court below had made an order enjoining employes from so quitting the service of the receivers, "with or without notice, as to cripple the property or prevent the operation of the railroad." The court said that the latter words, "as to cripple the property," etc., should be stricken out. The fact that employes of railroads may quit under circumstances which would show bad faith or reckless disregard of their contracts, or the convenience or interests of both the employer and the public, did not justify a departure from the general rule that equity would not require employes against their will to remain in the personal service of the employer. The court ruled however that the injunction properly prohibited the employes from combining and conspiring to quit with or without notice the service of the receivers "with the object and intent of crippling the property in their custody or embarrassing the operation of the railroad."

This case was not based upon either the Interstate Commerce Act or the Anti-Trust Act, but, as the court said, upon the general principles which controlled the exercise of jurisdiction by courts of equity.

1

899 (87). The right of labor organization includes the right of representation.-The right of organization into unions or brotherhoods by the employes of interstate railroads is recognized both by the federal statutes and by the courts, and this right carries with it the recognition of the right of "collective bargaining" by employes through their organizations in the betterment of their own conditions of service. Incidental to this right thus recognized is the right of representation of employes by their own officials selected by them in the presentation of their demands for the betterment of their conditions of service. A distinction is properly made between such representatives of employes who seek the redress of the grievances of those represented by them, and the status of those not connected with employes who seek to induce them to break their contracts of employment for other purposes than their own betterment. This right of representation was

1 See National statute of arbitration, supra.

2 Thomas v. C., N. O. & T. P. R.

Co., supra; see also charge of Judge Grosscup to grand jury, supra.

directly involved in a case decided by Judge Adams in the eastern district of Missouri.1 In this case an injunction was sought by the railroad company against the officials of the railroad brotherhoods of trainmen and firemen enjoining them from calling a strike on an interstate railroad on the ground, among others, that these officials were not employes of the railroad, and that their action in calling a strike would be a direct interference with interstate commerce. The court found from the evidence that there was an existing dispute about the conditions of employment and that the officers of the brotherhood had been directed by the employes on the road to call a strike and therefore held that the employes had a right to act by their representatives, and the injunction was dissolved.

§ 100 (88). Injunctions in interstate commerce.-In a progressive industrial civilization preventive remedies are frequently the only adequate remedies when business or property rights are invaded, particularly when there is any question as to the pecuniary responsibility of the parties charged with the wrong. This is the case with labor disturbances which involve a direct interruption of business and damages, which are in the nature of things irreparable, because they cannot be accurately ascertained, even if the defendants were responsible. Where the public interest intervenes, as in the case of interstate commerce, where the traffic must continue to be moved and the cars continue to run, some form of preventive relief, usually that of injunction, is ordinarily the only available remedy.

The influence upon our jurisprudence of the ancient historic jealousy of courts of chancery is illustrated in the conten

1 Wabash R. R. Co. v. Hannahan et al., supra.

2 The use of preventive remedies seems more firmly established in the English courts than in our own. The distinction be tween the powers of courts of law and courts of equity has there now only historical interest. All divisions of the supreme court of Judicature have jurisdiction to

2

grant injunctions when it shall appear to the court to be just or convenient that such shall be made (subsec. 8, sec. 25 Judicature Act, 1873), and to award damages in addition to or in substitution for such injunction.

On the general subject of the modern use of injunctions, see F. J. Stimson in Political Science Quarterly, June, 1895; Charles

tion that where the trespasses or other wrongs to business or other property involve a violation of criminal law, there is no jurisdiction in equity to enjoin the commission of the acts. This contention is obviously unsound. The injunction restrains not the crime, but the irreparable injury to property. The question was definitely settled by the supreme court in the Debs case,1 where the court held that while a chancellor had no criminal jurisdiction, and something more than the threatened commission of an offense against the laws of the land was necessary to call into exercise the injunctive power of the court, that when interference with property, actual or threatened, appeared, the jurisdiction of the court of equity arises, and is not destroyed by the fact that the interferences are accompanied by or are themselves a violation of the criminal law. The jurisdiction of the civil court is invoked, not to enforce the criminal law and to punish the wrong-doer, but to compensate the injured party for the damages which he has suffered, or to protect him from irreparable injury, and it is no defense to the civil action that the same act by defendant exposes him also to indictment and punishment in a court of criminal jurisdiction. In this case the injunction was sought by the government itself, and it is obvious that the right of any other litigant to preventive relief in the case of threatened irreparable injury to property by criminal trespass would be also available.

The same remedy of injunction was invoked by the government against the railroads of the country in the proceedings under the Anti-Trust Act,2 and also against combinations of capitalists under the same statute.3 In the Beef Trust case,* the supreme court affirmed the decree of the circuit of Illinois enjoining the defendants in a suit by the United States against certain specific acts in restraint of competition in interstate

commerce.

In this latter case however the court directed a modifica

Claflin Allen at American Bar Association, 1894; Hon. Wm. H. Taft, then circuit judge, in de fense of the federal judiciary, American Bar Association, 1895.

1158 U. S. 1. c. p. 593, 39 L. Ed. 1106, supra.

2 See United States v. Trans

Missouri Freight Association; United States v. Joint Traffic As sociation, and United States v. Northern Securities Co., supra; Swift v. United States, 196 U. S. 375, 49 L. Ed. 518 (1905).

3 See Anti-Trust Law, infra. Swift v. United States, infra.

tion of the injunction by striking out the general words "or by any other method or device, the purpose and effect of which is to restrain commerce as aforesaid," saying that the defendants ought to be informed as accurately as the case permitted what they were forbidden to do. The court said that while it was bound to enforce the act, it was also bound by the first principles of justice not to sanction a decree so vague as to put the whole conduct of defendant's business at the peril of a summons for contempt, and that it could not issue a general injunction against all possible breaches of the law.

There has been considerable discussion in the courts and also in the committees of congress as to the scope of injunctions rendered in trade disputes. Thus, in the Debs case the injunction order included all persons whatsoever, not named therein, from and after the time when they shall severally have notice of such order. The question as to the scope of the order was not definitely determined, as the order was issued and served upon the defendant, so that this feature of the order was not discussed in the supreme court, although the power of the court under such an order was sustained in the circuit court.1

Persons who are in privity with the defendant as agents, servants or employes are to be distinguished from independent tort-feasors who are not shown to be in any wise allied with the defendants.2 The supreme court sustained the jurisdiction of the circuit court in the case of In re Lennon,3 saying that it was sufficient that he had actual notice, although he was not a party to the suit, nor served with process; in that case however Lennon was an employe of the defendant, which had been enjoined from refusing to interchange traffic with the complainant, and he was shown, with full knowledge of the injunction, to have refused to obey it.

Other questions have been raised as to the proper scope of injunctions in trade disputes, particularly with reference to

1 Toledo, etc. R. Co. v. Penn. R. Co., supra; In re Debts, supra. As to the jurisdiction of the courts in issuing injunctions under the Interstate Commerce Act, see secs. 8 and 9 of Act, infra; and as to the Anti-Trust Act and the pro

cedure thereunder, see Anti-Trust Act, infra, section 4.

2 In re Reese, 98 Fed. Rep. 984, 47 C. C. A. 87, and 107 Fed. Rep. 942 (1900). 8 Supra.

the conduct of striking employes, but these have been in cases, where the jurisdiction of the federal courts was based on diverse citizenship as in mining, manufacturing and other local industries where interstate commerce was in no wise involved.1

§ 101 (89). Contempt in United States courts.-A contempt proceeding, said the supreme court in a recent case, is criminal in its nature in that the party is charged with doing something forbidden, and if found guilty, is punished. Yet it may be resorted to in civil as well as in criminal actions, and also independently of civil or criminal action. While the power to punish for contempts is inherent in all courts, the exercise of the power by the courts of the United States has been regulated by statute, as follows: 3

"Courts of the United States shall have power to impose and administer all necessary oaths and to punish by fine or imprisonment at the discretion of the courts contempt of their authority; provided that such power to punish for contempt shall not be construed to extend to any case except the misbehavior of any person in their presence, or so near thereto as to obstruct the officers of said court in their official transactions, and the disobedience or resistence by such officer or by any party, juror, witness or other person to any lawful order, process, rule, decree, or command of said court."

Whether a particular act constitutes a contempt, as well as the mode of proceeding against the offender, are left to be determined according to such established rules of the common law as are applicable to the situation. A federal court may punish for contempt in its presence, or so near as to obstruct justice though the offense is indictable."

1 See § 91, supra; see also discussion before the Judiciary Com mittee of the House of Representatives of the 58th congress. The agitation over the increased use of injunctions in trade disputes and the application of the law of conspiracy in the trial of contempts has been extensively discussed in congress in connection with the so-called Anti-Conspiracy and Anti-Injunction bill, to limit the meaning of the word "con

spiracy" and the use of restraining orders and injunctions in trade disputes, which has been introduced in several successive congresses, but has not been enacted into law.

2 Bessette v. Conkey Co., 194 U. S. 324, 48 L. Ed. 997 (1904).

3 Sec. 725, R. S. U. S., 1 Comp. Stats. p. 583.

In re Savin, 131 U. S. 267, 33 L. Ed. 150 (1889).