90 F. 608 | U.S. Circuit Court for the District of Northern Ohio | 1898
The foregoing is a sufficient and fair summary of the facts established by the proof. The court is not now engaged, as a criminal or police court, in trying offenders for assaults and battery, nor for engaging in tumults, riots, or mob violence, wherefore much of the testimony on both sides is quite irrelevant and inappropriate to this inquiry. It is not one of the present duties of the court to locate the blame for the occurrences which have been detailed in the affidavits and by the witnesses; and, indeed, either side may be blameworthy, or both, and that fact should not affect the question to be now decided; neither is the court properly concerned at this time about the rightfulness or wrongfulness of the strike, in relation to the causes which brought it about; and therefore the foregoing statement of facts does not at all deal with the details of the transactions and occurrences so voluminously set out in the proof. The only question is, does this proof, as a whole, justify a reasonable apprehension on the part of the plaintiffs that the defendants, in maintaining their strike, will illegally disturb their business and injure it by unlawful acts of violence and intimidation of outside laborers — “scabs,” if you please — willing to work for the plaintiffs at the wages which they offer? Even “scabs” and those who employ “scabs” in time of a strike have rights' which the strikers are bound by the law to respect. The most important of these rights is an unobstructed access to the place where the work is to be done, over the streets and highways by which it is to be approached. Nor is this freedom of access at all inconsistent with any right the strikers have to use the same streets and highways. for the lawful conduct and maintenance of their strike by intercepting any one going to work in their place for the purpose of peaceful entreaty or argument against supplanting them. One authenticated instance in this proof where the strikers, meeting a single “scab,” or a group of them, or an organized body of them, had stood aside, opened up the street, and allowed him or them to pass to the mill without more ado, after the entreaty or argument had failed to convince, would be worth more, as a matter of evidence showing the good faith of the strikers in their assertion that they were on the street only for an opportunity of entreaty and argument, than all the affidavits filed in this case. If the strikers, after their victory over Paulowski and his body of “strike breakers,” had only lined themselves on each side of the street, and permitted them to go to work at the mill, that would have been conclusive evidence of their honesty and good intentions in the matter of confining their operations to entreaty and argument. So, of the struggle on the next day but one, when the officers of the plaintiff company led the “strike breakers,” and of all the other occasions when workmen attempted to go to the mill notwithstanding the entreaty and argu
It was frequently urged in argument that .the strikers have a right to be on the streets; and so they have, so long as they do not trespass on the right of others to use them. The right of the use of streets by any one is a qualified right. The owner of a house, be it dwelling house, store house, or mill house, has a distinct right of property in the streets adjacent thereto, and used as approaches to it. It is the right of access, — free and uninterrupted ingress and egress. Any one who uses the streets must use them subject to this right of the householder; and there is not a particle of difference in respect of this between a dwelling house and a mill house or large factory employing large bodies of men, wbo always go to the polls and vote at elections, and sometimes go out on a strike. Nor is the freedom of contract and right of access through the streets to one’s work at all affected by assumed peculiarities of conditions attending the struggles of men in the economic conflicts between laborers and capitalists, nor by any considerations of public policy in respect of these conflicts. In one of the great cases to be cited presently, what was said by an English judge is quite pertinent to this matter of strikes and boycotts, and" interfering between employer and employé, namely, that public policy is “an unruly horse, and, when once a judge is astride it, he may he carried far away from sound law.” Tf any one violate the right of the householder to the streets that are appurtenant to his property, as a part of it, by impairing Ms ingress and egress, be has a civil action, and he may also abate it by injunction in equity as a private nuisance. In re Debs, 158 U. S. 564, 587, 15 Sup. Ct. 900; Griffing v. Gibb, 2 Black, 519; Railroad Co. v. Ward, Id. 485; Hart v Buckner, 5 C. C. A. 1, 54 Fed. 925; Story, Eq. Jur. (13tb Ed.) §§ 920-924, and note a; 924a-927, and note 2, citing cases, 928, 929; Daniell, Ch. Prac, (5th Ed.) 1635-1639, and notes 3, 4; Cooley, Torts
The (defense that the plaintiff is a trust was sufficiently disposed of at the hearing by the statement that it cannot thus be made, — collaterally. If ousted by a judicial decree declaring it a trust, at the suit of the attorney general, then possibly it might be pleaded, but not now and here. Moreover, if it be a trust, it should be none the less odious when it yields to the laborers, and pays the wages they demand, o’r employs them before the strike begins, than when the strike is fully under way. Nor should it be-any more odious because of the strike.
' The whole fallacy of the defense against this bill and the proof offered to sustain it lies in a convenient misapprehension or a necessary misunderstanding of the character of that force or violence which all agree is not permitted in the conduct of a strike. It seems to be the idea of the defendants that it consists entirely of physical battery and assaults, and that if these appear in the proof, and they can be justified as they might be on a criminal indictment or in a police court, that ends the objection, and the justified assaults and batteries will not support an injunction. The truth is that the most potential and unlawful force or violence may exist without lifting a finger against any man, or uttering a word of threat against him. The very plan of campaign adopted here was the most substantial exhibition of force, by always keeping near the mill large bodies of men, massed and controlled by the leaders, so as to be used for obstruction if required. A willing wire worker, but a timid man, would be deterred ¡by the mere knowledge of that fact from going to the mill when he desired to go, of had agreed to go, or, being already at work, feáred to return through the streets where the men were congregated, or, having started, would turn back, fearing the trouble that might come of the attempt. Such a force would be violence, within the prohibition of the law; and its exhibition should be enjoined, as violating the property rights of the plaintiffs in the streets, their liberty of contracting for substituted labor, and the liberty of the substitutes to work if they wished to accept the lowered wages, and to pass through the streets to their work.
It only remains to cite the cases which establish this protection for the plaintiffs and their substituted laborers beyond all controversy.
Very much was said iu argument about the Turks, Armenians, and Polaeks employed as substituted workmen by the plaintiff, but the facts show that it has lit tie foundation in fact, and should have not the slightest influence on this question, if it were true. There is no distinction in this country in the legal rights of classes, based on race or nationality, and all stand upon an equal footing in this respect. Foreigners are no longer treated as outlaws or barbarians by any civilized nation, and, if racial distinctions were to be considered in this case, there is a very beggarly show of Americans or Anglo-Saxons; and both the strikers and the strike breakers are a rather conglomerate aggregation of many races, except the negroes, who are conspicuous by their absence.
The court called on counsel to submit a carefully prepared order for injunction, to enable it to see what is asked by the prayer of the bill, which is in rather too general language, perhaps. The draft sub
Mr. Oreen: I suppose it is limited to those against whom there is some evidence.
The Court: No. That is disposed of entirely in the opinion that has just been filed on overruling your motion to dismiss as to those parties. I have not read in your hearing that opinion, but it treats fully of that subject; and there will be no dismissal as to those parties, and no attention paid to the question of service.
Mr. Green: I wish to say this: There are comparatively few of these defendants that are members of the union, and as to a large number of those persons there was no mention whatever in the evidence.
The Court: In the supreme court of the United States — in the case of Ex parte Lennon, 54 Fed. 746, decided by Judge Ricks, and which afterwards went to the court of appeals and was there affirmed (12 C. C. A. 134, 64 Fed. 320), and then to the supreme court, where it was again affirmed (17 Sup. Ct 658)—an injunction was held binding against a man who never was a party to the suit, and upon whom no service of process was ever made.
Mr. Green: That was in a contempt proceeding.
The Court: That is a test of it.
Mr. Green: I mean, against the men who answered separately and individually, that had nothing to do with it, and against whom there is no evidence, — I ask, will there be an injunction?
The Court: It will run against all parties to this suit, and all other parties who are liable to aid and abet them, according to the everyday practice.
Mr. Green: I wish an exception entered in behalf of each one of the defendants separately; and I ask the court, and I understand it has, a separate finding of facts from its conclusion of law.
The Court: It is not technically a finding of facts. It is a summary of the facts as the court views the testimony.
Mr. Green: Under our practice in the state courts — •
The Court: That has nothing to do with the federal court. The practice in Ohio and the practice statutes of Ohio have no application in federal courts of equity.
Mr. Green: If I prepare a finding of facts, can I obviate the necessity of carrying up all these affidavits?
The Court: I could not do that. I am following the strict, technical practice of a court of equity in this proceeding; and I am sorry that I have not read from the bench the other opinion, as counsel then would be better informed as to the views of the court upon the question now submitted, — the opinion upon the application to vacate the service upon these parties.
Mr. Green: As I recollect the prayer offered by the other side, it does not reserve to the men the right to be upon the streets there, or go upon the street. I think there was a reservation—
. The Court: When Mr. Green first arose, I was about to say that T have carefully considered the suggestion that he made in the brief
Mr. Foran: I understand the court in his opinion reserves the right to any man, irrespective of this opinion, to talk to another man upon the street anywhere in a peaceable and quiet manner.
The Court: Yes, of course. If the opinion is understood, the court distinctly announced that. The constitution of the United States protects him in that. The only question here is as to the form of the order, and I think this, as I said before, is carefully dra-wn, and does not trench upon that right, and it will be entered as it has been drawn.
The court thereupon directed the following order to he entered:
The American Steel & Wire Company, Complainant, v. Wire Drawers’ & Die Makers’ Union No. 1, of Cleveland, Ohio, Walter Gillette, et al., Defendants.
Order.
No. 5,812.
This cause came on for hearing upon the bill of complaint, and complainant’s application for a temporary injunction, upon the answers of certain of the defendants, and affidavits filed on behalf of complainant and defendants, and the testimony by way of cross-examination of certain of the witnesses in open court; and the court, being fully advised in the premises, finds that the complainant is entitled to a temporary injunction as follows:
It is hereby ordered, adjudged, and decreed that the Wire Drawers’ & Die Makers’ Union No. 1, of Cleveland, Ohio, Walter Gillette, its president, and Wire Drawers’ & Die Makers’ Union No. 3, of Cleveland, Ohio, Fred Walker, its president, and the officers and members of said unions, and each and all of the oilier defendants named in the complainant’s bill, and any and all other persons associated with them in committing the acts and grievances complained of in said bill, be, and they are hereby, ordered and commanded to desist and refrain from in any manner interfering with, hindering, obstructing, or stopping any of the business of the complainant, the American Steel & Wire Company, or its agents, servants, or em-
And thereupon came said defendants by their counsel, and iir open court gave notice of their intention to appeal this cause, and the court does allow said appeal upon the filing of an appeal bond in the sum of $1,000.
The reservation proposed by Mr. Green and refused by the court in the foregoing proceedings is as follows:
But it is no part of this order that any of the defendants shall be restrained or enjoined from inducing, persuading, or advising others, by peaceable means, and without threats, force, or intimidation, from leaving complainant’s employment, or from entering: into the employment of complainant.
Addendum.
When the foregoing opinion was prepared to be read and filed, 1 deemed it best to cut out a part of it which had dealt with the eloquent appeal of counsel to avoid the possible driving of workingmen to anarchy by repeated interference of the courts with an economic struggle that it would be better to leave unrestrained, except by the ordinary processes of police protection, in keeping down tumults, violence, or riot in the streets or elsewhere, or by criminal prosecution where the right of trial by jury might operate. The argument was based on a public policy to that end, more than on any denial of the authority of the court, as established by the precedents, and it seemed to me to belong rather to the domain of legislation than to that of judicial adjudication. Besides, it involved comments by the court upon the affidavits ancl oral proof of the police authorities, to the effect that this had been “the most orderly of strikes,” and that they had been always ready,.
It was suggested in argument that the courts, should not interfere by injunction, but allow the employers and employed to maintain the struggle until one or the other should yield, and then such conflicts would become so costly to both sides that each would be willing to avoid strikes by adjustment. That would be a possible economic result, and yet if the parties, or either of them, have occasion to resort to the courts, or choose to invoke their aid in protecting their respective rights, neither can be repelled, and the courts must act. As before stated, considerations of public policy cannot govern them in respect of that, or direct their judgment. The public policy of keeping the courts always open for the redress of trespasses on personal liberty or property fights is quite as important as the other, and of older date. Moreover, it appears by this proof that the police authorities do not equally protect the contending parties, or permit them to “flight it out on fair terms in equal battle,” by keeping the streets open for the equal use of transit to and from the mill, as they might. Of course, every official must decide his own responsibility, and regulate his action accordingly; but the affidavits of the mayor and the police officials, and their oral testimony, show that they do not consider that to be their duty, but only that they are required to suppress riot or tumult or personal violence by fighting. Indeed, the affidavit of the mayor is couched in almost the identical language of the statute of Ohio, read in our hearing by counsel for the defendants, authorizing the state and municipal authorities, including the judges, state and federal, to call out the militia under such circumstances (Rev. St. Ohio, § 3096), which shows that in the opinion of the mayor the police duty of protection against obstructed streets by bodies of men is limited to occasions when they fight, and when there is the same condition as that described in the statute for calling out the militia. It is complained by the plaintiffs that no arrests
Note. The form of the Injunction order, substantially, is that of the Debs Case, 158 U. S. 564, 15 Sup. Ct. 900, at page 570 et seq., 158 U. S., and page