64 F. 724 | U.S. Circuit Court for the Northern District of Illnois | 1894
after malting the foregoing statement: If the case presented were itself of less moment., the very great importance of some of the questions involved could not be overlooked. To the study of them I have devoted more time than could well be spared from other duties. It is due to counsel to say that the labor of the court, protracted and painstaking as it has been, has been greatly relieved by the contributions of learning and research which they brought to the discussion. While the principles considered are not new, in the question of the validity of the injunction which the defendants are charged with violating there are involved inquiries which in some respects go beyond the lines of established or unquestioned precedent.
A preliminary question in the case was whether or not, upon the filing of their answers, the defendants were entitled to be discharged without an inquiry into the facts. The authorities seem to be agreed, and accordingly the court ruled, District Judge Grosscup participating in the decision, that, in a proceeding for contempt in equity, a sworn answer, however full and unequivocal, is not conclusive. King v. The Vaughan, 2 Doug. 516; Underwood’s Case, 2 Humph. 48, 49; Rutherford v. Metcalf, 5 Hayw. (Tenn.) 58, 61, 62; Magennis v. Parkhurst, 4 N. J. Eq. 433, 434; State v. Harper’s Ferry Boat Co., 16 W. Va. 864, 873; Crook v. People, 16 Ill. 534, 537; Buck
The objection raised by demurrer that the injunction was illegal and void was overruled at the time of presenta! ion, but with leave for further argument at the final hearing upon the evidence. A great body of evidence, consisting of the testimony of witnesses, telegrams, and other documents, has been adduced to show the guile of the accused. The defendants, claiming the constitutional privilege against self-incrimination, refused to testify at the instance of the prosecution, and have offered no evidence in their own behalf, excepting parts of certain documents which were allowed to be read in connection with other parts ottered by the prosecution. Besides denying that any violation of the injunction has been proved against them, the defendants now reassert and insist that the injunction is invalid, on the two grounds that the court had no jurisdiction to hear and determine the case in which the injunction was ordered, and that, though possessed of such jurisdiction, the court lacked organic power to make the particular order in question. Reference is made to Ex parte Fisk. 113 U. S. 713, 718, 719, 5 Sup. Ct. 724; In re Sawyer, 124 U. S. 200, 220-222, 8 Sup. Ct. 482; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77; Windsor v. McVeigh, 93 U. S. 274, 282, 283; Kerfoot v. People, 51 Ill. App. 409. If the injunction was, for any reason, totally invalid, no violation or disregard of it could constitute a punishable contempt; but if the court acquired jurisdiction, and did not exceed its powers in the particular case, no irregularity or error in the procedure or in the order itself could justifv disobedience of the writ. Elliott v. Peirsol, 1 Pet. 340; Ex parte Watkins, 3 Pet. 193; In re Coy, 327 U. S. 731, 8 Sup. Ct. 3263. The considerations of public policy on which this rule rests are too plain and well understood to need restatement.
Was the case one of which the court had jurisdiction? No question is made, or could be made in a proceeding for contempt, of the sufficiency of the petition for the injunction in respect to matters of form and averment merely. In Coy’s Case, supra, the court said:
“In all such cacos, when the question of jimsdieliou is raised, the point to he decided. is whether the court lias jurisdiction of that class of offenses. If the statine lias invested the court which tried the prisoner with jurisdiction to punish a well-defined class of offenses, — as forgery of its bonds, or perjury in its courts. — its judgment as lo what acts were necessary under these statutes to constitute the crime is not rcviewable on a writ of habeas corpus."
The question here, therefore, is whether the case presented by the petition was of a class which in a federal court admits of the remedy by injunction.
Without going into the details of averment, the charge made against the defendants was that they were engaged in a conspiracy to hinder and interrupt interstate commerce and the carriage of the mails upon the railroads centering in Chicago, by means and in a, manner to constitute, within the recognized definitions, a public nuisance. A nuisance is “anything that unlawfully work-
In Kerr on Injunctions (page 395) it is said:
“There is a wide difference between a purpresture and a nuisance. Although they may coexist, either may exist without the other. If the act complained of be a purpresture, it may be restrained at the suit of the attorney general, whether it be a nuisance or not. Being an encroachment on the soil of the sovereign, like trespass on the soil of an individual, it will support an action irrespective of any damage which may accrue. But, to constitute a public nuisance, damage to the public right of navigation or other public right must be shown to exjst. If the act complained of bo a mere purpresture, without being at the same time a nuisance, the court will usually direct an inquiry to be made whether it will be more beneficial to the crown to abate the purpresture or to suffer the erection to remain and. be arrested; but, if the purpresture be also a public nuisance, this cannot be done, for the crown cannot sanction a public nuisance.”
Accordingly, it is contended, and numerous decisions and texts are cited to show, that “equity bad jurisdiction to restrain public nuisances upon bill or information filed by the attorney general on bebalf of tbe people.” High, Inj. §§ 745, 759, 764, 1570; Pom. Eq. Jur. § 1349; Wood, Nuis. p. 124; Story, Eq. Jur. §§ 921-924; 1 Daniell, Ch. Pr. 7, 8; Mitf. Eq. Pl. 104, 117, 196; Attorney General v. Johnson, 2 Wils. Ch. 87; Attorney General v. Forbes, 2 Mylne & C. 123; Attorney General v. Terry, 9 Ch. App. 423; Attorney General v. Birmingham, 4 Kay & J. 528; People v. Miner, 2 Lans. 396; People v. Ferry Co., 68 N. Y. 71; Davis v. Mayor, etc., 14 N. Y. 526; People v. Vanderbilt, 28 N. Y. 396; Id., 26 N. Y. 287; Attorney General v. Hunter, 1 Dev. Eq. 12. I quote passages, some of which, besides bearing upon the principal question of jurisdiction, will be found to be determinative of other questions which have come under discussion.
Story says:
Section 921: “In regard to public nuisances, the jurisdiction of courts of equity seems to be of a very ancient date. * * * The jurisdiction is applicable, not only to ‘public nuisances,’ strictly so called, but also to pur-prestures upon public rights and property. * * * In its common acceptation it [purpresture] is now understood to‘mean an encroachment upon the*741 king, either upon part of his demesne lands, or upon rights and easements held by the crown of the public, such as open highways, public rivers, forts, streets, etc., and other public accommodations.” City of New Orleans v. U. S., 10 Pet. 662; Mohawk Bridge Co. v. Utica & S. R. Co., 6 Paige, 554; Attorney General v. Cohoes Bridge Co., 6 Paige, 133.
Section 923: “In cases of ‘public nuisances,’ properly so called, an indictment: lies to abate them, and to punish the offenders; but an information also lies in equity to redress the grievance by way of injunction. The instances of the interposition of the court, however, are, it is said, rare, and principally confined to informations seeking preventive relief. Thus, in-formations in equity have been maintained against a public nuisance by stopping a highway.”
Section 924: “The ground of this jurisdiction of courts of equity in cases of purpresture, as well as of public nuisances, undoubtedly is their ability to give a more complete and perfect remedy than is attainable at law, in order to prevent irrreparable mischief, and also to suppress oppressive and vexatious litigations. In the first place, they can interpose, where the courts of law cannot, to restrain and prevent such nuisances which are threatened or are in progress, as well as to abate those already existing. In the next place, by a perpetual injunction, the remedy is made complete through all future time.”
So Pomeroy, in see lion 1849, says:
“A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction, at the suit of the attorney general, in England, and at the suit of the state, or the people, or municipality, or some proper officer representing the commonwealth, in this country.” Attorney General v. Eau Claire, 37 Wis. 400; State v. Eau Claire, 40 Wis. 533; Rochester v, Erickson, 46 Barb. 92; Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 518.
Wood (volume 1, p. 124) says:
“While, at the close of the Revolution, the people of each state, in their sovereign capacity, acquired the absolute right to ail navigable waters and the soil under them, yet where the state has permitted a use of navigable waters connecting the two states that interferes with navigation, the general government, under the power given it by the constituí ion to regulate commerce between the states, may exercise jurisdiction over the waters, and procure an abatement of such obstructions.” Insurance Co. v. Curtenius, 6 McLean, 209, Fed. Cas. No. 3,045.
High says:
Section 1554: “When the right involved is purely of ft public nature, and the grievance which it is sought to enjoin is one which affects the public at large, the proceeding is usually instituted, both in England and in this country, by the attorney general in behalf of the people, sometimes proceeding in his own name or that of the people absolutely, and sometimes upon the relation of a citizen; and in actions to enjoin the erection or continuance of public nuisances this course is generally pursued.” State v. Dayton & S. E. R. Co., 36 Ohio St. 434; People v. Vanderbilt, 28 N. Y. 396.
Section 764: “When proceedings are had to enjoin a public nuisance, such as llie pollution of a river by a board of municipal officers in violation of an act of parliament under which they are acting, a distinction is drawn, as to the necessity of proving an actual injury,. between the case of an information filed by the attorney general in behalf of the public and a bill filed by private citizens in their own behalf; and in the former case it is held to be unnecessary for The attorney general to establish any actual injury, the statute having prohibited the act complained of.”
Section 745: “It is, however, co be observed that the fact that the commission of the threatened act, which it is sought to enjoin as a nuisance, may be punished criminally as such, will not prevent the exercise of the restraining power of equity.” People v. St. Louis, 5 Gilman. 351; Attorney General v. Hunter, 1 Dev. Eq. 12; Gilbert v. Canal, etc., Co., 8 N. J. Eq. 495.
The supreme court of the United States has spoken on the subject. In the case of Mayor of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 98, where an injunction was sought against obstructing the navigation of the Potomac river, the court said:
“Besides this remedy at law, it is now settled that a court of equity may take jurisdiction, in cases of public nuisance, by an information filed by the attorney general. This jurisdiction seems to have been acted on with caution and hesitancy. Thus, it is said by the chancellor, in 18 Ves. 217, that the instances of the interposition of the court were confined and rare. He referred, as to the principal authority on the subject, to what had been done in the court of exchequer upon the discussion of the right of the attorney general, by some species of information, to seek, on the equitable side of the court, relief as to nuisance, and preventive relief. Chancellor Kent, in Attorney General v. Utica Ins. Co., 2 Johns. Ch. 382, remarks that the equity jurisdiction in cases of public nuisance, in the only cases in which it had been exercised (that is, in cases of encroachment on the king’s soil), had lain dormant for a century and a half (that is. from Charles I. down to the year 1795). Yet the jurisdiction has been finally sustained upon the principle that equity can give more adequate and complete relief than can be obtained at law. While, therefore, it is admitted by all that it is confessedly one of delicacy, and accordingly the instances where it is exercised are rare, yet it may be exercised in those cases in which there is eminent danger of irreparable mischief before the tardiness of the law can reach it”
See, also, the opinion in Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 518, where a bridge across the Ohio river was held to be a public nuisance, and ordered abated, at the suit of the state of Pennsylvania.
But while this jurisdiction of the English courts of chancery and of the equity courts of the several states of the Union is not understood to be disputed by counsel for the defendants, they do insist that, in the absence of legislation by congress conferring the authority, the federal courts can do nothing for the protection of the highways of interstate commerce, whether upon land or water. They cite the following language from the opinion in Parkersburg & O. R. Transp. Co. v. City of Parkersburg, 107 U. S. 691, 2 Sup. Ct. 732, in which Pennsylvania v. Wheeling, etc., Bridge Co., it may be observed, is declared to be “a peculiar case”:
“Now, wharves, levees, and landing places are essential to commerce by water, no less than a navigable channel and a clear river. But they are attached to the land; they are private property, — real estate; and they are, primarily at least, subject to the local state laws. Congress has never yet interfered to supervise their administration; it has hitherto left this exclusively to the states. There is little doubt, however, that congress, If 14*743 saw fit, In eases of prevailing abuses in the management of wharf property, — abuses materially interfering with the prosecution of commerce,— might interpose and make regulations to prevent such abuses. When it shall have done so it will be time enough for the courts to carry its regulations into effect by judicial proceedings properly instituted; but, until congress has acted, the courts of the United States cannot assume control over the subject as a matter of federal cognizance. It is congress, and not the judicial department, to which the constitution has given the power to regulate commerce with foreign nations and among the several states. The courts can never take the initiative on this subject.”
And from Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. 811, the following:
“The power of congress to pass laws for tho regulation of the navigation of public rivers, and to prevent any and all obstructions therein, is not questioned; but. until it does pass some such law, there is no common law of tlie United States which prohibits obstructions and nuisances in navigable rivers, unless it be the maritime law, administered by the courts of admiralty and maritime jurisdiction. No precedent, however, exists for the enforcement of any such law; and, if such law could be enforced (a point which we do not undertake to decide), It would not avail to sustain the bill In equity filed in the original case. There must be a direct statute of the United States in order to bring within the scope of its laws, as administered by the courts of law and‘equity, obstructions and nuisances in navigable streams within, the states. Such obstructions and nuisances are offenses against the laws of the states within which the navigable watei's lie, and may be indicted or prohibited as such; but they are not offenses against United States laws which do not exist, and none such exist except what are to be found on the statute book.”
Accordingly, notwithstanding the provision, in the "Act for the admission of Oregon into the Union” that “all the navigable waters of said state shall be common highways and forever free,” it was held in that case that the bridge which it was sought to remove was not an offense against the United States, in the absence of direct legislation bringing obstructions and nuisances in navigable streams within the scope of national law.
In reply to this position of the defense, reference is made to the “Act to regulate commerce,” as amended by the act of March 2, 1889 (25 Stat 855); and it is contended that by force of the provisions of that statute, passed in exercise of the power conferred on congress by the constitution “to regulate commerce among the several states,” the national control has been extended over the channels and agencies of interstate commerce, including railways as well as navigable waters, and that out of this legislation, whatever had been the rule before, has arisen by necessary implication the jurisdiction of the federal courts, in accordance with the principles of equity, to protect that commerce against interference or obstruction. The right of the federal government to obtain the injunction is also asserted upon the ground of property right in the mails.
That the nation owns the mail bags is of course beyond dispute, and that it pays large sums annually for the carrying of the mails upon the railroads is well understood. In Sea right v. Stokes, 3 How. 151, whore the question was whether vehicles carrying the mails were “laden with the property of the United States,” and therefore exempt from toll on the Cumberland road, in Pennsylvania, the supreme court said:
*744 “The United States have unquestionably a property in the mails. They are not mere common earners, but a government, performing a high official duty in holding and guarding its own property as well as that of its citizens committed to its care; for a very large portion of the letters and packages conveyed on this road, especially during the sessions of congress, consists of communications to or from the officers of the executive department, or members of the legislature, on public service or in relation to matters of public concern.”
It is said, on the contrary, to be easy “to show that, at common law, jurisdiction of the chancery on information of the attorney general to restrain a purpresture of nuisance rests on the idea that the king owns the land whereon it exists.” It is doubtless true that, in the cases where the jurisdiction was invoked, the king was the owner of the land, because the land under navigable waters in England has always belonged to the crown; but the object of the suits has always been, not to vindicate the title to the land, which could have been done by the action of ejectment, but to prevent or remove obstructions to navigation, which required the prompt and efficient methods of equity; and it is not to be believed that if in England, as along the fresh-water rivers of this country, the title of lands under the water had belonged to the riparian owners, the same jurisdiction would not have been exercised for the protection of the public right of navigation. The public interest is concerned in the unobstructed use of the water, and it is sticking in the mud to say that the right to protect that use" is dependent upon the ownership of the underlying soil. If, however, the jurisdiction in such cases must be held to rest upon some legal title or property right, which by fiction shall be deemed to be worthy of equitable protection, or to afford a basis of jurisdiction for protecting incidental rights, it would seem that the property which the government has been declared to have in the mails and its unquestioned ownership of mail bags might well be deemed sufficient for the purpose. Justice Brewer said in U. S. v. W. U. Tel. Co., 50 Fed. 28, 42: “The dollar is not always the test of real interest. It may properly be sacrificed if anything of higher value be thereby attained.”
“But,” say counsel, “this whole subject is utterly foreign to the question in this case. * * * Waterways aré not railways. They are free to all comers, and are not the subject of private ownership nor control, but only of municipal regulation by public authority. Lake Front Case, 146 U. S. 387, 13 Sup. Ct. 110. The control of the railway is primarily with the company that owns and operates it. These great interests are entirely able to cope with any interference with their property. If they be held, in a high sense, as trustees for . the public, why should equity entertain a suit by the beneficiaries of this trust until the trustees have proved recreant? These companies own the land' over which their lines run, or a right of way in perpetuity, and, though charged with public duties, are still private pecuniary corporations operated for gain. As to all local matters, viz. the speed of trains, stopping at crossings, elevation of tracks, and things of that character, they are subject to local or state regulation. This could not be were the power of-congress exclusive as in the matter of interstate rates. Wabash, etc., By.
But while the reasons to justify, on the grounds considered, the issuing of the injunction for the purpose of protecting, against obstruction or interruption, either the mails alone or interstate commerce, of which the carrying of the mails is a part, are strong, and perhaps ought to be accepted as convincing, there seems to be no precedent for so holding, and the responsibility of making a precedent need not now be assumed.
While, however, the point is not decided, the authorities on the subject have been brought forward so fully because, in part, of their bearing upon the question now to be considered, — whether or not the injunction was authorized by the act of July 2, 1890. It was under that act that the order was asked and was granted; but it has been seriously questioned in this proceeding, as well as by an eminent judge and by lawyers elsewhere, whether the statute is by its terms applicable, or consistently with constitutional guaranties can be applied, to cases like this. It is admitted in one of the briefs for the defendants, and the authorities already quoted clearly demonstrate, “that were congress to declare that the United States might maintain a bill to enjoin the obstruction of interstate commerce on railroads engaged therein, where such obstructions amounted to what, on a public highway, would be a public nuisance, such legislation would be admissible.” Such an act, not going beyond the scope of equity jurisdiction in England at the time-when the federal constitution was adopted, it is plain would not be obnoxious to the objection that it was an invasion of the field of criminal law which involved interference with the right of trial by jury. The jurisdiction of the courts of equity, and by implication their right to punish for contempt, are established by the constitution, equally with the right of trial by jury; and so long as there is no attempt to extend jurisdiction over subjects not properly cognizable in equity, there can be no ground for the assertion that the right of jury trial has been taken away or impaired. The same act may constitute a contempt and a crime. But the contempt is one thing, the crime another; and the punishment for one is not a dupli
The first and fourth sections of the act of July 2, 1890 (26 Stat. 209), read as follows:
Section 1: “Every contract, combination in the form of trust, or otherwise, or conspiracy, in restraint of trade or commerce, among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.”
Section 4: “The several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the attorney general, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the causo and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the ease; and pending such petition and before final decree, the court may at any time make such temporary restraining order or prohibition as shall he deemed just in the premises.”
It is not contended that other- sections bear materially upon the construction or interpretation of these, except the sixth, to which reference will be made further along. The position of the defendants in respect to this statute, as stated in one of the briefs, is that it “is directed at capital,” “at dangers very generally supposed to result from vast aggregations of capital;” that “tlie evil aimed at is one of a contractual character, and not of force and violence.” In another brief it is said more definitely:
“That, sections 1 and 6 being construed together, it is apparent that the statute is aimed at monopoly of trade or commerce hy which trade should be engrossed, and in and hy which property should he employed and secured, but that, even should this contention he denied, still the statute does not confer a right on the government to proceed under the direction of the attorney general to abate a public nuisance existing in a highway of interstate commerce, hut generally, hy section 4, to prevent and restrain, by injunction, violations of a penal statute. It is thought, therefore, that, as léld by Judge Putnam in U. S. v. Patterson, 55 Fed. 005, this act is inapplicable; but, if it is, then it is unconstitutional as an attempt to enforce a penal statute in equity, anu not a justifiable authority for a proceeding familiar to equity, and, under congressional authority, admissible in the federal courts in the name of the gorevnmeut.”
The very elaborate arguments presented in support of those propositions are the same, in the main, as were made and reported at length in the case referred to (U. S. v. Patterson), and therefore need not be restated. Reference was made in that case, and has been made in this, to the debates in congress while the measure was under consideration in that body; and, though it is conceded that we cannot take the views or purposes expressed in debate as supplying the construction of statutes, it is said we may gather from the debates in congress, as from any other source, “the history of the evil which the legislation was intended to remedy.” Doubtless, that is often
“Now, Just what contracts, wnat combinations in the form of trusts, or what conspiracies will he in restraint of trade or commerce, mentioned in the bill, will not he known until the courts have construed and interpreted this provision.”
It is therefore the privilege and duty of the court, uncontrolled by considerations drawn from other sources, to find the meaning of the statute in the terms of its provisions, interpreted by the settled rules of construction. That the original design to suppress trusts and monopolies created by contract or combination in the form of trust,which of course would be of a “contractual character” was adhered to, is clear; but it is equally clear that a further and more comprehensive purpose came to be entertained, and was embodied in the final form of the enactment. Combinations are condemned, not only when they take the form of trusts, but in whatever form found, if they be in restraint of trade. That is the effect of the words “or otherwise.” It may be that those words should be deemed to include only forms of like character, — that is to say, some form of contract as distinguished from tort; hut, if that be so, it only emphasizes and makes imperative the inference, which otherwise it seems to me would be sufficiently clear, that the word “conspiracy” should be interpreted independently of the preceding words. It is hardly to be beiieved that the words “or otherwise” were used simply for the purpose of giving fuller scope to the antecedent ■words “contract” and “combination,” and then “conspiracy” added merely for the same purpose. _ Construed literally, the terms used in the body of this act forbid" all contracts or combinations in restraint of trade or commerce; but that construction is controlled by the title, which shows that only unlawful restraints were intended. But what constitutes an unlawful restraint is not defined; and, under the familiar rule that such federal enactments will be interpreted by the light of the common law, I have no doubt but that this
“The power of congress.” said Chief Justice Marshall, in Gibbons v. Ogden, In ; -A’!, when railroads were unknown, “comprehends navigation within the limits of every state in the Union, so far as That navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several sta,tes, or with the Indian tribes.’ ”
In Gilman v. Philadelphia it is said:
“The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which ore accessible from a state other than those in which they lie. For ihis purpose they are the public property of the nation, and subject to all the requisite legislation of congress. This necessarily includes the power to keep them opon and free from any obstruction to their navigation, imposed by the states or otherwise. * * * It is for congress to determine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided.”
_ In the case of The Daniel Ball, a steamer employed on Grand river between Grand Rapids and Grand Haven, Mich., Justice Field, speaking for the court, said:
*750 “So far as the steamer was employed in transporting goods destined for other states, or goods .brought from without the limits of Michigan and destined to places within that state, she was engaged in commerce between the states; and, however limited that commerce may have been, she was, so far as it went, subject to the legislation of congress. She was employed as an instrument of that commerce; for, whenever a commodity has begun to move as an article of trade from one state to another, cominerce in that commodity between the states has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one state, and some acting through two or more states, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regulation of congress.”
In the State Freight Tax Case, Justice Strong said:
“Beyond all question, the transportation of freight or of the subjects of commerce, for the purpose of exchange or sate, is a constituent of commerce itself. This has never been doubted, and probably the transportation of articles of trade from one state to another was the prominent idea in the minds of the framers of the constitution when to congress was committed the power to regulate commerce among the several states. A power to prevent embarrassing restrictions by a state was the thing desired. The power was given by the same words, and in the same clause, by which was conferred power to regulate commerce with foreign nations. It would be absurd to suppose that the transmission of the subjects of trade from the state to the buyer, or from the place of production to the market, was not contemplated, for without that there could be no consummated trade either with foreign nations or among the states. In his work on the constitution (section 1057), Judge Story asserts that the sense in which the word ‘commerce’ is used in that instrument includes not only traffic, but intercourse and navigation; and in the Passenger Cases, 7 How. 416, it was said: ‘Commerce consists in selling the superfluity; in purchasing articles of necessity, as well productions as manufactures; in buying from one nation and selling to another; or in transporting the merchandise from the seller to’ the buyer to gain the freight’ Nor does it make any difference whether this interchange of commodities is by land or by water. In either case, the bringing of the goods from the seller to the buyer is commerce.”
In Pensacola Tel. Co. v. W. U. Tel. Co., Mr. Chief Justice Waite, speaking for the court, after reciting the provisions of the constitution, says:
“The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stagecoach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of congress to see to it that intercourse among the states and the transmission of intelligence are not obstructed or unnecessarily hindered by state legislation.”
In County of Mobile v. Kimball, in reference to tbe power of congress over tbe subject, it is said;
“That power is indeed without limitation. It authorizes congress to prescribe the conditions upon which commerce in all its forms shall be conducted between our citizens and the citizens or subjects of other countries, and between the citizens of the several states, and to adopt measures to promote its growth and insure its safety.” '
“It cannot be too strongly insisted upon that the right of continued transportation from one end of the country to tlie other is essential in modern times to that freedom of commerce from the restraints which the state might choose to impose upon if, that the commerce clause was intended to secure. This clause, giving to congress the power to regulate commerce among the states and with foreign nations, as this court has said before, was among the most important of the subjects which prompted the formation of the constitution (Cook v. Pennsylvania, 97 U. S. 566, 574; Brown v. Maryland, 12 Wheat. 419, 446); and it would be a very feeble and almost useless provision, but poorly adapted to secure the entire freedom of commerce. among tlie states which was deemed essential to a. more perfect union by the framers of the constitution, if, at every stage of the transportation of goods and chattels through the country, the state within whose limits a pari, of this transportation must be done could impose regulations concerning the price, compensation, or taxation, or any other restrictive regulation interfering with and seriously embarrassing this commerce.”
Speaking by the same judge, in Ex parte Siebold, the court bad said:
“Wo hold it to he an incontrovertible principle that the government of the United Stab's may, by means of physical force exercised through its official agents, execute on every foot of American soil the powers and functions tha t belong to it. This necessarily involves the power to command obedience to its laws, and hence tlie power to keep the peace to that extent. This power to enforce its laws and to exercise its functions in all places does not derogate from the power of the state to execute its laws at the same time and in the same (daces. The one does not exclude the other, except where both cannot he executed at the same time. In that case, the words of the constitution itself show which is to yield: “This constitution and all laws which shall be made in pursuance thereof * * * shall be the supreme law of ¡ho land.’ » !> * The government must execute its powers, or it is no government. It must execute them on tlie land as well as on the sea; on things as well as on persons.”
Tu Cherokee Nation v. Southern Kan. Ry. Co., the court, speaking by Mr. Justice Harlan, says:
“Congress has power to regúlate commerce, not only with foreign nations and among the several states, but with the’Indian tribes. It is not uocessury that an act of congress should express in words the purpose for which it was passed. The court will determine for itself whether the means employed hy cougress have any relation to the powers granted by the constitution. * ~ * The question is no longer an open one, whether a railroad is a public highway, established primarily for the convenience of the people, and to subserve public ends, and therefore subject to governmental control and regulation.”
These definitions and expositions of tbe scope and law of in-' terstatc commerce, except tbe last, preceded the enactments by congress on the subject. It was therefore of commerce so defined, embracing all instrumentalities and subjects of transportation among the states, that congress, by that legislation, assumed the control; and I see no reason for thinking that as employed in the act of 1890, which is essentially supplemental of the other acts, the word was intended to be less comprehensive. It has been decided in a number of cases in the circuit courts, and in one instance by a circuit court of appeals, that this act cannot be applied to' trusts or monopolies in the manufacture or production of articles of commerce. For instance, in Greene’s Case, 52 Fed.
The argument to the contrary, drawn from the sixth section of the act, is not controlling, nor, as it seems to me, even strongly persuasive. That section provides for the forfeiture of “any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in this act, and being in the course of transportation from one state to another, or to a foreign country”; but it does not say nor imply that only cases, whether of contract or combination or conspiracy, in which property shall be found subject to forfeiture, shall be deemed to come within the scope of the act. The force of the section is the same, I think, as if it read: “If in any case there shall be found any property owned,” etc., “it shall be forfeited,” etc.; and so read it neither expresses nor implies any limitation of the provisions of other sections.
At this point is interposed the constitutional objection which, it is urged, forbids a construction that goes beyond trusts and monopolies to include conspiracies to employ force or violence in restraint of trade or commerce. The argument was employed and amplified in the Patterson Case, 55 Fed. 605, 629-632. It was contended there “that if two or more persons commit an act of murder, robbery, forgery, shop-breaking, store-burning, champerty, or maintenance, which in fact has a natural, though unintended, result of interference with interstate commerce, they are liable criminally for a conspiracy to interfere with interstate commerce, if the statute broadly covers conspiracy merely to interfere with it.” This proposition is built on the assumption — which I believe is supported neither by authority nor reason — that co-conspirators are responsible as conspirators for the natural, though unintended, results of the commission or attempt by one of them to commit the particular offense
The question here, however, is of the validity of the fourth, rather than of the first, section of the act. It is urged that the power given by that section “to prevent and restrain violations” of the act is an unwarranted invasion of the right of trial by jury, and in support of the proposition are cited Puterbaugh v. Smith, 131 Ill. 199, 23 N. E. 428; Carie (on v. Rugg, 149 Mass. 550-557, 22 N. E. 55; Littleton v. Fritz, 65 Iowa, 488, 22 N. W. 641; Eilenbecker v. Plymouth Co., 134 U. S. 31, 10 Sup. Ct. 424; Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712; Pearson v. Yewdall, 95 U. S. 294; Boyd v. U. S., 116 U. S. 616-634, 6 Sup. Ct. 524; Counselman v. Hitchcock, 142 U. S. 547 582, 12 Sup. Ct. 195.
Little need he added to what has already been said upon that subject. The same act may be a crime and a contempt of court. If an assault or murder be committed in the presence of,a court» the offender will be punishable both for the crime and for the contempt, and so with any other act committed in violation both of a criminal statute and of an injunction or order of court. Within the proper subjects of equitable cognizance, as established when the constitution was adopted, it was competent for congress to vest the courts with the jurisdiction granted by this section, and to impose upon them the duty of its exercise in proper cases. Just as, in construing the first section of the act, its general words are limited hv force ol' the title to unlawful restraint, and the words “in restraint of trade,” in their connection with the words “contract” and “combination,” are to be given their common-law significance, so the jurisdiction in equity, though given in broad and general terms, will be deemed to be limited so as not to extend to a case which is not of equitable cognizance. Indeed, if the sixth section of the act may legitimately be used in aid of the construction of the first section, the fourth section warrants, if it does not require, that the. first section be restricted to cases in which, in accordance with established precedent, an injunction coaid issue, — a, limitation which would not he essentially uncertain or of difficult application,
That this case is one of equitable character is clear, and, as I understand, has not been questioned by counsel; their contention being that neither by this statute, nor upon general principles, is the case within the jurisdiction of a federal court. Excepting the case of U. S. v. Patterson, I know of no ruling inconsistent with the jurisdiction here exercised. The case of U. S. v. Trans-Missouri Freight Ass’n, 53 Fed. 440; Id., 7 C. C. A. 15, 58 Fed. 58, had reference to a contract between railroads, which was alleged to hare been made in violation of the act, but was held to be not unlawful. In the case of U. S. v. Workingmen’s Amalgamated Council of New Orleans, 54 Fed. 994, the late Judge Billings, under this statute, granted an injunction upon facts which made the question of jurisdiction the same as it is here, and in respect to that question his ruling and opinion were distinctly approved by the circuit court of appeals for the Fifth circuit (6 C. C. A. 258, 57 Fed. 85). The court said:
“The appellants assign as error the overruling by the circuit court of each of the grounds of objection urged. in that court against the granting of said injunction. These are well summarized, discussed, and disposed of in the very able opinions of the judge of the circuit court who passed the decree now sought to be reversed. The matters of law presented to and considered by him were not well taken by the appellants (respondents below) and the circuit court’s ruling to that effect was correct. The bill exhibited is clearly within the statute, and the pleadings of the respondents were not such as to require the refusal of the prayer for a temporary injunction.”
See, also, the opinion of Judge Speer in Waterhouse v. Comer, 55 Fed. 149.
In the Case of Phelan, 62 Fed. 803, who was charged with contempt of the United States circuit court at Cincinnati, growing out of the strike of last summer, and involving facts essentially identical with the facts of this case, Judge Taft declared the combination to be “in the teeth of the act of July 2, 1890,” and after quoting from the act, and referring to the rulings of other judges in accord with his own view, said:
“A different view has been taken by Judge Putnam in the case of U. S. v. Patterson, 65 Fed. 605; but, after consideration, Judge Lurton and I cannot concur with the reasoning of that learned judge. The fact that It was the purpose of Debs, Phelan, and their associates to paralyze the interstate commerce of this country is shown conclusively in this case, and is known of all men. Therefore, their combination was for an unlawful purpose, and is a conspiracy, within the statute cited.”
In the recent case of U. S. v. Elliott, 64 Fed. 27, Judge Philips declares similar views.
The facts of this case suggest illustrations of the impropriety as well as inconsistency of putting upon the statute the restrictive construction proposed. If, for example, the manufacturers of other sleeping cars, in their own interest, should enlist the brakemen and switchmen or other employés of the railroads, either individually or in associated bodies, in a conspiracy to prevent or restrain, the use of Pullman sleepers, by refusing to move them, by secretly uncoupling, or by other elusive means, the monopolistic character of
I have not failed, I think, to appreciate the just force of the argument to the contrary of my opinion, — it has sometimes entangled me in doubt, — but my conclusion is clear that, under the act of 1890, the court had jurisdiction of the case presented in the application, and that the injunction granted was not without authority of law, nor for any reason invalid.
This brings me to the question of fact: Did the defendants violate the injunction? The evidence upon the question is volumi nous, but need not be reviewed in detail. The injunction issued July 2d, and on the 3d and 4th was served upon the defendants Debs, Howard, Kogers, and Keliher. It was not served upon the other defendants, and in one of the briefs it is contended that only parties to a bill can be charged with violating an injunction; that while strangers to a suit in chancery may be liable for willful interference, their cases stand upon the same footing as ordinary criminal contempts, and their answers are conclusive. Authorities cited: Watson v. Fuller, 9 How. Pr. 425; Kip v. Deniston, 4 Johns. 24; Boyd v. State, 39 Keb. 128, 26 N. W. 925; Lord Elden’s Opinion, 7 Ves. 257-259; State v. Anderson, 5 Kan. 90, 114; Elliott v. Osborne, 1 Cal. 396; Jewett v. Bowman, 27 N. J. Eq. 171;
The testimony of newspaper reporters shows that on July 4th Debs said to one of them:
“I have done nothing unlawful. I have kept myself strictly within the provisions of Judge Caldwell’s decision, * * * and I shan’t change my course of conduct in any way by reason of the service of this injunction.”
Again, on the 7th, that:
“There had been another injunction served upon him, and It should not make the slightest difference in the manner in which the American Railway Union was doing its business; it had kept within the bounds of the law.”
To another, on July 2d, he had said, in substance—
“That he was not afraid of any court or grand jury, or of any injunction as he had done nothing to be enjoined against, and that the American Railway Union would continue the fight on the same lines they had commenced.”
July 3d the defendant Bums, who, it should be observed, in responding jointly with his codefendants Hogan and others to interrogatories, had asserted that they were not informed of the injunction until near the end of the strike, in answer to the inquiry of the reporter what they should do about it, said:
“Why, they would simply laugh at the injunction; that the Railway Union knew its rights; that they had not done anything wrong — had not interfered with interstate commerce or mails or passengers; that they had simply called off their men; that they had not done anything contrary to the Injunction; that they had a right to strike peaceably.”
These declarations are not brought forward for the purpose of showing that the defendants held or expressed sentiments of contempt for the order of the court. Whether they did or not is immaterial here. Their conduct only is in question, and these expressions are quoted because they confirm the inference deducible from other evidence, that no essential and voluntary modification of their course of action either followed or was caused by the injunction. Their original intention, it is true, was only to prevent the use of Pullman cars, but finding, as they did, immediately, that that aim would be thwarted by the discharge from service of meh who refused to handle those cars, they began as early as June 27th, the (lay after the boycott was proclaimed, to issue orders to strike; and from that time to the end, to the extent of their ability, they conducted and controlled the strike with persistent consistency of purpose, and with unchanged methods of action. What they did the first day they did, in substance, each succeeding day, so that it is not necessary to discriminate very closely between what was done before and.what after service of the injunction.
As officers of the American Railway Union, it is beyond question that the defendants had practical control of the strike, guiding as they chose the movements of the men actively engaged. Is it
“It is understood that a strike is war; not necessarily a war of blood and bullets, but a war in the sense that it is a conflict between two contending Interests or classes of interests. There is more or less strategy, too, in war, and this was necessary in our operation. Orders were issued from here, questions were answered, and our men were kept in line from here. * * * As soon as the employes found that we wore arrested, and taken from the scene of action, they became demoralized, and that ended the strike. It was not the soldiers that ended the strike. It was not the old brotherhoods that ended the strike. It was simply the United States courts that ended the strike. Our men were in a position that never would have been shaken, under any circumstances, if we had been permitted to remain upon the field, among them. Once we were taken from the scene of action, and restrained from sending telegrams or issuing orders or answering questions, then the minions of the corporations would be put to work. * * * Our headquarters were temporarily demoralized and abandoned, and we could not answer any messages. The men went back to work, and the ranks were broken, and the strike was broken up, * * * not by the army, and not by any other power, but simply and solely by the action of the United States court in restraining us from discharging our duties as officers and representatives of our employés.
In answer to an inquiry what, if anything, be did to ascertain whether his men were concerned in violence, he said:
“We did that [by] our committee, which called at headquarters every evening and advised ns. They were instructed to guard the company’s property, if they were near it at all, and to apprehend anyone that might be caught destroying property. This instruction was given again and again to the central committee that went out from headquarters. We said we knew that if there was trouble, if there was disorder and riot, we would lose, because we knew enough by experience in the past that we had everything to lose by riot, and nothing to gain. We said that man who incites riot or disorder is our enemy, aud wo have got to be the first to apprehend and bring him to justice. So we called upon our men, and advised them, urged them, to do everything in their power to maintain order, because we felt and knew that if there was perfect order there was no pretext upon which they could call out the soldiers,-or appeal for the intervention of the court; and we would win without a question of a doubt.”
One or two reflections upon these statements will be enough: First, with all that is said about guarding property, keeping the peace, and being the first to arrest offenders, not one was arrested, and no effort was made by strikers or members of the Bail-way Union to preserve the peace or to protect property. On the contrary, many of them were leaders in scenes of violence and disorder. Second, if this strike, like others, was understood to be war, not necessarily of blood and bullets, but a conflict between contending interests or classes of interests, in which strategy had to be employed to keep the men in line, it was more than a peaceable strike, or mere cessation from work. Had it been only that, the injunction, instead of being a hindrance, would have been in their hands the very weapon they needed' to enable them to suppress the violence and disorder in which alone, they say, they saw possible danger to the success of their cause.
“When the trouble began,” said Mr. Debs again, in his testimony before the commission, “there were thousands of telegrams and communi
“A boycott has been declared against the Pullman Company, and no Pullman cars are to be handled.” “If men are discharged for refusing to handle Pullman cars, every employe should at once leave the service of the company.”
June 28th:
“No forcible interference with mail trains, but any man who bandies trains or cars will be a scab.” “No loyal man will handle any train at all on your system.” “Tie up every line possible, to enforce boycott. Do not cut any cars from mail trains, but no loyal man will move a train of any kind under existing conditions.” “Passenger train came south this morning, and will be held here.” (To Debs from Las Vegas.) “If your company refuses to boycott Pullman, tie it up.”
June 29th;
In substance: Leave denied for train at Livingston, Montana, to proceed with sick passengers. “All taking part in this struggle will receive protection of A. R. U., whether members or not.” “Pay no attention to injunction orders. Men will not be slaves.”
June 30th:
“This is a fight against combined capital and oppression, and we are assured winners. Do no violence, but every man stand pat and firm.” “No fear about reinstatement. AE Unes in Chicago are paralyzed. Impossible to get scabs to fill places in time.” “Do not interfere with mall trains in any manner.”
July 1st:
“Knock it to them as hard as possible.” “Have men stand firm. They show a better front in Ohio than you. * * * I do not suspect Grand Junction of housing scabs or sucklings of autocrats.”
July 2d:
“The train -will haul your car to its destination on presentation of this telegram.” (To Mrs. Leland Stanford.) “All who work during present strike will be branded as scabs.”
July 3d:
“This is authority to caE out roads named.” “Tie up Big Pour.” “Get your men out immediately.” “It will take more than injunctions to move trains. Gat everybody out.” “Wear a white ribbon, instead of red. We have requested our friends to wear white in Chicago.” “Let everybody wear white ribbon who are in favor, and all opposed wear red.” “Do not let court order scare you. I have had orders served on me. We are breaking no laws. You and all strikers have quit your places peaceably, as is your right * * * Don’t he silly.”
“Have your men stand pat. They will have to make many arrests before this strike is over. We all stand firm. Arresting men will not operate the road.” “To call out troops was an old method of intimidation. _ Commit no violence. Have every man stand pat. Troops cannot move trains. Not scabs in the world to fill places, and more occurring hourly.” “This is authority to call out P. D. & E.”
July 5th:
“The lines are now sharply drawn. Capital has declared war. Any man who works is 'assisting capital to defeat labor.” (Richards of St. Paul to Debs): “Send all good news possible. * * i* Look after locals on all roads, and play the strongest card left.”
July 8th:
“You cannot paralyze the world in a minute. Do not let strong men become childish. * * * You appear to be paying more attention to newspapers than to messages.”
July 10 th:
“Debs, Howard, Kéliher, Rogers, in jail. Rest expect to go. This is the last act of the corporations. Our cause is just. Victory certain. Stand pat. [Signed] Hogan.”
July 14th:
“All negotiations off. Stand to a finish now.”
The condition as it was on the 12th of July is aptly described in the letter of that date signed by Debs, Howard, and Keliher, as officers of the American Railway Union, and addressed, “To the Railway Managers.” It is set out in full asa part of the information,
But the defendants are not entitled to be judged solely by the rules which determine the responsibility of one who has acted without combination or agreement with another. The bill upon which the injunction was ordered charged them with conspiracy, as, under the statute, it must have done, in order to bring them within the cognizance of the court. Conforming to the allegations of the bill, the injunction, in substance, commanded them, and all combining or conspiring with them, “to desist and refrain” from interfering with the business, rolling stock, and other property of the roads named; from using force, threats, or persuasion to induce employés of the roads to neglect duty; from using force or threats to induce employés to quit, or other persons not to enter, the service of the roads; .from doing any act in furtherance of a conspiracy to interfere with interstate commerce on the roads; and from ordering, aiding, or abetting any person to do the forbidden things. It is not necessary to consider whether this injunction, when properly construed, forbids, or whether it might lawfully have been made to forbid, the employés of the railroad companies to quit work in furtherance of the alleged .conspiracy, or to forbid others, in aid of the conspiracy, to persuade or advise them to quit. The order was not intended when- issued,
The evidence establishes, and it has not been denied, that on the 21st day of June, 1894, the American Railway Union, in convention at Chicago, declared a boycott against the Pullman palace cars, to Sake effect after live days if meanwhile the Pullman Company should not accede to a proponed arbitration with striking workmen; that the convention, after conferring upon the directors of the union jurisdiction over all matters connected with the boycott, adjourned on the doth of June; that on the next day the following; notice or order was issued, over the signature of the president of the union: “June A», j894, 1:30 p. m. Boycott against Pullman cars in effect at noon i (s-day. By order of convention. E. Y. Bobs,” — and t hat; on the same clay the following Kilogram was sent to the general officers of labor organizations throughout the country:
“A boycott against the Pullman Company, to take effect at noon to-day, has been declared by the American Unit way Union. We earnestly request your aid and co-operation in the iiglit of organized labor against a powerful raid oppressive monopoly, idease advise if you can meet with us in conference, and, it' noi. if you will authorize some one to represent you in this maf-ier. Address 121 Ashland Block. Ihijíone Y. Debs, President."’
Pullman cars in use upon ills* roads are instrumentalities of commerce, and it follows that from the iime of (his announcement, if not
“Upon this ground [says Hawkins, supra], it has been adjudged that where persons combine together to stand by one another in the breach of the peace, with a general resolution to resist all opposers, and in the execution of their design a murder is committed, all the company are equally principals, though at the time of the fact some of them were at such a distance as to be out of view.”
“A man may be guilty of a wrong which he did not specifically intend [says Bishop], if it came naturally, or even accidentally, through some other specific, or a general, evil purpose. When, therefore, persons combine to do an unlawful thing, if the act of one, proceeding and growing out of the common plan, terminates in a criminal result, though not the particular result meant, all are liable.”
In State v. McCahill (Iowa) 30 N. W. 553, tbe court said:
“Where there is a conspiracy to accomplish an unlawful purpose, and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any co-conspirator in the accomplishment of the purpose in which they are all at the time engaged.”
These defendants were the directors and general officers of the American Railway Union, and had practical control of the organization. They procured the adoption of the resolutions by which the boycott of the Pullman cars was declared, and authority given themselves to begin and control the movement. They put themselves at once in telegraphic communication with the officers of local unions, advising them of the action of the convention, and that no Pullman cars were to be handled; but, it appearing very soon that men who refused to handle Pullman cars were being discharged, they determined to prevent the running of all trains upon all the roads until the companies should accede to their demands, including the reinstatement of men who had been discharged. Later the Pullman strikers were abandoned, and only the re-employment of
Much has been said, but without proof, of the wrongs of the workmen at Pullman, of an alliance between the Pullman Company and the railway managers to depress wages, and generally of corporate oppression and arrogance. But it is evident that these things, whatever the facts might have been proved or imagined to be, could furnish neither justification nor palliation for giving up a. city to disorder, and for paralyzing 1he industries and commerce of the country.
My conclusion in the case on the information of the United States implies a like conclusion in the other case, tried at the same time and upon the same evidence, wherein, by an information presented by the receivers of the Santa Fé Railroad, the defendants were charged with wrongful and violent interference with the operation of that road pending the strike: That they did interfere as alleged, is established by the evidence already considered. Though violation of the injunction of July 2d is alleged in the bill, the questions of jurisdiction and of the construction and application of the act of 1890 are not essentially involved, because, the property being in the custody of the court, any improper interference with its manage-
Ante, p. 729.
