action in the first instance, in the opinion of Mr. Justice Harlan, "is a very different matter from a combination and conspiracy among employees with the object and intent, not simply of quitting the service of the receivers because of the reduction of wages, but of crippling the property in their hands and embarrassing the operation of the railroad."

The majority undertakes to prescribe a set rule forbidding under any circumstances the enjoining of certain acts which may or may not be actuated by a malicious motive or be done for the purpose of working an unlawful injury or interfering with constitutional rights of employer or employee. In the same opinion Mr. Justice Harlan points out the impossibility of prescribing a set rule of this character and says, "The authorities all agree that a court of equity should not hesitate to use its power when the circumstances of the particular case in hand require it to be done in order to protect rights of property against irreparable damage by wrong doers. It is as Justice Story said, 'because of the varying circumstances of cases that courts of equity constantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which such injunction shall be granted or withheld,"" and the authority proceeds, "there is wisdom in this course, for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights or redress wrongs. The jurisdiction of these courts thus operating by special injunction is manifestly indispensable for the purposes of social justice in a great variety of cases and therefore should be fostered and upheld by a steady confidence." (Story, Equity Jurisprudence, sec. 959B; Arthur v. Ŏakes, 63 Fed., 328.) Among the acts which the second paragraph of section 266C declares shall not be restrained is to prohibit any person or persons to terminate any relation of employemnt, or from ceasing to perform any work or labor or from recommending or persuading others by peaceful means so to do; of peacefully persuading any person to work or to abstain from working, or from ceasing to patronize or employ any party to such dispute or from recommending, advising, or persuading others by peaceful means so to do"; etc.

While many of these acts are in themselves entirely harmless and would never be enjoined by any court, yet under certain circumstances the same acts might become a weapon of lawless and destructive industrial warfare demanding the protection of the courts, this section would prevent the issuance of the injunction in the Debs case (In re Debs, 158 U. S., 564); it would prevent the issuance of the injunction in Toledo & Ann Arbor v. Pennsylvania Co. (54 Fed., 730); it would prevent the issuance of any injunction to restrain either workmen or employers who were the objects of the most vicious form of boycott that has been passed upon by the courts, or can be devised by the ingenuity of boycotters. It changes the remedies by which the Sherman Act may be enforced, inasmuch as if any of these acts enumerated in section 266C were the means employed to enforce the restraint of trade or to damage the interstate business of any individual or corporation no injunction could be obtained either by a private individual or by the Government against such acts.

In the Debs case, a combination sought to paralyze the railroads of the United States and prevent the carrying of the mail until the railroad companies would agree not to haul Pullman cars because of a controversy between the Pullman Co. and certain of its employees

who were not in the employ nor in any way related to the railroad companies. It is true there were acts of violence, but the general scheme was one of persuading all employees of the railroad companies to quit until the demands of the boycotters and strikers had been complied with. In the Toledo & Ann Arbor case the famous rule 12 of the brotherhood provided that none of its members should handle the cars of any carrier with which members of the brotherhood were in a dispute. In that case the brotherhood employees of the Pennsylvania refused to handle cars of the Toledo & Ann Arbor because of a dispute between that road and some of the brotherhood, and they threatened to quit the service of the Pennsylvania road unless it agreed to violate the provisions of the interstate-commerce act by not affording equal facilities to the cars of another road. No violence was threatened. The brotherhood merely undertook to "peacefully persuade" the Pennsylvania Co. not to handle the cars of the other road under a threat of leaving their service-a thing which they had a perfect right to do to better their own condition, but not for the purpose of compelling the Pennsylvania Railroad Co. to violate the law.

The majority report quotes at length from the case of Pickett v. Walsh (192 Mass., 572), "and regret the necessity of limiting the quotations, because the whole opinion could be studied with profit." We agree with the majority that the whole opinion could have been studied with profit, since it condemns forms of "peaceful persuasion' from which the majority would withdraw equitable intervention. Speaking of the case before it, it says: "It is a refusal to work for A, with whom the strikers have no dispute, because A works for B, with whom the strikers have a dispute, for the purpose of forcing A to force B to yield to the strikers' demands. * * * It is a combination by the union to obtain a decision in their favor by forcing other persons who have no interest in the dispute to force the employer to decide the dispute in their favor. Such a strike is an interference with the right of the plaintiffs to pursue their calling as they think best. In our opinion organized labor's right to coercion or compulsion is limited to strikes against the persons with whom the person has a trade dispute; or, to put it in another way, we are of the opinion that a strike against A, with whom the strikers have no trade dispute, to compel A to force B to the strikers' demands is unjustifiable interference with the right of A to carry on his calling as he thinks best. Only two cases to the contrary have come to our attention, namely, Bohn Manufacturing Co. v. Hollis (54 Minn., 223) and Jeans Clothing Co. v. Watson (168 Mo., 133)."

This case which the majority believe could be "studied with profit" is squarely against the proposal of their bill, and the two cases alluded to as being the only ones known to the court contrary to such view, for both have been overruled. Bohm Manufacturing Co. (54 Minn., 223) was overruled in Gray v. Building Trades Council (91 Minn., 171). The second case is alluded to by the majority of the committee in support of its contentions and the majority declare the logic of the court in that case "appears unanswerable." This "unanswerable" logic was overruled by the Supreme Court of Missouri in Lohse Patent Door Co. v. Fuel (215 Mo., 421).

The majority report also quotes in support of their contention from Vagelahm v. Gunter (167 Mass., 92), saying, "Justice Holmes, now of the Supreme Court of the United States, delivered the opinion." The opinion was delivered by Mr. Justice Allen and is squarely against

the contention of the majority, Mr. Justice Holmes having delivered a dissenting opinion in which he stood alone. The majority have been driven to the necessity of quoting from other dissenting opinions in support of their opposition, and to these we do not deem it necessary to give attention.

It is said by the majority that no question of constitutionality is involved. We submit that if the measure is to be construed, as it evidently is, to prevent the application of injunctive relief to certain acts in disputes between employer and employee which may be part of a scheme or plan to work irreparable injury, which acts could be enjoined in any other department of litigation, it is obvious that the parties affected would be denied the equal protection of the law and due process of law, coming well within the rule laid down in Connelly v. The Union Sewer Pipe Co. (184 U. S., 540); Goldberg v. Stablemen's Union (149 Cal., 429); Pierce v. Stablemen's Union (156 Cal., 70); and Niagara Fire Insurance Co. v. Cornell (110 Fed. 816).

We do not consider the English act of 1906, which is quoted by the majority as a precedent for some of its proposals. There is no parallel whatever between the conditions at which the English act is aimed and the fundamental restrictions of the organic law of this country having no similitude in the constitution of the British Empire. The peculiar privileges conferred upon trades-unions by the English act of 1906 are accompanied by disabilities and criminal provisions of so drastic a nature that if they were offered as any part of the legislation of this country we should deem it our duty to oppose them in the interest of all workingmen.

We agree with the majority that "liberty and more of it is safe in the hands of the workingmen of the country." We are convinced of the merit and truth of that contention. We do not, however, believe that liberty is advanced in the person of any citizen by stripping him of remedial protection through processes which have received the deliberate and mature approval of the English-speaking race during all the centuries of its history. We can not believe that the due protection of person and property under constitutional guaranties and by remedies tested by time is "an impediment to progress," or that the destruction of the essential remedies by which person and property receive protection is "a great social advance." We believe with the President of the United States, in a famous statement made by him many years since to the American Bar Association, "It will not be surprising if the storm of abuse heaped upon the Federal courts and the political strength of Federal groups, whose plans of social reforms have met obstructions in these tribunals, shall lead to serious efforts, through legislation, to cut down their jurisdiction and cripple their efficiency. If this comes, then the responsibility for its effects, whether good or bad, must be not only with those who urge the change, but also with those who do not strive to resist its coming." (Address to American Bar Association at Detroit, 1895.)

JOHN A. STERLING.
R. O. MOON.

EDWIN W. HIGGINS.
PAUL HOWLAND.

FRANK M. NYE.

FRANCIS H. DODDS.

APPENDIX B.

RELATING TO CONTEMPTS.

House Report 613, part 2, Sixty-second Congress, second session.

PROCEDURE IN CONTEMPT CASES.

APRIL 29, 1912.-Referred to the House Calendar and ordered to be printed.

Mr. STERLING, from the Committee on the Judiciary, submitted the following as the

VIEWS OF THE MINORITY.

To accompany H. R. 22591,1

We, the undersigned, members of the Committee on the Judiciary, do not agree with the action of the committee on the bill (H. R. 21100) entitledAn act to amend an act to codify, revise, and amend the laws relating to the judiciary," approved March 3, 1911.

The effect of the bill is to take from the courts the right to determine the guilt or innocence of one charged with contempt in certain cases and submit that question to a jury. If its provisions were put into actual practice it would greatly impair and might in some instances, we fear, totally destroy the power of the court to enforce its orders and decrees and maintain the peace of society.

We know of no necessity for the erratic and radical legislation provided for in this bill. He who would depart from long-established principles and usages should be able to give some reason therefor. He should be able to offer something better or show wherein abuses would be corrected or evils avoided by the departure. The proponents of this bill have failed to do either.

Nowhere

The committee has had extended hearings on this bill. has it been made to appear to the committee that there has been any general abuse of the power of the courts to punish for contempt, nor has specific instances been shown where persons were wronged by the exercise of that power which this bill seeks to take from the court and lodge in another tribunal.

We desire to view this bill in three aspects: First, as to some of its provisions in detail; second, as to its constitutionality; and, third, as to whether it is desirable legislation on the ground of public policy. Even though it were desirable to try any questions of contempt by a jury there can be no possible reason why those cases set apart by this bill to be dealt with in that way should be so distinguished from all others. It is important that all contempts should be punished with certainty and as summarily as possible consistent with justice.

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This is necessary in order to maintain the authority of the court and to secure to it that respect to which it is entitled. This is especially true where the acts constituting the contempt are acts of violence or where they constitute a crime. It is this class of contempts which this bill precludes from certain and summary punishment and no others. It provides that any act of disobedience to the law constituting contempt shall be tried by the jury if the act of disobedience also amounts to a crime, but it leaves the lesser offense of contempt not constituting crime to be punished summarily by the court. Punishment for violence in any form should be as certain and swift as is possible consistent with justice, and particularly so when that violence resists the execution of the processes and orders of the courts and the due course of justice. What reason can one assign for giving to the man who commits a crime in resistance to an order or process of court the right of trial by jury and denying it to the man who resists it by peaceful methods? The proponents of this bill have never here or elsewhere assigned any reason for the unjust and unfair distinction. As a concrete illustration of the working of such a law let us suppose a case. An officer of the law in the performance of his sworn duty seeks to serve one with a summons to attend court as a witness or juror, but is prevented from doing so by being assaulted and beaten. That offender is guilty of contempt by the commission of violence on an officer amounting to a crime, and under the provisions of this bill he is entitled to have his case of contempt taken away from the court whose authority he has violated and submitted to a jury, with all the delays and uncertainties incident to such practice.

In another case the officer serves one with a summons to attend as a witness or juror without molestation and makes due return to the court. But this man simply disobeys the order of the court by failure or refusal to attend, and he is denied the right of trial by jury and must submit to the summary determination of his contempt by the court whose order he disobeys. Thus, the graver offender, the one who defies the court and resists its authority by violence and crime, is given the right of trial by jury, if he demands it, while the lesser offender who simply fails or refuses to obey the order of the court is denied that right.

But even a graver injustice must inevitably flow from this invidious classification of contempts than that. The bill provides that trial by jury for contempt shall conform as nearly as may be to the practice in criminal cases prosecuted by indictment or upon information. Under that clause the court must apply the rules of evidence in criminal cases to that class of contempt cases which are submitted to a jury by this bill. It requires the court to instruct the jury that unless they believe from the evidence beyond all reasonable doubt that the accused is guilty of contempt he must be acquitted; and that if the acts of the accused can be explained on any other reasonable hypnothesis than that of guilt he must be found not guilty. But this favorable rule of evidence will only apply in the case of the graver offender who has defied the court by violence and intimidation and resisted its authority by the commission of crime. He, of all persons charged with contempt, is selected out to receive the benefit of any doubt, while the lesser offender, he who has passively disobeyed the order of the court, shall be convicted on a mere preponderance of the evidence. We believe in those rules of evidence