service." (Jones v. Stanley, 72 N. C., 355. Quoted and approved, Angle v. C. St. P. R. R., 151 U. S., 14.)

*

*
*

"It is not necessary that the ingredient of actual malice in the sense of personal ill will should exist. * * * The wanton disregard of the rights of a carrier causing injury to it constitute legal malice." (Louisville & Nashville v. Bitterman, 207 U. S., 223.) When to these elements you add the further circumstance of intimidation and threats as a means of furthering the malicious persuasion presented, there is not and can not be a question of the right of an equity court to intervene by injunction.

9. Knudsen et al v. Benn et al. (123 Fed., 636).-This is an oral opinion on motion for a preliminary injunction granting the same. The complainants were employing teamsters engaged in transferring freight from the cars of the Northern Pacific Railway Co. at Duluth and reloading the same upon vessels at the docks of Duluth. The defendants, striking longshoremen, were, as the evidence shows, undertaking to procure a breach of existing contracts between the complainants and their employees by intimidating, threatening, and assaulting said employees.

The court says:

"The affidavits of police officers and others also show that there have been assaults and threats made by defendants who had been employed by the complainants against new employees."

The court announced that the injunction allowed may be extended "to any interference, not only with the employees of the complainants while they are at work and in places where they are performing service, but also to interference with them by pickets, and other ways of waylaying and meddling while going to and returning from their work, and especially restraining assaults of any kind by force or violence or intimidation by threats of force or violence.'

The case is obviously one well within the exercise of settled principles as necessary as they are evident.

10. Boyer et al. v. Western Union Telegraph Co. (124 Fed., 246).—I will not pause to discuss this case, as it is analyzed in Exhibit F and does not apply to any feature of the pending bill, since it is a decision refusing and not granting an injunction upon a point not at issue in this measure.

11. A. R. Barnes & Co. et al. v. Berry et al. (156 Fed., 72).—This is an oral opinion delivered on a motion for an injunction in a suit brought to prevent the violation of a contract between two voluntary associations, the one of employing printers, the United Typothetæ of America, and the other union printers, the International Printing Pressmen's and Assistants' Union of North America. Various questions of jurisdiction and pleading are involved, but by the syllabus submitted by Mr. Gompers it is evident that his criticism is aimed at that part of the injunction which restrained the officers of the union from calling a strike of the members because of a refusal of the employing printers to modify the existing contract between themselves and the national union of their employees and institute an "eight-hour day" and a "closed shop" in violation of the terms fixed by the contract.

On the hearing the validity of the contract made between the two parties in 1907 was not questioned, and by its terms an eight-hour day was to become effective January 1, 1909. Several months after the making of the contract new officers who had been opposed to its terms were elected by the union which had ratified it, and they immediately undertook to compel the employers to modify the contract in accordance with their opinion by threatening to call out and by, in a number of instances, calling out the union printers. The court described the situation thus:

"The service of the employees, members of the union, is neither special, extraordinary, nor unique, in the sense that it could not otherwise be supplied, and that its loss would cause irreparable injury, and it is not sought to restrain them from quitting the service of their employers, but only that their officers, agents, and representatives be restrained from inciting them to strike, unless the contract be so modified as to make provision for the eight-hour day' and 'closed shop,' and to make it effective at once. It is not a question, therefore, of whether the men who work shall be enjoined from striking, but it is a question whether the officers, agents, and representatives of these men, who represent the organization and control it, shall be permitted to incite the men to strike, to induce them to strike, and thereby repudiate the contract which was made by them through their agents at the January convention of 1907."

In view of Mr. Gompers's passionate assertion during the hearing of his belief in keeping the oral word as well as the written one, it seems surprising, representing what he does, he should criticize the enforcement of a plain agreement. The principles involved have been discussed elsewhere and scarcely require repetition. The combination to procure a breach of contract is unlawful and the damage it causes may be recovered in a proper action, but where, as in this case, the remedy at law was plainly

inadequate, the injunction was the only remedy left, and the action of the court is sustained by authorities too numerous to mention and will appeal to the common sense of any layman.

12. Hitchman Coal & Coke Co. v. Mitchell et al. (172 Fed., 963).—This case and criticisms of it is fully discussed in Exhibit B.

List No. 2, citations without syllabus, by Samuel Gompers.

The cases here enumerated are evidently a mere repetition of the list of "injunctions issued by courts of the United States involving labor disputes" submitted by me to the House Committee on the Judiciary, and to be found in the "Hearings on injunctions" before that body, page 357, Sixty-second Congress, second session. This becomes evident when it is observed that such cases as Barnes & Co. v. Berry (156 Fed., 72), and Hitchman Coal & Coke Co. v. Mitchell (172 Fed., 963), are quoted in the order in which they appear in that list and thus evidently unintentionally repeated by Mr. Gompers, since they are included in his first list with specifications of the parts of the opinions to which he objects.

Most of these cases involve the same principles discussed with respect to the preceding list of cases and the greater part of them were presented to the committee of the House by Mr. Gompers in 1908 and analyzed for that committee at that time. This analysis is offered for the benefit of this committee as Exhibit F, and is also to be found on page 338 of the "Hearings on injunctions" before the House Committee on the Judiciary, Sixty-second Congress, second session.

EXHIBIT D.

[AN ACT To provide for the regulation of trades unions and trade disputes, 21st December, 1906.] [6 Edw. VII, ch. 47.]

Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

I. The following paragraph shall be added as a new paragraph after the first paragraph of section three of the conspiracy and protection of property act, 1875:

66

An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable."

II. 1. It shall be lawful for one or more persons, acting in their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading, any person to work or abstain from working.

2. Section seven of the conspiracy and protection of property act, 1875, is hereby repealed from "attending at or near" to the end of the section.

III. An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.

IV. 1. An action against a trade union, whether of workmen or masters, or against any members or officials thereof on hehalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court.

2. Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the trades union act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute.

V. 1. This act may be cited as the trade disputes act, 1906, and the trade union acts, 1871 and 1876, and this act may be cited together as the trade union acts, 1871 to 1906. 2. In this act the expression "trade union" has the same meaning as in the trade union acts, 1871 and 1876, and shall include any combination as therein defined, notwithstanding that such combination may be the branch of a trade union.

3. In this act and in the conspiracy and protection of property act, 1875, the expression "trade dispute" means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of the employment, or with the conditions or labor, of any person, and the expression "workmen means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises; and, in section three of the last-mentioned act, the words "between employers and workmen" shall be repealed.

EXHIBIT E.

CONSPIRACY AND PROTECTION OF PROPERTY ACT, 1875.

Chapter 86. An act for amending the law relating to conspiracy and to the protection of property, and for other purposes (Aug. 13, 1875).]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. This act may be cited as the conspiracy and protection of property act, 1875. 2. This act shall come into operation on the 1st day of September, 1875.

CONSPIRACY AND PROTECTION OF PROPERTY.

3. An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute (between employers and workmen) shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime.

An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable.

Nothing in this section shall exempt from punishment any persons guilty of a conspiracy for which a punishment is awarded by any act of Parliament.

Nothing in this section shall affect the law relating to riot, unlawful assembly, breach of the peace, or sedition, or any offense against the State or the sovereign.

A crime for the purposes of this section means an offense punishable on indictment, or an offense which is punishable on summary conviction, and for the commission of which the offender is liable under the statute making the offense punishable to be imprisoned either absolutely or at the discretion of the court as an alternative for some other punishment.

Where a person is convicted of any such agreement or combination as aforesaid to do or procure to be done an act which is punishable only on summary conviction, and is sentenced to imprisonment, the imprisonment shall not exceed three months, or such longer time, if any, as may have been prescribed by the statute for the punishment of the said act when committed by one person.

4. Where a person employed by a municipal authority or by any company or contractor upon whom is imposed by act of Parliament the duty, or who have otherwise assumed the duty, of supplying any city, borough, town, or place, or any part thereof, with gas or water, willfully and maliciously breaks a contract of service with that authority or company or contractor, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in combination with others, will be to deprive the inhabitants of that city, borough, town, place, or part wholly or to a great extent of their supply of gas or water, he shall on conviction thereof by a court of summary jurisdiction, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding £20 or to be imprisoned for a term not exceeding three months, with or without hard labor.

Every such municipal authority, company, or contractor as is mentioned in this section shall cause to be posted up, at the gas works or waterworks, as the case may be, belonging to such authority or company or contractor, a printed copy of this section in some conspicuous place where the same may be conveniently read by the persons employed, and as often as such copy becomes defaced, obliterated, or destroyed shall cause it to be renewed with all reasonable dispatch.

If any municipal authority or company or contractor make default in complying with the provisions of this section in relation to such notice as aforesaid, they or he shall incur on summary conviction a penalty not exceeding £5 for every day during

Words 'between employers and workmen" repealed by pt. 3, sec. 5, trade disputes act, 1906

which such default continues, and every person who unlawfully injures, defaces, or covers up any notice so posted up as aforesaid in pursuance of this act shall be liable on summary conviction to a penalty not exceeding 40 shillings.

5. Where any person willfully and maliciously breaks a contract of service or of hiring, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in combination with others, will be to endanger human life, or cause serious bodily injury, or to expose valuable property, whether real or personal, to destruction or serious injury, he shall, on conviction thereof by a court of summary jurisdiction, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding £20, or to be imprisoned for a term not exceeding three months, with or without hard labor.

MISCELLANEOUS.

6. Where a master, being legally liable to provide for his servant or apprentice necessary food, clothing, medical aid, or lodging, willfully and without lawful excuse refuses or neglects to provide the same, whereby the health of the servant or apprentice is or is likely to be seriously or permanently injured, he shall on summary conviction be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding six months, with or without hard labor.

7. Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing wrongfully and without legal authority

(1) Uses violence to or intimidates such other person or his wife or children, or injures his property; or

(2) Persistently follows such other person about from place to place; or

(3) Hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or

(4) Watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place;

or

(5) Follows such other person with two or more other persons in a disorderly manner in or through any street or road,

shall, on conviction thereof by a court of summary jurisdiction, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding three months, with or without hard labor.

NOTE. Last paragraph of this section repealed by second paragraph, second section, trade disputes act, 1906. "Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section."

8. Where in any act relating to employers or workmen a pecuniary penalty is imposed in respect of any offense under such act, and no power is given to reduce such penalty, the justices or court having jurisdiction in respect of such offense may, if they think it just so to do, impose by way of penalty in respect of such offense any sum not less than one-fourth of the penalty imposed by such act.

LEGAL PROCEEDINGS.

9. Where a person is accused before a court of summary jurisdiction of any offense made punishable by this act, and for which a penalty amounting to twenty pounds, or imprisonment, is imposed, the accused may, on appearing before the court of summary jurisdiction, declare that he objects to being tried for such offense by a court of summary jurisdiction, and thereupon the court of summary jurisdiction may deal with the case in all respects as if the accused were charged with an indictable offense and not an offense punishable on summary conviction, and the offense may be prosecuted on indictment accordingly.

10. Every offense under this act which is made punishable on conviction by a court of summary jurisdiction or on summary conviction, and every penalty under this act recoverable on summary conviction, may be prosecuted and recovered in manner provided by the summary jurisdiction act.

11. Provided, that upon the hearing and determining of any indictment or information under sections four, five, and six of this act, the respective parties to the contract of service, their husbands or wives, shall be deemed and considered as competent witnesses.

12. In England or Ireland, if any party feels aggrieved by any conviction made by a court of summary jurisdiction on determining any information under this act, the party so aggrieved may appeal therefrom, subject to the conditions and regulations following:

(1) The appeal shall be made to some court of general or quarter sessions for the county or place in which the cause of appeal has arisen, holden not less than fifteen days and not more than four months after the decision of the court from which the appeal is made.

(2) The appellant shall, within seven days after the cause of appeal has arisen, give notice to the other party and to the court of summary jurisdiction of his intention to appeal, and of the ground thereof.

(3) The appellant shall immediately after such notice enter into a recognizance before a justice of the peace, with or without sureties, conditioned personally to try such appeal, and to abide the judgment of the court thereon, and to pay such costs as may be awarded by the court.

(4) Where the appellant is in custody, the justice may, if he think fit, on the appellant entering into such recognizance as aforesaid, release him from custody.

(5) The court of appeal may adjourn the appeal, and upon the hearing thereof they may confirm, reverse, or modify the decision of the court of summary jurisdiction, or remit the matter to the court of summary jurisdiction with the opinion of the court of appeal thereon, or make such other order in the matter as the court thinks just, and if the matter be remitted to the court of summary jurisdiction the said last-mentioned court shall thereupon rehear and decide the information in accordance with the opinion of the said court of appeal. The court of appeal may also make such order as to costs to be paid by either party as the court thinks just.

13. In this act,

DEFINITIONS.

The expression "the summary jurisdiction act" means the act of the session of the eleventh and twelfth years of the reign of Her present Majesty, chapter 43, entitled "An act to facilitate the performance of the duties of justices of the peace out of sessions within England and Wales with respect to summary convictions and orders,' inclusive of any acts amending the same; and

The expression "court of summary jurisdiction" means—

(1) As respects the city of London, the lord mayor or any alderman of the said city sitting at the Mansion House or Guildhall justice room; and

(2) As respects any police court division in the metropolitan police district, any metropolitan police magistrate sitting at the plaice court for that division; and (3) As respects any city, town, liberty, borough, place, or district for which a stipendary magistrate is for the time being acting, such stipendary magistrate sitting at a police court or other place appointed in that behalf; and

(4) Elsewhere, any justice or justices of the peace to whom jurisdiction is given by the summary jurisdiction act: Provided, That, as respects any case within the cognizance of such justice or justices as last aforesaid, an information under this act shall be heard and determined by two or more justices of the peace in petty sessions sitting at some place appointed for holding petty sessions.

Nothing in this section contained shall restrict the jurisdiction of the lord mayor or any alderman of the city of London, or of any metropolitan police or stipendary magistrate, in respect of any act or jurisdiction which may now be done or exercised by him out of court.

14. The expression "municipal authority" in this act means ary of the following authorities; that is to say, the metropolitan board of works, the common council of the city of London, the commissioners of sewers of the city of London, the town council of any borough for the time being subject to the act of the session of the fifth and sixth years of the reign of King William the Fourth, chapter 76, entitled "An act to provide for the regulation of municipal corporations in England and Wales," and any act amending the same, any commissioners, trustees, or other persons invested by any local act of Parliament with powers of improving, cleansing, lighting, or paving any town, and any local board.

Any municipal authority or company or contractor who has obtained authority by or in pursuance of any general or local act of Parliament to supply the streets of any city, borough, town, or place, or of any part thereof, with gas, or which is required by or in pursuance of any general or local act of Parliament to supply water on demand to the inhabitants of any city, borough, town, or place, or any part thereof, shall for the purposes of this act be deemed to be a municipal authority or company or contractor upon whom is imposed by act of Parliament the duty of supplying such city, borough, town, or place, or part thereof, with gas or water.