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The Supreme Court of Missouri has recently laid down a very salutary rule, in State v. Gescoll, 27 S. W. Rep. 1101, to Witnesses,
the effect that when, after an order excluding Separation all witnesses from the court-room, defendant's witness, a co-defendant to whom a severance has been granted, remains sc ed by him during the trial, the court is justified in refusing to allow him to be examined, on the ground that the defendant.connived at his disobedience.
LAW BY INJUNCTION-THE DEBS CASE.
By WILLIAN DRAPER LEWIS, Ph.D.
On the 14th inst. Eugene V. Ciebs, President of the American Railway Union, was sent to prison for six months, in the county jail in Chicago, by Judge WilliAN A. Woons, of the Federal Court, for contempt of an injunction. Other members of the Railway Union were given three months cach. The injunction which, it is claimed, Debs Jisregarded was the celebrated omnibus injunction issued by the Federal Circuit Court last summer during the Pullman strike restraining all persons from interfering with the property and trains of certain railroads running out of Chicago. Judge Woods said in his opinion, “If the injunction was, for any reason, totally invalid, no violation or disregard of it could constitute a punishable contempt; but, if the court acquired jurisdiction and did not exceed its powers in the particular casc, no irregularity or crror in the procedurc or in the order itself could justify disobedience of the writ." He maintains the court's right of jurisdiction to issuc such an injunction by many quota. tions from English and American decisions. Those who desire to follow the principal cases should read the article on “Equity Jurisdiction as Applicd to Crimes and Misdemeanors." by the late Richard C. McMURTRIE, Esq. It was, in some sense, the finest short article which that eminent jurist ever wrotc (Am. L. REG. & Rev., vol. 31, p. 1). The cditorial nutes by the present writer in thc same volume (p. 782) showthe historical development of the law on thic subject. It is not now intended to take up thosc decisions again. Suffice it to say here that the position of Judge Woods is supported by several cases decided in other Federal Courts, and by an expression of Mr. Justice MILLEK in the Supreme Court of the United States, as also by an English casc decided by ViceChancellor Malins. The principal case in thc Federal Courts
is that of the Caur D' Alenc Consolidated Mining Co. v. Aliners' Union of Ilanter et al., reported in 51 Fcd. Rep. 260 (sco Av. L. Reg. & Rev. 710). This case grew out of the trouble in the mining districts of Idaho. The striking miners were in possession of the mines, were preventing the new employés. froni working, and, indeed, had carried the new men over the borders of the Territory into Montana. The court granted an injunction, at the request of the company, restraining the members of the Union from further interfering with, threatcning or molesting its employés or entering its works. There was no arrest or imprisonment as the result of any violation.
Another celebrated case in the District Courts is where Juilge BREWEX committed a man for contempt of court for interfering with the running of engines on a road which was in the hands of a receiver: United States v. Kane, 33 Fed. Rep. 748. The receivership, however, was made the main ground of the decision. The English case referred to is that of Springhead Spinning Co. v. Riley, Law Rep., 6 Eq. 551, where Vice-Chancellor Malins issued an injunction restraining the members of the Union on a strike from placarding the town with posters asking workmen not to work for their old cmployers. This casc has been made the basis of the principal American cases, The case in the Supreme Court of the United States was that of Eilenbecken v. The District Court of Plymouth County, reported in 139 U. S. 31. A statute of the State of lowa declared that the selling of liquor was a nuisance, and that any citizen in the county where liquor was sold or thought to be sold, could appiy for an injunction to restrain the alleged seller. The question of the contempt of this injunction was to be tricd by the judge issuing thc same on proof by affidavit of the fact of violation. One Eilenbecken, having been convicted in this way, the case was taken to the Supreme Court of thc United States, the principal assignment of error being that the statute in question was void because, in effect, it deprived the plaintiffs, who were charged with selling liquor, "of the equal protection of the laws, and it prejudiced the rights and privileges of that particular class of persons, and denies to them the right of
trial by jury." The court held that the record did not show that the plaintiffs would have been denied the right of trial by jury had they demanded it. This view of the case, which was perhaps taken to avoid meeting the most serious question of constitutional law that had presented itself to the court for years, deprives the case of weight as an authority. Mr. Justice MILLER, however, went on to say, "We know of no hindrance in the Constitution of the United States to the form of procceuings, or to the court in which this remedy shall be had." It was this expression which excited the ire of Mr. McMURTRIE, and on which he bused the article above referred to.
Apart from these decisions, let us examine for a moment what the real question involved in all these cascs is, and the arguments which can be made on onc side and the other. The question presented by the Debs' Case is shortly this: Can the fact that the crime with which the man is charged injured property and was a public nuisance, justify the court in deprive ing him of the right of trial by jury? The strongest argumcnt in favor of the affirmative to this question is to be found in thc facts of the Debs' Case. The court, before they issued the injunction, had ample evidence that a large body of persons in the community, some of whom had no cɔnnection with the railroads in and near Chicago, were by public meetings, intimidation and actual violence, preventing the railroads from performing the public dutics for which they were created and greatly injuring their property. The actions of Debs and his followers was a public nuisance of the most serious and alarming kind. It is the duty of the court to protect property and abate nuisances injurious to property. Therefore, it is said that they had a right to issue the injunction, and the injunction being issucd, a right to cxaminc into any alleged contcmpt by the nicthods ordinarily used by a court of cquity when investigating facts. And should the judge on such an examination conclude that the injunction had been violated he had a right to imprison for any length of time he saw fit those who, in his judgment, had disregarded his order.
The argument, on the other side of the question, may be stated somewhat as follows: Admitting that Debs and
his followers were acting in such a way as to be a public nuisance, and to thrcaten private property, and admitting that the court of cquity is especially concerned in the protection of property, it does not follow that this property is under the protection of the courts, or this nuisance of such a character that the court of its own motion can take cognizancc of it. It is only property in a particular position, or threatened with injury from a particular source, which cquity can interfere to protect. For instance, if I come into a court of equity claiming that my tenant sur a term of years, with no riulie to commit waste, is cutting down the trees on my place, cquity will issuc an injunction until the rights of the matter can be ascertained. The basis of this action is, that it is the business of the courts to see that one claiming to be the owner of property shall not destroy it or injure it, if another claims an interest in it, until the mutual rights of the parties are deterniincd. It is the claim of right on both sides which s'ives the court of cquity jurisdiction. If a 'robler threatens to break in my house by night and plunder my premises, did eiver any onc hear of my going into a court of cquity to restrivin him?
Again, that courts have jurisdiction to restrain a nuisance is admitted by all; but that alone is a nuisance which the courts will restrain which results from a man's action with his own property so as to adversely affect the property of other private persons or the property of the state. The following instances illustrate what is mcant by this distinction. If a railroad company, or persons pretending to be incorporated, and pretending to have authority to lay tracks over private property, commence to do so, tlic state, or any person whose property is adversely affected, claiming that the pretended corporation, cither docs not exist, or has not thc right which it claims, can obtain from the court a temporary injunction until those rights are determined.
Again, if a man, claiming that a street is his private way, obstructs the free passage of the public, the state can obtain an injunction restraining him from doing so until the rights of himself and the public in the way are determined. Or again,