82 F. 65 | U.S. Circuit Court for the District of Middle Tennessee | 1897
A restraining order was heretofore allowed on the bills in these cases, and they are now before the court on application for preliminary injunctions upon the pleadings and proofs offered to support and oppose the motion. The cases are heard together for convenience, the proofs being treated as offered in each case, so far as applicable and competent. The remedy now sought, if granted, will constitute a new application of the injunctive process of the courts, so far as I am. advised, and so far as precisely the facts of this case are concerned. I deem it therefore proper to state the case, and my views in respect thereto, with sufficient fullness that the ruling may be clearly understood.
The suits grow out of what is known as the “Tennessee Centennial and International Exposition,” now being held at the city of Nashville, Tenn.; the time appointed for keeping open that Exposition being from May 1 to October 31, 1897. In order to aid in the success of this Exposition, and to widely extend its benefits to the public, the leading railroad companies of the country, after some difficulty, were induced to enter into an agreement to issue and sell during the period of said Exposition a special contract ticket, conveniently designated as the “Tennessee Centennial Ticket.” This is sold as a round-trip ticket only, and at one-third of the regular price at which tickets are sold in the ordinary business of the railroads. So far as the provisions of the contract of transportation affect the matter now under consideration, it is sufficient to say that the contract between the carrier and the passenger is for a round trip, both to and from the Exposition; it being agreed that in consideration of the special reduced rate the ticket issued as evidence of the contract shall not be transferable, and shall become and, be void in the hands of any third
The right to make and issue this special form of ticket, furnishing a reduced rate, and thereby aiding in a great public purpose such as that of an Exposition, is fully recognized both at common law and by legislation. It has often been decided by the courts that the use of one of these tickets in violation of the contract by a person other than the original purchaser is a fraud upon the common carrier. This is no longer a question. These Centennial tickets having been issued under an agreement between the railroad companies to recognize over their lines such tickets, by whatever common carrier issued, there can be no doubt that every company named in such tickets, and over whose lines these tickets call for transportation, is a party to the contract, — as much so as the initial carrier issuing the ticket, — and entitled to the full benefits and subject to the full
“By ‘Irreparable Injury’ is not meant such injury as Is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great injury or great damage, but that species of injury, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other; and, because it is so large on the one hand, or so small on the .other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law.”
In Parker v. Woolen Co., 2 Black, 551, Mr. Justice Swayne, discussing the subject of interference by a court of equity on the accepted ground of a multiplicity of suits, said:
“It will also give its aid to prevent oppressive and interminable litigation, or a multiplicity of suits, or where the injury is of such a nature that it cannot ba adequately compensated by damages at law, or is sucb as, from its continuance or permanent mischief, must occasion a constantly recurring grievance, which cannot be prevented otherwise than by an injunction. Mitf. Eq. Pl., by Jeremy, 114, 145; Jeremy, Eq.Jur. 300; 1 Dick, 163; 16 Ves. 342; Corporation of the City of New York v. Schermerhorn, 6 Johns. Ch. 46; Railroad Co. v. Artcher, 6 Paige, 83.”
So, in Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 4 South. 298, the facts were that complainant was in the business of buying, collecting, and crushing cotton seed, and was the owner of several
“Tlie separate remedy at law for each of such trespasses would not be adequate to relieve tlie injured party from the expeuse, vexation, and oppression of numerous suits against the same wrongdoer in regard to tlie same subject-matter. The ends of justice require, in sueli case, that the whole wrong shall be arrested and concluded by a single proceeding. And such relief equity affords, and thereby fulfills its appropriate mission of supplying the deficiencies of legal remedies. Affirmed and remanded, with leave to appellants to answer within thirty days after the mandate of this court herein is filed in the court below.”
It seems clear to me that the cases at bar come within the definitions thus given.
In Lembeck v. Nye, 47 Ohio St. 354, 24 N. E. 690, the supreme court of Ohio, in answering the objection that there was an adequate remedy at law, said:
“The agreed statement of facts shows that the defendant Nye is insolvent, and that the financial condition of Andrews is doubtful; but, aside from this, and were they both solvent and fully able to respond to any damages that might be recovered against them in actions of trespass, yet it is apparent from the whole record that such actions would not afford an adequate remedy, for the violations of the rights of the plaintiff in error in the past and those threatened in the future were and are, during certain seasons of the year, of daily, if not of hourly, occurrence, under the claim of a right to do so; besides, the injury resulting from each separate act would be trifling, and the damages recoverable therefor scarcely equal to a tithe bf the expense necessary to prosecute separate actions therefor.”
What is thus said is fully applicable to the case in hand; and, to the same effect, see Boyce v. Grundy, 3 Pet. 210; Wylie v. Coxe, 15 How. 415. Indeed, as has been, in substance, said in other cases, the very fact that a right has been' violated, and that this violation is constantly going on, and that a court of law cannot, in damages, compensate the injury or stop the wrong, furnishes the best possible-reason for interference by court of equity; and the fact that an actual, injury resulting from the violation of a right is' small, and the interest to be affected by an injunction large, is not to weigh against the interposition of preventive power in equity, when it is clear that on one hand a right is violated, and on the other a wrong committed. Sanford v. Poe, 37 U. S. App. 378, 16 C. C. A. 305, and 69 Fed. 546, furnishes an illustration of the true doctrine, and an example of its practical application. Under the
"If tlie assessments complained of be Illegal for any reason, the jurisdiction of a court of equity to enjoin the defendants from certifying them to the several county auditors of the state seems to be clear, upon the ground that a multiplicity of suits would result unless tlie assessment should be enjoined before the assessors should certify to each county auditor the proportion of the gross assessments collectible by each county auditor under the scheme of apportionment among the counties provided by the act of April 27, 1893. To require the complainants to pay each of the numerous county auditors, and then to sue to recover, or to enjoin each, would be most oppressive. We think, therefore, that the jurisdiction asserted in the bill, of avoiding- a multiplicity of suits, was a sufficient ground to support the original bill, as well as the bills subsequently filed to enjoin the tax of 1894. assessed after the jurisdiction in the original case had attached. Cummings v. Bank, 101 U. S. 153, 157; State Railway Tax Cases, 92 U. S. 575; Express Co. v. Seibert, 142 U. S. 339, 348, 12 Sup. Ct. 250; Shelton v. Platt, 139 U. S. 591, 599, 11 Sup. Ct. 646; Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 52; Express Co. v. Poe, 61 Fed. 470.”
It is not controverted, as I understand the line of argument, and could not be, I think, that the original purchaser, the ticket broker, and the subsequent purchaser who uses one of these tickets, are severally and jointly liable in an action at law to any or all of these companies in respect to a fraudulent ticket so used over the line of railway of such company or companies. If there had previously existed any doubt upon this subject, it has been put at rest by recent cases of the class to which belong the now leading case of Angle v. Railway Co., 151 U. S. 1, 14 Sup. Ct. 240. It is said that the ground on which the liability of a third party for interfering with a contract between others was placed in that case was that the interference was malicious. It is clear, however, that the only motive for interference by the third party in that case, as well as in other cases cited, was the desire to make a profit to the injury of one of the parties to the contract. There was no malice in the case, beyond this desire to make an unlawful gain to the detriment of one of the parties to the contract; and the case, in principle, clearly controls the question of legal liability. The reasoning in the case is in other respects applicable here. It is, however, unnecessary to further pursue this point-of the liability of each one of the parties to the violation of this contract in an action at law by any one of the companies injured. I think there is no doubt of such liability. The remedy at law, however, being obviously wholly inadequate, it only remains to determine whether the case is one in which a court of equity can furnish relief
A preliminary question is made on the jurisdiction of this court in respect of the amount or matter in controversy. Although this question is not first presented in argument, it must first be determined in ruling on the cases; for, if this court is without jurisdiction, it is not within its province to determine the other questions raised. The contention is that these bills are substantially suits upon the ticket contracts, to recover damages for a violation thereof, or for specific execution thereof, and that the right of action is separate upon each ticket, and that such rights or claims cannot be joined for the purpose of making up the jurisdictional amount, as against each one of the defendants, and, further, that the claims against the separate defendants cannot be joined together in this suit so as to make ail amount that gives jurisdiction. It is agreed, in order to save a larger accumulation of costs, that, if the court entertains the opinion that there is jurisdiction against each defendant in a separate suit, no objection will be urged against entertaining suits against the defendants jointly. From what has been said, it will readily be seen that in my opinion these are in no just sense suits upon the contract, nor for
“In a suit for an injunction the amount in disputo is the value of the object to be gained by the bill. Fost. Fed. Frac. § 16. An injunction may be of much greater value to the complainant than the amount in controversy in cases of dispute which have already arisen. Symonds v. Greene, 28 Fed. 834; Whitman v. Hubbell, 30 Fed. 81. The maintenance of its rates is the real subject of dispute, and the object of the bill and the value of this object must be considered. Railroad Co. v. Ward, 2 Black, 485. This value not being liquidated or fixed by law, the alleged value, especially on demurrer to the bill, must govern.”
In Smith v. Bivens, 56 Fed. 352, the bill for injunction was by the owner of a large body of land, valuable only for its pasturage rights and privileges, to protect that right from use by cattle and stock owners, neighbors of the land of complainant, under authority of an act of the legislature of South Carolina changing the previous law, which required owners of cattle and stock to keep them fenced in so as to exempt plaintiff’s land, with other lands, from the operation of the act. The court held that the true test, of the jurisdiction was the value of the entire pasturage right of the complainant which was to be protected, and not the amount as between the complainant and any one of the cattle owners proposing to use this right without compensation. Judge Simon ton observed:
“The case comes within Railroad Co. v. Ward, 2 Black, 492; or as It is stated in Railway Co. v. Kuteman, 4 C. C. A. 503, 54 Fed. 552, in a suit for an injunction the amount in dispute is the value of the object to be gained by the bill.”
After disposing of other questions, the learned judge, in answer to the objection to equity jurisdiction, said:
“With regard to tlie general equity jurisdiction there can be less question. By the operation of the act the complainant is exposed constantly to trespasses upon his land, and to the use and destruction of his property. Were he limited to relief at law, he would be involved constantly in a multiplicity of suits, and harassed by endless and unsatisfactory litigation. As long as the act remains of force this cannot be prevented. The owners of cattle are not required to fence*74 them in, and in despite of the efforts of complainant, and, we may say, even against the wishes of the cattle owners, these trespasses will go on.”
In Scott v. Donald, 165 U. S. 107, 17 Sup. Ct. 262, the bill was filed in equity by the plaintiff against various persons claiming to act as constables of the state of South Carolina, under what was known as the “Dispensary Law.” An injunction was sought to protect the alleged right of the plaintiff to import, for his use, ales, wines, and liquors, the products of other states and foreign countries. It was alleged in the bill that on several occasions packages of such wines and liquors belonging to complainant had been seized and carried away, and that complainant had instituted suits at law, and that notwithstanding such suits the constables of South Carolina continued to seize and carry away packages belonging to the complainant, and that protection of the complainant’s right by actions at law involved, and would involve, a multiplicity of suits against the constables, and that the right to import wines, liquors, and other spirits was of the money value of upwards of $2,000, and also that articles to be imported in the future by the complainant from time to time were threatened to be seized by the constables, and that the value of these would exceed the sum of $2,000. A preliminary injunction was allowed. A number of defenses were set up, and among them the plea that the bill presented no cause upon which the jurisdiction of the court of equity could be founded, because there was a plain and adequate remedy at law for the injuries complained of. On final hearing the preliminary injunction was made perpetual. The case then went on appeal before the supreme court bf the United States. The case made by the bill was stated by Mr. Justice Shiras, speaking for the court, as follows:
‘“Die bill prays for an injunction on the several grounds of irreparable damage; that the acts complained of prevent the exercise by the complainant of his right to import; without molestation, lawful commodities, the products of other states; to avoid multiplicity of suits; and the want of adequate remedies at law.”
There was a stipulation in the case in which it was agreed that the right of importation of ales, wines, and liquors was of the value of $2,000 and upwards, and that the difference in the price to the consumer, like the complainant, of such liquors bought out of the state dispensary of South Carolina, and bought outside of the state, was about 50 to 75 per cent, in favor of imported liquors. The court, in regard to this, said:
“Such statements sufficiently concede tlia.t the pecuniary value of plaintiff’s rights in controversy exceeds the value of two thousand dollars. ISfor can it be reasonably claimed that the plaintiff must postpone his application to the circuit court, as a court of equity, until his property to an amount exceeding in value two thousand dollars has been actually seized and confiscated, and when the preventive remedy by injunction would be of no avail.”
This case is applicable as to jurisdiction and the new use of the writ of injunction. The loss likely to result in the future enters into the value of the object of the suit for preventive relief. Close analogy is furnished in trade-mark and patent cases. In the case of a trade-mark, it is not the label which is protected by injunction, and which is of substantial value, but it is the business carried
The second objection to the exercise of the injunctive process is what counsel in argument calls a. “fundamental objection,” based upon the fact that it is a novel application of the writ of injunction, not sanctioned by previous precedents. It is said that although the general business of the ticket broker has been suppressed by legislation in a number of states, and the interstate commerce commission lias for some years urged congress to enact similar repressive legislation in respect to interstate commerce, it has never been suggested that it was within the power of the courts to-furnish protection against wrongs perpetrated in this business. I have carefully considered this objection, and also the full bearing of the question, not only as affecting the private rights here involved, but as affect-inn the still larger public interest. It has been often judicially recognized that the use of the injunctive remedy is subject to the regulated discretion of the court, and that the court may properly take into account the public bearing of its action, and whether the result will affect the public favorably or injuriously; and the soundness of this proposition is implied in the argument of defendants’ counsel, in which strenuous effort is made to show that the business of the ticket scalper is beneiicial, to an extent, at least, to the public. It is perhaps just to say that this argument was directed more to sustain the general business of the broker than this particular method of doing business in regard to Centennial tickets, as brought to light in this record; for it will certainly never be seriously maintained before a tribunal or legislative body that the continuance of a fraudulent practice, thoroughly demoralizing in all its tendencies, is demanded by the public good, or what is called “public policy.” It must be observed in this connection that the question now considered relates alone to the broker’s method of dealing in these special Centennial Exposition tickets. I am not now concerned with the general business of the broker. Keeping this fact in mind will
I return now to the argument based on the ground that this is a novel application of the injunction, not sanctioned by previous precedent directly in point. This argument, carried to its full logical result, would have prevented tbe enunciation of the first equitable principle and the establishment of the first equitable precedent for the preventive remedy. It is, indeed, an age-worn argument. It has been employed from tbe beginning of equity jurisprudence as a part of the objection to the extension of the equitable remedy to new conditions and new cases. This is tbe well-known history of tbe subject. Of' course, this contention has been overruled, and precedent after precedent established from time to time to meet new conditions and to do full justice, until the argument has long since lost most of its force, although it is still maintained in form. It has been in answer to arguments like this that the great chancellors have stated time and again that they decline to lay down any definite rules as to when, a court of equity will interpose by injunction. In fact, to do so would at once put a limit to all progress in equitable jurisprudence. Tbe most that has been said is that in tbe use of tbe writ of injunction tbe court exercises sound discretion regulated by analogy; by what W'ould be manifestly just in view of all tbe existing conditions, and requiring as a condition that there is no adequate remedy at law. Beyond this the courts have not gone, in tbe way of placing a limit on their power. It must be recognized that jurisprudence, both legal and equitable, both in respect of tbe right and tbe remedy, is progressive, that it is expansive, and that, while its great principles remain good for one time as well as another, these' principles must be extended to new conditions, and this involves an extension of tbe remedy, and often a change in tbe form of tbe remedy. Making the injunction mandatory as well as preventive is an example of sucb a change. Any system of jurisprudence coming short of this would fail to meet the demands of civilization. A similar objection that novel use was being made of the writ of injunction was pressed in the case of Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 751, and was answered by the court as follows:
“Every ;just order or rule knoAA’n to equity courts was born of some emergency, to meet some new conditions, and was, therefore, in its time, without a precedent. If based on sound principles, and beneficent results follow their enforcement, affording necessary relief to the one party without imposing illegal burdens on the other, new remedies and unprecedented orders are not unAvelcome aids to the chancellor to meet the constantly Ararying demands for' equitable relief. Mr. Justice Brewer, sitting in the circuit court for Nebraska, said: ‘I believe most thoroughly that .the powers of a court of equity are as Arast, and its processes and procedure as elastic, as all the changing emergencies of increasingly complex business relations and the protection of rights can demand.’ Mr. Justice Blateliford, speaking for the supreme court in Joy v. St. Louis, 138 U. S. 1, 11 Sup. Ct. 243, said: ‘It is one of the most useful functions of a court of equity that its methods of procedure are capable of being made such as to accommodate themselves to the development of the interests of the public in- the progress of trade and traffic by new methods of intercourse and transportation.’ The spirit of these decisions has controlled this court in its action in this case.”
“It is said that seldom have the courts assumed jurisdiction to restrain by injunction in suits brought b.v the government, either state or national, obstructions to highways, either artificial or natural. This is undoubtedly true, but the reason is that the necessity for such interference has only been occasional. Ordinarily the local authorities have taken full control over the matter, and by indictment for misdemeanor, or in some kindred way, have secured the removal of the obstruction and the cessation of the nuisance.”
And referring to the point made that the proceeding was extraordinary and new in the exercise of national jurisdiction, it was observed :
“Constitutional provisionals do not change, but their operation extends to new matters as the modes of business and the habits of life of 1lie people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel; yet in its actual operation it touches and regulates transportation by modes then unknown, — the railroad train and the steamship. Just; so it is with the grant to the national government of power over interstate commerce. The constitution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop.”
The court, disposing of the objection that tlie facts constituted a criminal offense, and that the case was one proper for criminal procedure, and not within the jurisdiction of equity, said:
“Again, it is objected that if is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the laws of tlio land is necessary to call into exercise the injunctive powers of the court. There must be, some interferences, actual or threatened, with property or rights of a pecuniary nature; but when such interferences* appear the jurisdiction of a court of equity arises, and is not destroyed by the fact that they are accompanied by, or are themselves, violations of the criminal law. Thus, in Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514, an injunction to restrain the defendant from keeping a house of ill fame was sustained, the court saying on page 344, 128 N. Y., and page 515, 28 N. E.: ‘That the perpetrator of tiie nuisance is amenable to the provisions and penalties of the criminal law is not an answer to an action against him by a private person to recover for injury sustained, and for an injunction against the continued use of his premises in such a manner.’ And in Port of Mobile v.*78 Louisville & N. R. Co., 84 Ala. 115, 126, 4 South. 106, is a similar declaration In these words: ‘The mere fact that an act is criminal does not devest the jurisdiction of equity to prevent it by injunction, if it be also a violation of property rights, and the party aggrieved has no other adequate remedy for the prevention of the irreparable injury which will result from the failure or inability of a court of law to redress such rights.’ ”
So, in Shoe Co. v. Saxey, 131 Mo. 212, 32 S. W. 1106, the supreme court of Missouri held that a court of equity might interfere by injunction to prevent persons from attempting, by intimidation, threats, or other unlawful means, to force employés to quit work and join a strike, and that a court of equity might enjoin acts threatening irreparable injury to property rights, notwithstanding such acts were also a violation of the criminal law. Klein v. Livingston Club, 177 Pa. St. 224, 35 Atl. 606, Davis v. Zimmerman (Sup.) 36 N. Y. Supp. 303, and Elder v. Whitesides, 72 Fed. 724, are in accord.
At this point I wish to make some observations upon the condition of things that I am just now dealing with. Here is a great international exposition, — an exposition of incalculable interest and benefit to the public. It has come to be one of the greatest institutions of our time. It is a sure and successful method of wide dissemination of practical knowledge to all the people. It furnishes a ready and entertaining means whereby the citizens of the state and of the Union may learn, in the way of an object lesson, something of the progress of a great country, and its best results. It stimulates pride, and encourages large effort and the highest appreciation of one’s own country. Recognizing the public interest involved in the success of the Exposition, it has received liberal, appropriation by the national and' state legislatures and by the counties and citizens of the state. The great public benefits are so manifest that the court of last resort in the state has judicially declared that it is a public and countv purpose for which an appropriation may be made by a county, although the Exposition is to be celebrated outside of the territorial limits of the county making the appropriation. Shelby Co. v. Tennessee Centennial Exposition Co., 96 Tenn. 653, 36 S. W. 694. Judge Caldwell, speaking for the supreme court of the state, pointed out the great public advantages of the Exposition in fitting terms, as follows:
“In view of the fact that the event to be celebrated is one of no less note and importance than the birth of a great state into the American Union, and of the further fact that the Exposition is reasonably expected to attract great and favorable attention throughout the country, and be participated in and largely attended by intelligent and enterprising citizens of numerous other states, at least, it is beyond plausible debate that such an exhibition is well calculated to advance the material interests and promote the general welfare of the people of the country making it. It will excite industry, thrift, development, and worthy emulation in different avenues of commerce, agriculture, manufacture, art, and education within the county, thereby tending to the permanent betterment and prosperity of her whole people. In short, It will encourage progress, and progress will insure increased intelligence, wealth, and happiness for her people, individually and collectively. Undeniably, that which promotes such an object .and facilitates such a result in any county is, to that county, a county purpose, in the truest sense.”
Vast sums of money have been invested in this great public enterprise. There is involved in the success of the Exposition not only the sums of money thus put into it, but the still larger indirect bene
“The law is full of instances in which the same act may give rise to a civil action and a criminal prosecution. An assault with intent to kill may be punished*80 criminally, under an indictment therefor, or will support a' civil action for damages, and the same is true of all other offenses which 'cause injury to person or property. In such cases the jurisdiction of the civil court is invoked, not to enforce the criminal law and punish the wrongdoer, "but to compensate the injured party for the damages which he or his property has suffered, and it is no defense to the civil action that the same act by the defendant exposes him also to indictment and punishment in a court of criminal jurisdiction. So here the acts of the defendants may or may not have been violations of the criminal law. If they were,' that matter is for inquiry in other proceedings. The complaint made against them in this is of disobedience to an order of a civil court made for the protection of property and the security of rights. If any criminal prosecution' be brought against them for the criminal offenses alleged in the bill of complaint, of derailing and wrecking engines and trains, assaulting and disabling employes of the railroad companies, it will be no defense to such prosecution that they disobeyed the orders of injunction served upon them, and have been punished for such disobedience.”
The case simply calls for an application of tlie injunctive process to prevent complainants’ business from fraud and obstruction, and a business is just as much the subject of suit, with a right to protection, as ordinary forms of tangible real and personal property. Whatever doubt may have been expressed at .any time, the cases are now agreed upon this proposition. It needs no extended statement to make it manifest that the right to carry on a business without interference, without fraud, and without obstruction, is one of the most valuable of all rights. Indeed, in the commercial world the right of greatest value is the right to freely carry on a lawful business without unlawful interruption. It is a substantial right, which may be protected by any remedy known to the court as fully as a constitutional or statutory right, and as fully as a right in the ordinary forms of property. In Scott v. Donald, 165 U. S. 108, 17 Sup. Ct. 262, already referred to, it was held by the supreme court of the United States that the constitutional right of the complainant to import for his use, from time to time, ale, wines, and liquors, the products of other states, might be protected by injunction from repeated invasion by seizure of goods under color of an unconstitutional statute of the state of South Carolina. The ruling was based on the ground of avoiding a multiplicity of suits, and the want of adequate remedy at law. In Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310, it was held (Mr. Justice Harlan delivering the opinion of the court) that, while a contract for personal services could not he enforced by injunction, nevertheless, when em-ployés quitting the service of their employer combine to obstruct the business of such employer by force, threats, or other unlawful methods, such as inducing other employes to quit, and deterring others from taking the places of those leaving, such an injury might be prevented by injunction, and the right to carry on the business without molestation protected. This, too, would be a novcd use of the injunction. In Davis v. Zimmerman, already referred, to, it was expressly adjudged that the business of a person, if láwfully conducted, is a property right, and may be protected by injunction from injury or destruction. In a full note to the case of Arthur v. Oakes, as reported in 10 Am. Ry. & Corp. Rep. 443 (s. c., 63 Fed. 310), cases are cited in which the same principle is applied to railroads, carriers by water, manufacturers, producers, and others. All these lines of business
“Let us see for a moment what is the principle of the jurisdiction of the court. That principle is to bind men’s consciences to a fair and liberal performance of their agreements. I have always thought you may attribute a great deal of the right feeling and fair dealing that exists between Englishmen to the exercise of this jurisdiction. Men are not suffered by the law of this country to depart from their contracts at their pleasure. It does not leave the party with whom the contract has been broken to the mere chance of what a jury may give in the shape of damages, but it enforces, where it can, the literal performance of the contract; and this, I believe, has mainly tended to produce the good faith that exists to a greater extent in this country than in many others. Although the jurisdiction of the court is not to be extended, a judge would desert his duty if he did not act up to the rule which predecessors have laid down as the proper exercise of a most valuable and wholesome jurisdiction. Where is the mischief in this case of exercising that jurisdiction? It is objected' that, if I refuse this application, I exclude this lady from performing at Covent Garden, when I cannot compel her to perform at the Queen’s Theater. I cannot compel her to perform, of course. That is a jurisdiction that the court does not possess, and it is very proper that it should not possess that jurisdiction; but what cause of complaint is it that I should prevent her from doing an act which may compel her to do what she ought to do?’’
There is contained in this statement of the lord chancellor a great truth, worthy to become the subject of much thought. The fact that the “right feeling and fair dealing that exists between Englishmen” is in a large measure due to the fact that the English courts vigorously and promptly enforce the law, execute proper contracts, and restrain lawlessness, is a truth of wide application. Just as the courts of any country uphold the law and repress fraud and wrong, just to that extent will there exist “right feeling and fair dealing,” confidence in the courts, and respect for lawful authority. In regard to a criminal statute, it is to be remarked that, if it existed, it could furnish no substantial redress for a civil wrong, but only for a publie wrong, except such protection as might ultimately result from a total suppression of the business. It may be that in respect of a given prac
“Equity will not interfere wlien there is an adequate remedy at law. But what remedy does the law afford that would be adequate to the plaintiffs’ injury? How would their damages be estimated? How compensated? The defendants’ learned counsel cites 'us to the criminal statute. But how will that remedy the plaintiffs’ injury? A criminal prosecution does not propose to remedy a private wrong. And, even if there was a statute giving a legal remedy to plaintiff, it would not oust the equity jurisdiction. The legal remedy that closes the door of a court of equity is a common-law remedy. Where equity had jurisdiction because the common law affords no adequate remedy, that jurisdiction is not affected by a statute providing a legal remedy. What a humiliating thought it would be if these defendants were really attempting to do what the amended petition charges, and what their demurrer confesses! that is, to destroy the business of these plaintiffs, and to force the eight or nine hundred men, women, boys, and girls who are earning their livings in the plaintiffs’ employ to quit their work against their will; and yet there is no law in the land to protect them.”
So, aside from other questions in the case, I have no difficulty about the right to employ the writ, so far as the novelty of this application is concerned, which is supposed to be a fundamental objection. Under our system of jurisprudence, the theory is that at any moment of time there is a sufficient remedy, legal or equitable, for every civil, private wrong; and the courts are under a duty, by ju-oper process, to make this theory good in fact.
Another point made is that this special-ticket contract, providing as it does for forfeiture of all rights under the ticket by transfer thereof, has in that way provided a remedy for a breach of such contract, and that this is exclusive of all other forms of relief. It is sufficient to repeat what has already been s.aid, to wit, that these are suits to protect the plaintiffs’ business, and in no sense suits upon these ticket contracts, to enforce the same, or to recover damages for breach thereof. These suits are to restrain these defendants from the continued and repeated use of these contracts as instruments and means whereby to commit frauds upon complainants’ business. They are
“Tn our last annual report we took occasion to comment with, some severity upon the unlawful practices of a considerable class of persons who engage in (he unauthorized sale of interstate passenger tickets, ancl who are commonly referred to by the expressive name of "scalpers.’ What was then said is, in part, as follows: We deem it a special duty to call your attention to the persistent survival and continued increase of the illegitimate business known as ‘ticket brokerage’ or ‘scalping.’ So far from showing any signs of diminution, it appears to be steadily enlarging in scope and volume. It is impossible to give any reliable estimate of the number of persons who take advantage of this means of procuring’*84 unlawful transportation, but it is evident that a considerable percentage of railroad passenger travel is .accomplished through the medium of tickets bought at reduced rates of so-called ‘brokers.’ In every city, and in many of the smaller towns, offices are to be found whose proprietors sell railroad tickets to very many points at much less than the published tariffs. The streets are placarded with alluring advertisements, incoming and outgoing travelers are openly solicited, while in hotels and other public places, and not infrequently in regular railroad stations, the runners and agents of these clandestine dealers invoke participation in transportation bargains, which upon their face, to give them no harsher term, are an obvious evasion of the law. This disregard of law to which we thus referred has apparently continued during the current year, and assumed still greater and more serious proportions. This illegitimate traffic has become a positive scandal, and decisive measures should be falten to put an end to these illegal transactions. The remedy for this evil is easily found. A simple enactment would be sufficient, in our judgment, to prevent these abuses and effectually check this species of misconduct. We therefore recommend that it be made a penal offense for any person to engage in the business of selling interstate passenger tickets unless he is an authorized agent of the carrier, duly constituted such by written appointment, and that every such person be required, under appropriate penalty, to expose in his place of business a certificate of his authority. We also call attention to the fact that extensive frauds upon the public are accomplished by the printing and sale of counterfeit tickets. It has come'to our knowledge that hundreds of innocent persons have been victimized by the purchase of spurious tickets from, those whose identity could not be clearly established after the fraud was discovered. The actual money loss thus resulting to unsuspecting travelers amounts to a considerable sum, while the distress and annoyance to which innocent persons have been subjected because they have .been induced to purchase these sham tickets can be easier imagined than described. It is a defect in the federal statutes that the counterfeiting of railroad tickets is not made a criminal .offense, and we earnestly recommend the correction of this defect by an appropriate enactment.”
In 1890 the commissioner had said, in part:
“The business is therefore hurtful both to the roads and to the public, in a financial sense, and the extent of the injury it is scarcely possibly to measure. The harm done by an army of unscrupulous depredators upon a legitimate business cannot be computed by any known standard. Lawless greed recognizes no limits, and weak compliance by its victims only stops at exhaustion. But the moral injury both to railroad officials and to the public is even greater. To railroad officials the business serves as an invitation and an excuse for dishonest practices. It is used as a cover — deceitful and transparent, it is true — for evasions of law, and for dishonorable violations of compacts among competing roads to maintain agreed schedules of rates. The public morals are affected by the natural inference that railroad officials are deficient in sense of honor and integrity, and that, if the railroad code of ethics permits one road to cheat another, it is equally permissible for the public to cheat the railroads. The inevitable tendency of the practice, therefore, is to eliminate.the moral element, and the rule of action that element inculcates, — business honor, — from the practical field of transportation. In whatever aspect ticket scalping may be viewed, it is fraudulent alike in its conception and in its operation. The competition of roads affords the opportunity for the work of the scalper. Without rival roads competing- for business, he could have no field.. The prospect of selling more transportation at a discount than at the established rate, and so diverting business dishonestly from a competitor, is the temptation to a road to let a scalper do for it secretly what it does not dare do openly. The weak excuse of every road that transgresses in this manner is that some competitor does it. Fraud, therefore, is the incentive to the business, and in its conduct every step is one of actual fraud. The scalper’s vocation, the necessity for his occupation, is to selj transportation at less than published and established rates; in other words, below lawful charges. Every such sale is a fraud upon the law, a fraud upon competing roads, and a fraud upon the stockholders and the creditors of the road for which sale is made.”
In addition to this, a number of the states of the Union — among them-leading states, like Illinois, Tesas, New York, and Pennsylvania
“With these elementary propositions in mind, wo proceed to consider the evils, or supposed evils, which the legislature designed to remedy, and the measures which they have adopted to accomplish that end. It was commonly asserted and believed (to what extent correctly is not important) that spurious and stolen tickets, and tickets which had expired by limitation, or that we.ro not transferable, were often put on the market to such an extent as to work groat frauds upon bolh the public and the carriers; that frequently those selling such tickets were Irresponsible, so that the party defrauded had no redress; that the business of trafficking in such tickets often furnished an inducement to railway employes to steal tickets, or issue spurious ones, and put them on the market, it was also commonly believed that, in order to evade statures designed to secure uniformity of rates and to prevent discriminations, some carriers of passengers were in the habit of placing large blocks of their tickets with ‘scalpers,’ ostensibly not, their agents, for sale at cut rates. To remedy these and similar abuses, real or supposed. this statute was passed. That all its provisions have some relation to, and tendency to accomplish, this end, is quite clear. Do they transcend any constitutional limitation upon legislative power? It seems to us that most of the objections to the act — certainly the first two-are based upon a radical misconception of its provisions, and of the character of transportation tickets as property. Counsel for the defendant seems to assume — First, that such rickets are vendible chattel property, which are the legitimate subject of barter and sale, the same as any other chattels; and, second, that this statute is designed to be a ‘license law,’ in the ordinary sense of that term. With these two premises assumed, the task of successfully assailing the validity of the act is a very easy one. While a railroad ticket is, in one sense, property, yet it is not merchandise or chattel. It is merely the evidence of the contract of the carrier to transport the holder between the points, and on the condition, therein named. Treating it, as a contract itself, it is in the nature of a eliose in action. No one with whom a, carrier makes such a contract has any inherent constitutional right to insist that it should bo assignable. At common law, all dioses in action were nonassignable, and if the legislature had deemed it necessary, in order to prevent the supposed evils, to provide, that all transportation tickets should be nontransferable, or even 1o prohibit the issue of tickets altogether, and require carriers of passengers to collect fare in cash, we fail to see why they had not the power to do so.”
If the contention that ticket brokerage is beneficial to the public in any sense can be made good, it is necessary Jo discredit this legislation and the opinions of these great tribunals. Thai such legislation was enacted, and the judgment of the courts pronounced, only after the most thorough examination and study of the subject, will readily be conceded. Whatever future investigation or study of the subject may disclose as fo the ordinary business of the ticket scalper,and whatever may be the final word in any state as to such business, it is certain that methods of the kind which form the subject of the present suit can never be justified from any standpoint of public or private good; and if by such methods the entire business, in all of its branches, is brought into such disrepute as to demand total suppression, it will only make manifest: the repetition of history in the end which has come to all such practices.
Another defense urged is that these companies have not themselves adopted proper methods of business whereby to protect themselves against this imposition, and that they .are practically not entitled to
1 have now disposed of all of the grounds of objection urged by the defense. In doing so I have given to the subject that careful study demanded by its importance, and by the earnest ability with which the objections to the bills have been pressed. The use of the writ of injunction is a serious, delicate duty, in any case. It is a striking manifestation of the strong arm of civil authority. My conclusion is that the plaintiffs are entitled to an injunction as prayed for in those bills, upon the execution in each ease of bond in the sum of $20,000, to be approved by the clerk of the court, with the usual conditions required by law, — among them, to satisfy and pay all such damages as defendants may sustain by reason of the wrongful suing out of the injunction, in the event the suds shall not be successfully prosecuted. If this amount is not deemed adequate, the defendants are at liberty at any time to ask that the bonds be increased. It may serve to clear up the situation to particularly point out that the injunction now allowed is operative against defendants only in respect to the Centennial low-rate tickets duly signed'by the original purchaser in ink, and not in pencil, and not by initial; but, within these limits, it may be well if this injunction is obeyed without indirection. It may further conduce to a clear understanding to say that according to the cases Ex parte Lennon, 12 C. C. A. 134, 64 Fed. 320, and In re Lennon, 166 U. S. 548, 17 Sup. Ct. 658, persons who have knowledge of this injunction are rendered amenable thereto, although not parties to this suit; and it may be well if this fact is kept in mind. It is apparent enough, without being repeated, that the general business of the ticket scalpers is not here in question, and is not interrupted or interfered with by this injunction. It is only the scalpers’ practice of dealing in the particular Centennial tickets when duly signed and executed in the manner suggested above.
NOTE BY THE JUDGE.
That tickets with conditions and restrictions like those contained in the Centennial ticket are valid and binding on the purchaser has been often decided. Among many cases, Mosher v. Railway Co., 127 U. S. 390, 8 Sup. Ct. 1324, Boylan v. Railroad Co. 132 U. S. 146, 10 Sup. Ct. 50, Drummond v. Southern Pac. Co., 7 Utah, 118, 25 Pac. 733, and Cody v. Railroad Co., 4 Sawy. 114. Fed. Cas. No. 2,940, may be cited. Knight v. Railroad Co., 56 Me. 234, and Railroad Co. v. Connell, 112 Ill. 295, are cases holding that through tickets in form of coupons constitute a contract with each company over whose line transportation is called for. See, also, Railroad Co. v. Weaver, 9 Lea, 38.
Injunction — In What Cases a Proper Remedy Restraining Criminal Acts.
Injunction will lie, at the suit of the state, against a corporation, when it is misusing and abusing its corporate franchises and privileges, and is maintaining its property as a nuisance, though its acts also constitute a crime. Columbian Athletic Club v. State, 143 Ind. 98, 40 N. E. 914, and 2 Am. & Eng. Dec. Eq. 340. And wherever an individual can show a distinct mid irreparable injury to himself, apart from the public in general, he may maintain a bill for injunction against the acts complained of, although criminal, and although the party complained of is liable to prosecution for such acts. Such injunction will be granted where the element of irreparable injury exists in the case. Columbian Athletic Club v. State, before cited; Shoe Co. v. Saxey (decided by the supreme court of Missouri)
Protection of Trade or Business against Fraud.
A lawful business may be protected against fraud by injunction, although not carried on under monopoly of a valid trade-mark. So, if a person is using something to designate Ms articles, the exclusive right to use which cannot be claimed as a trade-mark, nevertheless, if such person can show to a court of equity that another person is selling an article like his in such way as to induce the public to believe that it is his, and that he is doing this fraudulently, he may have relief by injunction to,prevent such piracy. It is a fraud for one person to palm off his manufactures as those of another person, although he commits fraud by the use of names which are not a subject of trade-mark property. California Fig Syrup Co. v. Frederick Stearns & Co., 43 U. S. App. 234, 20 C. C. A. 22, and 73 Fed. 812; Salt Co. v. Burnap, 43 U. S. App. 243, 20 C. C. A. 27, and 73 Fed. 818. Modern cases clearly are to the effect that a lawful business is entitled to protection by injunction against fraud, regardless of any question of trade-mark. Lawrence Manuf’g Co. v. Tennessee Manuf’g Co., 138 U. S. 537, 11 Sup. Ct. 396; Coats v. Thread Co., 149 U. S. 562, 13 Sup. Ct. 966. See, also, Oxley Stave Co. v. Coopers’ International Union, 72 Fed. 695; Wire Co. v. Murray, 80 Fed. 811; Central Trust Co. of New York v. Citizens’ St. R. Co., Id. 218. In Blindell v. Hagan, 54 Fed. 40 (affirmed in 6 C. C. A. 86, 56 Fed. 696), it was decided that jurisdiction of the circuit court to entertain suit to enjoin a combination of persons from interfering with and preventing sMpowners from shipping a crew could be maintained on the ground of preventing a multiplicity of suits at law, and because damages at law for 'interruxiting the business and intercepting the profits of pending enterprises'and voyages.must, in their nature, be conjectural, and not susceptible of certain proof. It was alleged in that case that complainants could not obtain a crew without a restraining order of the court.
Federal and State Courts — When Injunction will be Granted by Federal or State Courts against the Prosecution of Suits in Each Other’s Jurisdiction.
In regard to this question, although not specially related to the question of the principal ease, the following statement is found in 36 Am. Law Reg. & Rev. (July, 1897) p. 462: “As a general rule, the federal courts will not enjoin the prosecution of a suit in a state court, being prohibited by statute. Rev. St. U. S. § 720; Diggs v. Wolcott (1807) 4 Cranch, 179; Dillon v. Railway Co. (1890) 43 Fed. 109: Haines v. Carpenter (1875) 91 U. S. 254; Dial v. Reynolds (1877) 96 U. S. 340; The Mamie (1884) 110 U. S. 742, 4 Sup. Ct. 194. But cases may arise which fall without the statute. Fisk v. Railway Co. (1873) 10 Blatchf. 518, Fed. Cas. No. 4,830; French v. Hay (1874) 22 Wall. 250; Railway Co. v. Kuteman (1892) 4 C. C. A. 503, 54 Fed. 547. So, though a state court generally will not enjoin the prosecution of a suit in a federal court,—Riggs v. Johnson Co. (1867) 6 Wall, 166; U. S. v. Keokuk, Id. 514; Mead v. Merritt (1831) 2 Paige, 402; Schuyler v. Pelissier (1838) 3 Edw. Ch. 191; Town of Thompson v. Norris (1882) 63 How. Prac. 418,—it'may do so in a proper case, and punish the offender for contempt if he persists,—Hines v. Rawson (1869) 40 Ga. 356.” See, also, Simpson v. Ward, 80 Fed. 561; Holt Co. v. National Life Ins. Co. of Montpelier, Id. 686.
Breach of Injunction by Persons not Enjoined or a Party to the Action —Aiding and Abetting — Committal.
In the late case of Seward v. Patterson [1897] 1 Ch. 545, the English court of appeal affirmed the decision of North, J., and held that the court had jurisdiction to commit for contempt a person not included in an injunction or a party to the action, but who nevertheless, knowing of the injunction, aided and abetted a defendant in committing a breach thereof. It was said there was a clear distinc-tioji between a motion to commit a man for breach of an injunction on the ground
With respect to the use of the injunction and the parties who may be made defendants to the same bill in respect to the same subject-matter, the following cases may be referred to generally: Lembeck v. Nye (decided May 20, 1890) 47 Ohio St. 336, 24 N. E. 686; Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 40 Fed. 577; Supply Co. v. McCready, 4 Ban. & A. 588, Fed. Cas. No. 295; Snyder v. Bunnell, 29 Fed. 47; Wallace v. Holmes, 9 Blatchf. 65, Fed. Cas. No. 17,100; Chemical Works v. Hecker, 2 Ban. & A. 351, Fed. Cas. No. 12,133; Tie Co. v. Simmons, 106 U. S. 89, 1 Sup. Ct. 52; Tilghman v. Proctor, 102 U. S. 707; Travers v. Beyer, 26 Fed. 450; Alabastine Co. v. Payne, 27 Fed. 559: Cuervo v. Jacob Henkell Co., 50 Fed. 471; Von Mumm v. Frash, 56 Fed. 830; Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co., 25 C. C. A. 267, 77 Fed. 288. See, also, Id., 65 Fed. 620; Cooley, Torts, p. 153; 1 Jagg. Torts, § 123: Varick v. Smith, 5 Paige, 137; Emigration Co. v. Guinault, 37 Fed. 523; Story, Eq. Pl. § 284.
With special reference to the protection of business from injury by conspiracy or combination, directly or indirectly, the following well-considered cases may be consulted with much advantage: Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307; Curran v. Galen, 152 N. Y. 33, 46 N. E. 297; Murdock v. Walker, 152 Pa. St. 595, 25 Atl. 492; Barr v. Trades Council, 53 N. J. Eq. 101, 30 Atl. 881; Vegelahn v. Guntner (Mass.) 44 N. E. 1077; Spinning Co. v. Riley, L. R. 6 Eq. 551 (decided in 1868); Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55; Littleton v. Fritz, 65 Iowa, 488, 22 N. W. 641; State v. Crawford, 28 Kan. 726; Kansas v. Ziebold, 123 U. S. 626, 8 Sup. Ct. 273.