CHAPTER II

GOVERNMENT BY INJUNCTION

HAVING seen the nature and the origin of the recent form of the enjoining power of the equity court, let us observe the manner of its application.

While noting the difficulty of recognizing any controlling principle in the general mass of injunctions used, Judge Seabury divides them into three classes, to wit:

First. Those cases where the courts hold that force, violence and intimidation constituting a crime have been resorted to.

Second. Those cases which are based upon the Federal act of 1887 regulating inter-State commerce and the socalled anti-trust law of 1890.

Third. Those cases where the application commends itself to the judgment of the judge to whom it is addressed.1

Judge Seabury, giving idea of the rapid development of the injunction principle, says that between 1888 and 1891 several injunctions were issued in labor disputes, prohibiting solicitations, threats, parading with banners, putting out circulars and other ways of making a boycott effective. These injunctions were all granted upon the ground that a conspiracy existed, and irreparable damage to property would result unless a court of equity interfered. Then came the next leap forward.

"In 1892," says the judge, "an injunction was issued against a miners' union in Idaho, prohibiting the miners from entering upon mines of the Cœur d'Alene Consoli

1 "The Abuses of Injunctions," The Arena, June, 1903.

dated and Mining Company, or from using force, threats, or intimidations preventing employees from working.1 The ground upon which the court claimed to grant this injunction was not to protect private rights, but to preserve the public peace, and thus protect public rights." In 1893 a further step was taken by Federal Judge Taft who prohibited Grand Chief Arthur of the Brotherhood of Locomotive Engineers, and commanded him to rescind an order which he had already given boycotting a railroad (Toledo vs. Pennsylvania, 54 Fed. Rep. 730). The injunction was issued upon the ground that the InterState Commerce Act imposed certain public duties upon the railroad company, the omission to perform which constituted a crime; that Arthur had conspired with others, by means of a boycott, to make it impossible for the railroad company to perform its obligations, and, therefore, Arthur and his associates were guilty of a crime which constituted irreparable injury to the public as well as to the railroad company. For this reason he was enjoined. Then came Federal Judge Ricks with the declaration that while railroad engineers might by a boycott in such circumstances be guilty of a crime, yet that engineers who refuse to haul cars in obedience to a rule of the labor union "and in good faith quit their employment before starting on their run, may not be in contempt" (54 Fed. Rep. 746). That is, if they resign from their employment while in process of a run, they are in contempt; but if they do so before a run has begun, they are not in contempt, notwithstanding the existence of a contract; since such employees are "exercising a personal right in quitting unconditionally and absolutely, which cannot be denied them."

From this Federal Judge Jenkins, when a strike was threatened by the employees of the Northern Pacific Railroad, owing to a reduction in "salaries and wages," not

1 "Cœur d'Alene Consolidated and Mining Co. vs. Miners' Union, 51 Fed. Rep. 260.

only enjoined the men from so quitting the service of the railroad, "with or without notice, as to cripple the property or to prevent or hinder the operation of said railroad," but declared that they can, in effect, be compelled to assent to a new contract where the refusal to do so would result in "crippling the property or preventing or hindering the operation of said railroad" (Farmers' Loan & T. Co. vs. Pas. R.R. Co., 60 Fed. Rep. 803).1

But in all respects the most celebrated injunction case was that growing out of the Pullman strike in 1894. In consequence of a refusal by the Pullman Company to arbitrate the question of a proposed reduction of wages, the employees struck.2 The American Railway Union, of which the Pullman employees were members, then declared a boycott on all Pullman cars. On July 10, Eugene V. Debs, president of the union, was arrested on indictments of obstructing the mails and inter-State commerce. He was arraigned, but, despite his demands. to be tried, the case was abandoned by the prosecution for want of proper evidence, it was commonly believed at the time, in absence of adequate explanation. President Cleveland's Strike Commission subsequently declared, "There is no evidence before the Commission that the officers of the American Railway Union at any time participated in or advised intimidation, violence or destruction of property." But if a jury would not punish when it had no evidence, another way might be found. It was found through an injunction without a jury.

An "omnibus" enjoining order was, on July 17, issued by Federal Judges Woods and Grosscup against Debs and the officers of his union, all of whom it specifically named. It also included all persons whomsoever (158

1 See this and the Taft and Ricks injunctions reviewed in House Report No. 1049, Fifty-third Congress, second session. Besides being published separately, this report is republished in Senate Doc. No. 190, Fifty-seventh Congress, first session, pp. 122-143.

2 See Report of Commission of Investigation, Senate Ex. Doc. No. 7, Fifty-third Congress, third session.

U. S. 564). It was served on some persons in the accustomed way by presentation in person; but on all the persons not named it was served by publication in newspapers, tacking on telegraph poles and on freight cars and reading aloud to a great crowd of strikers and others. Presumably on the ground that the American Railway Union was obstructing the United States mails in spite of the restraining order, although the soldiers that President Cleveland insisted on sending into Chicago were sent to the stock-yards district, where there were no mail cars, Debs and others were arrested for contempt of court. They were not sentenced until December. Judge Woods, without trial of the cases before a jury, condemned Debs to six months' imprisonment and his associates to three months'. Appeal was taken to the Supreme Court for release on habeas corpus, the ground being that an equity court had no right to issue such an injunction, and thus deprive men of trial by jury. But the higher court sustained the lower one.

A legal writer of high standing, Mr. C. C. Allen, sets forth the progress of the injunction principle up to that time in this way: "The Attorney-General of the United States, acting for the United States in the exercise of its sovereignty as a nation, has sued out injunctions in nearly every large city west of the Alleghany Mountains. Injunction writs have covered the sides of cars; deputy marshals and Federal soldiers have patrolled the yards of railway termini, and chancery process has been executed by bullets and bayonets. Equity jurisdiction has passed from the theory of public rights to the domain of political prerogative. In 1888 the basis of jurisdiction was the protection of the private right of civil property; in 1893 it was the preservation of public rights; in 1904 it has become the enforcement of political powers." 1

And most of this change came under the Sherman Inter

1 "Injunctions and Organized Labor," 17th Report of American Bar Association, p. 315.

State Commerce Act, which organized labor had done so much to have passed against the trusts. Such a possible use of the law had never been dreamed of by workmen, whereas what they deemed the essential feature of it was made a dead letter. President Cleveland during the Pullman strike actually selected as special counsel for the United States Government, at Chicago, Mr. Edwin Walker, who was at that very time general counsel for the General Managers' Association, representing the twenty-four railroads centering or terminating in Chicago, and operating in utter defiance of the Sherman Anti-Trust Law.1

But the injunctions have not stopped there. “The courts have not only prohibited persuasion, when accompanied by intimidation and threats," says Judge Seabury, "but they have actually denied the right of workmen peaceably to persuade their fellows to join them on strikes.” And he cites the case of the York Manufacturing Company vs. Obedick (10 Penn. D. Rep. 463), when the court said: "It is seriously contended by counsel for the respondents that they have a legal right to approach other workmen in the employ of the complainant, and to persuade and induce them either to quit or not to accept such employment. . . . There is no such legal right."

In like manner "there is no legal right" for many things in the eyes of some of the Federal judges, who, owing their places not to popular suffrage, act as if above all regard for the body of the people. For instance, in 1899 an injunction was issued out of the United States Circuit Court of West Virginia in the interest of the Wheeling Railway Company against "John Smith and others," without naming the others. It was the now familiar blanket type of injunction. Two men, not parties to the action, nor found to be agents of "John Smith and others," were punished for contempt of court. Wherein were they in contempt? asks a committee of

1 See Strike Commission's Report, pp. xxviii-xxxi.