Page images
PDF
EPUB

at lcast as at present cxisting, fails, equally with the civil, to afford adequate protection and redress.

This state of facts affords good ground for the interference of equity; and of latc years the tendency has been to invoke ats assistance. That has been granted on the grounds previously mentioned as negativing the cfficiency of the legal remcdics, thc inadequacy of the remedy on the contract or tort, and the prevention of multiplicity of suits: See Blindell v. Hagan, 54 Fed. Rep. 40; S. C. aff., 56 Fed. Rep. 696. So, where strikers enter the premises of the employer, and interfere with the men at work there, their acts will be enjoined as a continuing trespass and irreparable injury: N. Y., L. E. & W. R. R. v. Wenger, 17 Wkly. Law Bull. 306; Coeur D'Alcnc Co. v. Miners' Union of Wardner, 51 Fed. Rep. 260. The mere fact that the act sought to be enjoined is also criminal, will not oust the jurisdiction of equity. It is true that a crime, as such, will not be cnjoined; but the reason of that is that the court will not suppose that a crime is intended, and therefore cannot take cognizance of the act until it is committed ; but that rule cannot be extended to a case where the continuance or repetition of an act, criminal in onc respect, leaves no reasonable doubt as to the intention to commit it, such as the maintenance of a public nuisance, the commission of a continuing trespass, the keeping of an unlicensed saloon, and the like. The injunction in such a case issues to remedy the private wrong. not the public offence; and has nothing to do with the latter. It rests upon the principle that permits a suit at law to be maintained concurrently with a criminal prosecution, and represents the civil remedy for the criminal act. It will accordingly lic in any case where the civil remedy would lic, when that is inadequate, and may be either negative or mandatory, as the circumstances of the case require; for when the status quo would inflict irreparable injury, a mandatory injunction will issue to change that status: Beadel v. Perry, 3 L. R. Fq. 465; Whitccar v. Michenor, 37 N. J. Eq. 6; Broome v. N. Y. & N. J. Telephone Co., 42 N. J. Eq. 141; S. C., 7 Atl. Rep. 851. The remedy by injunction has the further advantage that it can be enforced by summary process

for contempt : Lake Erie & W. R. R. Co. v. Bailey, 61 Fed. Rep. 495.

For some reason, probably political, this remedy does not secm to have been invoked in the State courts to any extent, at least directly against the strikers, though interference by third parties with the business of an employer by mcans of the boycott and kindred annoyances has been restrained: Sherry w. Perkins, 147 Mass. 212; S. C., 17 N. E. Rep. 307. It has been found more convenient, by the railroads at Icast, against which most large strikes are directed, to institute such procordings in the Federal courts, under the Interstate Commerce Acts, especially that of July 2, 1890: 26 U. S. Stat. at Large, c. 647, p. 209. Since the passage of that act, every combination in restraint of trade or commerce among thc several States is illegal; and a strike or a boycott can no longer be effective, as thcy necessarily affect interstate commerce: Waterhouse v. Comer, 55 Fed. Rep. 149. Any combination of men to secure or compel the employment of nonc but union men becomes a combination in restraint of interstate commercc, within the meaning of the statute, when, in order to gain its ends, it seeks to enforce, and docs enforce, by violence and intimidation, a discontinuance of labor in all departments of business, including the transportation of goods from State to Statc, and to and from foreign nations; and an injunction will be granted to restrain them from so doing: U. S. v. Workingmen's Amalgamated Council of New Orleans, 54 Fed. Rep. 994.

This reasoning applics with more forcc to the case of a common carrier, such as a railroad, than to any other; and there is hardly an instance in which the Federal courts have refused to grant the relief asked, their tendency being to cnlarge the remedy rather than curtail it. The first important case was that of the strike on the Toledo and Ann Arbor road in 1892. The Brotherhood of Locomotive Engineers had struck for some reason of dissatisfaction, and it was attempted to make the strike effectual by boycotting the road, that is, compelling other roads to refuse to receive and handle its cars under threat of extending the strike to them. The

Ann Arbor road thereupon filed a bill against its connecting lines, and their employés, praying that the latter might be restrained from rcfusing to handle its cars, which was accordingly grantcu: Toledo, A. A. & N. M. Ry... Penna. Co.. 54 Fcd. Rep. 746. The court went a step farther, and, being asked for an injunction against Mr. Arthur, the Chief of the Brotherhood, to restrain hini from issuing, promulgating or continuing in force any order of the Brotherhood requiring any employés of any defendant railroad company to refuse to handle and deliver any cars of freight in course of transportation from one State to another, etc., but finding that order already issued, granted a mandatory injunction to compel him to rescind it: Toledo, A. A. & N. M. Ry. Co. v. Penna. Co., 54 Fed. Rep. 730.

In the Chicago strike, however, a form of injunction, based on this ground of interference with interstate commerce, was adopted generally throughout the region affected, which has become famous as the “omnibus injunction." Its essential parts were as follows: "Eugene V. Debs, etc., and all other persons combining and conspiring with them, and all other persons whomsoever, are enjoined absolutely to refrain from interfering with or stopping any of the business of any of the railroads in Chicago engaged as carriers of passengers and freight between States, and from interfering with mail, express, or other trains, whether freight or passenger, engaged in intero state commerce, or destroying the property of any of the railroads; from entering their grounds for the purpose of stopping trains or interfering with property -compelling or inducing by threats, or persuasion, or violence, any of the employés of said roads to refuse or fail to perform any of their duties as employés of such road in connection with interstate commerce of such railroad, or the carrying of mail, passengers, or freight, or attempting to induce by threats or intimidation any of the employés of such roads engaged in interstate business or operation of mail trains, to leave the service of such roads, or preventing any persons from entering thc service of such roads."

This leaves little more to be desired in its special province,

.; from

being, as the district attorney said it was intended to be, a veritable dragnet, involving in its meshes all possible offenders against the law. It has, however, this fault in common with all the other remedies thus far mentioned, that it is rcmcdial only. It does not opcratc to prcvcnt a strike, but to hinder the commission of illegal acts in furtherance of that strike; and is, thcrcforc, in so far ineffective to cure the evil. But onc bold cffort in that direction has been made, which succeeded in bringing down upon its author thc woes of a congressional investigation. Judge Jenkins, in Farmers' Loan and Trust Co. v. N. Pac. Ry. Co., 60 Fed. Ro 803, issued a remarkable injunction, in effect forbidding the employés of that road to carry out a threat to strike and leave its service. The injunction restrained them “ from combining and conspiring to quit, with or without notice, the scrvice of said receivers, with the object and intent of crippling the property in their custody, or embarrassing the operation of said railroad, and from so quitting the service of the said receivers, with or without notice, as to cripple the property or to prevent or hinder the operation of said railroad." This was vigorously animadverted on from several quarters, and the investigating committee, while very considerately cxonerating the judge from all accusations of unfairness and abuse of power, recommended that legislation be adopted to prevent a recurrence of such action, which report was adopted by the Judiciary Committce of the House.

All the arguments against thc excrcise of such a power rest on a fancied arbitrary right of an employé to work or not for whom he plcascs. That right only exists at birth, if

ever; for in human society there is no such thing as an absolute unqualified right to anything. All rights are relative. A. man has a right to enjoy his personal liberty, or his personal property; but if he infringes the rights of his fellow's in these respects, his rights are pro tanto gone, and revive again only on the satisfaction of the demands made upon him for that violation. So in this case, the right of a man to quit work must of necessity bc governed by the nature of his cmployment and the rights of third persons. Granting that the

employer's only right is to recover for breach of the contract, it does not follow that the rights of third persons who have no remedy are to be recklessly jeopardized. Judge Jenkins has very forcibly stated this side of the question. “ One has not the right arbitrarily to quit service without regard to the necessities of that service. His right of abandonment is limited by the assumption of that service, and the conditions and exigencies attaching thereto. It would be monstrous if a surgeon, upon demand and refusal of larger compensation, could lawfully abandon an operation partially performed, leaving his knife in the bleeding body of his patient. It would be monstrous if a body of surgcons, in aid of such demand, could lawsully combine and conspire to withhold their services.... It would be intolerable if counsel were permitted to demand larger compensation, and to enforce his demand by immediate abandonment of his duty in the midst of a trial. It would be monstrous if the bar of a court could combine and conspire in aid of such extortion by one of its members, and refuse their service. I take it that in such case, if the judge of the court had proper appreciation of the duties and functions of his office, that court, for a time, would be without a bar, and the jail would be filled with lawyers. It cannot be conceded that an individual has the legal right to abandon scrvicc whenever he may please. His right to leave is dependent upon duty, and his duty is dictated and measured by the exigency of the situation.” 60 Fcd. Rep., p. 812.

This terse, vigorous argument leaves little more to be said. It may be added, however, that conceding all that is claimed on the other side, the injunction granted by the judge does not violate any principle of law. It may be taken as true that a contract of service cannot be specifically enforced, either directly or indirectly, though that is an arbitrary rule of equity, and could be rescinded at will: Stocker v. Brockel. bank, 3 MacN. & G. 250; Johnson v. Railroad, 3 DeG. M. & G. 914; Lumley v. Wagner, i DeG. M. & G. 604; but the injunction granted by Judge Jenkins did not enforce service. All that it enjoined was the conspiracy to quit, leaving the right to quit as individuals untouched. In short, he simply

« PreviousContinue »