§ 90 (79). The courts on labor combinations in relation to interstate commerce.-As there has been no national incorporation of trade unions, there has been no judicial construction or practical application of the act. It was said, however, by Justice Harlan, in an opinion rendered in 1894, with reference to the original act of 1886 legalizing the incorporation of national trade unions, that it did not in any degree sanction illegal combinations, but that its purpose in authorizing working people to better their own conditions by such combinations was most praiseworthy and should be sustained by the courts whenever their power to that end was properly invoked.

An agreement for arbitration between an interstate carrier and its employes under the act of 1908, is essentially a common-law arbitration and rests solely on the written agreement of arbitration entered into between the parties, which limits and determines not only the rights of the parties thereto but also the extent of the power of the arbitrators, and is to be construed in accordance with the rules governing the construction of contracts rather than those applicable to pleadings.2

§ 91. Interstate commerce and labor organizations. While the jurisdiction of the federal courts has frequently been invoked in cases of trade disputes between the employers and employes where the jurisdiction is based upon diverse citizenship and no federal question is involved therein, the questions in relation to interstate commerce have usually been presented in eases involving the contentions of interstate carriers with their employes.

1 Arthur v. Oakes, infra.

2 In re Southern Pacific Co., C. C. Eastern District Cal., 155 Fed. 1001 (1907), ruling on exception to award of arbitrators under this act.

In Wabash R. R. Co. v. Hannihan, 121 Fed. 536 (1903), Judge Adams, in dissolving the injunc tion against railroad employes, expressed the hope that the parties, if unable to adjust their differences, would submit the questions

in dispute to the Board of Arbitra tion provided by this act.

An attempt was made in England in 1824 (5 Geo. IV, c. 96), and again in 1867 (30, 31 Vic., e. 105), and in 1872 (35, 36 Vic., c. 46), to provide for settlements of trade disputes. The acts were not used and were finally replaced by the Conciliation Act of 1896 (59, 60 Vic., e. 30).

* Southern Ry. Co. v. Machin ists Local Union, 111 Fed. Rep. 49

Railroad labor organizations have been considered in the judicial construction and application of both the Interstate Commerce Act of 1887 and the Anti-Trust Act of 1890. In the industrial disturbances of 1893 and 1894 there were a number of injunctions sued out in the different circuit courts enjoining interference with interstate commerce, some of these by railroad companies enjoining interference with the interchange of traffic with connecting railroads; some by receivers of railroads applying for protection against interference with their possession and operation, and also in direct suits by the United States under the provisions of the Anti-Trust Act enjoining unlawful interference with interstate commerce and the mails.3

1

It was held in these cases that the Anti-Trust Act was applicable to any combinations restraining trade, whether of labor or of capital, and that the penalties prescribed by sec. 10

4

(West. Dist. of Tenn. 1901); Allis-Chalmers Co. V. Reliable Lodge, 111 Fed. Rep. 264 (1901); Elder v. Whiteside, 72 Fed. Rep. 724 (La. 1895); Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811 (1897); Makall v. Ratchford, 82 Fed Rep. 41 (W. Va. 1897); Coeur d'Alene Consolidated Mining Co. v. Miners Union, 51 Fed. Rep. 260 (Idaho, 1892); American Steel & Wire Co. v. Wire Drawers, etc., 90 Fed Rep. 608 (No. Dist. of Tenn. 1898); United States v. Weber, 114 Fed. Rep. 950 (West. Dist. of Va. 1902); Otis Steel Co. v. Local Union; No. 18, 110 Fed. Rep. 698 (1901); Hopkins v. Oxley Stave Co., 28 C. C. A. 99, 83 Fed. Rep. 912 (1897), affirming 72 Fed. Rep. 695; The Allis-Chalmers Co. v. Iron Moulders Union, 150 Fed. 155, C. C. of Wis. (1906), decree modified in C. C. A., 7th Circuit, 166 Fed. Rep. 45 (1908); Barnes v. Berry, 156 Fed. Rep. 72, C. C., S. D. of Ohio (1907); Delaware & W. R. Co. v. Switchmen's Union, et al., 158 Fed.

541 (1907); Kolley v. Robinson (C. C. A. 8th Cir.), 187 Fed. 415 (1911).

1 Toledo, A. A. & N. R. Co. v. Penn. Co. et al,, 54 Fed. Rep. 730 (1893) (Taft, J., in Northern Dist. of Ohio); see also 54 Fed. Rep. 746 (1898); Southern Cal. R. Co. v. Rutherford, 62 Fed. Rep. 796 (1894) (So. Dist. of Cal.).

2 Thomas v. C., N. O. & T. P. R. Co., 62 Fed. Rep. 803 (1894) (Taft, J., in Southern District of Ohio).

8 United States v. Workingmen's Amalgamated Council, 54 Fed. Rep. 994 (Dist. of La.) (1893); United States v. Eliot, 64 Fed Rep. 27 (1894) (West. Dist. of Mo.); United States v. Agler, 62 Fed. Rep. 826 (Dist. of Ind.) (1894); Charge to Grand Jury, Grosscup, J., 62 Fed. Rep. 828 (1894); Ross, J., 62 Fed. Rep. 834; Waterhouse v. Comer, 55 Fed. Rep. 149 (S. Dist. of Ga.), (1893).

4 See authorities, supra, and In re Debs, 64 Fed. Rep. 724 (1894). In United States v. Cassiday, 67 Fed. Rep. 698 (1895), it was held

of the Interstate Commerce Act were applicable to the employes of an interstate railroad who, while continuing in their positions as employes, refused to handle the freight received from other roads. Such refusal, when made in consequence of a boycott declared by their union against such road, was an unlawful conspiracy and punishable as such under the laws of the United States, and also punishable as a contempt when their employing road was under an injunction prohibiting it from refusing to exchange interstate traffic with such boycotted road.

The supreme court, in the Debs case, while not dissenting from the conclusion of the circuit court in holding the AntiTrust Act applicable to a labor combination interfering with interstate commerce, affirmed the jurisdiction of the federal court to grant an injunction against such interference on the broader ground of the federal power over interstate commerce, which included the power to remove anything put upon the highways, natural or artificial, to obstruct the passage of such commerce, and that this federal power was enforcible by injunction.

2

§ 92. Business boycotts in interstate commerce.-The AntiTrust Act has also been held applicable to labor combinations other than the employes of interstate carriers, and it has been. held by the supreme court that any combination which essentially obstructs the free flow of commerce among the states and restricts in that regard the liberty of a trader engaged in business is violative of the act, and the averments of a petition setting forth such a combination destroying by means of a boycott an existing interstate business, and preventing vendees in other states from reselling the manufactured products

that the provisions of the AntiTrust Law were broad enough to reach the combination or conspiracy that would interrupt the transportation of property or persons from one state to another.

1158 U. S. 564, 1. c. 600, 39 L. Ed. 1092 (1894).

2 This was what is known as the Danbury Hat case, Loewe v.

Lawlor, 208 U. S. 274, 52 L. Ed. 488 (1908), reversing 148 Fed. Rep. 924. The question of the right of action was certified by the court of appeals of the 2nd circuit to the supreme court; and the supreme court, on the application of the parties, required the whole record to be sent up under section 6 of the Judiciary Act of 1891.

when transported, stated a cause of action for damages under the act.

The same principle was applied to a bill in equity enjoining a boycott interfering with the conduct of an interstate business,1 The court said that it was immaterial that the instrumentalities of the boycott were spoken words or written matter. The principle announced by the court was held to apply to any unlawful combinations resulting in restraint of interstate commerce, and covered any illegal means by which interstate commerce is restrained, whether by unlawful combinations of capital or unlawful combinations of labor, and whether the restraint be occasioned by unlawful contracts, trusts, pooling arrangements, black-lists, boycotts, threats, intimidations and whether this be effected in whole or in part by acts, words or printed matter, and that the court's protective and restraining powers extended to any device whereby property is irreparably damaged or commerce is illegally restrained.

The first of these cases, the Danbury Hat case, was an action at law for recovery of damages under the seventh section of the Anti-Trust Act, and it was therefore strictly within the statute. The equity suit, however, was brought to restrain the interruption of existing business and asked no relief under the Anti-Trust Act. It was therefore sustained under the general equity jurisdiction of the court in protection of interstate commerce which existed irrespective of the Anti-Trust Act.

§ 93 (81). Strikes and boycotts by employes of interstate carriers.-The right to strike, that is to enforce demands for

the betterment of their own conditions by concerted ceasing from employment on the part of employes directly engaged in interstate commerce, has been uniformly sustained, but has been broadly distinguished from the right to boycott or engage in a so-called sympathy strike. The incidental interference with commerce resulting from a strike, when a body of laborers by concerted action leave their employment, does not constitute an unlawful conspiracy, nor is it violative of the Interstate Commerce Act or the Anti-Trust Act.1 Laborers directly engaged in interstate commerce have the right, singly or in concert, to cease from their employment whenever they deem such action necessary for the betterment of their own conditions, and it is immaterial, if their demands are made in good faith for the betterment of their own conditions, that is, as to wages or other conditions of employment, whether such

Brotherhoods from employment, printed in p. 504 of Hearings on House Bill No. 89, before the committee on the judiciary of the 58th congress. The court in this case, 65 Fed. Rep. 660 (1894), declined to direct the receivers to abrogate such a rule, which they believed was advantageous to the management of the property. But see Taft, J., in the Phelan case, supra, that "the employes of the receiver had the right to organize into or join a labor union which should take action as to the terms of their employment. It is a benefit to them and to the public that laborers should unite for their common interest and for lawful

purposes. They have labor to sell. If they stand together they are often able, all of them, to command better prices for their labor than all dealing singly with rich employers, because the necessities of the single employe may compel him to accept any prices that are offered. The accumulation of a fund for those who feel that the wages offered are below the legitimate market value of such labor is desirable. They have the right to appoint officers who shall advise them as to the course to be taken in their relations with their employers. They may unite with other unions. The officers they appoint, or any other person whom they choose to listen to, may advise them as to the proper course to be taken, both in regard to their common employment, or if they choose to appoint any one, may order them, on pain of expulsion from their union, peacefully to leave the employ of their employer because any of the terms of their employment are unsatis factory."