54 F. 730 | U.S. Circuit Court for the District of Northern Ohio | 1893
This is a motion by the complainant, the Toledo, Ann Arbor & North Michigan Railway Company, for a tern-
The original bill was filed against eight railway companies and the superintendents of two of them, and averred that the defendants, who were operating lines of railway connecting with that of the complainant company at Toledo, had threatened to refuse to receive from and to deliver to the complainant company interstate freight on the ground that their locomotive engineers, who were members of the brotherhood, would refuse to haul or handle the same, because complainant employed on its line engineers who were not members of the brotherhood; and the bill further averred that if the threat was carried out it would work an irreparable injury to the complainant, for which damages could not be estimated, and the law afforded no adequate remedy. The prayer of the Mil was for an order enjoining the defendant companies, their employes and servants, from refusing to receive and deliver complainant’s interstate freight. A temporary order as prayed for was issued by Judge Ricks. An amendment to the bill was afterwards filed making two new defendants, P. M. Arthur and If. P. Sargent Sargent, it subsequently appeared, was a nonresident of the district, and the bill as against him was dismissed for want of jurisdiction. As to Arthur, the amendment charges that he, as chief of the brotherhood, exercises a controlling Influence upon its members ⅛ all matters treated by its rules and regulations; that one of its rales requires all of its members in the employ of any railway company, whenever an order to that effect shall, be given by. its said chief officer, to refuse to receive, handle, ox1 carry cars of freight from any other railroad company whose employes, members of said association, have engaged in a strike; that such a strike has been declared against the complainant by the members of the brotherhood, with Arthur’s consent and approval; that Arthur now publicly announces that, unless complainant shall submit to the demands of its striking employes, he will order the míe above stated enforced; that the rule is in direct contravention of the interstate commerce Law, and ⅛ intended to induce the employes of the defendant companies to violate that law and the previ
The jurisdiction of this court to hear and decide the case made by the bill cannot be maintained on the ground of the diverse citizenship of the parties, for the complainant and at least one of the defendants are citizens of the same state. If it exists, it must arise from the subject-matter of the suit. The bill invokes the chancery powers of this court to protect the complainant in rights which it claims under the act of congress passed February 4, 18.87, (24 St. at Large, p. 379,) known as the “Interstate Commerce Act,” and an act amending it passed March 2, 1889, (25 St. at Large, p. 855.) These acts were passed by congress in the exercise of the power conferred on it by the federal constitution (article 1, § 8, par. 3) “to regulate commerce with foreign nations, among the several states, and with the Indian tribes.” Counsel for defendant Arthur contend that the interstate commerce law and its amendments are only declaratory of the common law, which gave the same rights to complainant, and that, therefore, this is not a case of federal jurisdiction. The original jurisdiction of this court extends by act of congress passed August 13, 1888, (25 St. at Large, p. 433,) to “all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the constitution or laws of the United States.” The bill makes the necessary averment as to the amount in dispute. It is immaterial what rights the complainant would have had before the passage of the interstate commerce law. It is sufficient that congress, in the constitutional exercise of power, has given the positive sanction of federal law to the rights secured in the statute, and any case involving the enforcement of those rights is a case arising under the laws of the United States.
The Brotherhood of Locomotive Engineers is an association, organized in 1863, whose members are locomotive engineers in active service in the United States, Mexico, and the dominion of Canada. Their number is 35,000. The engineers engaged with the defendant companies are most of them members of the brotherhood. The purpose of the brotherhood is declared in its constitution to be “more effectually to combine the interests of locomotive engineers, to elevate their standing as such, and their character as men.” These ends are sought to be obtained by requiring that every member shall be a man of good moral character, of temperate habits, and a locomotive engineer in actual service with a year’s experience, and by imposing the penalty of expulsion upon any member guilty of disgraceful conduct or drunkenness, of neglect of duty, of injury to the property of the employer, or of endangering the lives of persons. A mutual insurance association is supported in connection with the brotherhood, in which every member is required to carry a policy, and there is an efficient employment bureau for the members. A strong and complete organization is maintained for the systematic government of the brotherhood, and its rules are well adapted to -establishing and carrying out general and local plans with respect to the terms of employment of its members. Submission to these
Early last month the superintendent of complainant company refused to grant a demand by its engineers for higher' wages. After some unsuccessful attempts at negotiaiion, Arthur, who had been called in, consented to the strike, which had previously been voted by two thirds of the brotherhood men in complainant’s employ. As soon as the men went out ou March 7th, Arthur sent to eleven chairmen of the general adjustment committees on as many different railroad systems in Ohio and the neighboring states the following dispatch:
“There is a legal strike in force upon the Toledo, Ann Arbor & North Michigan Railroad. See that the men on your road comply with the laws of the brotherhood. Notify your general manager.”
A “legal” strike, in brotherhood parlance, means one consented to by the grand chief. His consent is necessary, under the rules oí the order, to entitle the men thus out of employment to the three months' pay allowed to striking members. Arthur admits that the particular law to which he referred in this dispatch was one adopted by the brotherhood at Denver three years ago, but which is not published in the printed copy of the constitution and by-laws. It is as follows:
“Twelfth. That hereafter, when an issue has been sustained by the grand chief, and carried into effect by the B. of 1⅛ 10., it shall be recognized as a violation of obligation for a member of the Brotherhood of Locomotive Engineers Association who may be employed on a railroad running in connection with or adjacent 1o said road, to handle the property belonging to said railroad or system in any way that may benefit said company in which the B. of L. E. is at issue until the grievance or issue of whatever nature or kind has been amicably settled.”
It is quite clear from the evidence that “a violation of obligation” is the highest offense of which a member can be guilty, and merits expulsion. In obedience to Arthur’s direction, it appears that several general managers were notified of the intention to enforce the rale. Watson, the chairman of the adjustment committee on the Lake Shore system, sent the general manager of that system the following telegram:
“We ask you, in the interests of peace and harmony, not to ask your engineers to handle Toledo, Ann Arbor & North Michigan freight business after 6 o’clock, March 8, as the engineers and firemen of said road go out on a strike.”
Through the intervention of the Ohio labor commissioner, William Kiricby, negotiations for an adjustment began between Arthur and
“Pending negotiations with, the president of the Toledo & Ann Arbor road, resolution twelve, page forty-five, of ritual is suspended. In case negotiations fail, you will be promptly notified.”
Arthur says that he-did not know of this dispatch when sent, but that he subsequently approved it. On March 18th, as a result of the negotiations referred to in the telegram of March 11th, the following paper was signed by Arthur and others for the striking engineers:
"We, the undersigned, late employes of the motive power department of the Toledo & Ann Arbor Railroad, have authorized our chief executive officers to withdraw the embargo against connecting roads. Should we be reinstated, we hereby agree each for himself to submit to William Kirkby, railroad commissioner, as our representative in all matters of grievances touching orders issued by officials, with authority to confer with Gov. Ashley, president of the Toledo & Ann Arbor Railroad, and we hereby agree to abide by their concurrent decision. This will also include the return of the men without prejudice, and the rates of pay to be agreed upon.”
A schedule of wages was agreed upon, but the negotiations were subsequently broken off because the striking- engineers refused to consent to a requirement that applications in writing should be made for employment by each one of their number. Thereupon, on March 16th, Arthur sent to the committee chairmen the following dispatch:
“All efforts to effect an honorable settlement of the grievances of the engineers aud firemen on the Toledo, Ann Arbor & North Michigan Railroad have failed. See that your men comply with the laws of the brotherhood. Notify your general manager.”
The result of this was that engineers, members of the brotherhood, did refuse to handle complainant’s freight on connecting lines for a short time, and in several instances quit the service rather than do so. On the 17th of March the temporary restraining order issued by me, and above referred to, was served on Arthur. He was therein commanded to rescind any order he might have promulgated to engineers on connecting lines to refuse to handle complainant’s freight. Under advice of counsel he obeyed, and sent a dispatch to committee chairmen rescinding .his previous dispatch of March 16th. This had the effect to lift the “embargo,” so called.
The result of this evidence is that the members of the Brotherhood of Locomotive Engineers have by the adoption of rule 12 made an agreement among themselves that whenever any of their comrades, with the consent of Arthur, leave the employ of one company, because the terms of employment are unsatisfactory, the members employed by companies operating connecting lines will inflict an .injury on the first company by preventing, as far as possible, the first company from doing any business as a common carrier, involving the interchange of freight with connecting lines. The engineers of the
llule No. 12 is not operative until a strike has been declared with the consent of Arthur. Arthur states that there ⅛ nothing in the rules requiring him to communicate with the committee chairmen as he did, and that the rule would execute itself. But it is obvious that, as under the rule he must declare a strike “legal” before its consequences follow, he is the person upon whom devolves the task of authoritatively, advising the rest of the brotherhood, through their immediate chairmen, that the time has come for the enforcement of the rale and the injury of the offending company. That he and the members of the brotherhood recognize this as a necessity is clear from the evidence of Watson, and what actually occurred here. On March 8th the rule was enforced by his order. On March ilth the rule was suspended by an order issued in his name. On March 16th the rule was again enforced by telegraphic order from Mm, and upon March 181 h the enforcement of the rule was again suspended. Arthur says that neither he nor Ms assistant had power under,the constitution and by-laws of the brotherhood to suspend the enforcement of rule 12, and that the dispatch of March 11th doing so was ah unconstitutional assumption of power on his part. We are not called upon to construe the constitution and laws of the brotherhood except so far as they reflect on the actual power exercised hv Arthur in the enforcement of rule 12. It suffices to say that so much of the governing law of the brotherhood as we have seen invests Arthur with wide powers, and a great influence over the actions of his subordinates and the brotherhood members, and that in the practical exercise of power he has twice both directed and suspended the enforcement of rule 12,
It will be convenient, in discussing the question whether any relief can properly he given to complainant against Arthur, to consider rule 12 and the acts done, or to he done, in pursuance thereof— First, in the light of the criminal law; second, with reference to their character as civil wrongs; and, third, with reference to the remedies wMch a court of equity may afford against them.
1. The complainant and defendant companies are common carriers, subject to the provisions of the interstate commerce act, and the business exchanged be'tween them is -averred by the bill to be
“All common carriers subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, aDd equal facilities for the interchange of traffic between their respective Unes, and for the receiving, forwarding, and delivery of passengers and property to and from their several Unes and those connecting therewith, and shall not discriminate in their rates and charges between such connecting Unes.” 24 St. at Large, p. 379.
In view of the foregoing section, it needs .no argument to demonstrate that one common carrier is expressly required by the interstate commerce act to freely interchange interstate freight with another when their lines connect.
Section 10 of the act, as amended, (25 St at Large, p. 855,) provides that—
“Any common carrier subject to the provisions of this act, or, when such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, or lessee, agent, or person acting for or employed by such corporation, who alone or with any other corporation, company, person, or party, * * * shall willfully omit or fail to do any act, matter, or thing in this respect required to be done, or shall cause or willingly suffer or permit any act, matter, or thing, so directed or required by this act to be done, not to be done, or shall aid or abet such omission or failure, * * * shall be deemed guilty of a misdemeanor, and shaU, .upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not exceeding $5,000.”
By the foregoing section, a common carrier which is not a corporation is madeo liable criminally for violations of the interstate commerce law. But when the carrier is a corporation and violates the law, not the corporation, but its officers, agents, and persons acting for or employed by it who willfully do the wrongful work, are made liable. In re Peasley, 44 Fed. Rep. 271. The corporation is made civilly liable under section 8. As every locomotive engineer of the defendant companies is a “person employed by” a common carrier corporation subject to the provisions of the interstate commerce law, he is guilty of the offense described, and subject to the penalty imposed by section 10, if he, while acting as engineer for his corporation, refuses to handle interstate freight for the complainant, and thereby, in his discharge of a function of the company, willfully omits to do an act required by the law to be done; and it is immaterial whether what he does or fails to do in violation of the statute is with or without the orders of his principal. U. S. v. Tozer, 37 Fed. Rep. 635.
Arthur and all the members of the brotherhood engaged in enforcing rule 12, and in thereby aiding and abetting every such engineer to violate the section, are equally guilty with him. as principals, (U. S. v. Snyder, 14 Fed. Rep. 554;) and they are thereby also guilty of conspiring to commit an offense against the United States, and subject to the penalties of section 5440, Rev. St., (U. S. v. Stevens, 44 Fed. Rep. 132.)
But suppose that this view of section 10 is erroneous, and that the words, “person acting for or employed by such corporation,” refer only to its managing officer or agent, the enforcement of rule
Section 5440, Kev. St., provides that—
“If two or more persons conspire * ⅝ * to commit any offense against the United States, * ⅞ ⅞ and one or more parlies do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penally of not more than $10,000, or to imprisonment for not more than two years, or to both fine and imprisonment, in the discretion of the court.”
All persons combining to carry out rule 12 of the brotherhood against the complainant company, if any one of them does an, act in furtherance of the combination, are punishable under the foregoing section. Tliis is true, because, as already shown, the object of the conspiracy is to induce, procure, and compel the managing officers of the defendant companies to refuse equal facilities to the complainant for the interchange of interstate freight, which, as' we have seen, is an offense against the United States by virtue of section 10, above quoted. For Arthur to send word to the committee chairmen to direct the men to refuse to handle interstate freight of complainant, and to notify the managing officers of the defendant companies with the intention of procuring ihem to do so, all in execution of rule 12, is an act in furtherance of the conspiracy to procure (he managing officers of the defendant companies to commit a crime, and subjects Mm and all conspiring with Min to the penalties of section 5440, Kev. St. Again, for the men, in furtherance of rule 12, either to refuse to handle the freight or to threaten to quit, or actually to quit, in order to procure or induce the officers of the defendant companies to violate the provisions of the interstate commerce law, would constitute acts in furtherance of the conspiracy, and would render them also liable to the penalty of the same section.
But it is said that it cannot be unlawful for an employe either to threaten to quit or actually to quit the service when not in violation of Ms contract, because a man has the inalienable right to bestow Ms labor where he will, and to withhold Ms labor as he will. Generally speaking, this is true, but not absolutely. If he uses the benefit which his labor is or will be to another, by threatening to withhold it or agreeing to bestow it, or bv actually withholding it or bestowing it, for the purpose of inducing, procuring, or compel
Herein is found the difference between the act of the employes of the complainant company in combining to withhold the benefit of their labor from it and the act of the employés of the defendant companies in combining to withhold their labor from them; that is, the difference between the strike and the boycott. The one combination, so far as its character is shown in the evidence, was lawful, because it was for the lawful purpose of selling the labor of thos'é engaged in it for the highest price obtainable, and on the best terms. The probable inconvenience or loss which its employes might impose on the complainant company by withholding their labor would, under ordinary circumstances, be a legitimate means available to them for inducing a compliance with their demands. But the employes of defendant companies are not dissatisfied with the terms of their employment. So far as appears, those terms work a mutual benefit to employer and employed. What the employes threaten to do is to deprive the defendant companies of the benefit thus accruing from their labor, in order to induce, procure, and compel the companies and their managing officers to consent to do a criminal and unlawful injury to the complainant. Neither law nor morals can give a man the right to labor or withhold his labor for such a purpose.
It may be noted, in passing, that the enforcement of rule 12 presents a much stronger case of illegality than the ordinary boycott. As usually understood, a boycott is a combination of many to cause a loss to one person by coercing others, against their will, to withdraw from him their beneficial business intercourse, through threats that, unless those others do so, the many will cause similar loss to them. Ordinarily, when such a combination of persons does not use violence, actual or threatened, to accomplish their purpose, it is difficult to point out with clearness the illegal means or end which makes the combination an unlawful conspiracy; for it is generally lawful for the combiners to withdraw their intercourse and its benefits from any person, and to announce their intention of doing so, and it is equally lawful for the others, of - their own motion, to do that which the combiners seek to compel them to do. Such combinations are said to be unlawful conspiracies, though the acts in themselves and considered singly are innocent, when the acts are done with malice, i. e. with the intention to injure another without lawful excuse. See the judgment of Lord Justice Bowen in Steamship Co. v. McGregor, 23 Q. B. Div. 598; Temperton v. Russell [1893] 1 Q. B. 715; Walker v. Cronin, 107 Mass. 555; Casey v. Typographical Union, 45 Fed. Rep. 135; Old Dominion Steamship Co. v. McKenna, 30 Fed. Rep. 48; State v. Glidden, 55 Conn. 76, 8 Atl. Rep. 890; State v. Stewart, 59 Vt. 273, 9 Atl. Rep. 559;
We have thus considered with some care the criminal character of rule 12 and its enforcement, not only because, as will presently be seen, it assists in determining the civil liabilities which grow out of them, but also because we wish to make plain, if we can, to the intelligent and generally law-abiding men who compose the Brotherhood of Locomotive Engineers, as well as to their usually 'conservative chief officer, what we cannot believe they appreciate, that, notwithstanding their perfect organization, and their charitable, temperance, and other elevating and most useful purposes, the existence and enforcement of rule 12, under their organic law, make the whole brotherhood a criminal conspiracy against the laws of their country.
2. We now' come to the character of rule 12, and its enforcement as a civil wrong to complainant. Lord Justice Fry said in the case of Steamship Co. v. McGregor, 23 Q. B. Div. 598, 624:
“I cannot doubt that whenever persons enter into an indictable conspiracy, and that agreement is carried into execution by the conspirators by means of an unlawful act or acts which produce private injury to some person, that person has a cause of action against the- conspirators.”
See, also, Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. 669, 12 N. E. Rep. 825; Steamship Co. v. McKenna, 30 Fed. Rep. 48; Carew v. Rutherford, 106 Mass. 1; and Moores v. Bricklayers’ Union, 23 Wkly. Law Bul. 48.
Under the principle above stated, Arthur and all the members of the brotherhood engaged in causing loss to the complainant are liable for any actual loss inflicted in pursuance of their conspiracy. The gist of any such action must be not in the combination or conspiracy, but in the actual loss occasioned thereby. '.No civil liability arises simply because of the rule 12, or its attempted enforcement, unless injury is done. Ordinarily the only difference between the civil liability for acts ⅛. pursuance of a conspiracy and for act," of the same character done by a single person is ⅛ the greater probability that such acts when done by many in. a, combination will cause injary. If a, single engineer of one of defendant companies, ant-ing alone, and with Intent to injure the complainant, should cause the complainant loss by refusing to handle its interstate freight, nplainant. could maiufcain a right of action against him for dam
3. Having thus shown that Arthur and all the members of the brotherhood with him, conspiring by enforcing rule 12 to injure complainant, will be liable in damages to complainant for any loss they may thereby occasion, the question remains, can equity afford any relief by preliminary injunction to prevent the loss?
We shall be assisted in answering the question by considering,
The office of a preliminary injunction is to preserve the status quo until, upon final hearing, the court may grant full relief. Generally this can be accomplished by an injunction prohibit»'-/ in form, but it sometimes happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury upon complainant, which he appeals to a court of equity to protect him from. In such a case courts of equity issue mandatory writs before the case is heard on its merits. Robinson v. Lord Byron, 1 Brown, Ch. 1188; Lane v. Newdigate, 10 Ves. 192; Hervey v. Smith, 1 Kay & J. 392; Beadel v. Perry, L. R. 3 Eq. 465; London & N. W. Ry. Co. v. Lancashire & Y. Ry. Co., L. R. 4 Eq. 174; Whitecar v. Michenor, 37 N. J. Eq. 6; Broome v. Telephone Co., 42 N. J. Eq. 141, 7 Atl. Rep. 851.
Now-, the normal condition — the status quo- — between connecting common earners under the interstate commerce law is a continuous passage of freight backward and forward between them, which . each carrier has a right to enjoy without interruption, exactly as riparian owners have a right to the continuous flow of the stream without obstruction. Cinco Lord Thnrlow’s time the preliminary mandatory injunction has been used to remove obstructions and keep dear the stream. Robinson v. Lord Byron, 1 Brown, Ch. 588; Lane v. Newdigate, 10 Ves. 192. So an obstruction to the flow of interstate freight must be preliminarily enjoined, even though it requires a mandatory injunction. The quasi public nature of the duty to be performed by the common carriers and the irreparable character of the injury likely to result are ample grounds for this. The interstate commerce law recognizes the necessity for such a remedy, for in summary equity proceedings at the instance of the interstate commerce commission, provided bv section 16, as amended in 1889, express power to issue injunctions, mandatory or otherwise, to prevent violations of the orders of the commission, is given to circuit courts. In addition to that, a remedy by mandamus in the district and circuit courts is given to an interested person to compel compliance by 1he common carrier with the provisions of the act. As this latter proceeding is denominated “cumulative” in the statute, it does not prevent the remedy by injunction, nor would it;, in any .event, because the inadequacy of the legal remedy which justifies equitable intervention, by injunction is only the inadequacy of a recovery in damages by action at law. Attorney General v. Mid Kent Ry. Co., L. R. 3 Ch. App. 100.
As against the defendant companies the complainant is, therefore, clearly entitled to a preliminary mandatory injunction to compel them, pending the hearing, to discharge'the’duties imposed by the interstate commerce law-, and to exchange with complainant interstate freight. This was expressly decided by Judge Love of the Iowa, district in a well-considered opinion in the case
If a preliminary mandatory injunction may issue against the defendant companies to prevent irreparable injury, it may certainly issue against their officers, agents, employes, and servants. This is the usual form of the writ of injunction to prevent a trespass, a nuisance, waste, or other inequitable act. Mr. Kerr says, in his work on Injunctions, (1st Ed., p. 559:)
“Though an injunction restraining the act complained of is claimed against the defendant alone, the order will, if necessary, bo extended to his servants, workmen, and agents; and it is of course to insert these words.”
Fost. Fed. Pr. (1st Ed.) 234; 2 Daniell, Ch. Pr. (5th Amer. Ed.) 1673; Seton, Decrees, (4th Ed.) 173; Lord Wellesley v. Earl of Mornington, 11 Beav. 180; Hodson v. Coppard, 29 Beav. 4; Mexican Ore Co. v. Guadalupe Min. Co., 47 Fed. Rep. 351, 356.
The necessity for inserting the words in- the injunction issued against the defendant companies in the present case was made apparent by the averment of the bill that they had threatened to refuse to handle complainant’e freight because of the unwillingness of their engineers to handle it. Mandatory, as well as prohibitory, injunctions have frequently been made to run against the defendant, his agents, servants, and workmen. In Smith v. Smith, L. R. 20 Eq. 500, Sir George Jessel, M. R., issued a mandatory injunction requiring the defendant to take down a wall which obstructed the light, and that injunction ran against the defendant, his contractors, builders, agents, and workmen. See Seton, Decrees, (Heard’s 1st Amer. Ed. from 4th Eng. Ed.) 89. A similar mandatory decree was entered, against the defendant, his servants, etc., for permitting an obstruction of the flow of water in a stream to continue on his lands.. Seton, Decrees, 103; Ivimey v. Stocker, L. R. 1 Ch. App. 396.
This form of injunction against a corporation is generally necessary in order to enable -the court to enforce its writ. .A corporation acts only through its officers and employes, and it is through them only that its action can be restrained or compelled. While doing the work of the company, the employe is the company, and, having notice of a mandate from a court of competent jurisdiction as to how that -work must be done, he must in his work obey the mandate. Especially is .this true with respect' to employes of common carrier corporations subject to the interstate commerce law.
They may avoid obedience to the injunction by actually ceasing to be employes of the company; _ otherwise the injunction would be, in effect, an order on them to remain in the service of the company, and. no. such order was ever, so far as the authorities show, issued by a court of equity, It is true that, if they quit the service of the company in execution of rule 12, in order to procure or compel defendant companies to injure the complainant company, they are doing an unlawful act, rendering themselves liable ⅛ damages to the complainant if any injury is thereby inflicted, and that they may be incurring a criminal penalty, as already explained, but, no matter how Inadequate the remedy at law, the arm of a court of equity cannot be extended by mandatory injunction to compel the enforcement of personal service as against either the employer or the employed. Stocker v. Broekelbank, 3 Macn. & G. 250; Johnson v. Railroad Co., 3 De Gex, M. & G. 914; Pickering v. Bishop of Ely, 2 Younge & C. Ch. 249; Lumley v. Wagner, 1 De Gex, M. & G. 604. The reason is obvious. It would be impracticable to enforce the relation of master and servant against the will of either. Especially is this true in the case of railway engineers, where nothing but the most painstaking and devoted attention on the part of the employe will secure a proper discharge of Ms responsible duties; and it would even seem to be against public policy to expose the lives of the traveling public and the property of the shipping public to the danger which might arise from the enforced and unwilling performance of no delicate a service.
We finally reach the question whether Arthur can be enjoined from ordering the engineers to carry out rule 12. Thai; he intends to enforce the rule, if not enjoined, is not denied. If, as we have seen, the injury intended is of such a. character that the court may issue its mandatory injunction against the engineers to prevent them from inflicting it, Arthur may certainly be restrained by prohibitory
The rule that equity will not enjoin a crime has here no application. The authorities where the rule is thus stated are cases where the injury about to be caused was to the public alone, and where the only proper remedy, therefore, was by criminal proceedings. When an irreparable and continuing unlaAvful injury is threatened to private property and business rights, equity will generally enjoin on behalf of the person whose rights are to be invaded, even though an indictment on behalf of the public will also lie. See the cases cited in section 20 of High on Injunctions.
“And wlien there is a willful and unlawful invasion of plaintiff’s right, against his protest and remonstrance, the injury being a continuing one, a mandatory injunction may issue in the first ins lance.”
See Robinson v. Lord Byron, 1 Brown, Ch. 588; Hervey v. Smith, 1 Kay & J. 392; Lane v. Newdigate, 10 Ves. 192; Whitecar v. Michenor, 37 N. J. Eq. 6; Broome v. Telegraph Co., 42 N. J. Eq. 141, 7 Atl. Rep. 851; Beadel v. Perry, L. R. 3 Eq. 465; London & N. Ry. Co. v. Lancashire & Y. Ry. Co., L. R. 4 Eq. 174.
Arthur says that, when he sent out Ms telegraphic instructions to the members of the brotherhood on March 16th, he had no knowledge of the injunction of this court against defendant companies and their employes issued on ihe 11th. This is surprising, in'view of the interest he had in the subject and the wide publicity given to the injunction. ' His knowledge of the injunction would be quite material in a proceeding against him for contempt, or in a criminal prosecution of him for conspiring to defeat the administration of justice in the United States courts, (Pettibone v. U. S., ubi supra;) but it was not material here. The fact that his order actually nullified the order of the court, and was continuing to do so, was enough to justify the-court in compelling him to rescind it. ■
The temporary injunction will be allowed, as prayed for.