising under 301 (a) is, therefore, one within the purview of judicial power as defined in Article III.
The question remains whether jurisdiction to compel arbitration of grievance disputes is withdrawn by the [353 U.S. 448, 458] Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. 101. Section 7 of that Act prescribes stiff procedural requirements for issuing an injunction in a labor dispute. The kinds of acts which had given rise to abuse of the power to enjoin are listed in 4. The failure to arbitrate was not a part and parcel of the abuses against which the Act was aimed. Section 8 of the Norris-LaGuardia Act does, indeed, indicate a congressional policy toward settlement of labor disputes by arbitration, for it denies injunctive relief to any person who has failed to make "every reasonable effort" to settle the dispute by negotiation, mediation, or "voluntary arbitration." Though a literal reading might bring the dispute within the terms of the Act (see Cox, Grievance Arbitration in the Federal Courts, 67 Harv. L. Rev. 591, 602-604), we see no justification in policy for restricting 301 (a) to damage suits, leaving specific performance of a contract to arbitrate grievance disputes to the inapposite 8 procedural requirements of that Act. Moreover, we held in Virginian R. Co. v. System Federation, 300 U.S. 515 , and in Graham v. Brotherhood of Firemen, 338 U.S. 232, 237 , that the Norris-LaGuardia Act does not deprive federal courts of jurisdiction to compel compliance with the mandates of the Railway Labor Act. The mandates there involved concerned racial discrimination. Yet those decisions were not based on any peculiarities of the Railway Labor Act. We followed the same course in Syres v. Oil Workers International Union, 350 U.S. 892 , which was governed by the National Labor Relations Act. There an injunction was sought against racial discrimination in application of a collective bargaining agreement; and we allowed the injunction to issue. The congressional policy in favor of the enforcement of agreements to arbitrate [353 U.S. 448, 459] grievance disputes being clear, 9 there is no reason to submit them to the requirements of 7 of the Norris-LaGuardia Act.
A question of mootness was raised on oral argument. It appears that since the date of the decision in the Court of Appeals respondent has terminated its operations and has contracted to sell its mill properties. All work in the mill ceased in March, 1957. Some of the grievances, however, ask for back pay for increased workloads; and the collective bargaining agreement provides that "the Board of Arbitration shall have the right to adjust compensation retroactive to the date of the change." Insofar as the grievances sought restoration of workloads and job assignments, the case is, of course, moot. But to the extent that they sought a monetary award, the case is a continuing controversy.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for proceedings in conformity with this opinion.
[ Footnote 2 ] The following decisions are to the effect that 301 (a) creates substantive rights:
Shirley-Herman Co. v. International Hod Carriers Union, 182 F.2d 806, 809 (C. A. 2d Cir.); Rock Drilling Union v. Mason & Hanger Co., 217 F.2d 687, 691-692 (C. A. 2d Cir.); Signal-Stat Corp. v. Local 475, 235 F.2d 298, 300 (C. A. 2d Cir.); Assn. of Westinghouse Employees v. Westinghouse Electric Corp., 210 F.2d 623, 625 (C. A. 3d Cir.), affirmed on other grounds, 348 U.S. 437 ; Textile Workers Union v. Arista Mills, 193 F.2d 529, 533 (C. A. 4th Cir.); Hamilton Foundry v. International Molders & Foundry Union, 193 F.2d 209, 215 (C. A. 6th Cir.); American Federation of Labor v. Western Union, 179 F.2d 535 (C. A. 6th Cir.); Milk & Ice Cream Drivers v. Gillespie Milk Prod. Corp., 203 F.2d 650, 651 (C. A. 6th Cir.); United Electrical R. & M. Workers v. Oliver Corp., 205 F.2d 376, 384-385 (C. A. 8th Cir.); Schatte v. International Alliance, 182 F.2d 158, 164 (C. A. 9th Cir.).
[ Footnote 3 ] The Senate bill contained provisions which would have made it an unfair labor practice for either an employer or a union "to violate the terms of a collective-bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration." The Senate Report indicated that these provisions would permit the Board to grant relief in the same instances where suit might be maintained under 301. "While title III of the committee bill treats this subject by giving both parties rights to sue in the United States district court, the committee believes that such action should also be available before an administrative body."
The House bill defined the term "bargain collectively" so as to require "If an agreement is in effect between the parties providing a procedure for adjusting or settling such disputes, following such procedure." Commenting on this definition in 2 of the House bill, the House Report stated: "When parties have agreed upon a procedure for settling their differences, and the agreement is in effect, they will be required to follow the procedure or be held guilty of an unfair labor practice. Most agreements provide procedures for settling grievances, generally including some form of arbitration as the last step. Consequently, this clause will operate in most cases, except those involving the negotiation of new contracts."
[ Footnote 4 ] S. Rep. No. 105, 80th Cong., 1st Sess., pp. 17-18 states:
[ Footnote 5 ] Section 302 (a) as it passed the House read as follows:
[ Footnote 6 ] Assn. of Westinghouse Employees v. Westinghouse Electric Corp., 348 U.S. 437 , is quite a different case. There the union sued to recover unpaid wages on behalf of some 4,000 employees. The basic question concerned the standing of the union to sue and recover on those individual employment contracts. The question here concerns the right of the union to enforce the agreement to arbitrate which it has made with the employer.
[ Footnote 7 ] We do not reach the question, which the Court reserved in Red Cross Line v. Atlantic Fruit Co., supra, p. 125, whether as a matter of federal law executory agreements to arbitrate are enforceable, absent congressional approval.
[ Footnote 8 ] See Judge Magruder in Local 205 v. General Electric Co., 233 F.2d 85, 92.
[ Footnote 9 ] Whether there are situations in which individual employees may bring suit in an appropriate state or federal court to enforce grievance rights under employment contracts where the collective bargaining agreement provides for arbitration of those grievances is a question we do not reach in this case. Cf. Assn. of Westinghouse Employees v. Westinghouse Electric Corp., 348 U.S. 437, 460 , 464; Moore v. Illinois Central R. Co., 312 U.S. 630 ; Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239 ; Transcontinental Air v. Koppal, 345 U.S. 653 .
MR. JUSTICE BURTON, whom MR. JUSTICE HARLAN joins, concurring in the result.
This suit was brought in a United States District Court under 301 of the Labor Management Relations Act of [353 U.S. 448, 460] 1947, 61 Stat. 156, 29 U.S.C. 185, seeking specific enforcement of the arbitration provisions of a collective-bargaining contract. The District Court had jurisdiction over the action since it involved an obligation running to a union - a union controversy - and not uniquely personal rights of employees sought to be enforced by a union. Cf. Association of Westinghouse Employees v. Westinghouse Elec. Corp., 348 U.S. 437 . Having jurisdiction over the suit, the court was not powerless to fashion an appropriate federal remedy. The power to decree specific performance of a collectively bargained agreement to arbitrate finds its source in 301 itself, 1 and in a Federal District Court's inherent equitable powers, nurtured by a congressional policy to encourage and enforce labor arbitration in industries affecting commerce. 2
I do not subscribe to the conclusion of the Court that the substantive law to be applied in a suit under 301 is federal law. At the same time, I agree with Judge Magruder in International Brotherhood v. W. L. Mead, Inc., 230 F.2d 576, that some federal rights may necessarily be involved in a 301 case, and hence that the constitutionality of 301 can be upheld as a congressional grant to Federal District Courts of what has been called "protective jurisdiction."
[ Footnote 1 ] See the opinion of Judge Wyzanski in Textile Workers Union v. American Thread Co., 113 F. Supp. 137.
[ Footnote 2 ] See the dissent of Judge Brown in the Court of Appeals in this case, 230 F.2d 81, 89.
MR. JUSTICE FRANKFURTER, dissenting. *
The Court has avoided the difficult problems raised by 301 of the Taft-Hartley Act, 61 Stat. 156, 29 U.S.C. 185, [353 U.S. 448, 461]
[ Footnote 1 ] by attributing to the section an occult content. This plainly procedural section is transmuted into a mandate to the federal courts to fashion a whole body of substantive federal law appropriate for the complicated and touchy problems raised by collective bargaining. I have set forth in my opinion in Employees v. Westinghouse Corp. the detailed reasons why I believe that 301 cannot be so construed, even if constitutional questions [353 U.S. 448, 462] cannot be avoided. 348 U.S. 437, 441 -449, 452-459. But the Court has a "clear" and contrary conclusion emerge from the "somewhat," to say the least, "cloudy and confusing legislative history." This is more than can be fairly asked even from the alchemy of construction. Since the Court relies on a few isolated statements in the legislative history which do not support its conclusion, however favoringly read, I have deemed it necessary to set forth in an appendix, post, p. 485, the entire relevant legislative history of the Taft-Hartley Act and its predecessor, the Case Bill. This legislative history reinforces the natural meaning of the statute as an exclusively procedural provision, affording, that is, an accessible federal forum for suits on agreements between labor organizations and employers, but not enacting federal law for such suits. See also Wollett and Wellington, Federalism and Breach of the Labor Agreement, 7 Stan. L. Rev. 445.
I have also set forth in my opinion in the Westinghouse case an outline of the vast problems that the Court's present decision creates by bringing into conflict state law and federal law, state courts and federal courts. 348 U.S., at 454 -455; see also Judge Wyzanski's opinion in Textile Workers Union v. American Thread Co., 113 F. Supp. 137, 140. These problems are not rendered non-existent by disregard of them. It should also be noted that whatever may be a union's ad hoc benefit in a particular case, the meaning of collective bargaining for labor does not remotely derive from reliance on the sanction of litigation in the courts. Restrictions made by legislation like the Clayton Act of 1914, 38 Stat. 738, 20, 22, and the Norris-LaGuardia Act of 1932, 47 Stat. 70, upon the use of familiar remedies theretofore available in the federal courts, reflected deep fears of the labor movement of the use of such remedies against labor. But a union, like any other combatant engaged in a particular fight, is ready to make an ally of an old enemy, [353 U.S. 448, 463] and so we also find unions resorting to the otherwise much excoriated labor injunction. Such intermittent yielding to expediency does not change the fact that judicial intervention is ill-suited to the special characteristics of the arbitration process in labor disputes; nor are the conditions for its effective functioning thereby altered.
The prickly and extensive problems that the supposed grant would create further counsel against a finding that the grant was made. They present hazardous opportunities for friction in the regulation of contracts between employers and unions. They involve the division of power between State and Nation, between state courts and federal courts, including the effective functioning of this Court. Wisdom suggests self-restraint in undertaking to solve these problems unless the Court is clearly directed to do so. Section 301 is not such a direction. The legislative history contains no suggestion that these problems were considered; the terms of the section do not present them.
One word more remains to be said. The earliest declaration of unconstitutionality of an act of Congress - by the Justices on circuit - involved a refusal by the Justices to perform a function imposed upon them by Congress because of the non-judicial nature of that function. Hayburn's Case, 2 Dall. 409. Since then, the Court has many times declared legislation unconstitutional because it imposed on the Court powers or functions that were regarded as outside the scope of the "judicial power" lodged in the Court by the Constitution. See, e. g., Marbury v. Madison, 1 Cranch 137; United States v. Ferreira, 13 How. 40; Muskrat v. United States, 219 U.S. 346 ; Keller v. Potomac Electric Power Co., 261 U.S. 428 .
One may fairly generalize from these instances that the Court has deemed itself peculiarly qualified, with due [353 U.S. 448, 465] regard to the contrary judgment of Congress, to determine what is meet and fit for the exercise of "judicial power" as authorized by the Constitution. Solicitude and respect for the confines of "judicial power," and the difficult problem of marking those confines, apply equally in construing precisely what duties Congress has cast upon the federal courts, especially when, as in this case, the most that can be said in support of finding a congressional desire to impose these "legislative" duties on the federal courts is that Congress did not mention the problem in the statute and that, insofar as purpose may be gathered from congressional reports and debates, they leave us in the dark.
The Court, however, sees no problem of "judicial power" in casting upon the federal courts, with no guides except "judicial inventiveness," the task of applying a whole industrial code that is as yet in the bosom of the judiciary. There are severe limits on "judicial inventiveness" even for the most imaginative judges. The law is not a "brooding omnipresence in the sky," (Mr. Justice Holmes, dissenting, in Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 ), and it cannot be drawn from there like nitrogen from the air. These problems created by the Court's interpretation of 301 cannot "be solved by resort to the established canons of construction that enable a court to look through awkward or clumsy expression, or language wanting in precision, to the intent of the legislature. For the vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the legislature meant one thing rather than another . . . ." Connally v. General Construction Co., 269 U.S. 385, 394 . But the Court makes 301 a mountain instead of a molehill and, by giving an example of "judicial inventiveness," it thereby solves all the constitutional problems that would otherwise have to be faced.
Even on the Court's attribution to 301 of a direction to the federal courts to fashion, out of bits and pieces [353 U.S. 448, 466] elsewhere to be gathered, a federal common law of labor contracts, it still does not follow that Congress has enacted that an agreement to arbitrate industrial differences be specifically enforceable in the federal courts. On the contrary, the body of relevant federal law precludes such enforcement of arbitration clauses in collective-bargaining agreements.
Prior to 1925, the doctrine that executory agreements to arbitrate any kind of dispute would not be specifically enforced still held sway in the federal courts. See, e. g., Judge Hough's opinion in United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 222 F. 1006; Judge Mack's opinion in Atlantic Fruit Co. v. Red Cross Line, 276 F. 319; and Mr. Justice Brandeis' opinion in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123 , 125. Legislation was deemed necessary to assure such power to the federal courts. In 1925, Congress passed the United States Arbitration Act, 9 U.S.C. 1 et seq., making executory agreements to arbitrate specifically enforceable in the federal courts, but explicitly excluding "contracts of employment" of workers engaged in interstate commerce from its scope. Naturally enough, I find rejection, though not explicit, of the availability of the Federal Arbitration Act to enforce arbitration clauses in collective-bargaining agreements in the silent treatment given that Act by the Court's opinion. If an Act that authorizes the federal courts to enforce arbitration provisions in contracts generally, but specifically denies authority to decree that remedy for "contracts of employment," were available, the Court would hardly spin such power out of the empty darkness of 301. I would make this rejection explicit, recognizing that when Congress passed legislation to enable arbitration agreements to be enforced by the federal courts, it saw fit to exclude this remedy with respect to labor contracts. See Amalgamated Association v. Pennsylvania Greyhound [353 U.S. 448, 467] Lines, 192 F.2d 310 (C. A. 3d Cir.); United Electrical, Radio & Machine Workers v. Miller Metal Products, Inc., 215 F.2d 221 (C. A. 4th Cir.); Lincoln Mills v. Textile Workers Union, 230 F.2d 81 (C. A. 5th Cir.); United Steelworkers of America v. Galland-Henning Mfg. Co., 241 F.2d 323 (C. A. 7th Cir.); and the legislative history set forth by the parties in the present cases. Congress heeded the resistance of organized labor, uncompromisingly led in its hostility to this measure by Andrew Furuseth, president of the International Seamen's Union and most powerful voice expressing labor's fear of the use of this remedy against it. 2
Even though the Court glaringly ignores the Arbitration Act, it does at least recognize the common-law rule against enforcement of executory agreements to arbitrate. It nevertheless enforces the arbitration clause in the collective-bargaining agreements in these cases. It does so because it finds that Congress "by implication" rejected the common-law rule. I would add that the Court, in thus deriving power from the unrevealing words of the Taft-Hartley Act, has also found that Congress "by implication" repealed its own statutory exemption of collective-bargaining agreements in the Arbitration Act, an [353 U.S. 448, 468] exemption made as we have seen for well-defined reasons of policy.
The Court of Appeals for the First Circuit, which reached the conclusion that arbitration clauses in collective-bargaining agreements were enforceable under the Arbitration Act, nevertheless found that such clauses would not have been enforceable by virtue of 301:
The second ground of my dissent from the Court's action is more fundamental. 3 Since I do not agree with the Court's conclusion that federal substantive law is to govern in actions under 301, I am forced to consider the serious constitutional question that was adumbrated in the Westinghouse case, 348 U.S., at 449 -452, the constitutionality of a grant of jurisdiction to federal courts over contracts that came into being entirely by virtue of state substantive law, a jurisdiction not based on diversity of citizenship, yet one in which a federal court would, as in [353 U.S. 448, 470] diversity cases, act in effect merely as another court of the State in which it sits. The scope of allowable federal judicial power that this grant must satisfy is constitutionally described as "Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Art. III, 2. While interpretive decisions are legion under general statutory grants of jurisdiction strikingly similar to this constitutional wording, it is generally recognized that the full constitutional power has not been exhausted by these statutes. See, e. g., Mishkin, The Federal "Question" in the District Courts, 53 Col. L. Rev. 157, 160; Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L. J. 393, 405, n. 47; Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob., 216, 224-225.
Almost without exception, decisions under the general statutory grants have tested jurisdiction in terms of the presence, as an integral part of plaintiff's cause of action, of an issue calling for interpretation or application of federal law. E. g., Gully v. First National Bank, 299 U.S. 109 . Although it has sometimes been suggested that the "cause of action" must derive from federal law, see American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 , it has been found sufficient that some aspect of federal law is essential to plaintiff's success. Smith v. Kansas City Title & Trust Co., 255 U.S. 180 . The litigation-provoking problem has been the degree to which federal law must be in the forefront of the case and not collateral, peripheral or remote.
In a few exceptional cases, arising under special jurisdictional grants, the criteria by which the prominence of the federal question is measured against constitutional requirements have been found satisfied under circumstances suggesting a variant theory of the nature of these [353 U.S. 448, 471] requirements. The first, and the leading case in the field, is Osborn v. Bank of the United States, 9 Wheat. 738. There, Chief Justice Marshall sustained federal jurisdiction in a situation - hypothetical in the case before him but presented by the companion case of Bank of the United States v. Planters' Bank, 9 Wheat. 904 - involving suit by a federally incorporated bank upon a contract. Despite the assumption that the cause of action and the interpretation of the contract would be governed by state law, the case was found to "arise under the laws of the United States" because the propriety and scope of a federally granted authority to enter into contracts and to litigate might well be challenged. This reasoning was subsequently applied to sustain jurisdiction in actions against federally chartered railroad corporations. Pacific Railroad Removal Cases, 115 U.S. 1 . The traditional interpretation of this series of cases is that federal jurisdiction under the "arising" clause of the Constitution, though limited to cases involving potential federal questions, has such flexibility that Congress may confer it whenever there exists in the background some federal proposition that might be challenged, despite the remoteness of the likelihood of actual presentation of such a federal question. 4
The views expressed in Osborn and the Pacific Railroad Removal Cases were severely restricted in constructing general grants of jurisdiction. But the Court later sustained this jurisdictional section of the Bankruptcy Act of 1898:
Apparently relying on the extent to which the bankruptcy cases involve only remotely a federal question, Mr. Justice Jackson concluded in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582 , that Congress may confer jurisdiction on the District Courts as incidental to its powers under Article I. No attempt was made to reconcile this view with the restrictions of Article III; a majority of the Court recognized that Article III defined the bounds of valid jurisdictional legislation and rejected the notion that jurisdictional grants can go outside these limits.
With this background, many theories have been proposed to sustain the constitutional validity of 301. In Textile Workers Union of America v. American Thread Co., 113 F. Supp. 137, 140, Judge Wyzanski suggested, [353 U.S. 448, 473] among other possibilities, that 301 might be read as containing a direction that controversies affecting interstate commerce should be governed by federal law incorporating state law by reference, and that such controversies would then arise under a valid federal law as required by Article III. Whatever may be said of the assumption regarding the validity of federal jurisdiction under an affirmative declaration by Congress that state law should be applied as federal law by federal courts to contract disputes affecting commerce, we cannot argumentatively legislate for Congress when Congress has failed to legislate. To do so disrespects legislative responsibility and disregards judicial limitations.
Another theory, relying on Osborn and the bankruptcy cases, has been proposed which would achieve results similar to those attainable under Mr. Justice Jackson's view, but which purports to respect the "arising" clause of Article III. See Hart and Wechsler, The Federal Courts and the Federal System, pp. 744-747; Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216, 224-225; International Brotherhood v. W. L. Mead, Inc., 230 F.2d 576. Called "protective jurisdiction," the suggestion is that in any case for which Congress has the constitutional power to prescribe federal rules of decision and thus confer "true" federal question jurisdiction, it may, without so doing, enact a jurisdictional statute, which will provide a federal forum for the application of state statute and decisional law. Analysis of the "protective jurisdiction" theory might also be attempted in terms of the language of Article III - construing "laws" to include jurisdictional statutes where Congress could have legislated substantively in a field. This is but another way of saying that because Congress could have legislated substantively and thereby could give rise to litigation under a statute of the United States, it can provide a federal forum for state-created [353 U.S. 448, 474] rights although it chose not to adopt state law as federal law or to originate federal rights.
Surely the truly technical restrictions of Article III are not met or respected by a beguiling phrase that the greater power here must necessarily include the lesser. In the compromise of federal and state interests leading to distribution of jealously guarded judicial power in a federal system, see 13 Cornell L. Q. 499, it is obvious that very different considerations apply to cases involving questions of federal law and those turning solely on state law. It may be that the ambiguity of the phrase "arising under the laws of the United States" leaves room for more than traditional theory could accommodate. But, under the theory of "protective jurisdiction," the "arising under" jurisdiction of the federal courts would be vastly extended. For example, every contract or tort arising out of a contract affecting commerce might be a potential cause of action in the federal courts, even though only state law was involved in the decision of the case. At least in Osborn and the bankruptcy cases, a substantive federal law was present somewhere in the background. See pp. 470-472, supra, and pp. 480-484, infra. But this theory rests on the supposition that Congress could enact substantive federal law to govern the particular case. It was not held in those cases, nor is it clear, that federal law could be held to govern the transactions of all persons who subsequently become bankrupt, or of all suits of a Bank of the United States. See Mishkin, The Federal "Question" in the District Courts, 53 Col. L. Rev. 157, 189.
Insofar as state law governs the case, Professor Mishkin's theory is quite similar to that advanced by Professors Hart and Wechsler and followed by the Court of Appeals for the First Circuit: The substantive power of Congress, although not exercised to govern the particular "case," gives "arising under" jurisdiction to the federal courts despite governing state law. The second "protective jurisdiction" theory has the dubious advantage of limiting incursions on state judicial power to situations in which the State's feelings may have been tempered by early substantive federal invasions.
Professor Mishkin's theory of "protective jurisdiction" may find more constitutional justification if there is not [353 U.S. 448, 477] merely an "articulated and active" congressional policy regulating the labor field but also federal rights existing in the interstices of actions under 301. See Wollett and Wellington, Federalism and Breach of the Labor Agreement, 7 Stan. L. Rev. 445, 475-479. Therefore, before resting on an interpretation of 301 that would compel a declaration of unconstitutionality, we must, as was stated in Westinghouse, defer to the strong presumption - even as to such technical matters as federal jurisdiction - that Congress legislated in accordance with the Constitution. The difficult nature of the problem of construction to be faced if some federal rights are sought was set forth in Westinghouse, where the constitutional questions were involved only in their bearing on the construction of the statute. Now that the constitutional questions themselves must be faced, the nature of the problem bears repeating.
Legislation must, if possible, be given a meaning that will enable it to survive. This rule of constitutional adjudication is normally invoked to narrow what would otherwise be the natural but constitutionally dubious scope of the language. E. g., United States v. Delaware & Hudson Co., 213 U.S. 366 ; United States v. Jin Fuey Moy, 241 U.S. 394, 401 ; United States v. Rumely, 345 U.S. 41 . Here the endeavor of some lower courts and of this Court has resulted in adding to the section substantive congressional regulation even though Congress saw fit not to exercise such power or to give the courts any concrete guidance for defining such regulation.
To be sure, the full scope of a substantive regulation is frequently in dispute and must await authoritative determination by courts. Congress declares its purpose imperfectly or partially, and compatible judicial construction completes it. But in this case we start with a provision that is wholly jurisdictional and as such bristles with constitutional problems under Article III. To avoid [353 U.S. 448, 478] them, interpolation of substantive regulation has been proposed. From what materials are we to draw a determination that 301 is something other than what it declares itself? Is the Court justified in creating all the difficult problems of choice within a sphere of delicate policy without any direction from Congress and merely for the sake of giving effect to a provision that seems to deal with a different subject? The somewhat Delphic wisdom of Mr. Justice Cardozo, speaking for the whole Court, pulls us here in the opposite direction: "We think the light is so strong as to flood whatever places in the statute might otherwise be dark. Courts have striven mightily at times to canalize construction along the path of safety. . . . When a statute is reasonably susceptible of two interpretations, they have preferred the meaning that preserves to the meaning that destroys. . . . `But avoidance of a difficulty will not be pressed to the point of disingenuous evasion.' . . . `Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power.'" Hopkins Federal Savings & Loan Assn. v. Cleary, 296 U.S. 315, 334 -335.
Assuming, however, that we would be justified in pouring substantive content into a merely procedural vehicle, what elements of federal law could reasonably be put into the provisions of 301? The suggestion that the section permits the federal courts to work out, without more, a federal code governing collective-bargaining contracts must, for reasons that have already been stated, be rejected. Likewise the suggestion that 301 may be viewed as a congressional authorization to the federal courts to work out a concept of the nature of the collective-bargaining contract, leaving detailed questions of interpretation to state law. See 348 U.S., at 455 -459.
Nor will Congress' objective be furthered by an attempt to limit the grant of a federal forum to certain types of [353 U.S. 448, 479] actions between unions and employers. It would be difficult to find any basis for, or principles of, selection, either in the terms of 301 or in considerations relevant to promotion of stability in labor relations. It is true that a fair reading of 301 in the context of its enactment shows that the suit that Congress primarily contemplated was the suit against a union for strike in violation of contract. From this it might be possible to imply a federal right to bring an action for damages based on such an event. In the interest of mutuality, so close to the heart of Congress, we might in turn find a federal right in the union to sue for a lockout in violation of contract. But neither federal right would be involved in the present cases. Moreover, it bears repetition that Congress chose not to make this the basis of federal law, i. e., it chose not to make such conduct an unfair labor practice.
There is a point, however, at which the search may be ended with less misgiving regarding the propriety of judicial infusion of substantive provisions into 301. The contribution of federal law might consist in postulating the right of a union, despite its amorphous status as an unincorporated association, to enter into binding collective-bargaining contracts with an employer. The federal courts might also give sanction to this right by refusing to comply with any state law that does not admit that collective bargaining may result in an enforceable contract. It is hard to see what serious federal-state conflicts could arise under this view. At most, a state court might dismiss the action, while a federal court would entertain it. Moreover, such a function of federal law is closely related to the removal of the procedural barriers to suit. Section 301 would be futile if the union's status as a contracting party were not recognized. The statement in 301 (b) that the acts of the agents of the union are to be regarded as binding upon the union may be used in support of this conclusion. This provision, [353 U.S. 448, 480] not confined in its application to suits in the District Court under 301 (a), was primarily directed to responsibility of the union for its agents' actions in authorizing strikes or committing torts. It can be construed, however, as applicable to the formation of a contract. So applied, it would imply that a union must be regarded as contractually bound by the acts of its agents, which in turn presupposes that the union is capable of contract relations.
Of course, the possibility of a State's law being counter to such a limited federal proposition is hypothetical, and to base an assertion of federal law on such a possibility, one never considered by Congress, is an artifice. And were a State ever to adopt a contrary attitude, its reasons for so doing might be such that Congress would not be willing to disregard them. But these difficulties are inherent in any attempt to expand 301 substantively to meet constitutional requirements.
Even if this limited federal "right" were read into 301, a serious constitutional question would still be present. It does elevate the situation to one closely analogous to that presented in Osborn v. Bank of the United States, 9 Wheat. 738. 6 Section 301 would, under this view, imply that a union is to be viewed as a juristic entity for purposes of acquiring contract rights under a collective-bargaining agreement, and that it has the right to enter into such a contract and to sue upon it. This was all that was immediately and expressly involved in the Osborn case, although the historical setting was [353 U.S. 448, 481] vastly different, and the juristic entity in that case was completely the creature of federal law, one engaged in carrying out essential governmental functions. Most of these special considerations had disappeared, however, at the time and in the circumstances of the decision of the Pacific Railroad Removal Cases, 115 U.S. 1 , see p. 471, supra. There is force in the view that regards the latter as a "sport" and finds that the Court has so viewed it. See Mishkin, 53 Col. L. Rev., at 160, n. 24, citing Gully v. First National Bank, 299 U.S. 109, 113 -114 ("Only recently we said after full consideration that the doctrine of the charter cases was to be treated as exceptional, though within their special field there was no thought to disturb them."), and Puerto Rico v. Russell & Co., 288 U.S. 476, 485 ; see also Mr. Justice Holmes, in Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 214 -215 (dissenting opinion). The question is whether we should now so consider it and refuse to apply its holding to the present situation.
I believe that we should not extend the precedents of Osborn and the Pacific Railroad Removal Cases to this case, even though there be some elements of analytical similarity. Osborn, the foundation for the Removal Cases, appears to have been based on premises that today, viewed in the light of the jurisdictional philosophy of Gully v. First National Bank, supra, are subject to criticism. The basic premise was that every case in which a federal question might arise must be capable of being commenced in the federal courts, and when so commenced it might, because jurisdiction must be judged at the outset, be concluded there despite the fact that the federal question was never raised. Marshall's holding was undoubtedly influenced by his fear that the bank might suffer hostile treatment in the state courts that could not be remedied by an appeal on an isolated federal question. There is nothing in Article III that affirmatively supports the view that original jurisdiction over cases involving [353 U.S. 448, 482] federal questions must extend to every case in which there is the potentiality of appellate jurisdiction. We also have become familiar with removal procedures that could be adapted to alleviate any remaining fears by providing for removal to a federal court whenever a federal question was raised. In view of these developments, we would not be justified in perpetuating a principle that permits assertion of original federal jurisdiction on the remote possibility of presentation of a federal question. Indeed, Congress, by largely withdrawing the jurisdiction that the Pacific Railroad Removal Cases recognized, and this Court, by refusing to perpetuate it under general grants of jurisdiction, see Gully v. First National Bank, supra, have already done much to recognize the changed atmosphere.
Analysis of the bankruptcy power also reveals a superficial analogy to 301. The trustee enforces a cause of action acquired under state law by the bankrupt. Federal law merely provides for the appointment of the trustee, vests the cause of action in him, and confers jurisdiction on the federal courts. Section 301 similarly takes the rights and liabilities which under state law are vested distributively in the individual members of a union and vests them in the union for purposes of actions in federal courts, wherein the unions are authorized to sue and be sued as an entity. While the authority of the trustee depends on the existence of a bankrupt and on the propriety of the proceedings leading to the trustee's appointment, both of which depend on federal law, there are similar federal propositions that may be essential to an action under 301. Thus, the validity of the contract may in any case be challenged on the ground that the labor organization negotiating it was not the representative of the employees concerned, a question that has been held to be federal, La Crosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18 , or on the ground that subsequent change in the representative [353 U.S. 448, 483] status of the union has affected the continued validity of the agreement. Perhaps also the qualifications imposed on a union's right to utilize the facilities of the National Labor Relations Board, dependent on the filing of non-Communist affidavits required by 9 (h) and the information and reports required by 9 (f) and (g), might be read as restrictions on the right of the union to sue under 301, again providing a federal basis for challenge to the union's authority. Consequently, were the bankruptcy cases to be viewed as dependent solely on the background existence of federal questions, there would be little analytical basis for distinguishing actions under 301. But the bankruptcy decisions may be justified by the scope of the bankruptcy power, which may be deemed to sweep within its scope interests analytically outside the "federal question" category, but sufficiently related to the main purpose of bankruptcy to call for comprehensive treatment. See National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 652 , n. 3 (concurring in part, dissenting in part). Also, although a particular suit may be brought by a trustee in a district other than the one in which the principal proceedings are pending, if all the suits by the trustee, even though in many federal courts, are regarded as one litigation for the collection and apportionment of the bankrupt's property, a particular suit by the trustee, under state law, to recover a specific piece of property might be analogized to the ancillary or pendent jurisdiction cases in which, in the disposition of a cause of action, federal courts may pass on state grounds for recovery that are joined to federal grounds. See Hurn v. Oursler, 289 U.S. 238 ; Siler v. Louisville & Nashville R. Co., 213 U.S. 175 ; but see Mishkin, 53 Col. L. Rev., at 194, n. 161.
If there is in the phrase "arising under the laws of the United States" leeway for expansion of our concepts of jurisdiction, the history of Article III suggests that the area is not great and that it will require the presence of [353 U.S. 448, 484] some substantial federal interest, one of greater weight and dignity than questionable doubt concerning the effectiveness of state procedure. The bankruptcy cases might possibly be viewed as such an expansion. But even so, not merely convenient judicial administration but the whole purpose of the congressional legislative program - conservation and equitable distribution of the bankrupt's estate in carrying out the constitutional power over bankruptcy - required the availability of federal jurisdiction to avoid expense and delay. Nothing pertaining to 301 suggests vesting the federal courts with sweeping power under the Commerce Clause comparable to that vested in the federal courts under the bankruptcy power.
In the wise distribution of governmental powers, this Court cannot do what a President sometimes does in returning a bill to Congress. We cannot return this provision to Congress and respectfully request that body to face the responsibility placed upon it by the Constitution to define the jurisdiction of the lower courts with some particularity and not to leave these courts at large. Confronted as I am, I regretfully have no choice. For all the reasons elaborated in this dissent, even reading into 301 the limited federal rights consistent with the purposes of that section, I am impelled to the view that it is unconstitutional in cases such as the present ones where it provides the sole basis for exercise of jurisdiction by the federal courts. 7 [353 U.S. 448, 485]
1. Hearings before the Committee on Labor on H. R. 4908, 79th Cong., 1st Sess.:
a. H. R. 4908, as considered by committee, provided for fact-finding boards. It had no provision concerning suits on collective-bargaining contracts.
b. During these hearings, there was, however, some concern with breach of such contracts. Despite the filing of two memoranda detailing the problems of enforcement of agreements against a union (pp. 89, 96), there was no elucidation of the problem. The prevalence of violation was noted and the desire to do something to promote enforceability expressed. (Pp. 15, 27, 28, 38, 41, 68, 73, 84, 88, 97, 101, 113.)
2. The House Report contained no comment on the problem. (H. R. Rep. No. 1493, 79th Cong., 2d Sess.)
3. The bill, as introduced on the House floor (92 Cong. Rec. 765):
a. General comment on the desirability of mutual enforceability of contracts: 92 Cong. Rec. 662, 668, 677, 679, 684, 686, 753, 767.
b. Representative Francis Case's only comments were not pertinent. Id., at 680, 765.
c. Representative Vorys, in offering corrective amendments to Section 10, stated:
5. As it finally passed the House, Section 10 read:
1. Hearings before Senate Committee on Education and Labor on S. 1661:
a. Hearings were held on a companion bill to the fact-finding bill on which House hearings were held. The Case bill had not yet passed the House.
b. As in the House, however, concern was expressed over a general impression that unions were not subject to suits for damages for breach of contract to the same extent as employers. (Pp. 138, 168, 354, 383, 400, 554, 623, 662, 740.) For the first time, however, oral testimony directed the legislators to the primary source of the problem. This testimony, with a supporting memorandum, indicated that the problem lay in the status of the union [353 U.S. 448, 488] as an unincorporated association. This memorandum, however, also pointed out that in some jurisdictions the union was viewed as acting as agent of the individual employees in negotiating the collective agreement, and thus was not viewed as having, even in theory, any rights or obligations on the contract. (P. 411.)
2. Hearings before a Subcommittee of the Senate Committee on Education and Labor on H. R. 4908 (as it had passed the House):
a. "Mr. CASE. Section 10, opening the miscellaneous provisions of the bill, is very brief, and I would like to read it because I think it speaks for itself.
c. Other less discerning discussion: pp. 34, 47, 48, 110, 125, 129, 135, 144, 148, 157, 225, 237, 240, 266, 371, 372, 378, 385, 409.
3. Senate Report (No. 1177, 79th Cong., 2d Sess.):
a. Majority:
a. Senator Taft:
5. Senator Taft's amendment was incorporated in the bill by the Senate without substantial alteration. 92 Cong. Rec. 5723. See I., D., infra, p. 511.
C. House debates:
1. The House accepted the Senate version of 10 without requesting a conference.
2. Representative Case:
1. Hearings before Committee on Education and Labor on H. R. 8, 725, 880, 1095, and 1096, 80th Cong., 1st Sess.:
a. Among the bills under consideration, only H. R. 725 contained a section concerning federal jurisdiction touching breach of contract. It provided:
c. The only considered analysis of the problem, and the remedy proposed, occurred in the testimony of Secretary of Labor Schwellenbach:
a. Majority:
a. Representative Hartley:
5. The bill passed the House in the same form as introduced.
B. Legislative history in the Senate:
1. Hearings before Committee on Labor and Public Welfare on S. 55 and S. J. Res. 22, 80th Cong., 1st Sess.:
a. S. 55, under consideration, was introduced by Senators Ball, Taft and Smith, and contained as Section 203:
c. The unions, in testimony and filed statements, unanimously opposed the section. One of the points constantly made was that the belief that state law did not regard them as responsible on their contracts was erroneous. (Pp. 1042, 1154, 1391, 1534, [353 U.S. 448, 524] 1547, 2295.) The procedural nature of the problem was, however, seldom made explicit. (Pp. 689, 1798, 2011.)
d. Again the most significant testimony occurred when Secretary of Labor Schwellenbach appeared as a witness:
a. Majority:
a. Senator Taft:
5. Section 301 remained unchanged in the bill as it passed the Senate.
C. Conference Report (H. R. Rep. No. 510, 80th Cong., 1st Sess.):
1. The Conference's revised Section 301 was that presently in force.
2. The Report stated:
1. House:
a. Representative Case:
E. Veto Message (H. R. Doc. No. 334, 80th Cong., 1st Sess.):
1. House:
a. Representative Robsion:
a. Senator Taft:
[ Footnote * ] [This opinion applies also to No. 276, General Electric Co. v. Local 205, United Electrical, Radio & Machine Workers, post, p. 547, and No. 262, Goodall-Sanford, Inc. v. United Textile Workers, post, p. 550.]
[ Footnote 1 ] "SEC. 301. (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
[ Footnote 2 ] At the Seamen's Union convention in 1923, at a time when the proposed Arbitration Act contained no exemptions, Furuseth, after referring to the effect of the Act on individual contracts, stated:
[ Footnote 3 ] In view of the course that this litigation has taken, I put to one side the bearing of the Norris-LaGuardia Act. It is not the first time that unions have conveniently disregarded, when it suited an immediate end, their vehement feelings that secured the restriction upon the federal courts in granting injunctions in labor disputes. Candor compels me to say that I do not think that the conclusion reached by Judge Bailey Aldrich in Local 205 v. General Electric Co., 129 F. Supp. 665, has been persuasively met.
[ Footnote 4 ] Osborn might possibly be limited on the ground that a federal instrumentality, the Bank of the United States, was involved, see n. 5, infra, but such an explanation could not suffice to narrow the holding in the Pacific Railroad Removal Cases.
[ Footnote 5 ] To be sure, the Court upheld the removal statute for suits or prosecutions commenced in a state court against federal revenue officers on account of any act committed under color of office. Tennessee v. Davis, 100 U.S. 257 . The Court, however, construed the action of Congress in defining the powers of revenue agents as giving them a substantive defense against prosecution under state law for commission of acts "warranted by the Federal authority they possess." Id., at 263. That put federal law in the forefront as a defense. In any event, the fact that officers of the Federal Government were parties may be considered sufficient to afford access to the federal forum. See In re Debs, 158 U.S. 564, 584 -586; Mishkin, 53 Col. L. Rev., at 193: "Without doubt, a federal forum should be available for all suits involving the Government, its agents and instrumentalities, regardless of the source of the substantive rule."
[ Footnote 6 ] Enunciation of such a requirement could in fact bring federal law somewhat further to the forefront than was true of Osborn, the Pacific Railroad Removal Cases, or the bankruptcy cases in the few cases where an assertion could be made that state law did not sufficiently recognize collective agreements as contracts. But there appears to be no State that today possesses such a rule. Most and probably all cases arising under 301 - certainly the present ones - would never present such a problem.
[ Footnote 7 ] In No. 276, respondent's motion in the Court of Appeals to amend its complaint to show diversity of citizenship was denied on alternate grounds of possible mootness and Rule 17 (b)'s reference of questions of capacity to sue to state law. The view of 301 that I have set forth would permit that section to be applied constitutionally to situations, such as diversity of citizenship, where there is jurisdiction in the federal courts apart from 301. I would therefore remand this case to permit the amendment alleging diversity of citizenship. [353 U.S. 448, 547]


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ples which are pursued in respect to means as adopted in the material and light and shade obtain ; individuality sensuous art of the Venetians, which, and accident are its primary laws. in their varied combinations, are the
In addition to their adoption of these instruments through which that char. portions of the means which, as here acter is kept up, in connexion with employed, are in distinct subserviency an extensive range of subjects; and (as to the purpose of their art, the Vene frequently takes place in the instance tians in their practice present a pe
of the other schools) it must be seen culiarity intimately connected with to result, that the idea or the senti. that purpose, which was first and ment of the subjects of their pictures most distinctly exemplified by them. cessarily very often not at This is the signification of variety of sustained, or even attempted. Each surface and texture, which the pros looks from his own point of view tocesses adopted in the practice of Ves wards the horizon which bounded his netian painting afforded superior facis domain, beyond which he was appalities towards carrying into effect, and rently either indifferent in respect to which was eminently adapted to assist what existed, or unapprehensive of it. in the expression of its distinctive Thus Titian, in carrying to its highcharacter.
est consummation that particular refeBut, as before adverted to, each of rence which constitutes the characterthese elements, or means of the art, istic of the school to which he belongs, on particular occasions, hold a station is frequently altogether at variance in the productions of this school which with the just expression demanded by is distinct, being altogether dependent the subjects of his pictures.* But the upon its material character. In nus character of his time admitted, and merous instances colours, facts of light even very much favoured the predoand shade, individualities of form, and minance of those qualities which he detail of decoration or ornament, be. was most adapted to express, in addicome the field of its expression. They tion to their generally insinuating naare recognised to be identical with the ture. Indeed, after a certain period, most thorough signification of its in- throughout all Italian art, there is a tention—the final end to be gained decided preponderance towards renthe mete of its purpose. The pecu. dering ideas, which have their existliarity of a colour, a texture, or a kind ence only in the mind, by substantive or effect of light, in this instance, realities of an ordinary and unelevated becomes an ultimate fact, beyond character. It is this, but in a refined which there is no connected significa application, which led to the deviation tion, it being directly and wholly re- from an ideal representation, and dicimpressive of the object or the idea tated the substitution of moral beauty, intended to be referred to. Thus the signified in the Madonnas of Raphael, expression of either of these frequente in which there is no attempt to quit ly, but most often that of colour, the region of human feeling ; their which alone characterises many objects elevation consisting in the strength of to vision, becomes ultimate, in con- their sentiment, not in its being of a nexion with that intimation of material superhuman nature, which may, in and physical qualities which is here most respects, be considered to have pursued. On occasions, they separate been their proper sphere. In the same ly become one with the distinctive subject, which, in the hands of his nature of this range of painting—the predecessor and master, Giovanni Bellaw of its law.
lini, still retained a mythic character Such are the wider features of the to a considerable degree, Titian be
gether. As far as mere correctness is concerned, within a certain sphere which does not embrace science or selection, the design of Venetian painting has been more objected to than it merits. But this has arisen from its reference or purpose not having been recognised,
* Here has arisen another of those stumbling-blocks in the way of judgment on art, which have led to preposterous results. The expression of the figure of the Christ crowned with Thorns, in the gallery of the Louvre, one of the greatest of the works of Titian, has been commended as divine, because he was known to be one of the most eminent painters; while in reality it is the reverse of that, in every respect, in countea nance and action.
comes altogether earthly. His Ma.
cause of its engrossing influence, be. donnas are certainly womanly, and come apparent. The elevated relafull of animal vigour ; but it was the tion of the works of Michael Angelo worshipped head of canonized holiness, and Raphael (for their distinction is represented by the mistress of the such, that unless in particulars it can. painter. Without, however, in the not be expected to be common to any present instance, entering into a refe- class or school) is of necessity generrence to particular works, it may be ally admitted ; but individually, in observed, that it has been seen, that most instances, as the more permanent in the attempt to characterise the or operating law, it is only nominally. works of Titian, different qualities The sensible world surrounds the conhave been brought forward, and dif. sciousness of every one. In it, it may ferent appellations bestowed upon ' be said almost entirely, the many move them, which, from their nature, may and have their being. But, amidst separately be resolved into the more the less vital manifestation of the extensive and ultimate grounds of dis- beautiful in intellect and in human retinction that have been recognised ; lation-morals, still none can be within which the cause of that deficiency out their moments, although the genof meutal signification and intercom. eral rule of their action is not under munion, which has always been brought such influence, when the soul or mind against this school, becomes fully ap- recognises its proper being in rejoicing parent. has been noticed, that col- energy, and in these-the confession our and ornament have been singly and triumph of its final relation-the considered to present the distinctive distinction of humanity is sustained, quality of Venetian painting; while, throughout all; but which, existent in it must be observed, that the nature of an eminent degree, constitutes the its light and shade, design, composi- source of human dignity, giving birth tion, and varied surface, have been to the great and good in contemplation left without being referred to any and in action, through intellectual and cause. But it is impossible that dif- moral power. Truly to touch the ferent qualities can alike essentially heart-strings by either, is an inheritdistinguish one subject; and it is no ance of fame. It is this which has less so, that those qualities which have enkindled a pharos-light from humble remained without being taken into deeds, and made the voice of the poet consideration, should be entirely with thunder.* But all effort is not alike out any connexion or originating borne upwards by this strength. The source of those particular features range of human consciousness may be which they present. This we have figured as a segment of the circle of endeavoured to supply: but, in sepa- being, the angle of which meets the rately considering the individual works centre, or intelligence, whence existof this school, while the essential cha- ence proceeds; and its basement, the racteristic which most strikingly dis- widest and most extended and outward tinguishes them is recognised, it must portion of its quantity, reaches that disbe recollected that such is only a part, tance from the centre, beyond which though the most distinct part, of their humanity is lost, and mere animal life whole combination; and their great1
commences. To this wider or more ness in other respects (but which come diffused range outward being belongs, upon a ground common to different while mental existence may be said to schools and masters) must be distinct- reach, by different gradations, to a ly kept in view.
nearer approximation to the centre.t From the nature of the painting of But the angle narrows as it advances. Titian, and his immediate predeces- While all are necessarily existent in sors and followers, as it has now been the outward-proceeding, the participastated, its particular tendency, and the tion in the inward-proceeding is limit
* Some of those poems, usually denominated minor, in virtue derived from this source, become the Lares and Penates of the mind; and, were there one general language, would far outwie in effect or influence the destruction of a navy, or the burning of a capital, the means of the animal assertion of the right-war. Every word of Gray's Elegy, vainly criticised as it may be, is worth thousands of carronades and bayonets. † The gods, demons, and heroes of the Greeks, might supply a filling up or completion of an analogy of this kind.
ceeds upon
ed. Here, then, we are landed on the occasions, it does not,) their separate area of conflicting preferences-of fix- or distinct reference holds its place in ed and of temporary reputation-of that portion of the human constitution, ultimate value, or that which is con- which is immediately constitutive of tingent-of permanency and fashion, sensible existence, and which is withof worth and worthlessness.
But at out direct reflex operation. It prothe same time we recognise their divi.
unvarying necessity of sion and separateness ; and, in recog. exterior life, and descends in its appeals nising this division, an immediate stan. to that circle of perception where the dard of judgment is supplied, by which union of the human with the merely the station and reference of the differ- animal nature takes place. It has not ent objects of human exertion must be a part in the distinction of humanity. assigned.
This is the degradation of the genius Judged by this standard, the influ- of Titian. Its elevation consists in the ence of the works of the head of the width of the circle to which his works Venetian painters are found to take belong, and in their being exemplifia station which is subordinate and cations of an intention or object, conunelevated. Still, keeping in view summated to a degree which places their necessity in painting, and im- them among the most eminent in. portance as one of the greatest ex- stances of human exertion :-not that emplifications of the re-production of it is meant to be implied that this inthe constituent, or condition of the ope. tention was adopted and effected ration of all knowledge and art, sensible through a premeditated purpose, but images, (although that had even limit that such is the result by different ed their intention, which, on many steps arrived at, in Venetian painting.
and see
" 'Twill be a wild rough night upon the Moor :
Off the striplings ran,
Facing her husband, sate a Matron fair,
Ten years twice told had pass'd, since Helen Græme
Fit subject for some limnèr's skill had been
As in the good old time, the good old way.
There stood a spinning-wheel, whose humming sound
Alas! was ever spot on earth so bless'd,
Remembrance of these things, and what ensued,
Not yours alone," she soothingly would say,
or But I-but I--that ever it should be


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|GIL .. BIOSCI/Bionet News .. Biosequences .. Software .. FTP
We would like to announce the availability of a new software tool for the detection of consensus matches in DNA sequences called MatInspector. MatInspector is a program that uses a large library of predefined matrix descriptions of transcription factor binding sites to locate matches in nucleotide sequences of unlimited length. It assigns a quality rating to matches and thus allows a quality- based filtering and selection of matches. (see Quandt, K., Frech, K., Karas, H., Wingender, E., Werner, T.: MatInd and MatInspector - New fast and versatile tools for detection of consensus matches in nucleotide sequence data Nucleic Acids Research 23, pp. 4878-4884 (1995)). The library of protein binding sites contains more than 200 entries and is based on the TRANSFAC database (the new release 2.5 is accessible via http://transfac.gbf-braunschweig.de). The software and the library are available for UNIX, PC and MAC at ftp://ariane.gsf.de/pub/ You can also use interactively MatInspector on the WWW at http://transfac.gbf-braunschweig.de or http://www.gsf.de./biodv/matinspector.html Here the sequences to be analyzed can directly be submitted (copy and paste), individual or groups of matrices from the library can be selected and the resulting output can be saved for further processing.


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I've been in front of my computer all day responding to emails and giving feedback about the capture season. You should know that the permit holders are legally able to undertake the capture of the wild horses under their licence.
Although WHOAS does not agree at all with this and does have a better management plan, the permit holders have the right to partake in this.
The fight for the wild horses is not with them; it is with the Redford government and the ESRD. They are the ones who continue to ignore the citizens of Alberta, the majority of whom are wanting to see the wild horses remain on the land, free from harassment. We are also upset in the manner that they handled the implementation of this capture season and the permits they issued.


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Who did I marry?
I saw this film about four years ago when I was going on a Lifetime binge on youtube. It is still up there so you can check it out for yourself if you wish. It is based on a true story.
The film starts off with Jennifer Morgan (Tiffani Amber Thiessen). She is a respite worker for a man in a wheelchair, she wants to be an artist and keeps to herself-no dating and no men.
She gets encouraged to date Chris Gallagher (Eric Close), a guy she meets at a picnic, and at first is hesitant-but quickly falls in love.
We discover why she is so closed off, she reveals to Chris that she was raped by a friend's stepfather. Chris understands and later proposes. The two get married and Chris reveals his dream of joining the navy. He enlists and the two are off to base.
There Chris starts changing, he is extremely jealous and starts becoming anxious about being away from Jennifer and underwater. He starts acting out-very angry and frightening, but is always apologetic afterward.
Then a neighbor gets spied on by a peeping tom. One night when her husband is on duty she is raped.
Jennifer is terrified, but Chris just blows it off as no big deal.
Meanwhile, Chris has a panic attack and is relieved of his duties. Jennifer finds out later that it wasn't an attack, but that he threatened to kill himself if he had to go under and is getting psychiatric help. But that doesn't seem to help his possessiveness and anger.
Chris gets discharged when he is caught and charged with voyeurism. Jennifer wants to leave him, but is pregnant and decides to give him one more chance.
Things get better and then they become very much worse. He becomes angry, bad tempered, abusive, and voyeuristic. To add to such terror a masked rapist starts attacking women in the neighborhood.
Jennifer has the baby, and Dana, Alyson Hannigan, Chris' niece, reveals that he molested her her whole childhood. Jennifer wants to leave him, taking the baby with her, but Chris attacks Jennifer.
Jennifer tries to go to the police to press charges, but he has a friend in the police and not enough evidence to connect him to the rapes.
Chris tells her that she cannot leave or else he will hurt her and their daughter. Jennifer stays and pretends to be a dutiful wife always watching, and trying to find a way to catch him, looking for a slip up.
She becomes friends with a detective that believes her husband is guilty, the two working together in the hopes of getting evidence and putting him away.
It has a great and powerful ending, you should check it out for yourself.
It is an amazing film, but so sad. Watching that was like watching my life when I was married. It was awful, and I feel so bad for this woman. If you would like more information on the actual case, go here. But even though she encountered hardship, she took that guy down like a true hero.
No banner this time as there weren't any pictures big enough to use. Oh, well-there's always next time.
To start Horrorfest VII from the beginning, go to It's the End of the World: The Birds (1963)
For more Lifetime films, go to It Was the Curse. My Curse: The Cheerleader Murders (2016)


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Giving thanks for Thanksgiving
Oddly enough, here in the UK there isn't much interest in celebrating the American Pilgrims' survival of religious persecution and New England winters. So this year I'll be making the traditional American dry turkey shreds here in Scotland and giving thanks that we're not sitting on that 5+ feet of snow blanketing parts of the US. I'm also thankful for the lovely Patricia Sands, who just became the 1700th person to follow this little blog. Thank you Patricia, and all the incredible, funny, smart, and generous people I've met since starting this blog. I wish I could give you each some of our candied sweet potatoes. (No, seriously. I can't stand that stuff. It's all got to go…)
Meanwhile, here's a blast-from-the-past from my column-writing days. (Published: Champaign Urbana News-Gazette, November, 1991)
The Middle East? The economy? National health coverage? Anti-or pro-choice? How to cook the perfect turkey?
Guess which question is on the minds of the 248,709,873 Americans preparing to shred 535 million pounds of turkey this Thanksgiving Day. (Actually, 248,709,872 Americans — my 7-year-old prefers peanut butter and jelly sandwiches.)
My 7-year-old: Q. Which side of a turkey has the most feathers? A. The outside.
It's no surprise that modern cooks are confused about turkeys. In 1621 our pilgrim forefathers, after surviving starvation and disease, not to mention fear of witches, Native Americans, and our pilgrim foremothers, crawled out of their pilgrim forehuts and stood around making gobbling noises.
To local turkeys, these irresistible noises said, "Hey, sailor, new in town?"
Our pilgrim forefathers promptly invented Thanksgiving. Every year after that, Americans would go outside, make gobbling noises, and bring home a turkey. But there have been changes since those pilgrim forebirds. Modern turkeys are naked, frozen, keep their bodily organs in plastic baggies, and are (after years of scientific breeding at the Dolly Parton Research Institute) 95% breast meat.
They are also so much larger that Americans who make the traditional gobbling noises are actually trying to say, "I have just suffered serious physical damage from lifting that sucker and I don't think I'll be able to have children."
My 9-year-old: Q. How do you tell a turkey from an elephant? A. If you don't know, I'm not eating Thanksgiving dinner at your house.
Americans attach too much importance to Thanksgiving turkey. After all, even if you do blow the main dish of the single, most important meal of the year and are branded a pathetic, incompetent failure in front of your in-laws, family, and friends, the dog will still love you. Probably. If she gets the scraps.
"But Barb," you protest, "surely there is A Better Way." To you Norman Rockwell wannabes I say, "Marge Klindera." Marge is a supervisor for the 45 turkey mavens at the Butterball Turkey Talk Line. They ministered to over 220,000 cases of turkey-trauma last year, 6600 on T-Day alone, from desperate chefs who wanted to know:
- What if you live in Seattle and on Thanksgiving day yours is one of 20,000 homes where the power goes out during peak roasting hours? (And what if someone –we're not naming names, but he'll be on sofa sentry until next Thanksgiving — forgot to turn off the grill last time and the propane is all gone? Time for the traditional Thanksgiving bonfire. All those booklets from the power company pointing out that your neighbors are much better at saving energy than you will make excellent fuel. For that festive yet personalized touch, I hear Martha Stewart Online has instructions for making a homemade burnable effigy of power company executives.)
- What if you forget you've put Tom in the bathtub to defrost and all of a sudden you notice you're showering with the main course? (This little secret is between you and Tom, and I don't think he's going to talk.)
- What if you've cooked the turkey in its plastic wrapper and you wonder if those blue and yellow markings on its skin are edible? (Marge seems like a very nice person. I really don't think she makes this stuff up…)
- What if you can't find the neck cavity for stuffing because you've never had a relationship with a turkey who wasn't past tense, so you're not sure exactly which opening represented his neck when he was present tense?
- (My personal favorite) What if your kitten crawls into the turkey and falls asleep and as you're about to pop it in the oven you notice a long furry tail hanging out which you're pretty sure is not standard-issue turkey equipment?
Marge was also happy to tell me the easiest way to fix turkey:
- Make stuffing. There are only two ways to make stuffing; your mother's way and the wrong way.
- If you don't remove the little plastic bag of giblets before cooking, your turkey will not be ruined. Your family, however, will be physically incapable of saying the word 'Thanksgiving' without mentioning this incident. ("Remember the time back in '91 when Great-Great-Grandma cooked the plastic bag inside the turkey?" "Yeah, that was pretty funny. Um… what's a turkey?" "I dunno… what's a Grandma?")
- Rub skin with vegetable oil and place turkey on a flat rack. Cook at 325 degrees until golden brown, tenting the breast area with foil to keep it from drying out. Turkey is done when a meat thermometer says 180-185 degrees, NOT when your husband says the guests are going to start eating the piano if they don't get some dinner soon.
"But you don't want to overcook it as it could become dry, tough, and shredded when carved," advises Marge. (Come on, Marge — how could it be Thanksgiving without the traditional turkey shreds?)
My 7-year-old: Q. What do you get when you cross a turkey with an octopus? A. Finally, enough drumsticks to go around.
My 5-year-old: Q. Why did the turkey cross the road? A. It was the chicken's day off.


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The Seattle Rock Orchestra has successfully tackled Radiohead, Arcade Fire, the Beach Boys' Pet Sounds, David Bowie and their next tribute will be Queen in May. So whose music should they take on next?
Here are a few ideas:
Guns N Roses
Sure "November Rain" practically screams orchestral performance but could you image hearing classical arrangements of "You Could Be Mine," "Welcome to the Jungle" and "Back off Bitch?" That would be some epically amazing stuff. Added bonus: If Axl Rose doesn't want to play ball and allow the songs to be rearranged maybe local Duff McKagan can twist his arm for the SRO.
Guest vocalists: Star Anna, Duff McKagan, Ben Harwood
Say what you will about the band's current output, but you really can't touch U2's back catalog when it comes to modern rock classics. Although I would definitely recommend sticking to the pre-Zooropa material for this one.
Guest vocalists: Josiah Johnson, Cody Votolado, Damien Jurado
Led Zeppelin
I'm kind of surprised the SRO hasn't tackled Led Zeppelin already. There are enough Jimmy Page wannabes in Seattle to make this a no-brainer when it comes to ticket sales. Plus, who wouldn't want to hear "Kashmir" done by the SRO?
Guest vocalists: Ann Wilson, Kaylee Cole, Ben
Pearl Jam
I have a feeling that a night of Nirvana would simply be too cliche in Seattle, so why not try Pearl Jam instead? There's a wealth of material to choose from and I'm guessing the Pearl Jam guys would be cool with SRO handling their songs with care.
Guest vocalists: Chris Cornell, Mark Arm, Kristen Ward
Neil Young
Since Canada is our neighbor to the north why not extend some good old fashioned Northwest hospitality to our mayonnaise-loving friends (Seriously, they dip French fries in mayo. Yuck.) by having the SRO tribute the finest musician to ever come out of Canada.
Guest vocalists: Robin Pecknold, Eddie Vedder, Rachel Flotard
Perhaps no one on this list is more deserving of a tribute than the Purple One. All of his hits were massive (even "Batdance") and all would sound great with an orchestral treatment (even"Batdance"). The SRO needs to make this happen.
Guest vocalists: Shawn Smith, Beth Ditto, John Van Deusen