Avery's "Great Day"

In Chicago, white-haired U.S. District Judge Philip Leo Sullivan turned from his lawbooks to his dictionaries, solemnly pondered the meaning of two words;--"production" and "distribution." Then, reluctantly, he handed the U.S. Government's labor policy a resounding judicial slap. President Roosevelt, he decided last week, had no power to seize the plants and facilities of Sewell Avery's Montgomery Ward & Co. (TIME, Jan. 8).

Judge Sullivan's ruling was a heavy and unexpected blow to the War Labor Board and the voluntary formula on which it operates. It was only a first-round decision. But, unless reversed, it meant that under the War Labor Disputes Act the President may seize mines, plants or facilities only when they are equipped for the "manufacture, mining or production" of war-necessary materials. By Judge Sullivan's decision, the law does not cover businesses engaged solely in "distribution." Said WLB Chairman William H. Davis:

"If the decision is not reversed or Congress does not take appropriate action to make the War Labor Board's orders of settlement effective on everybody, the whole plan of peaceful settlement of wartime labor disputes will collapse."

Judge's View. As foundation for his decision, 55-year-old Philip Sullivan (who was appointed to his job by Franklin Roosevelt) also gave his judicial view of the President's constitutional powers as Commander in Chief of the Army & Navy. He found that "outside the theater of war, the President, as Commander in Chief, does not have unlimited power over the persons and property of citizens." Judge Sullivan concluded: "It is with considerable reluctance that I have arrived at the conclusions in this case."

When Judge Sullivan read his 18-page opinion, Montgomery Ward's $100,000-a-year chairman, stubborn Sewell Lee Avery, was absent from the courtroom. At the lush San Marcos Hotel in Chandler, Ariz., where he was resting, Avery called it "a great day for labor."

In Washington, Attorney General Biddie planned an appeal, intended to speed it to the U.S. Supreme Court. Meanwhile Judge Sullivan allowed the U.S. Army to stand its post in charge of Montgomery Ward.

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