STATE OF WASHINGTON,

County of King, ss.:

Johanis Pesseman, being first duly sworn, upon oath deposes and says that he signed as able seaman on the Steamship Umattilla at San Francisco, Cal., on the 9th day of July, 1906.

That he has had no previous experiences as a seaman.

Witnesses to signature and mark:

JOHANIS PESSEMAN.

P. B. GILL.

Subscribed and sworn to before me this 13th day of July, 1906. [SEAL.]

C. MCAULEY.

AUGUSTUS ARMSTRONG.

Notary Public in and for the State of Washington, residing in Seattle.

STATE OF WASHINGTON,

County of King, ss.:

John Maginness, being first duly sworn, upon oath deposes and says:

That he was a passenger upon the steamship Umattilla leaving San Francisco, Cal., on the 9th day of July, 1996, that upon the 10th day of July fire drill was held. That three firemen and two sailors were seasick and refused to take part in the drill. JOHN MAGINNESS.

Subscribed and sworn to before me this 13th day of July, 1906. [SEAL.]

AUGUSTUS ARMSTRONG. Notary Public in and for the State of Washington, residing in Seattle.

[United States Circuit Court of Appeals for the Ninth Circuit. Sailors' Union of the Pacific, and Pacific Coast Marine Firemen's Union, Appellants, v. Hammond Lumber Co., a corporation, appellee. No. 1400. H. W. Hutton, for the appellants. Henry Ach, J. W. Dorsey, and Charles Page, for the appellee. Before Gilbert, circuit judge, and DeHaven and Hunt, district judges.]

The appeal in this case is from an interlocutory order granting an injunction pendente lite. The appellee brought a bill in equity in which it alleged that it is a New Jersey corporation engaged in the lumber business and in carrying passengers and freight to and from various ports in California, using for that purpose three sea-going vessels; that in June, 1906, the appellants conspired and threatened to prevent and to continue to prevent the appellee's vessels from leaving the port of San Francisco with crews of its watchmen and guards, and that in pursuance of such conspiracy, they endeavored forcibly to remove one of the appellee's employees, and pinioned and imprisoned another of its employees, and committed many other acts of violence and unlawful interference with the business of the appellee; that the acts and doings of the appellants have become widely known and that the appellants threaten to repeat and continue such acts and prevent the vessels of the appellee from leaving the port, and from carrying passengers, and to interfere with and prevent the appellee from continuing its business; that such acts do interfere with the business of the appellee and its vessels and that if they are permitted to continue, the appellee will suffer irreparable damage, in that crews can not be secured to man its vessels nor can freight be secured to load its vessels; that the appellants are insolvent and without money or property sufficient to pay the damage sustained; that the appellee has already suffered through the acts complained of, in a sum exceeding $10,000; that an attempt to recover damages at law would require a multiplicity of suits; that unless the acts of the appellants are restrained, the business of the appellee and its vessels will be totally destroyed, and that the appellee has no adequate remedy at law.

The bill was supported by numerous affidavits showing that on or about June 1, 1906, the Sailors' Union of the Pacific demanded of the San Francisco shipowners a wage increase of $5 per month in all steam schooners, which was refused; that thereupon the unions struck; that the appellants created an executive committee known as the strike committee, composed of seven members of the Sailors' Union of the Pacific, two members of the Pacific Coast Marine Firemens' Union and two members of the Marine Cooks and Stewards Association; that between 50 and 60 vessels were involved in the strike; that the said committee bought a launch and hired another, both launches being manned by members of the three unions and used as picket boats;

and that the water front was also picketed by strikers. The affidavits showed specific acts of violence committed by the unions on the dates of June 5, June 17, June 27, June 30, July 3, July 4 and July 11; that at these various dates men on the launches forcibly boarded vessels in the harbor, made threats of bodily injury to the officers in charge, terrorized passengers, to whom they used profane, insulting, and obscene language, committed brutal assaults upon crews, firemen, cooks and stewards and committed other acts, showing that they were in the active prosecution of an unlawful plan to interfere with, harrass, annoy, and prevent the operation of the vessels and destroy the business and property of every nonunion shipowner in the port of San Francisco for the purpose of coercing them into yielding to their demands.

Gilbert, circuit judge, after stating the case as above, delivered the opinion of the court.

It is contended that the restraining order issued on July 13, 1906, was wrongfully issued, for the reason that no bond therefor was filed. The application for the restraining order was made on July 9, 1906, and a bond bearing that date had been prepared for that purpose. The court, instead of granting the order on that date, made an order to show cause on July 13, and on that day granted a temporary restraining order, directed that the application for an injunction pendente lite be heard at a future date and ordered that the temporary restraining order issue on the execution and filing by the appellee of a bond in the sum of $1,000 to be approved by the clerk. Immediately thereafter and on July 13 the sureties on the bond which bore the date of July 9 justified thereto before the clerk, and the clerk approved the bond and filed the same. Subsequently, on August 8, 1906, the court granted an injunction pendente lite upon the execution of a bond and on the same day the requisite bond was filed by the appellee in compliance with the order of the court. The appeal is taken from the order of the court so made on August 8, 1906. The bond was valid notwithstanding that its date was four days prior to the date when it was filed. The date of a bond is not an essential part of it. The instrument takes effect from the time of its filing (Williams v. McComas, 27 Ala., 572; Jenkins v. Kay, 28 Md., 547). Counsel for the appellants cites the decision of this court in Tyler Mining Co. v. Last Chance Mining Co. (90 Fed., 15), in which it was held that the liability of a surety can not be extended by implication beyond the expressed terms of his contract. But in that case the bond had been given to procure a restraining order enjoining the defendants in the suit from working a certain portion of a mine and from removing or appropriating ore previously taken therefrom. A subsequent order was made which continued such restraining order in force, but modified and changed it by permitting the working of the mine and the disposition of the ore taken therefrom under regulations prescribed by the court. It was held that the sureties could not be held liable for damages accruing to the defendants under the modified order. There is no such question in the present case. The sureties on the bond in this case justified thereon on the very day on which the order was made and the bond was filed upon that date and approved by the clerk. It thereby became the bond upon which the order was granted, and it was from that date the valid obligation of the sureties.

It is contended that the issuance of the restraining order and the injunction were in excess of the court's jurisdiction, and that although there are decisions of the circuit and district courts of the United States which sustain such jurisdiction, the use of the writ of injunction for the purposes sought in the bill in the present case has not been countenanced by any decision of the Supreme Court of the United States. The affidavits sufficiently show a combination of persons by concerted action to accomplish an unlawful purpose. It needs no citation of authorities to sustain the proposition that the appellee had the right to contract to employ labor and to carry on its business as it saw fit without interference from others, and that any attempt to compel an individual, firm or corporation to refrain from employing men or to prevent any man or men from working for another is an unlawful interference with a property right. That such interference may, under well-established equitable principles, be restrained by injunction is abundantly sustained by the courts of this country and of England. (In re Debs, 158 U. S., 564; Arthur v. Oakes, 11 C. C. A., 209; Hagan v. Blindell, 6 C. C. A., 86; Jonas Glass v. U. S., etc., Glassblowers Assn., 64 N. J. Eq., 640; Vegelahn v. Gunter, 44 N. E., 1077; The Taff Vale Railway Co. v. The Amalgamated Society of Railway Servants, App. Cas. Law Reports 1901, p. 426.)

It is urged that the injunction was violative of the rights of the appellants, that the defendant unions and their members had the right to endeavor to improve their condition and to organize for that purpose, and had the right to communicate their desires to others, whether they were in the employment of the appellee or not, and to explain the differences that existed between their former employers and themselves, and that if it became necessary to employ launches to carry out these purposes, they had the

legal right to do so, as the waters of the Bay of San Francisco are free to all. Conceding that the appellants had all of these rights, the argument ignores the salient facts brought to the attention of the court by the bill and the affidavits. It was not to prevent the exercise of any of such rights that the injunction was sought or obtained. Its purpose was to prevent acts of lawlessness, of violence, of insult, and of intimidation. No one can read the affidavits without arriving at the conclusion that members of the unions went far beyond the peaceful communication of their rights, their attitude toward their former employers, their purpose of self-protection and the objects of their combination. It may be true in the present case, as in many others of a similar character, that the disorders of the strike were deprecated by the officers and leaders of the unions, but that fact does not relieve the appellants of responsibility nor render the court powerless to deal with them in their collective capacity for the violent acts which in the present case are shown to have been committed, and which, according to the affidavits, were threatened to be continued.

It is contended that the court erred in issuing the injunction for the reason that the appellee had no property right in that in which the court protected it, and it is argued that while the appellee had a property right in its vessels it had none in the labor of its employees, as the latter could have its employment as they saw fit. To sustain that contention, Northern Pacific R. R. Co. v. Whalen, 149 U. S., 157, is cited. In that case the court held that the only ground on which, independently of an express statute, a court of equity could grant an injunction in a private action for nuisance, is special injury to property. The court said: "No employer has such a property in his workmen, or in their services, that he can, under the ordinary jurisdiction of a court of chancery, maintain a suit as for a nuisance against the keeper of a house at which they voluntarily buy intoxicating liquors, and thereby get so drunk as to be unfit for work." This language of the opinion is especially relied upon, but the distinction between that case and the case at bar is elsewhere clearly stated in the opinion where the court pointed to the fact that the defendant had not conspired or intended to injure the plaintiff's property or business, or to prevent the plaintiff's workmen from performing their contracts of service. The bill in the case at bar alleges and the affidavits prove that the appellants had conspired to injure and destroy the appellee's business and to prevent its workmen from performing their contracts of service. The appellee's property is not only its vessels but the business of carrying freight and passengers, without which the vessels would lose their value. The right to operate vessels and to conduct business is as much property as are the vessels themselves. All the rights which are incident to the use, enjoyment, and disposition of tangible things are property. "Property is everything that has an exchangeable value." (Mr. Justice Swain in The Slaughter House cases, 16 Wall., 127.) "Property may be destroyed or its value may be annihilated. It is owned and kept for some useful purpose, and it has no value unless it can be used." (In re Jacobs, 98 N. Y., 105.)

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But it is said that the injunction goes further than the law permits in that by its language it prohibits the appellants from doing that which they have the lawful right to do. By the order of the court the appellants are enjoined "from in anywise interfering with the crews, foremen, cooks, stewards, seamen, or either of them or any of the servants or employees of the said steam schooners or steamship or either or any of them, without due process of law. * From in anywise interfering with the business of the said steam schooners and said steamship except by due process of law, with the business of complainant or orator of and concerning the said steam schooners and the said steamship * and from in anywise conspiring, colluding, or confederating together for the purpose of preventing the said steam schooners and steamship from receiving and discharging freight and passengers." It is said that under this injunction the appellants would be in contempt if they asked one of their relatives not to go as a passenger on one of the appellee's steamers, or if they made complaint of the violation of navigation laws by the appellee's vessels, or if they exercised their right to discriminate against the appellee by shipping cargo on other vessels than those of the appellee. The language of the injunction, however, is to be interpreted in the light of the allegations and prayer of the bill, and these may make an otherwise indefinite order sufficiently specific. (Hamilton v. State, 32 Md., 348.) It is the acts set forth in the bill that the appellants are enjoined from doing.

It is urged that there is no showing that the alleged damage is irreparable, but that on the contrary the showing is that if the appellee was suffering any damage for which the appellants were liable, it was easy of estimation, and could have been recovered in a single action against any of the appellants, who are abundantly able to respond in damages. It is true that the answer to the bill alleges that the appellants are not insolvent, and that they possess $150,000 in cash in bank. But it may be said in general that ground is presented for injunctive relief whenever there is actual and threatened injury to property, coupled with facts bringing the case within one of the recognized

grounds of equitable jurisdiction, and showing that there is no plain, adequate, or complete remedy at law. Said the court in Walla Walla City v. Walla Walla Water Co., (172 U. S. 1): The remedy at law, in order to exclude a concurrent remedy at equity, must be as complete, as practical, and as efficient to the ends of justice and its prompt administration as the remedy in equity." One ground of equitable jurisdiction in cases of continuing trespass is the fact that the measure of damages is exceedingly difficult of ascertainment. In such a case the solvency or insolvency of the wrongdoer is an immaterial fact. (Kellog v. King, 114 Cal., 375.) And relief by injunction may be invoked as a remedy for the destruction of one's business if in such a case no action at law would afford as complete, prompt, and efficient a remedy. (North v. Peters, 138 U. S., 271; Watson v. Sutherland, 5 Wall., 74.) It is made sufficiently clear by the allegations of the bill and the facts proven that, notwithstanding that the appellants may possess $150,000, the remedy at law is not as complete, prompt, and adequate as the remedy in equity. The remedy at law would involve a multitude of suits and delay, pending which the injury to the appellee's business might proceed to ultimate destruction. The question of withholding or granting the injunction was one which rested in the sound discretion of the circuit court. We find no ground for saying that there was abuse of that discretion. The order is affirmed.

(Indorsed:) Opinion. Filed October 7, 1907. F. D. Monckton, clerk.

Hammond

[In the circuit court of the United States, ninth circuit, northern district of California. Lumber Co. (a corporation), complainant, v. Sailors' Union of the Pacific et al., defendants; Andrew Furuseth et al., in contempt, respondents. No. 13919.]

STATEMENT OF FACTS.

This is a proceeding to have punished for contempt the respondents hereinafter named, for the alleged violation of certain injunctive orders heretofore granted in the above-entitled cause. The material facts are these:

On July 9, 1906, the complainant filed its bill in this court against the Sailors' Union of the Pacific, Pacific Coast Marine Firemen's Union, Marine Cooks' and Stewards' Association, Andrew Furuseth, Walter McArthur, and a large number of other individuals named therein as defendants, setting up that complainant was engaged in the coast shipping and sea-carrying trade for passengers and freight between the port of San Francisco and other ports of California, and in such business owned and employed certain vessels, with a large amount of capital invested therein and in said trade; that the defendants Sailors' Union of the Pacific, Pacific Coast Marine Firemen's Union, and Marine Cooks' and Stewards' Association were each and all corporations composed of large membership, with their principal offices or headquarters at the port of San Francisco, the members of which were all seafaring men following divers occupations as such, and that said defendant corporations with the individual defendants named in the bill had confederated, colluded and conspired together for the purpose of injuring, obstructing and interfering with the business of complainant and preventing complainant from peaceably pursuing the same, and had by violence, intimidation and other unlawful means, taken and had in pursuance of said conspiracy, interfered to prevent complainant from securing crews to man its ships or laborers to load or discharge them, to such an extent as to greatly interrupt, demoralize and destroy complainant's ability to conduct its said business, and to its great and irreparable injury and damage. A number of specific acts of a violent and unlawful character alleged to have been committed by members of the defendant unions, in boarding complainant's vessel and assaulting and intimidating its employees are then set forth, and it is alleged that the defendants threaten to and will continue to commit acts of like character against complainant and its employees and will destroy its ability to carry on its business unless restrained by this court. The bill prayed for an injunction to restrain defendants from the commission of further acts of the character complained of. Upon this bill a subpoena was duly issued and served on the two defendants, Sailors' Union of the Pacific and Pacific Coast Marine Firemen's Union, and those defendants alone appeared and made answer thereto. Subsequently, a temporary restraining order was granted by the court, with an order to show cause why an injunction pendente lite should not issue. These orders were served on the defendants, Sailors' Union of the Pacific, the Pacific Coast Marine Firemen's Union, and the Marine Cooks' and Stewards' Association, and in due course those defendants appeared in response thereto. None of the individual defendants were served with these orders, nor did they appear in answer to the same. Thereafter a hearing was had on the order to show cause, and the court granted an injunction pendente lite, which, like its previous restraining order, ran against all the defendants named in the bill and in substance enjoined and restrained them, their servants, agents, and all persons acting by or under their author

ity, or direction, from in any manner unlawfully interfering with the business of the complainant, and specifically from interfering by violence, threats, intimidation, or other unlawful means with the crews of complainant's vessels or otherwise molesting them or the other employees of complainant, or in anywise unlawfully interfering with or obstructing complainant's vessels in the conduct of their legitimate business, either in the bay of San Francisco or elsewhere within the jurisdiction of the court. This writ was served on the defendants Sailors' Union of the Pacific, Pacific Coast Marine Firemen's Union, Marine Cooks' and Stewards' Association, and on Andrew Furuseth individually, but on none of the other individual defendants named in the bill. Thereafter the complainant filed in the case the petition on which the present proceeding is based, wherein, after reciting the filing of the bill and issuance of the said injunctive orders, it is set forth in substance that the conspiracy alleged in the bill was inspired by a strike theretofore inaugurated by the defendant unions against the complainant and other shipowners and in progress at the filing of the bill growing out of a controversy between the members of said unions and the shipowners on the subject of wages; and that for the purpose of carrying out said conspiracy and the prosecution of said strike a committee had been formed by the defendant unions styled a "strike committee" or "emergency committee," composed of Andrew Furuseth, the secretary of the defendant, Sailors' Union of the Pacific, as chairman and chief executive head of such committee, John Carney, secretary of the defendant, Pacific Coast Firemen's Union, Eugene Steidel, secretary of the defendant, Marine Cooks' and Stewards' Union, and Walter McArthur, E. A. Erickson, John Keane, Harry Lundborg, Edward Anderson, C. C. Simonsen, and John Doe Fulton, all members of one or the other of said defendant unions; that this committee was given absolute control and management of said strike, with full power to adopt and put in execution any and all such measures or means as it might deem desirable or expedient to enforce the demands of said unions and to carry out the purposes of such alleged conspiracy; that the committee had authorized and directed all the acts and things complained of in the bill and all acts and measures set forth in said petition; that it had employed steam launches and manned them with strikers from the membership of said unions to patrol the bay of San Francisco as pickets in behalf of said unions, with instructions to visit complainant's vessels and those of other shipowners and to interfere with, frighten and intimidate the sailors and other employees thereon and deter them from continuing in such service, and where necessary to employ force to board said vessels and take men therefrom and to prevent said vessels from taking on or discharging freight or securing the necessary crews to handle them or their cargoes, and generally to harrass and impede complainant and said other shipowners in the prosecution of their business; that the committee had detailed members of said unions in large numbers with instructions to picket and patrol the various wharves and the entire water front of the city of San Francisco for like purposes of interfering with said vessels and their employees, to intimidate and deter the latter from service thereon and to assault, beat and maim them, if necessary, to prevent them from remaining in such employment. It is alleged in substance that these instructions of the committee were fully carried out and that a general course of unlawful and violent interference with the vessels of complainant and others and intimidation of their employees was indulged in and pursued by such pickets both on the waters of the bay and the harbor front, and such course of conduct continued without let, hindrance, or interruption alike after the issuance and service of the injunctive orders as before; and all with the full knowledge on the part of the members of said committee and of said unions of the existence of such restraining orders. A large number of specific acts against complainant and such other owners are alleged, some committed during the existence of the temporary restraining order and others after the service of the temporary injunction, many of them accompanied by personal violence and some with bloodshed, through the employment of deadly weapons, and all of them characterized by the use of profane and obscene language and opprobious epithets applied to the employees on said vessels, and, as to this complainant wholly in derogation and violation of the terms of said injunctive orders.

Upon this petition the complainant asked an attachment against Andrew Furuseth, Walter McArthur, and the other individuals composing said strike committee, and that they and each of them be arrested and brought before the court for contempt in violating the orders of the court as therein alleged, and that they be punished therefor. A citation having been issued and served on the respondents, they appeared and filed separate answers denying specifically all the acts alleged in the petition and pleading not guilty to the charge of contempt. Thereupon the matter was referred to an examiner to take the testimony, and the evidence having been duly returned, the matter has now been submitted to the court for its consideration.

J. Webster Dorsey and Henry Ach, attorneys for petitioner. H. W. Hutton, attorney for respondents.