26 other customers, $160,690, and from Triest, a California jobber, $80,000, making a total of $325,390; that the loss of gross business in 1902 was much less, but still very substantial. The company concluded that the net damage caused by the boycott amounted to more than $88,000. These items, the company declared, did not take into consideration the normal increase in business during the years 1902 and 1903.

Loewe & Company first filed a suit against the unions in the United States Circuit Court at Hartford, on August 31, 1903, charging them with violating the Sherman Anti-Trust law. Various postponements carried the case along until 1907, when Judge James P. Platt of the Circuit Court asked the Supreme Court of the United States for a ruling on the damage clause of the Sherman law.26 Chief Justice Fuller, who delivered the opinion in the case, February 3, 1908;27 declared that the boycotting case came within the statute as a conspiracy in restraint of trade among the several states. On October 13, 1909, the case was brought to trial.

Over 200 witnesses testified for the defendants, and the trial lasted nearly five months. In his charge to the jury, Judge Platt, overstepping his authority, directed the jury to bring in a verdict. for Loewe, requesting the jurymen to consider the question of damages as the "only question with which they could properly concern themselves." The jury brought in a verdict of $74,000 damages against the union. This amount was trebled under the triple damage provision of the Sherman law. Adding the costs, the total damages finally assessed were $232,240.

The case, however, was appealed to the Circuit Court of Appeals of the Second Judicial District, on a writ of error, and on April 10, 1911, the judgment was reversed, the judges declaring that Judge Platt had erred in taking upon himself the function of the jury, and in leaving to the jurymen only the question of the assessment of damages; also in assuming that mere membership in the United Hatters' Association made a unionist responsible as a principal for all illegal actions of agents of the officers.28

An unsuccessful effort was made to have the United States Supreme Court review the case in January, 1912. A retrial of the case, however, was held in Connecticut, ending October 11, 1912, the jury delivering a verdict of $80,000 and costs. The total award was $252,130. The jury took the position that the minutes, resolutions, reports, proclamations, and printed discussions which the

*See sec. 7 of the law in Reading 214 supra.

officers and agents of the association publicly proclaimed and circulated among the membership were approved or warranted by the individual members of the association. The case was again appealed to the Circuit Court of Appeals, Second Circuit, which, in December, 1913, confirmed the decision of the lower court.

An appeal was taken to the Supreme Court. On January 5, 1915, it reaffirmed the judgment for $252,130 against 186 Danbury hatters found guilty of violating the provisions of the Sherman Anti-Trust act.29 The decision reaffirmed the position taken by the Supreme Court in 1908 that a boycott conducted by a trade union against a firm whose products are sold in any state other than that in which they are manufactured constitutes "a combination in restraint of trade." The primary and secondary boycott and the unfair list were alike condemned as coming within the scope of the act. The decision stated:

The circulation of a list of unfair dealers, manifestly intended to put the ban upon those whose names appear therein, among an important body of possible customers is within the possibilities of the Sherman act if it is intended to restrain and restrains commerce among the states.

It requires more than the blindness of justice not to see that many branches of the United Hatters and the Federation of Labor to both of which the defendants belonged, in pursuance of a plan emanating from headquarters, made use of such lists and of the principal and secondary boycott in their effort to subdue the plaintiffs in their demands.

The main question, then, to be determined was whether or not the 186 members of the union whose homes and bank accounts had been attached had, by their actions, authorized the boycott. The court held that the acts could be presumed to be authorized, and the members of the union could be held liable if the latter "paid their dues and continued to delegate authority to their officers unlawfully to interfere with the plaintiffs' interstate commerce in such circumstances as they knew and ought to have known, and such officers were warranted in their belief that they were acting in the matters within their delegated authority."

The decision declared the propriety of introducing into the court newspapers, and like evidence, to show that the acts were brought home to the defendants.

The decision comes as a crushing blow to unionism, and especially to the defendant hatters, to many of whom the collection of the judgment will mean ruin. Whether the unfortunates will receive succor from the American Federation of Labor, or from the hatters' union, is not, at the present writing, certain.

"Lawlor v. Loewe, 235 U. S. 522.

The question now uppermost in the minds of union men is, Can the courts similarly reach the funds of the unions under the new Clayton amendment? If it is found that sec. 20 of this bill does not protect them, a vigorous agitation on the part of labor for the enactment of another law exempting labor organizations from all prosecutions under the provisions of the Sherman act may be anticipated. This decision may give a great impetus to political action on the part of American trade unionists.

335. A Legal Criticism of the Injunction 30

BY CHARLES CLAFLIN ALLEN

Violation of injunction is punishable as contempt of court. Punishment for contempt of court is the most summary and arbitrary exercise of authority under the English and American judicature. It is the reserve power inherent in every court of general jurisdiction to punish by fine or imprisonment, in order to maintain. its dignity and enforce its commands; a power which is absolutely essential to the proper conduct of courts of justice.

The person charged with contempt is entitled to be heard, but he must appear in person and not by attorney. He has no right to be heard by counsel, nor to trial by jury. And the trial of facts for contempt not committed in facie curiae is usually on affidavits. While in contempt of an injunction, he can not move to dissolve, nor can he attack the jurisdiction of the court under the original bill, nor file any sort of dilatory pleading whatever, till he has purged himself of the contempt. In short a party to a suit may go to jail for contempt of a preliminary injunction issued ex parte, without notice to defendant, which is subsequently-and after the defendant has served his term of imprisonment-held to be without equity-that is, void. This is a tremendous power to place in the hands of one man; for from his judgment there is no appeal.

And what is the purpose of issuing injunctions against great masses of men? What object is to be attained by making 200, or even 500 strikers, parties to a suit, out of a total number of many thousands? Personal service on more than a few, in time to make the writ effective, is impracticable. Is it intended that the mere issuing of the writ should act in terrorem over the entire body of men engaged in the strike? Or is it expected, by posting copies in public places, to establish a novel method of service by publication? Is the decree to serve the purpose of a mere executive proclamation,

30

3o Adapted from an address published in 28 American Law Review 828 (1894).

warning evil-doers against a continuance of their misconduct, and without force or validity, except as a basis for invoking the military power? Surely not. Such a construction would be a degradation of judicial process. Then the conclusion remains that the real purpose is to use the injunction for calling forth the power of the court to punish for contempt; to make of a court of equity in practical effect a criminal court.

The practice of "blanket injunctions" covering large numbers of persons, not actual parties to the suit, and without personal service upon them, is indefensible. It is a general rule, as old as equity jurisprudence, that persons not parties to the bill are not bound by the decree.

After all, what does it mean, this sudden development of equity jurisdiction? Whither are we tending? An injunction sued out by the United States against 10,000 strikers and all the world besides Does the injunction stop the strike? Troops are called out to aid the process. Do they aid it? Some scores of rioters are killed, but where was the injunction meanwhile?

336. Unionism and the Conditions of Employment31

Included in the right of personal liberty and the right of private property partaking of the nature of each-is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money.

An interference with this liberty so serious as that now under consideration, and so disturbing of equality of right, must be deemed to be arbitrary, unless it be supportable as a reasonable exercise of the police power of the state. But, notwithstanding the strong general presumption in favor of the validity of state laws, we do not

31

Adapted from the opinion of the court in the case of Coppage v. State of Kansas, 236 U.S. 1 (1915). A workman was discharged for refusing to sever his connection with a labor organization. A law of the state of Kansas, where the suit originated, forbade employers requiring of employees an agreement not to become or remain members of labor organizations as a condition of securing or retaining employment. The Kansas statute, involved in this case, was declared unconstitutional.

think the statute in question, as construed and applied in this case, can be sustained as a legitimate exercise of that power.

The act, as the construction given to it by the state court shows, is intended to deprive employers of a part of their liberty of contract, to the corresponding advantage of the employed and the upbuilding of the labor organizations. But no attempt is made, or could reasonably be made, to sustain the purpose to strengthen these voluntary organizations any more than other voluntary associations of persons, as a legitimate object for the exercise of the police power. They are not public institutions charged by law with public or governmental duties, such as would render the maintenance of their membership a matter of direct concern to the general welfare. If they were, a different question would be presented.

As to the interest of the employed, it is said by the Kansas Supreme Court to be a matter of common knowledge that "Employees, as a rule, are not financially able to be as independent in making contracts for the sale of their labor as are employers in making a contract of purchase thereof." No doubt, wherever the right of private property exists, there must and will be inequalities of fortune; and thus it naturally happens that parties negotiating about a contract are not equally unhampered by circumstances. This applies to all contracts and not merely to that between employer and employee. Indeed a little reflection will show that wherever the right of private property and the right of free contract coexist, each party when contracting is inevitably more or less influenced by the question whether he has much property, or little, or none; for the contract is made to the very end that each may gain something that he needs or desires more urgently than that which he proposes to give in exchange. And, since it is self-evident that, unless all things are held in common, some persons must have more property than others, it is from the nature of things impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights.

It is said in the opinion of the state court that membership in a labor organization does not necessarily affect a man's duty to his employer; that the employer has no right by virtue of the relation, "to dominate the life nor to interfere with the liberty of the employee in matters that do not lessen or deteriorate the service," and that "the statute implies that labor unions are lawful and not inimical to the rights of employers." The same view is presented in the brief of counsel for the state, where it is said that membership in