JK 1542 .P5 1912a Copy 1 'ONGRESS, Ha Session. HOUSE OF EEPEESENTATIVES. Report No. 612. REGULATION OF INJUNCTIONS. April 26, 1912. — Referred to the House Calendar and ordered to be printed. Mr, Clayton, from the Committee on the Judiciary, submitted the following REPOET. [To accompany II. R. 23635.] The Committee on the Judiciary, having had under consideration H. R. 23635, to amend an act entitled "An act to codify, revise, and amend the laws relating to the judiciary," approved March 3, 1911, report the same back with the recommendation that the bill do pass. The too ready issuance of injunctions or the issuance without proper precautions or safeguards has been called to the attention of the Congress session after session for many years. The bill now re- ported seeks to remedy the evils complained of by legislation directed to those specific matters which have given rise to most criticism. These matters are so segregated in various sections of the bill that they may be separately discussed. The first section of the bill amends section 263 of the judicial code which relates to two distinct steps in the procedure, namely, notice and security. But the amended section relates only to the notice, leaving the matter of security to be dealt with by a new section 266a. FORMER STATUTES. In order to fully understand the subject of notice in injunction cases it is necessary to give an historical resume of the subject. In the judi- ciary act of 1789 which was passed during the first session of that year, Congress having created the different courts according to the scheme outlined by Chief Justice Ellsworth, conferred upon the courts power to issue all writsy including writs of ne exeat (a form 2 REGULATION OF INJUNCTIONS. of injunction), according to legal usages and practice. In 1793, howcA-er, there was a revision of that statute, and among other things the same powers, substantially, were conferred upon the judges as before ; but at the end of the section authorizing the issu- ance of injunctions, was this language: "No injunction shall be issued in an}^ case without reasonable previous notice to the adverse party or his attorney." The law stood thus until the general revision of 1873, during which period the law expressly required reasonable notice to be given in all cases. But the will of Congress as thus expressed was completely thwarted and the statute nullified by the peculiar con- struction placed upon it by the courts. The question frequently arose. The courts got around it in various ways, but usually by hold- ing that it did not apply to a case of threatened irreparable injury, notwithstanding that its language was broad and sweeping, plainly covering all cases. Another form of expression often used is found in Ex parte Poultney (4 Peters C. C. C, 472) : Every court of equity possesses the power to mold its rules in relation to the time of appearing and answering so as to prevent the rule from working injustice, and it is not only in the power of the court, but it is its duty to exercise a sound discretion upon this subject. The court found a similar method of evading the sweeping pro- hibition of the revision of 1793, with respect to notice in Lawrence V. Bowman (1 U. S. C. C., Alester, 230). But the earliest provision requiring notice came before the Supreme Court in 1799, in New York v. Connecticut (4 Dall., 1). Its consti- tutionality was not questioned. The only issue was as to the suffi- ciency of the notice. Chief Justice Ellsworth, for the court, saying: " The prohibition contained in the statute that writs of injunction shall not be granted without reasonable notice to the adverse party or his attorney, extends to injunctions granted by the Supreme Court or the circuit court as well as to those that may be granted by a single judge. The design and effect, however, of injunctions must render a shorter notice, reasonable notice, in the case of an application to a court than Avould be so construed in most cases of an application to a single judge, and until a general rule shall be settled the particular circumstances of each case must also be regarded." Here was a case in which, although no pomt was made by counsel on any question of constitutionality, the Supreme Court accepted the comprehensive requirement of the act of 1793 as binding on all the Federal courts. Now we come to the present law, found in section 263 of the Judicial Code, and reading thus: Whenever notice is given of a motion for an injunction out of a district court, the court or judge thereof may, if there appears to be danger of irre- parable injury from delay, grant an order restraining the act sought to b© enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge. This was the law as contained in section 718 of the Eevised Statutes, said section having been enacted in 1872. It simply em- bodies the practice of the courts with respect to notice, a practice established notwithstanding the nonconformity of the practice to the positive requirement of the act of 1793. ^•,<>^'^"^ EEGULATION OF INJUNCTIONS, 1^^ PROPOSED CHANGES. But it will be seen that the giving of notice and requiring security, left by the present law to the discretion of the court, is by this bill a positive duty, except where irreparable and immediate injury might result from the giving of a notice or the delay incident thereto, in which case the court or judge may issue a temporary restraining order pending the giving of the notice. The concluding part of the amended section has an effect to safeguard parties from the reckless and inconsiderate issuance of restraining orders. Injuries com- pensable in damages recoverable in an action at law are not treated or considered by the courts as irreparable in any proper legal sense, , and parties attempting to show why the injurj^ sought to be re- strained is irreparable would often disclose an adequate legal remedy. This provision requires the reason to appear in the order, but it should be read in connection with the new section 266b, requiring the order to be made by the court or judge to be likewise specific in other essentials, and section 266c, requiring that every complaint filed for the purpose of obtaining the order, in the cases there speci- fied, shall contain a particular description of the property or property right for which the prohibitive power of the court is sought, and that such complaint shall be verified. A valuable provision of the amendment is one that a restraining order issued without notice " shall by its terms expire within such time after entry, not to exceed seven days, as the court or judge may fix, unless within the time so fixed the order is extended or renewed for a like period, after notice to those previously served, if any, and for good cause shown, and the reasons for such extension shall be entered of record." A legislative precedent for such legislation is found in the act of 1807, wherein it was provided that injunctions granted by the dis- trict courts " shall not, unless so ordered by the circuit court, con- tinue longer than to the circuit court next ensuing, nor shall an in- junction be issued by a district judge in any case where a party has had a reasonable time to apply to the circuit court for the writ." (U. S. Stat. L., vol. 2, p. 418.) If the views of President Taft on this subject have not changed, he will welcome an opportunity to approve a bill containing such provisions as those in the amendment governing notice, because in his message of December T, 1909, to the regular session of the Sixty- first Congress, after a quotation from the Eepublican platform of 1908, he said: I recommend that in compliance with tlie promise thus made appropriate legislation be adopted. The ends of justice will best be met and the chief cause of complaint against ill-considered injunctions without notice will be removed by the enactment of a statute forbidding hereafter the issuing of any injunction or restraining order, whether temporary or permanent, by any Federal court without previous notice and a reasonable opportunity to be heard on behalf of the parties to be enjoined ; unless it shall appear to the satisfaction of the court that the delay necessary to give such notice and hearing would result in irreparable injury to the complainant, and unless, also, the court shall from the evidence make a written finding, which shall be spread upon the court minutes, that immediate and irreparable injury is likely to ensue to the com- plainant, and shall define the injury, state why it is irreparable, and shall also indorse on the order issued the date and the hour of the issuance of the order. Moreover, every such Injunction or restraining order issued without 4 REGULATION OF INJUNCTIONS. previous notice and opportunity by the defendant to be beard should by force of the statute expire and be of no effect after seven days from the issuance thereof or within any time less than that period which the court may fix, unless within such seven days or such less period the injunction or order is extended or renewed after previous notice and opportunity to be heard. My judgment is that the passage of such an act. which really embodies the best practice in equity and is very likely the rule now in force in some courts, will prevent the issuing of ill-advised orders of injunction without notice and will render such orders, when issued, much less objectionable by the short time in which they may remain effective. II. Section 266a simply requires security for costs and damages in all cases, leaving it no longer within the discretion of the courts whether any such security or none shall be given. Prior to the said act of 1872 (contained in the revision of 1873) there appeai-s to have been no legislation on the matter of security in injunction cases; but that security was usually required is a fact well known to the legal profession. It seems clearly just and salu- tary that the extraordinary^ writ of injunction should not issue in any case until the party seeking it and for whose benefit it issues has provided the other party with all the protection which security for damages affords. It appears by the authorities, both English and American, to have been always within the range of judicial discretion, in the absence of a statute, to waive security, though better practice has been to require security as a condition to issuing restraining orders and injunctions. The new section, 266a, takes the matter of requiring security out of the category of discretionary matters, where it was found by the Committee on Revision and permitted to remain. For a discussion of the existing law on the question of security, we refer to Russell v. Farley (105 U. S., 433). III. Section 266b is of general application. Defendants should never be left to guess at what they are forbidden to do, but the order " shall describe in reasonable detail, and not by reference to the bill of complaint or other document, the act or acts sought to be re- strained." It also contains a safeguard against what have been heretofore known as dragnet or blanket injunctions, by which large numbers may be accused, and eventually punished, for violating injunctions in cases in which they were not made parties in the legal sense and of which they had only constructive notice, equivalent in most cases to none at all. Moreover, no person shall be bound by any such order without actual personal notice. EXISTING LAW AND PRACTICE. There was heretofore no Federal statute to govern either the mat- ter of making or form and contents of orders for injunctions. Of course, where a restraining order is granted that performs the func- tions of order, process, and notice. But the writ of injunction, where EEGULATION OF INJUNCTIONS. 5 temporary, is preceded by the entry of an order, and where per- manent by the entry of a decree. The whole matter appears to have been left, both by the States and the Federal Government, to the courts, which have mostly conformed to established principles. The most important of these was that the order should be suffi- ciently clear and certain in its terms that the defendants could by an inspection of it readily know what they were forbidden to do. See Arthur v. Oakes, 63 Fed. Eep., 310, 25 L. K. An., 414; St. Louis Min., etc., Co. v. Co. c. Montana Min. Co., 58 Fed. Kep., 129; Sweet V. Mangham, 4 Jur., 479; 9 L. J. Ch., 323, 34 Eng. Ch., 51; Cother v. Midland R. Co., 22 Eng. Ch., 469. It should also be in accordance with the terms of the prayer of the bill. (State v. Rush County, 35 Kan., 150; McEldowney v. Lowther, 49 W. Va., 348.) It should not impose a greater restraint than is asked or is necessary (Shubert v. Angeles, 80 N. Y. App. Div., 625; New York Fire Dept. v. Baudet, 4 N. Y. Supp., 206), and should be specific and certain. (Orris v. National Commercial Bank, 81 N. Y. App. Div., 631 ; St. Eege's Paper Co. v. Santa Clara Lumber Co., 55 N. Y. App. Div., 225; Norris v. Cable, 8 Rich (S. C), 58; Parker v. First Ave. Hotel Co., 24 Ch. Div., 282; Hackett v. Baiss, L. R., 20 Eq., 494; Dover Harbour v. London, etc., R. Co., 3 De. G. F. & J., 559; Low v. Innes, 4 De G. J. & S., 286.) So it appears that section 266b really does not change the best prac- tice with respect to orders, but imposes the duty upon the courts, in mandatory form, to conform to correct rules, as already established by judicial precedent. That such provision is necessary and timely will appear upon an inspection of some orders which have issued. For instance, take the case of Kansas & Texas Coal Co. v. Denney, decided in the district court for Arkansas in 1899. And here, as in most of such cases, no full official report of the case can be obtained, but a mere memorandum. In this case the defendants (strikers) were ordered to be and were enjoined from " congregating at or near or on the premises of the property of the Kansas & Texas Coal Co. in, about, or near the town of Huntington, Ark., or elsewhere, for the purpose of intimidating its employees or preventing said em- ployees from rendering service to the Kansas & Texas Coal Co. from inducing or coercing by threats, intimidation, force, or violence any of said employees to leave the employment of the said Kansas & Texas Coal Co., or from in any manner interfering with or molesting any person or persons who may be employed or seek employment by and of the Kansas & Texas Coal Co. in the operation of its coal mines at or near said town of Huntington, or elsewhere." It will be observed that a defendant in that suit would render himself liable to punishment for contempt if he met a man seeking employment by the company in a foreign country and persuaded him not to enter its service. The bill further provides that it shall be " binding only upon parties to the suit, their agents, servants, emploj^ees, and attorneys, or those in active concert with them, and who shall by personal serv- ice or otherwise have received actual notice of the same." Unques- tionably this is the true rule, but unfortunately the courts have not b KEGULATION OF INJUNCTIONS. uniformly observed it. Much of the criticism which arose from the Debs case (64 Fed. Eep., 724) was due to the fact that the court undertook to make the order effective not onlj' upon the parties to the suit and those in concert with them, but upon all other per- sons whomsoever. In Scott v. Donald (165 U. S., 117), the court rebuked a violation by the lower court in the following language : Tlie decree is also objectionable because it enjoins persons not parties to the suit. This is not a case where the defendants named represent those not named. Nor is there alleged any conspiracy between the parties defendant and other unknown parties. The acts complained of are tortious and do not grow out of any common action or agreement between constables and sheriffs of the State of South Carolina. We have indeed a right to presume that such officers, though not named in this suit, will, when advised that certain provi- sions of the act in question have been pronounced unconstitutional by the court to which the Constitution of the United States refers such questions, volun- tarily refrain from enforcing such provisions; but we do not think it comports with well-settled principles of equity procedure to include them in an iujunc- tion in a suit in which they were not heard or represented or to subject them to penalties for contempt in disregarding such an injunction. (Fellows v. Fellows. 4 John. Chan., 25, citing Iveson v. Harris, 7 Ves., 2.57.) The decree of the court below should therefore be amended by being re- stricted to the parties named as plaintiff and defendants in the bill, and this is directed to be done, and it is otherwise. IV. Section 266c is concerned with cases between " employer and emploj^ees, or between employers and employees, or between em- ployees, or between persons employed and persons seeking employ- ment, involving or growing out of a dispute concerning terms or con- ditions of employment." The first clause of the new section 266c relates to the contents and form of the complaint. It must disclose a threatened irreparable in- jury to property or to a property right of the party making the appli- cation for which there is no adequate remedy at law. And the prop- erty or property right must be described " with particularity." These requirements are merely those of good pleading and correct practice in such cases established by a long line of precedents, well understood by the profession and Avhich should be but perhaps have not been uniformly applied. To show this it is only necessary to briefly state the applicable rules, citing some of the numerous authorities. As the granting of an inj' unction rests in some degree in the discre- tion of the chancellor, allegations in the complaint should show candor and frankness. (Moifatt v. Calvert Countv Comm'rs, 97 Md., 266; Johnston v. Glenn, 40 Md., 200; Edison Storage Battery Co. V. Edison Automobile Co., 67 N. J. Eq., 44; Sharp v. Ashton, 3 Ves. & B., 144.) The omission of material facts which, in the nature of the case, must be known to the plaintitf will preclude the granting of the relief. (Sprigg v. Western Tel. Co., 46 Md.. 67; Walker v. Burks, 48 Tex., 206. \ An injunction may be refused if the allegations are argumentative and inferential. (Battle v. SteA^ens, 32 Ga., 25; Warsop v. Hastings, 22 Minn., 437.) The allegations of the complaint must be definite and certain. (St. Louis V. Knapp Co., 104 U. S., 658.) REGULATION OP INJUNCTIONS. 7 The complaint must set forth the facts with particularity, and minuteness (Minor v. Terry, Code Kep. N. S. (N. S.), 384), and no material fact should be left to inference. (AVarsop v. Hastings, 22 Minn., 437 ; Philphower v. Todd, 11 N. J. Eq., 54 ; Perkins v. Col- lins, 3 N. J. Eq., 482.) Facts, and not the conclusions or opinions of the pleader, must be stated. (McBride v. Ross (D. C), 13 App. Cas., 576.) An injunction should not ordinarily be granted when the material allegations are made upon information and belief. (Brooks v. O'Hara, 8 Fed. Rep., 529; In re Holmes, 3 Fed. Rep. Cases No. 1, 562.) The complaint must clearly show the threats or acts of defendant which cause him to apprehend future injury. (Mendelson v. McCabe, 144 Cal., 230 ; Ryan v. Fulghuru. 96 Ga.,'234.) And it is not sufficient to allege that the defendant claims the right to do an act which plaintiff believes illegal and injurious to him, since the intention to exercise the right must be alleged. (Lutman v. Lake Shore, etc., R. Co., 56 Ohio St., 433; Attorney General v. Eau Claire, 37 Wis., 400.) The bill must allege facts which clearly show that the plaintiff will sustain substantial injury because of the acts complained of. (Home Electric Light, etc., Co. v. Gobe Tissue Paper Co., 146 Iiid., 673; Boston, etc., Ry. Co. v. Sullivan, 177 Mass., 230; McGovern v. Loder (N. J. Ch., 1890). 20 Atl. Rep., 209; Smith v. Lockwood, 13 Barb., 209; Jones v. Stewart (Tenn. Ch. App., 1900), 61 Sev., 105; Spokane St. R. Co. v. Spokane, 5 Wash., 634; State v. Eau Claire, 40 Wis., 533. And it is not sufficient to merely allege injury without stating the facts. Giffing v. Gibb, 2 Black, 519; Spooner v. Mc- Connell, 22 Fed. Cases No. 13245; Bowling v. Crook, 104 Ala., 130; Grant v. Cooke, 7 D. C, 165; Coast Line R. Co. v. Caben, 50 Ga., 461; Dinwiddle v. Roberts, 1 Greene, 363; Wabaska Electric Co. v. Wymore Co., Nebr., 199; Lubrs v. Sturtevant, 10 Or., 170; Farland V. Wood, 35 W. Va., 458.) Since the jurisdiction in equity depends on the lack of an ade- quate remedy at law, a bill for an injunction must state facts from which the court can determine that the remedy at law is inadequate. (Pollock V. Farmers' Loan & Tr. Co., 157 U. S., 429; Safe-Deposit etc., Co. V. Anniston, 96 Fed. Rep., 661.) If the inadequacy of the legal remedy depends upon the defend- ant's insolvency the fact of insolvency must be positively alleged. (FuUington v. Kyle Lumber Co., 139 Ala., 242; Graham v. Tankers- ley, 15 Ala., 634.) An injunction will not be granted unless the complaint shows that a refusal to grant the writ will work irreparable injury. (California Nav. Co. V. Union Transp. Co., 122 Cal., 641 ; Cook County Brick Co., 92 111. App., 526; Manufacturers' Gas. Co. v. Indiana Nat. Gas, etc., Co., 156 Ind., 679.) And it is not sufficient simpW to allege that the injur}^ will be irreparable, but the facts must be stated so that the court may see that the apprehension of irreparable injury is well founded. (California Nav. Co. v. Union Transp. Co., 122 Cal., 641; Empire Transp. Co. v. Johnson, 76 Conn., 79 ; Orange Citv v. Thaver. 45 Fla., 502.) The plaintiff must allege that he has done or is willing to do everything which is necessary to entitle him to the relief sought. (Stanley v. Gadsley, 10 Pet. (U. S.), 521; Elliott v. Sihley, 101 Ala., 8 REGULATION OF INJUNCTIONS. 344; Burham v. San Francisco Fuse Mfg. Co., 76 Cal., 26; Sloan v. Coolbaugh, 10 Iowa, 31; Lewis v. Wilson, 17 N. Y. Supp., 128; Spann v. Sterns, 18 Tex., 556.) The second paragraph of section 266c is concerned with specific acts which the best opinion of the courts holds to be within the right of parties involved upon one side or the other of a trades dispute. The necessity for legislation concerning them arises out of the diver- gent views which the courts have expressed on the subject and the difference between courts in the application of recognized rules. It may be proper to notice, in passing, that the State courts furnish precedents frequently for action by the Federal courts, and vice versa, so that a pernicious rule or an error in one jurisdiction is quickly adopted by the other. It is not contended that either the Federal or the State courts have stood alone in any of the precedents which are disapproved. The provisions of this section of the bill are self-explanator}^, and in justification of the language used we con- tent ourselves with submitting quotations from recognized authori- ties. We classify these authorities by quoting first the clauses of the bill to which they have particular reference. The first clause : And no such resti-aining order or injunction shall prohibit any person or persons from terminating any relation of em])loyment, or from ceasing to per- form any work or labor, or from recommending, advising, or persuading others by peaceful means so to do. In Allis Chalmers Co. v. Iron Molders' Union (C. C, 150 Fed. R., 155), Judge Sanborn said: The conclusion to be drawn from the cases, as applicable to this controversy, is, I think, that the combination of the defendant unions, their members, and the defendant O'Leary, to strike, and to further enforce the strike, and if possible to bring the employers to terms by preventing them from obtaining other workmen to replace the strikers, was not unlawful, because grounded on just cause or excuse, being the economic advancement of the union molders, and the competition of labor against capital. In Arthur v. Oakes (63 Fed. R., 310, 317) Justice Harlan, for the court, said: If an employee quits without fa use, and in violation of an express contract to serve for a stated time, then his quitting would not be of right, and he would be liable for any damages resulting from a broach of his agreement, and vev- haps, in some states of case, to criminal prosecution for loss of life or limb by passengers or others, directly resulting from his abandoning his post at a time when care and watchfulness were required upon his part- in the discharge of a duty he had undertaken to perform. And it may l)e assumed for the purposes of this discussion that he would be liable in like manner where the contract of service, by necessary implication arising out of the nature or the circumstances of the employment, required him not to quit the service of his employer sud- denly, and without reasonable notice of his intention to do so. But the vital question remains whether a court of equity will, under any circumstances, by in.iunction, prevent one individual fi'om quitting the personal service of an- other? An affirmative answer to this question is not, we think, justified by any authority to which our attention has been called or of which we are aware. It would be an invasion of one's natural liberty to compel him to work for or to remain in the personal service of another. One who is placed under such constraint is in a condition of involuntary servitude — a condition which the supreme law of the land declares shall not exist within the United States, or in any place subject to their jurisdiction. Courts of equity have sometimes sought to sustain a contract for services requiring special knowl- edge or skill by enjoining acts or conduct that would constitute a breach of such contract. REGULATION OF USTJUISTCTIONS. ' 9 The rule, we think, is without exception that equity will not compel the actual, affirmative performance by an employee of merely personal services, any more than it will compel an employer to retain in his personal service one who, no matter for what cause, is not acceptable to him for service of that character. The right of an employee engaged to perform personal service to quit that service rests upon the same basis as the right of his employer to discharge him from further personal service. If the quitting in the one case or the discharging in the other is in violation of the contract between the parties, the one injured by the breach has his action for damages ; and a court of equity will not, indirectly or negatively, by means of an injunction restrain- ing the violation of the contract, compel the affirmative performance from day to day or the affirmative acceptance of merely personal services. Relief of that character has always been regarded as impracticable. Sitting with Justice Harlan at circuit in that case were other learned jurists, but there was no dissent from these views. In this connection we cite from the luminous opinion by Judge Loring delivering the opinion in Pickett v. Walsh (192 Mass., 572), a clear exposition of our vicAvs here expressed. We regret the neces- sity of limiting the quotation, because the whole opinion could be studied with profit. The case is one of competition between the defendant unions and the indi- vidual plaintiffs for the work of pointing. The work of pointing for which these two sets of workmen are competing is work which the contractors are obliged to have. One peculiarity of the case, therefore, is that the fight here is necessarily a triangular one. It necessarily involves the two sets of com- l)etiug workmen and the contractor, and is not confined to the two parties to the contract, as is the case where workmen strike to get better wages from their employer or other conditions which are better for them. In this respect the case is like Mogul Steamship Co. v. McGregor (23 Q. B. D., 598; S. C, on appeal (1892) ; A. C, 25). The right which the defendant unions claim to exercise in carrying their point in the course of this competition is a trade advantage, namely, that they have labor which the contractors want, or, if you please, can not get elsewhere ; and they insist upon using this trade advantage to get additional work, namely, the work of pointing the bricks and stone which they lay. It is somewhat like the advantage which the owner of back land has when he has bought the front lot. He is not bound to sell them separately. To be sure, the right of an individual owner to sell both or none is not decisive of the right of a labor union to combine to refuse to lay bricks or stone unless they are given the job of pointing the bricks laid by them. There are things which an individual can do which a combination of individuals can not do. But having regard to the right on which the defendfints' orgaiiization as a labor anion rests, the correlative duty owed by it to others, and the limitation of the defendants" rights coming from the increased power of organization, we are of 'opinion that it was within the rights of these unions to compete for the work of doing the pointing and, in the exercise of their right of competition, to refuse to lay bricks and set stone unless they were given the work of pointing them when laid. (See in this connection Plant v. Woods, 176 Mass., 492, 502; Berry v. Donovan. 188 Mass., 853, 357.) The result to which that conclusion brings us in the case at bar ought not to be passed without consideration. The result is harsh on the contractors, who prefer to give the work to the pointers, because (1) the pointers do it by contract (in which case the con- tractors escape the liability incident to the relation of employer and employee) ; because (2) the contractors think that the pointers do the work better, and if not well done the buildings may be permanentlj^ injured by acid; and, finally, (8) because they get from the pointers better work with less liability at a smaller cost. Again, so far as the pointers (who can not lay brick or stone) are concerned, the result is disastrous. But all that the labor unions have done is to say you must employ us for all the work or none of it. They have not said that if j^ou employ the pointers you must pay us a fine, as they did in Carew v. Rutherford (106 Mass., 1). They have not undertaken to forbid the contractors employing pointers, as the34, did in Plant v. Woods (176 Mass., 492). So far, as the labor unions are concerned, the contractors can employ pointers if they choose, but if the contractors choose to give the work of pointing the 10 REGULATION OF 12^ JUNCTIONS. bricks and stones to otliers tlie uuions take the stand that the contractors will have to get some one else to lay them. The effect of this in the case at bar appears to be that the contractors are forced against their will to give the work of pointing to the masons and bricklayers. But the fact that the contractors are forced to do what they do not want to do is not decisive of the legality of the labor union's acts. That is true wherever a strike is successful. The con- tractors doubtless would have liked it better if there had been no competition between the bricklayers' and masons' unions on the one hand and the individual pointers on the other hand. But there is competition. There being competition, they prefer the course they have taken. They prefer to give all the work to the unions rather than get nonunion men to lay bricks and stone to be pointed by (.he plaintiffs. Further, the effect of complying with the labor unions' demands apparently will be the destruction of the plaintiff's business. But the fact that the busi- ness of a plaintiff" is destroyed by the acts of the defendants done in pursuance of their right of competition is not decisive of the illegality of the acts. It was well said by Hammond, J., in Martell v. White (1S5 Mass., 255, 260) in regard to the right of a citizen to pursue his business without interference by a combination to destroy it : " Speaking generally, however, competition in business is permitted, although frequently disastrous to those engaged in it. It is always seifish. often sharp, and sometimes deadly." The application of the right of the defendant unions, who are composed of bricklayers and stonemasons, to compete with the individual plaintiffs, who can do nothing but pointing (as we have said) is in the case at bar disastrous to the pointers :ind hard on the contractors. But this is not the first case where the exercise of the right of competition ends in such a result. The case at bar is an instance where the evils which are or may be incident to competition bear very harshly on those interested, but in spite of such evils competition is necessary to the welfare of the community. To the same effect is Allis-Chalmers Co. v. Iron Holders' Union (C. C.) (150 Fed. Eep., 155), per Sanborn, J. The consensus of judicial view, as expressed in these cases and others which might be cited, is that workijigmen may lawfully com- bine to further their material interests without limit or constraint, and may for that purpose adopt any means or methods which are lawful. It is the enjoyment and exercise of that right and none other that this bill forbids the courts to interfere with. The second clause : Or from attending at or near a house or place where any person resides or works, or carries on business, or happens to be for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any per- son to work or to abstain from working. This language is taken from the British trades dispute act of 1906, the second section of which is as follows : It shall be lawful for one or more persons acting on their own behalf or on behalf of an individual, corporation, or firm in contemplation or furtherance of a trade dispute to attend at or near a house or place where a person resides or works or carries on business or happens to be if they so attend merely for the purpose of peacefully obtaining or communicating information or of peace- fully persuading any person to work or abstain from work. This, it has been said, " might well be termed a codification of the law relating to peaceful picketing as laid down by a majority of the American courts." (Martin's Law of Labor Unions, sec. 173.) Upon the general subject the same author says: There are some decisions which hold that all picketing is unlawful, and it has been said that from the very nature of tblngs peaceful picketing is of rare occurrence and " very much of an illusion," yet the view taken by the majority of decisions and which is best supported by reason is that picketing, if not conducted in such numbers as will of itself amount to intimidation, and when EEGULATION OF IN JUNCTIONS. ll confined to the seeking of information such as the number and names and places of residence of those at work or seeking work on the premises against which the strike is in operation, and to the use of peaceful argument and en- treaty for the purpose of procuring such workmen to support the strike by quitting work or by not accepting work, is not unlawful, and will furnish no ground for injunction or an action at law for damages. * "■= * That the views set forth in this section are correct does not admit of doubt. Indeed, it may readily be seen that the right almost universally conceded to striking work- men to use peaceable argument and persuasion to induce other workmen to aid them in their strike might, and very probably would be, most seriously hampered if the right of picketing were denied. " The right to persuade new men to quit or decline employment is of little worth unless the strikers may ascertain who are the men that their late employer has persuaded or is at- tempting to persuade to accept employment." While it is true that in the guise of picketing strikers may obstruct and annoy the new men, and by insult and menacing attitude intimidate them as effectually as bj' physical assault, yet it can always be determined from the evidence whether the efforts of the pickets are limited to getting into communication with the new men for the pur- pose of presenting arguments and appeals to their free judgment- (Martin's Modern Law of Labor Unions, sec. 169, pp. 233, 234, and 235.) The third clause: Or from ceasing to patronize or to employ any party to such dispute ; or from recommending, advising, or persuading others by peaceful means so to do. The best opinion to be gathered from the conflicting opinions on this matter have been well summarized in the most recent textbook on the subject as follows: It is lawful for members of a union, acting by agreement among themselves, to cease to patronize a person against whom the concert of action is directed when they regard it for their interest to do so. This is the so-called " primary boycott," and in furtherance thereof it is lawful to circulate notices among the members of the union to cease patronizing one with whom they have a trade dispute and to announce their intention to carry their agreement into effect. For instance, if an employer of labor refuses to employ union men the union has a right to say that its members will not patronize him. A combination between persons merely to regulate their own conduct and affairs is allowable, and a lawful combination though others may be indirectly affected thereby. And the fact that the execution of the agreement may tend to diminish the profits of the party against whom such act is aimed does not render the partici- pants liable to a prosecution for a criminal conspiracy or to a suit for injunc- tion. Even though he sustain financial loss, he will be without remedy, either in a court of law or a court of equity. So long as the primary object of the combination is to advance its own interests and not to inflict harm on the per- son against whom it is directed, it is not possible to see how any claim of Illegality could be sustained. (Martin's Modern Law of Labor Unions, pp. 107, 108, and 109.) It is not unlawful for members of a union or their sympathizers to use, iu aid of a justifiable strike, peaceable argument and persuasion to induce cus- tomers of the person against whom the strike is in operation to withhold their patronage from him, although their purpose in so doing is to injure the busi- ness of their former employer and constrain him to yield to their demands, and the same rule applies where the employer has locked out h's employees. These acts may be consummated by direct communication or through the medium of the press, and it is only when the combination becomes a conspiracy to in- jure, by threats and coercion, the property rights of another that the power of the courts can be invoked. The vital distinction between combinations of this character and boycotts is that here no coercion is present, while, as was heretofore shown, coercion is a necessary element of a boycott. In applying the principles stated it has been held that the issuance of circulars by members of a labor union notifying persons engaged in the trade of controversies existing between such members and their employer and requesting such persons not to deal with the employer is not unlawful and will not be enjoined wliere no in- timidation or violence is used. (Martin's Modern Law of Labor Unions, pp. 109 and 110.) Said Mr. Justice Van Orsdel in his concurring opinion in Court of Appeals of the District of Columbia (the American Federation of 12 REGULATION OF INJUNCTIONS. Labor et al., appellants, v. the Buck's Stove & Range Co., No. 1910, Decided Mar. 11, 1909) : Applying the same principle. I conceive it to be tlie privilege of one man, or a number of men, to individually conclude not to patronize a certain person or corporation. It is also the right of these men to agree together, and to advise others, not to extend such patronage. That advice may be given by direct communication or through the medium of the press, so long as it is neither in the nature of coercion or a threat. As long as the actions of this combination of individuals are lawful, to this point it is not clear how they can become unlawful because of their subsequent acts directed against the same person or corporation. To this point there is no conspiracy — no boycott. The word " boycott " is here used as referring to what is usually understood as " the secondary boycott," and when used in this opin- ion it is intended to be applied exclusively in that sense. It is, therefore, only when the combination becomes a conspiracy to injure by threats and coercion the property rights of another that the power of the courts can be invoked. This ])oint must be passed before the unlawful and unwarranted acts which the courts will punish and restrain are committed. The definition of a boycott given by Judge Taft in Toledo Co. v. Penna. Co. (54 Fed.. 730) is as follows: "As usually understood, a boycott is a combina- tion 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." In Gray v. Building Trades Council (91 Minn., 171) the word "boycott" is defined as follows: "A boycott may be defined to be a combination of several persons to cause a loss to a third person by causing others against their will to withdraw fi'om him theiv beneficial business intercourse through threats that unless a compliance with their demands be made the persons forming the combi- nation will cause loss or injury to him, or an organization formed to exclude .-i person from business relations with others by persuasion, intimidation, and other acts which tend to violence, and thereby cause him through fear of re- sulting injury to submit to dictation in the management of his affairs. Such acts constitute a conspiracy and may be restrained by injunction." In Brace Brothers v. Evans (3 R. & Corp. L. J., 561) it is said: "The word itself implies a threat. In popular acceptation it is an organized effort to exclude a person from business relations with others by persuasion, intimidation, and other acts which tend to violence, and they coerce him, through fear of resulting injury, to submit to dictation in the management of his affairs." It will be observed that the above definitions are in direct conflict with the earlier English decisions and indicate a distinct departure by our courts. This luidoubtedly is in recognition of the right of a number of individuals to combine for the purpose of improving their condition. The rule of the Englsh common law, from which we have so far departed, is expressed in Bowen v. Hall (6 Q. B. Div., 333) as follows: " If the persuasion be used for the indirect purpose or injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act. which is in law and in fact a wrong act. and therefore a wrongful act, and therefore an actionable act if injury ensues from it." From this clear distinction it will be observed that there is no boycott until the members of the organization have passed the point of refusing to patronize the person or corporation themselves and have entered the field where, by coercion or threats, they prevent others from dealing with such persons or cor- poration. I fully agree with this distinction. So long, then, as tlie American Federation of Labor and those acting undn* its advice refused to patronize complainant, the combination had not arisen to the dignity of an unlawful conspiracy or a boycott. In Hopkins v. Oxley vStave Co. (83 Fed. R.. 912), Judge Caldwell, in a dissenting opinion, said : While laborers, by the application to them of the doctrine we are considering, are reduced to individual action, it is not so with tlie forces arrayed against them. A corporation is an association of individuals for combined action ; trusts are corporations combined together for the very purpose of collective action and boycotting: and capital, which is the product of labor, is in itself a powerful collective force. Indeed, accoi'diug to this supposed rule, every EEGULATION OF INJUNCTIONS. 13 corporation and trust in the country is an unlawful combination, for wliile its business may be of a kind tbat its individual members, each acting for himself, might lawfully conduct, the moment they enter into a combination to do that same thing by their combined effort, the combination becomes an unlawful conspiracy. But the rule is never so applied. Corporations and trusts and other combinations of individuals and aggre- gations of capital extend themselves right and left through the entire com- munity, boycotting and inflicting irreparable damage upon and crushing out all small dealers and producers, stifling competition, establishing monopolies, re- ducing the wages of the laborer, raising the price of food on every man's table, and of the clothes on his back and of the house that shelters him, and inflict- ing on the wage earners the pains and penalties of the lockout and the black list, and denying to them the right of association and combined action by refusing employment to those who are members of labor organizations; and all these things are justified as a legitimate result of the evolution of industries resulting from new social and economic conditions, and of the right of every man to carry on his business as he sees fit, and of lawful competition. On the other hand, when laborers combine to maintain or raise their Avages or other- wise to better their condition or to protect themselves from oppression or to at- tempt to overcome competition with their labor, or the products of their labor in order that they may continue to have employment and live, their action, however open, peaceful, and orderly, is branded as a " conspiracy." What is " competition " wben done by capital is " conspiracy "" when done by laborers. No amount of verbal dexterity can conceal or justify this glaring discrimination. 'If the vast aggregation and collective action of capital is not accompanied bj" a corresponding organization and collective action of labor, capital wili speedily become proprietor of the wage earners as well as the recipient of the profits of their labor. This result can only be averted by some sort of organiza- tion that will secure the collective action of wage earners. This is demanded, not in the interest of wage earners alone, but by the highest considerations of public policy. In Vegelahn v. Gimter (167 Mass., 92) Justice Holmes, now of the Supreme Court of the United States, delivering the opinion, said : It is plain from the slightest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combina- tion, and that the organization of the world, now going on so fast, means an ever-increasing might and scope of combination. It seems to me futile to set our faces against this tendency. Whether beneficial on the whole, as I think it is, or detrimental, it is inevitable, unless the fundamental axioms of society and even the fundamental conditions of life are to be changed. One of the eternal conflicts out of which life is made up is that betAveen the effort (tf every man to get the most he can for his services and that of society, dis- guised under the name of capital, to get his services for the least possible return. Combination on the one side is potent and powerful. Combination on the other is a fair and equal way. * * * If it be true that the work- ingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to get- ting the greatest possible return, it must be true that when combined they have the same liberty that combined capital has, to support their interest by argu- ment, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully control. The logic of Justice Sherwood, of the Supreme Court of Missouri, in Marx & Haas Co. v. Watson (56 L. K. A., 951), appears unan- swerable. He discussed the question from a constitutional stand- point, taking for his test the Missouri bill of rights, substantially the same as the first amendment to the Federal Constitution, saying (p. 956) : The evident idea of that section is penalty or punishment, and not prevention, because if prevention exists, then no opportunity can possibly arise for one becoming responsible by saying, writing, or publishing " whatever he will on any subject." The two ideas — the one absolute freedom " to say, write, or publish whatever he will on any subject," coupled with responsibility therefor, and the other idea of preventing any such free speech, free writing, or free publication — can not coexist. 14 begulahox of ixjuxcnoifs. The opinion continues, after citing authorities. Federal and State, as follows: Section 14. scpra. msikes no disrinction and antborizes no difference to be made by coorts or legislatures b^ween a proceeding set on foot to enjoin tile poblication of a libel and 4Hie to enjoin the publication of any otb^' sort or nature, bowery- injurious it may be, or to probibit tbe use of free speech or fi«e writinff on any subject wbatever. because wb^^ever the authority of in- junction b^ins there the ri^it of free speech, free writing, or free publica- ticm «ids. Xo halfway bouse stands on the highway between absolute pre- vaiti. The fifth and sixth clauses : Or from peaceably asembling at any pdace in a lawrci manner and for lawful pnrpoees : or from doing any act or thing which mi^t lawfully be done in flie alienee of such dispute by any party thoreto. After all that can be asserted against the provisions of section 266c, or any provision of the bill elsewhere found has been said, we can truly ^y that it does not transcend or contravene the dear and conclusive statement of the law as stated in National Fireproofing Co. r. Mason Builders Assn. (169 Fed. Bep., 260). Delivering the opinion of the court in that case. Judge Noyes said (p. 265) : As a gHieral rule it may be stated, that when tlie chief object of a com- binaticra Is to injure or oppress third pei^ons. it iB a conspiraQr : but that when SDCli injury or appressisa is ma^ly Jncidanial to flie carrying out of a lawful poipoeeu it Is not a cxmspmic^. Stated in another way : A combination, Altered into tar the real malicious purpose of injuring a third person in his business or pr(q»erty. may amosnt to a cmij^iracy and furnish a gromid of action for damages sustained or call for an injunction, even thou^ formed for the cs^eosible purpose of ben^tlng its nmnbers. and actually operating to some extent to tbrar advantage. But a oombinatwm witliont sich ulterior oi^ressive object entoed into merely for the purpose of promoting by lawful means the Gonunon i nter es ts of its membo^ is not a con^iracy. A laboro'. as w^ as a bnHder. tradn*, or manufacture, has the tight to conduct lus aflbirs in any lawful manao*, even thou^ he may Oiexeby injure othra^ So serfxal laborers and builders may combine for mutual advantage, and so long as the mottve is not malicious, the object not unlawful nor oppresaxe, and the means neither deceitful nor ftandnlpnt, the resnlt Is not a coospiz&cy, although it may neeesearHy work injury to oOtex persons. The damage to such persons may EEGULATIOX OF IXJUXCTIOXS. 15 be serious — it may even extend to their ruin — ^but if it is inflicted by a com- bination in the legitimate pursuit of its own affairs, is a damnum absque injuria. Tlie damage is present, but the unlawful object is absent. And so the essential question must always be, whether the object of a combination is xo do harm to others or to exercise the rights of the parties for their own benefit. Any attack upon the policy of this section of the bill must be directed at its specijQc prohibitions: nor will any mere general criti- cism, or any attack which does not particularize herein, be worthy of serious attention. The ready and perfect defense to all such is at hand, and imposes no diffictilt task. Is there any reason why the complainant, seeking an injunction against workingmen. shotild not describe with particularity in his cause of complaint the nature of the threatened injury, and the property or property right involred, as in other cases? Is there any reason why an injunction should issue at all involving or growing out of the relation created between em- ployer and employee to prevent the termination of the relation, or advising and persuading others to do so. or to prevent the unre- stricted communication and exchange of information l3etween per- sons, or the giving of aid by financial contributions in any labor affair or dispute? Is there any reason, after a labor dispute has arisen and a socially hostile attitude has been created, for an injunc- tion to prevent abstinence in patronizing or service by one party for the other's benefit, or the exercise of the right of free speech in ad- vising or inducing such abstinence on the part of others i Is there, in short, any good reason why. after a dispute has arisen and the parties are " at arms length." a court of eqtiity should interpose its strong arm merely because such dispiue has arisen ] At its hearings the committee had the benefit of learned and illtiminating arguments against the several bills. Coimsel in oppo- sition were patiently and respectfully heard, and the committee profited largely by having heard them, as is shoTvn by the results of its labors. The bill does not interfere with the Sherman Antitrust Act at all: it leaves the law of conspiracy untouched, and is not open to effective criticism on any constitutional groimd. The sub- ject of the constitutionality of such legislation was exhausted at the hearings on the contempt bill (H. R. 22591). retiu'ned to the House with a separate report in which all constitutional objections are fully met. XO QtmSTIOX or COXSTITTTIOXALITY 1XV0L^'ED. This bill does not. any more than does the contempt bill, invade the jurisdiction of the courts or attempt legislatively to exercise a judicial function. It merely limits and circumscribes the remedy and procedtire. TThile we here enter into no elaborate discussion of the atithorities on this topic, yet. for convenience of reference, we insert a synopsis. On point of inconsistency between our theory of government and exercise of arbitrary power see lick TTo v. Hop- kins (lis U. S. Eep.. o()9). For a case in which Congress was held to have constitutionally exercised power to take away all remedy see Finck v. O'Xeill (106 U. S.. 272') : and for a case where a statiue taking away the power to issue an injunction in a certain case wherein the jurisdiction had been previously held and exercised was recog- nized without question as of bidding force see Sharon v. Terry (36 Fed. Eep.. 365). For a general statement of the proposition that 16 EEGULATIOX OF INJUNCTIONS. the inferior courts of the United States are all limited in their nature and constitutions and have not the powers inherent in courts existing by prescription or by the common laAV see Caiy ''. Curtiss (3 How. (U. S.). 236. 254). The same principle still more elaborately stated and applied. Ex parte Robinson (19 AVall. (U. S.), 505). Many decisions on the question of injunctive process and juris- diction in labor cases are greatly influenced by, and, indeed, some- times founded upon, precedents established when to be a wage earner was to be a servant Avhose social and legal status was little above that of slavery-. But even England has preceded us in new views and policies herein. The English act of 1906, set forth at length in the hearings, goes farther than it has yet been deemed possible to go in thi*^ country in relieving labor, and especially organized labor, of legal burdens and discriminations. The Supreme Court has more than once protested against attempts by any branch of the Govern- ment to exercise arbitrary power, and the courts should, and probably will, welcome the definite limitations contained in this bill if it should be enacted. The idea has been advanced, and ably supported in argument, by one of the proponents of this legislation that liberty, and more of it, is safe in the hands of the workingmen of the country. We are con- vinced of the merit and truth of that contention. The tendency toward freedom and liberation from legal trammels and impedi- ments to progress and to a great social advance is seen in nearly all civilized nations. It is an unpropitious time to oppose a reform like that embodied in this bill, in view of the fact that the abuses of power which it seeks to terminate have been, admittedly, numerous and flagrant. [H. R. 23635, Sixty-second Congress, second session.] In the House of Representatives, April 22, 1912. Mr. Clayton introduced the following bill; which was I'eferred to the Committee on the Judiciary and ordered to be printed. A BILL To amend an act entitled "An act to codify, revise, and amend the laws relating to the judiciary," approved March third, nineteen hundred and eleven. Be it enacted hy the Senate and House of ReiJieseittatives of the United States of America in Congress assembled, That section 2G3 of the act entitled "An act to codify, revise, and amend the laws relating to the judiciary," ap- proved March third, nineteen hundred and eleven, be, and the same is hereby, amended so as to read as follows, and that said act be further amended by in- serting after section 266 thereof three new sections, to be numbered, respec- tively, 266a. 266b, 266c. reading as follows: " Sec. 263. That no injunction, whether interlocutory or permanent, in cases other than those described in section 266 of this title, shall be issued without previous notice and an opportunity to be heard on behalf of the parties to be enjoined, which notice, together with a copy of the bill of complaint or other pleading upon which the application for such injunction will be based, shall be served upon the parties sought to be enjoined a reasonable time in advance of such application. But if it shall appear to the satisfaction of the court or judge that immediate and irreparable injui-y is likely to ensue to the complain- ant, and that the giving of notice of the application or the delay incident thereto would probably permit the doing of the act sought to be restrained before notice could be served or hearing had thereon, the court or judge may, in his discretion, issue a temporary restraining order without notice. Every such order EEGULATION OF INJUNCTIONS. 17 Shall be indorsed with the date and hour of issuance, shall be forthwith en- tered of record, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall by its terms expire within such time after entry, not to exceed seven days, as the court or judge may fix, un- less within the time so fixed the order is extended or renewed for a like period, after notice to those previously served, if any, and for good cause shown, and the reasons for such extension shall be entered of record. " Sec. 266a. That no restraining order or interlocutory order of injunction shall issue except upon the giving of security by the applicant in such sum as the court or judge may deem proper, conditioned upon the payment of such costs and damages as may be incurred or suffered by any party who may be found to have been wrongfully enjoined or restrained thereby. " Sec. 266b. That every order of injunction or restraining order shall set forth the reasons for the issuance of the same, shall be specific in terms, and shall describe in reasonable detail, and not by reference to the bill of complaint or other document, the act or acts sought to be restrained ; and shall be binding only upon the parties to the suit, their agents, servants, employees, and at- torneys, or those in active concert with them, and who shall by personal service or otherwise have received actual notice of the same. " Sec. 266c. That no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employ- ment, involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property right of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney. "And no such restraining order or injunction shall prohibit any person or persons from terminating any relation of employment, or from ceasing to per- form any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at or near a house or place where any person resides or works, or carries on business, or happens to be for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or to abstain from working ; or from ceasing to patronize or to employ any party to such dispute; or from recom- mending, advising, or persuading others by peaceful means so to do; or from paying or giving to or withholding from any person engaged in such dispute any strike benefits or other moneys or things of value; or from peaceably assembling at any place in a lawful manner and for lawful purposes ; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto." o H. Rept. 612, 62-2 2 62d 'u^S^^^r' \ ™^^^^ ^^ i^EPEESExNTATIVES. , Kept. 612, ====1= L^^_ I Par t 2. REGULATION OF INJUNCTIONS. May 3, 1912. -Ordered to be printed. Mr. Moon of Pennsylvania, from' the ^Committee on the Judiciary submitted the following as the VIEWS OF THE MINORITY. [To accompany H. R. 23635.] ^^".Cfit^tuB^tlzi^^^^^^ Committee, to whom &1^;to s:j?>^,ronr-r*-- -^ -— " «-'- biinntends'to'coSLr-'^tre t^""" 7''^'''^ "' ?- -'"-i"'^«> 'tis issu.nertlthourner*;rerur5'ors7S»dT^^^^^ rT "^? Iterated and reiterated before consTp^ainnal ,.r,v.,m:*t„ i-"<»ige!> abuses in the issuance of injunctior We h«ve n„^?„ T """^mg evidence to support them ii the pa't thin w^^or find Tn'tWreTort o L^uS'states'^'tSr"?'^'^ ''f'^'' 7'^ t^e Supreme cC in a cas"rlonab^ free fromTub f"w?thinl''' T°*f ^"^^^1 determine Its application in m^ny instances by the character of tlS 2 REGULATION OF INJUNCTIONS. port is founded upon a misconception of the coui-se of judicial deci- sion respecting statutes regulating the issuance of injunctions, and that the legislation proposed is impracticable, invalid, in the inter- ests of a class rather than of the community, and proposes standards of legality without parallel or precedent in our legislation. To make our position clearer, we consider the bill in the order pureued in Report No. 612: I. Preliminary to a discussion of the bill, the majority gives an his- torical resume of legislation respecting notice in injunction cases. We believe essential elements of that history have not received the consideration deserved from the majority, and we must disagree with them respecting conclusions drawn from both the legislation and judicial decisions of the past respecting that legislation. On the 2d of March, 1793, was enacted legislation of which the following was a part: Nor shall any writ of injunction issue in any case without reasonable previous no- tice to the adverse party or his attornev of the time and place of moving the same. (Ch. 22, vol. 1, U. S. Stat. L., p. 534.)^ The majority concludes: The will of Congress as thus expressed was completely thwarted and the statute nullified by the peculiar construction placed upon it by the courts. It appears to us the majority and not the courts, have miscon- strued the will of Congress. They overlook, as the court did not, the distinction described in all authoritative textbooks, familiar to every lawyer and pointed out with striking distinctness by the courts, between restraining orders intended to preserve the status quo to pro- tect the subject matter of litigation and the preliminary and final injunctions which are issued, if at all, after hearing upon the applica- tion for the equitable remedy. That the statute in question should not be construed to prevent the issuance of restraining orders was natural and inevitable. It was a practice recognized by the English chancery from time immemorial. The early English textbooks speak of it as well understood and essential, as, for instance, Eden on Injunctions, 1821; Adams Equity, 1845. Had the court construed the act of Congress to forbid the preserva- tion of the subject matter of litigation until the respective rights of the litigants could be adjudicated, it would have obviously given a construction against the very essentials of justice. Indeed, the majority recognizes and admits this by its own proposal, for while it criticizes the construction which permits the issuance of restraining orders without notice under special circumstances it provides in sec- tion 263 of its own bill for the doing of the very thing which it criti- cizes the courts for having done. We call attention to the English practice, because it was early held respecting the judicial power of the courts of the Union in equity that: The usages of the high court of chancery in England whenever the jurisdiction is exercised govern the proceedings. This may be said to be the common law of chan- cery, and since the organization of the Government it has been observed. (Penn. v. Wheeling, etc.. Bridge Co., 13 How., 563; Meade v. Beale, 1 Campbell's Reports, 339, C. C. M. D. Tawney, 1850; Loring et al. v. Marsh, 2 Clifford's Reports, 469.) EEGULATION OF INJUNCTIONS. 6 Thus, the courts did not "get around" the statute, as is suggested by the majority, but construed it in accordance with an immemorial practice of iinglish jurisprudence which recognized the necessity of issuing restrainmg orders under special circumstances that the court might preserve the status quo, protect the subject matter of litiga- tion, and preserve from destruction that upon which it was to pass judgment. The report implies that the case of New York v. Connecticut (4 Dall., 1) upheld a construction which forbade the issuance of even restraining orders without notice. That issue is not presented in that case decided in 1799. The practice was fh'st recognized four years before in the case of Schermerhorn v. L'i spenasse (2 Dall., 360). In this case the defendants, merchants of Amsterdam, had executed to the complainant power of attorney to receive for his own use the interest due on $180,000 of certificates of the United States, bearing interest at 6 per cent from the 1st of January, 1788, to the 31st of December, 1790, amountin.g to $32,400. Notwithstanding this assignment, the defendants, on the 16th of June, 1792, received cer- tificates for the interest and funded the amount at 3 per cent in their own names. The bill prayed relief according to the equity of the case and a restraining order to prevent the defendants from transferring the stock or receiving the principal or interest. On the bill exhibited of the power of attorney and affidavits to the effect that the stock was registered in the name of the defendants on the books of the Treasurer the restraining order was granted. No sub- poena was served until Mr. Lewis, on behalf of the defendants, moved for a rule to show cause why the injunction should not be dissolved. The motion was refused. An examination of the record discloses that Mr. Lewis, counsel for the defendants, supported his motion for dissolution on two grounds: That the injunction was issued irregularly, as there was no affidavit made of the truth of the allegations contained in the bill. In supporting this he said: He did not object because the injunction was issued before a subpoena was served, as there were various cases in which justice could not otherwise be obtained. This proceeding was had two years after the passage of the statute of 1793 before a justice of the Supreme Court who had been a member of the Congress which had enacted the statute ; the hearing was held in a building adjoining that in which the act was parsed and in the same district where the Congress was sitting. It demonstrates as no other case can the well-recognized equity practice in relation to temporary restraining orders, and shows the construction placed upon the statute by the profession and the court. In the meantime the practice of issuing restraining orders without notice under special circumstances of necessity was approved through the exercise of the power by the highest authority, including various justices of the cir- cuit and district courts and Chief Justice Marshall (who is observed to issue an ex parte restraining order to prevent moneys alleged to have been improperly allowed by an administrator from being taken out of the country). (Green et al. v. Hanberry's Executors, 2 Brock- enbrough's Reports, 405, Nov., 1830; Love v. FendalFs Trustees, 1 Cranch C. C, 34; Marsh et al.»v. Bennett, 5 McLean, 117; Crane v. McCoy, 1 Bond's Reports, 422; Mowrey v. Indianapolis & C. R. Co., 17 Fed. Cas., 930.) 4 EEGULATION OF INJUNCTIONS. Too much space would be taken by the enumeration of cases of this character, and those cited are merely offered as examples. Finally, during the debate upon the act of 1872, now section 263 of the Judicial Code, we find two of the most distinguished lawyers of the Senate expressing the recognized practice as follows : Mr. Carpenter. I understand if any judge having the jurisdiction by law to grant an injunction has presented to him a bill in equity, fortified with proofs which entitle the party by the acknowledged and usual practice of a court of equity to have an injunction, the judge has no discretion to deny it. Mr. Frelinghuysen. I think that elementary provision of the law even I may have been presumed to have heard and known of. Mr. Carpenter. Therefore I was astonished to hear the Senator deny it. Mr. Frelinghuysen. I did not deny it. (46 Congressional Globe, p. 2492.) Thus we find the practice respecting restraining orders recognized by Congress, by the courts, and the profession throughout the history of our Government and its necessity appreciated by the majority from its incorporation in this bill. Indeed, we believe the right to issue a restraining order upon a proper showing of its necessity to protect a right of a pecuniary nature against irreparable damage IS an essential part of the judicial power in equity. If a suitor over whom a court has jurisdiction b}^ a bill in that court discloses a state of facts where irreparable harm is threatened and where, if notice were given, irreparable damage would be done before hear- ing could be had or decree entered, were deprived by the legislature of the right to such a remedy, we believe it would be equivalent to a legislative determination in advance that under no circumstances can a plain tifi" disclose a threatened irreparable injury without adequate remedy at law demanding immediate equitable inter- vention. If the Congress undertakes arbitrarih^ to determine in advance what a suitor would otherwise be entitled to as due process of law in a court of equity, we believe he would be deprived of a guaranteed constitutional right. The first section of the bill, with one material exception, is almost an exact copy of a bill introduced in the Sixty-first Congress, known as the Moon bill. This bill was reintroduced in the present Congress, and was supported by the entire Republican membership of the Judiciary Committee. The exception referred to has reference to the provision for the expiration of a restraining order granted by the court %dthout notice. The Moon bill provided that the order should expire ""within such time after service is made or notice given, which shall be made or given as speedily as possible, not to exceed seven days, as the judge or court shall fix." The proposed bill provides that "it shall expire at such time after entry as the court or judge shall fix, not to exceed seven days," etc. A restraining order is of no effect until served, and under such a provision it would be only necessary for those having knowledge of the application to avoid service for seven days after the issuance of the order to defeat its purpose. We can conceive circumstances in which a few who might be served would notify other defendants to avoid it and on failure to make the order effective by service within seven days it would be necessary to give notice to all previously served before an extension of further time could be had. We can conceive of no more certain method of depriving a suitor of essential equitable protection. Many judicial districts of our country administer justice EEGULATION OF INJUNCTIONS. 5 over vast areas in which the material circumstances of life must be taken into consideration. The proposal of this section is general. It applies to all forms of litigation, and in view of the physical as well as the personal difficulties attending the service of restraining orders under some circumstances we can not but believe that not only would many individual suitors suffer grievous injury, but we can from our public service and professional experience conceive many circumstances in which the public interest would be seriously jeopard- ized. All of these difficulties would be overcome if the restraining order should date from the time of service instead of the time of its entry. 11. Section 266A provides that no restraining or interlocutory order shall issue except upon the giving of security against cost or damage. Under the present practice this is within the discretion of the court, and while we should not be disposed to disagree with such a suggestion, we must again note that no reason is given for the sug- gested change which implies a failure upon the part of the courts to properly exercise this discretion. No evidence to this effect has been at any time submitted to the committee, nor do the majority offer any evidence to that effect as a reason for their action. III. Section 266B requires every restraining order or every injunctive order "to set forth the reasons for the issuance of the same to be specific in terms and describe in reasonable detail, and not by refer- ence to the bill of complaint or other document the act or acts sought to be restrained;" it binds only the parties to the suit, ''their agents, servants, employees, and attorneys or those in active concert with them, and who shall by personal services or otherwise have received actual notice of the same." This section is of general application. In support of this provision the majority point out that it is to be a safeguard against "dragnet or blanket injunctions," by which parties may be punished for contempt after "only con- structive notice, equivalent in most cases to none at all." Again, the majority asserts conditions as a basis for proposed leg- islation which are both unproven and unprovable. Nothing is clearer in the field of jurisprudence than the requirement that a respondent on a contempt charge must have actual notice of the existence of an order which he is accused of violating and that the order must have been unmistakably brought to his attention. (Bessette v. -Conkey, 194 U. S.) All the Debbs cases, both in the circuit and district courts and on appeal, actually confirm this statement. The majority offer in proof of the necessity of their proposal merely an implication un- warrantedly reflecting upon the judiciary and without supporting proof of any character. They have, moreover, properly provided in section 266 that every restraining order issued shall be accompanied by an entry stating the reasons for its issuance. It would be a useless waste of time to again set forth the reasons for the issuance of the order in the order itself, as is required by section 266B.'' Complaints are heard on every side against cumbersome and delaying procedure. This proposal multi- b KEGULATION OF INJUNCTIONS. plies the delays, difiiculties, and inconveniences of procedure indefi- nitely. It requires every order to be a history, to repeat in irrelevant and cumbersome detail all the preliminary pleadings, and instead of enlightening the parties against whom it was issued the form sug- gested and the procedure prescribed would increase his confusion and doubt. The majority point out that there is "no Federal statute to govern either the matter of making or form and contents of orders in injunc- tions," thereby inferring that this entire matter is left to the discretion or judgment of the judge granting the injunction. In this statement they entu'ely overlook the rules in equity of the Supreme Court of the United States binding upon all inferior Federal courts, prescribing with great minuteness and changed from time to time in accordance with the teaching of experience the forms of injunctive orders and for- bidding the ceaseless repetition in decrees and orders of the contents of bills of complaint. The effect of section 266B is to abolish the many rules in equity of the Supreme Court in conflict with it, representing the professional experience of a century, and amended from time to time to shorten procedure, increase the convenience, and protect the rights of liti- gants in the courts of the United States. The majority says sec- tion 266 does not change the best practice with respect to orders, but imposes the duty upon the courts in mandatory form to conform to correct rules as already established by judicial precedent. We res})ectfully submit that the equity rules of the Supreme Court express correct judicial precedents and that the majority have appar- ently overlooked this important fact. The bill as reported would A\ithdraw the application of the restrain- ing order from parties not named in it and not in agreement with the parties named who may on their own initiative undertake its violation. Such cases are not uncommon. If the majority intend to exempt such violations of the order, they have created an unusual and remarkably privileged class of lawbreakers ; if not, we are unable to discern the intention expressed in the limitation "in active concert \vith them." IV. The two paragraphs of section 266C must be read in connection with each other or their purpose and meaning are lost. The first paragraph provides that no judge or court of the United States shall issue any restraining order or injunction "in any case between an employer and employees, or between employers and employees, or between persons employed and persons seeking employment, involv- ing or growing out of a dispute concerning the terms or conditions of em])loyment, unless necessary to prevent irreparable injury to property or to a property right," etc. If this section is intended to withdraw civil rights from equitable protection in this class of cases, we must disapprove it as an evident effort to deny such protection as is given to civil rights in all other classes of cases, since it is axiomatic that it is the office of equitj to protect by injunction, under proper circumstances, civil and even personal as well as property rights. We object to the implication contained in emphasizing controversies between employers and employees, or between employees or persons employed and seeking employment, and if the majority intends by EEGULATION OF INJUNCTIONS. 7 this to indicate that such rights are to have less or different protec- tion from the same rights when involving controversies of another kind we must emphatically disagree with the principle implied, for in this country remedies are to be predicated at all times upon the character of the rights which are threatened, and not upon the class or nature of the persons involved in the controversy. We do not comment upon the many cases cited by the learned members of the majority in support of their views upon equity plead- ings in this connection. We quite agree with the correctness of such decisions, but we draw from them quite a different conclusion from that implied by the majority. We think they prove what the majority evidently adduces them to disprove. To us they are evidence that the pleadings required with such particularity in the special class of cases involved in section 266C are required generally in all applica- tions for equitable intervention. The majority are thus seen to be offering as proof of the need of special legislation for pleadings in a particular class of cases the fact that the courts have substantially required such conditions and pleadings in all classes of cases of which the kind enumerated are a part. The second paragraph of section 266C contains to our mind the most vicious proposal of the whole bill. It enumerates certain specific acts and provides that no restraining order or injunction shall pro- hibit the doing of them. Most of the acts thus recited are in them- selves not amenable to the injunction process under existing law and practice. No court does or would enjoin them, but to declare by law that these acts should under no circumstances be restrained, we do not hesitate to say is a proposal without precedent in the legis- lative history of this country. No legislature has ever proposed that any act however innocent itself should be sanctified irrespective of the motive or purpose of the actor. ''No conduct," says Mr. Justice Holmes in Aiken v. Wisconsin (195 U. S., 194), "has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law." The majority have quoted various decisions in which particular acts under the pleadings presented to the court were held lawful and their prohibition denied. The same acts under other circumstances have been held unlawful and enjoined by the very courts, and in the course of the very decisions which the majority cites. Thus, in Arthur v. Oakes (63 Fed. Rep., 310), Mr. Justice Harlan is quoted to sustain the proposition that no man can by injunction be required to gerform personal service for another, and in that decision Justice [arlan eliminated from the injunction the words "and from so quitting the service of the said receivers with or mthout notice as to cripple the property or prevent or hinder the operation of said rail- road." The majority must observe, however, that Mr. Justice Harlan likewise held, "But diff'erent considerations must control in respect to the words in the same paragraph of the writs of injunction, and from combining and conspiring to quit with or mthout notice the service of said receivers with the object and intention of crippling the property in their custody or embarrassing the operation of said rail- road." Thus, the same act of quitting is lawful under one set of circumstances and unlawful under another, because the concerted 8 REGUIiATION OF INJUNCTIONS. action in the first instance, in the opinion of Mr. Justice Harlan, "is a very different matter from a combination and conspiracy among employees with the object and intent, not simply of quitting the service of the receivers because of the reduction of wages, but of crippling the property in their hands and embarrassmg the operation of the railroad." The majority undertakes to prescribe a set rule forbidding under any circumstances the enjoining of certain acts which may or may not be actuated by a malicious motive or be done for the purpose of working an unlawful injury or interfering with constitution al lights of employer or employee. In the same opinion Mr. Justice Harlan points out the impossibility of prescribing a set rule of this character and says, "The authorities all agree that a court of equity should not hesitate to use its power when the circumstances of the particular case in hand require it to be done in order to protect rights of prop- erty against irreparable damage by wrong doers. It is as Justice Story said, ' because of the varying circumstances of cases that courts of equity constantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which such injunction shall be granted or withheld,'" and the authority pro- ceeds, " there is wisdom in this course, for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights or redress wrongs. The jurisdiction of these courts thus operating by spe^-ial injunction is manifestly indispensable for the purposes of social justice in a great variety of cases and therefore should be fostered and upheld by a steady confidence." (Story, Equity Jurisprudence, sec. 959B; Arthur v. Oakes, 63 Fed., 328.) Among the acts which the second paragraph of section 266C declares shall not be restrained is to prohibit any person or persons to termi- nate any relation of employemnt, or from ceasing to perform any work or labor or from recommending or persuading others by peaceful means so to do; of peacefully persuading an}^ person to work or to abstain from working, or from ceasing to patronize or employ any party to such dis]:)ute or from recommending, advising, or persuading others by peaceful means so to do"; etc. While many of these acts are in themselves entirely harmless and would never be enjoined by any court, yet under certain circumstances the same acts might become a weapon of lawless and destructive industrial warfare demanding the protection of the courts, this section would prevent the issuance of the injunction in the Debs case (In re Debs, 158 U. S., 564); it would prevent the issuance of the injunc- tion in Toledo & Ann Arbor v. Pennsylvania Co. (54 Fed., 730); it would prevent the issuance of any injunction to restrain either work- men or employers who were the objects of the most vicious form of boycott that has been passed upon by the courts, or can be devised by the ingenuity of boycotters. It changes the remedies by which the Sherman Act may be enforced, inasmuch as if any of these acts enumerated in section 266C were the means employed to enforce the restraint of trade or to damage the interstate business of any indi- vidual or corporation no injunction could be obtained either by a private individual or by the Government against such acts. In the Debs case, a combination sought to paralyze the railroads of the United States and prevent the carrying of the mail until the railroad companies would agree not to haul Pullman cars because of a controvers}^ between the Pullman Co. and certain of its emploj^ees KEGULATION OF INJUNCTIONS. 9 who were not in the employ nor in any way related to the railroad companies. It is true there were acts of violence, but the general scheme was one of persuading all employees of the railroad companies to quit until the demands of the boycotters and strikers had been complied with. In the Toledo & Ann Arbor case the famous rule 12 of the brotherhood provided that none of its members should handle the cars of any carrier with which members of the brotherhood were in a dispute. In that case the brotherhood employees of the Penn- sylvania refused to handle cars of the Toledo & Ann Arbor because of a dispute between that road and some of the brotherhood, and they threatened to quit the service of the Pennsylvania road unless it agreed to violate the provisions of the interstate-commerce act by not affording equal facilities to the cars of another road. No violence was threatened. The brotherhood merely undertook to "peacefully persuade" the Pennsylvania Co. not to handle the cars of the other road under a threat of leaving their service — a thing which they had a perfect right to do to better their own condition, but not for the pur- pose of compelling the Pennsylvania Railroad Co. to violate the law. The majority report quotes at length from the case of Pickett v. Walsh (192 Mass., 572), "and regret the necessity of limiting the quotations, because the whole opinion could be studied with profit." We agre'e with the majority that the whole opinion could have been studied with profit, since it condemns forms of "peaceful persuasion" from which the majority would withdraw equitable intervention. Speaking of the case before it, it says: "It is a refusal to work for A, with whom the strikers have no dispute, because A works for B, with whom the strikers have a dispute, for the purpose of forcing A to force B to yield to the strikers' demands. * * * It is a combina- tion by the union to obtain a decision in their favor by forcing other persons who have no interest in the dispute to force the employer to decide the dispute in their favor. Such a strike is an interference with the right of the plain tils to pursue their calling as they think best. In our opinion organized labor's right to coercion or compul- sion is limited to strikes against the persons with whom the person has a trade dispute ; or, to put it in another way, we are of the opinion that a strike against A, with whom the strikers have no trade dis- pute, to compel A to force B to the strikers' demands is unjustifiable interference with the right of A to carry on his calling as he thinks best. Only two cases to the contrary have come to cv.r attention, namely, Bohn Manufacturing Co. v. Hollis (54 Minn., 223) and Jeans Clothing Co. v. Watson (168 Mo., 133)." This case which the majority believe could be "studied with profit" is squarely against the proposal of their bill, and the two cases aHuded to as being the only ones known to the court contrary to such view, for both have been overruled. Bohm Manufacturing Co. (54 Minn., 223) was overruled in Gray v. Building Trades Council (91 Minn., 171). The second case is alluded to by the majority of the commit- tee in support of its contentions and the majority declare the logic of the court in that case "appears unanswerable." This "unanswer- able " logic was overruled by the Supreme Court of Missouri in Lohse Patent Door Co. v. Fuel (215 Mo., 421). The majority report also quotes in support of their contention from Vagelahm V. Gunter (167 Mass., 92), saying, "Justice Holmes, now of the Supreme Court of the United States, delivered the opinion." The opinion was delivered by Mr. Justice Allen and is squarely against H. Kept. 612, pt 2, 62-2 2 10 REGULATION OF INJUNCTIONS. the contention of the majority, IMr. Justice Hohnes having deHvered a dissenting opinion in which he stood alone. The majority have been driven to the necessity of quoting from other dissenting opinions in support of their opposition, and to these we do not deem it necessary to give attention. It is said by. the majority that no question of constitutionahty is in- volved. We submit that if the measure is to be construed, as it evi- dently is, to prevent the application of injunctive relief to certain acts in disputes between emj^loyer and employee which may be part of a scheme or plan to work irreparable injury, which acts could be en- joined in any other dej^artment of litigation, it is obvious that the parties affected would be denied the equal protection of the law and due process of law, coming well within the rule laid down in Connelly V. The Union Sewer Pipe Co. (184 U. S., 540); Goldberg v. Stable- men's Union (149 Cal., 429); Pierce v. Stablemen's Union (156 Cal., 70) : and Niagara Fire Insurance Co. v. Cornell (110 Fed. 816). We do not consider the English act of 1906, which is quoted by the majority as a precedent for some of its proposals. There is no paraMel whatever between the conditions at which the English act is aimed and the fundamental restrictions of the organic law of this country having no similitude in the constitution of the British Em])ire. The peculiar privileges conferred upon trades-unions by the English act of 1906 are accompanied by disabilities and criminal provisions of so drastic a nature that if they were offered as any part of the legislation of this country we should deem it our duty to oppose them in the in- terest of all workingmen. We agree with the majority that "liberty and more of it is safe in the hands of the workingmen of the country." We are convinced of the merit and truth of that contention. We do not, however, believe that liberty is advanced in the person of any citizen by strip- ping him of remedial protection through processes which have received the deliberate and mature approval of the English-speaking race during all the centuries of its history. We can not believe that the due protection of person and property under constitutional guaranties and by remedies tested by time is ''an impediment to progress," or that the destruction of the essential remedies by which person and property receive protection is "a great social advance." We believe with the President of the United States, in a famous statement made by him many years since to the American Bar Association, "It will not be surprising if the storm of abuse heaped upon the Federal courts and tlie pohtical strength of Federal groups, whose plans of social reforms have met obstructions in these tribunals, shall lead to serious efforts, through legislation, to cut down their jurisdiction and cripple their efficiency. If this comes, then the responsibility for its effects, whether good or bad, must be not only with those who urge the change, but also with those who do not strive to resist its coming." (Address to American Bar Association at Detroit, 1895.) John A. Sterling. R. 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