724 , ..
FED:lUU,LBEPORTER,
vol. 64.
d9zen, or tlle hand-decorated article, worth $10 per paIr-than third.the rate charged tor the transportation of the materIals used in making window shades. Held, upon petition to enforce compliance with the order, that the court would, refuse to enforce such order, ignoring as it did the element of the value of the service in fudng the reasonable compensation of the carrier, and denying him any remuneration for additional rl,.k
This was a proceeding, under section 16 of the act to regulate interstate commerce, by petition to enforce compliance with an order of the interstate commerce commission which: directs that the railway' carriers, the respondents, cease and desist and thenceforth 3,bstain from charging,demanding, collecting, or receiving any greater compensation for the interstate transportation of window shades, plain or decorated, mounted or unmounted, when packed in boxes, than they or either of them contemporaneously charge or receive for like service rendered in the transportation of commodities enumerated as third-class articles in the classification .of freight articles established and put in force by them upon their several lines of railroad." The cause was heard upon the record of the proceedingsbefore the interstate commerce commission at the complaint of and others, doing business at Minetto, N. Y., Alanson S. under ·1jlle copartnership name. of the Minetto Shade-Cloth Company, and updtl depositions taken in the cause. John D. Kernan, for complainant. Frank'Loomis, for respondent£!. W Circuit Judge. The order of the interstate commerce commission which the court .is now asked to enforce prohibits the railway carpers, the parties respondent, from charging any greater compensation for the transportation of window shades of any description-whether the cheap article, worth $3. per dozen, or the hand-decorated article, worth $10 per pair-than the third-class rate, the rate charged for the transportation of the materials used in ma4:ing window shades. Such an order, in my judgment, ignores theelerilent of the value of the service in fixing the reasonable compensation of the carrier, and denies him any remuneration for ad· ditionlti risk. I cannot regard it as justifiable. upon principle, and must refuse to enforce it. The petition is dismissed. UNr£ED STATES v. DEBS et at. UNION TRUST CO. v. A'l'CHISON. T. & 1::.. F. R. CO.
(CirCUit Court, N. D. Illinois. December 14, 1894.\ 1;
In proceedings for contempt in eqUity, a sworn answer, however ton and unequ,ivq<:fIl,.is not COJ;1lllusi:ve, even in the case of a stranger to the bill for the tbjunet10n which has been violated. Where &CQurt llad jurisdiction Of, an Injunction suit, and did not ex<leed pOWers therein,' no .Irregularity or error in the procedure or in the orde.r caD .justify disobedience of the writ.
IN EQUITy-CONCLUSIVENESS' Oll' ANSWER.
2. SAME--JUSTIFICATION-!RRBGULA1UTIES.
UNI'lED STATES fJ. DEBS.
725
8.
SAME,
In a proceeding for contempt in disobeying an injunction, the sufficiency of the petition for the injunction, in respect to matters of form and averment merely, cannot be questioned. Equity has jurisdiction to restrain public nuisances on bill or information filed by the proper officer, on behalf of the people. Though the same act constitute a contempt and a crime, the contempt may be tried and punished by the court. INTERSTATE COMMERCB ScOPE OF THB
4.
EQUITY JURISDICTION-RESTRAINING PUBLIC NUISANCE.
G.
CONTEMPT-TRIAL BY COWtT,
6.
COMBINATIONS IN RES'rRAINT OF STATUTE-CONSPIRACY,
Act July 2, 1890 (26 Stat. 209), § 1, declaring megal "every contract, combination in the form of trust, or otherwise, or conspiracy" in restraint of trade or commerce among the states, or with foreign nations, is not aimpd at capital merely and combinations of a contractual nature, which by force of the title, "An act to protect trade and commerce against unlawful restraints and monopolies," are limited to such as the courts have declared unlawful, the words "in restraint of trade" having, in connection with the words "contract," and "combination," their commonlaw significance, but the term "conspiracy" is used in its well-settled legal meaning, so that any restraint of trade or commerce, if to be accomplished by conspiracy, is unlawful. The construction of the statute is not affected by the use of the phrase "in restraint of trade," rather than one of, the phrases "to injure trade" or "to restrain trade," The word "commerce," in the statute, is not synonymous with "trade," as used in the common-law phrase "restraint of trade," but has the meaning of the word in that clause of the constitution which grants to congress power to regulate interstate and foreign commerce. The provision of Act July 2, 1890, § 6, for forfeiture of "any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in this act, and being in the course of transportation from one state to another, or to a foreign country," does not imply that only cases in which property shall be found subject to forfeiture shall be deemed within the scope of the act. The power given by Act July 2, 1890, to circuit courts "to prevent and restrain violations" of the act, is not an invasion of the right of trial by jury, as the jurisdiction so given to equity will be deemed to be limited to such cases only as are of equitable cognizance. Where defendants, directors, and general officers of the American Rallway Union, in combination with members of the union, engaged in a conspiracy to boycott Pullman cars, in use on rallroads, and for that purpose entered into a conspiracy to restrain and hinder interstate commerce in general, and, in furtherance of their design, those actively engaged in the strike used threats, violence, and other unlawful means of interference with the operations of the roads, and, instead of respecting an injunction commanding them to desist, persisted in their purpose, without essential change of conduct, they were guilty of contempt. SAME-INTERFERENCE WITH RECBIVER. CONTEMPT-VIOLATION OF INJUNCTION-CONSPIRACY. EQUITY JURISDICTION-RIGHT TO JURY.
'7.
SAME-CONSTRUCTION.
SAME-COMMERCE.
9.
SAllIE-FORFEITURE OF PROPERTY.
to. 11.
12.
Any improper interference with the management of a rail road in the hands of receivers is a contempt of the court's authority in making the order appointing the receivers, and enjoining interference with their control.
Proceedings for contempt against Eugene V. Debs and others for violation of injunctions issued, one on complaint of the United
72,6:
FEDERAL, REPOBTER,
vol.' 64.
tliWt t(')Ka
the, other on petiti9D: ,of thl;!reeeivers of the §llnta F¢ appointed .in a sUlt agamst by the Umon Trust OOmpany. ' . .
inforrpations were filed July 17, 1894., The substance of the, is: Tlilit'oll 'tM2d day of July, 18!}!, the United states of with the clerk of this court an information or complaint charging,. among other things, that the defendants, Eugene V. Debs, George W. L. W. ROg'e1'8j!'SyI:vester Kellher, the AM:erlcan Railway Union, and'. others, were engaged in a conspiracy unlawfully to interfere with and to prevent the tranl!PQrtatlou' of the malls and Interstate commerce over and' upon the several railroads named in the coml?laint, and praying an. inj\1nction. That on thatndaY"by order of the court, a writ ()linjunction was duly issued, whereby''tbe defendants, and all persons combIning and conspiring with them, and.lill.Jpersons whosoever, were commande(fand enjoined "to desist and any way ot manner interfering with, hindering, obstructing, or" stoppinv liny' of the bnsiness of aily of' the' following nawed railroads: AtehiSOJ1/l'l'bpeka & Santa F6 Ra,ilroad: Baltim6te &'Ohio Railroad: Chicago & A1tot!cRll:llr6ad; 'Chicago &;Eastern IllinOis Railroad: Cllicago & Erie & Gratid, Trunk Railway; Chicago & Northwestern Rail. way: Chicago & Western 'Indiana Railroad: 'Chicago, Burlington & Quincy Railroad; Chicago) Great Western Railway; Chicago, Milwaukee & St. Paul Railway: Chicago, Rock Island & Pacific, Railway; Cleveland, Cincinnati, CblcagQ&ii Btl 'Louis Railway; Illinois Central Railroad; Lake Shore & Michiga.n'SOuthern Railway;' Louistille;NewAlbany & Chicago Railway: Michigan Central Railroad; New York, Chicago & St. Louis Railroad: Penn· ,Company; Wisconsin Central lines: Wabash, Railroad: Union & ,Transit Company,-as common carriers 'of and freigh!t, between or among:any,statesof the' United States; (2), f'h1tomll1'any way Interfering with, hilldering, obstruetlt/Ii\', or stopping, any mail trains, express tl'ains,or otl:ler trains; whether freight or passenger, engaged in interstate commerce, or carr;l'ing. passengers or freight between or among, tf1.ei states: . " " , (8) From lin' any lllannel' interfering' with, hindering, or stoptl'ing any trains ,the 'mail, and fromlina:ny manner interfering with, hindering, obof said comstruoting, (lriBtopping any engines,catis; or rollilig stock o,t panies in interstate,comtnerce, or in connection with ,the carriage of passengersol'itreight between. or among the' states; (4) From in any manner intel'fel'ingwith, injuring, or destroying any of the:propel'tjY'i:of any of said railroads engaged in or for the purpose of, or in with, interstate commerce, or the carriage of the mails of the United:· St4rtes, or the transportation of passengers or freight between or among the states; ,: " (5) From entering upon the grounds or premises of any' of' said railroads interfering with, hindering, obstructing, orli!topping any of said mail tra:ll1$, passenger 01" freight trainS engaged in' interstate commerce, or, ,inl thei 1;J:lansportation of, passengers or 'fl'eight between or ,among the states,. 91.',' tOl'.the purpose ,.of .'interfering with,. injuring, or' destroying any of said 'PfPDerty, so engaged in or used in" connection' with' interstate commerce, Qf::tlletransportatioI1.of passengers 'or property between or among the states.;,.: , . (6)Fro.m iJijUlling or destroying any part of the tracks, .roadbed, or road, or permanent: ,structures of said, railroads, and' from injuring, destroying, 01' in any way interfering with any of the signals. 01' switches of any of said rail· roa<is, of the signals ,of any of said rallroadli!i ,lWd fj:1oJP,l'lpjking,; locking, 'or .in: any. manner fastening any of the /!,'ny"ofstlid rtlJlt:Ot\ds, and from uncoupling or in !lny way hampering or obstructing the control by any of said railroads of any of the cars, engines, or parts of trains of any of said railroads engaged in interstate comg <;e,?l' in the,.tra" pa,ssen. el'lJ"::,01: ft,e,ight between or, among the st!l:'teil, ,0r engaged ,ottll,e .9f ,the States: . 'n:a:,' ,', 11, ···
c
.
UNITED STATES V.DEBS.
727
(7) From compelling or inducing, or attempting· to compel or induce, by threats, intimidation, persuasion, force, or violence, any of the employlis of any of said railroads to refuSe or fail to perform any of their duties as employes of any of said railroads in 'connection with the interstate business or commerce of said railroads, or the carriage of the United States mail by such railroads, or the transportation of passengers or property between or among the states; (8) l!'rom compelling or inducing, or attempting to compel or induce, by threats, intimidation, force, or violence, any of the emploY1!s of any of said, railroads who are by such railroad and engaged in its service in the conduct of interstate business, or in the operation of any of its trains carrying the mail of the United States, or doing interstate business, or the transportation of passengers and fi'eight between and among the states, to leave the service of such railroads; (9) From preventing any persons whatever, by threats, intimidation, force, or violence, from entering the service of any of said railroads, and doing the work thereof, in the carrying of the mails of the United States, or the transportation of passengers and freight between or among the states; (10) From doing any act whatever in furtherance of any conspiracy or combination to restrain either of said railroad companies or receivers in the free and unhindered control and handling of intt:!rstate commerce over the lines of said railroads, and of transportation of persons and freight between and among the states; and (11) From ordering, directing, aiding, assisting, or abetting, in any manner whatever, any person or persons to commit any or either of the acts aforesaid." That the American Railway Union is a voluntary association, of which thousand railway employes were at the time of the filing of the bill, and still are, members. That the defendant Eugene V. Debs is the president of the association; George 'V. Howard, its vice president; Sylvester Keliher, secretary and treasurer; L. W. Rogers, one of the directors; and all of the defendants were and are directors. That the avowed pmpose ot said union and its officers has been, and still is, to procure all of the employes of the within the United States to become members, and to concentrate the power and jurisdiction of the union and its members under one official control, with authority to order strikes, or a discontinuance of the service of such employes with any of the railway companies of the United States, at any time when the union, its board of directors or other officers, should elect so to do, with or without sufficient cause. That on the 26th or 27th day of June, last past, prior to the filing of the bill and the issuing of the writ of injunction, the union, or its board of directors or other officers, including the defendants, had .directed and ordered all its members engaged in the service of the minois Central Railroad Company in the transpOl'tation of the mails, and of interstate commerce, and all other trains controlled and operated by that company, to strike or quit service. '.rhat thereafter, and before the writ of injunction was issued, similar orders were issued to the employes of other railway comiJanies, named in the bill of complaint; and that, in pursuance to those orders, all employes who were members of the American Railway Union did in a body leave the service of said railway companies, for the avowed purpose of hindering, preventing, and delaying the operation of trains engaged in the transportation of the mails and interstate commerce. That the order of injunction was published in the daily papers of Chicago on the morning of July 3, 1894. That each of the defendants had knowledge that the order had been duly entered in said cause. That a copy was served upon the defendant Rogers on the 3d day of July, and upon the defendant Eugene V. Debs early on the morning of July 4th, and upon the defendants George W. Howard and Sylvester Keliher on the 4th day of July, 1894. That the American Railway Union, prior to the 2d day of July, had organized many local unions upon substantially all the railroads in the northwest, from Chicago to California, Including substantially all the railroads to the Pacific coast, and at the same time was engaged in organizing local unions upon the main lines of road extending from Chicago to the Atlantic coast; and that the work of organization and extension was
nnERAL IUilPORTER,
voL, 64.
wjthov.t or jnterroptlon, after the service or the injunction, t9r:,th,e, 8,vQwed pUl'poee of contel'J:'lng upon the union authority to order ,sQ;il!:'lf' lIPon all or the roads as rl/.pidly as the local unions could be organized. Tl;u\.t the orders for strikes and for the railway employes to leave in a body the service of the railroads named in the bill of complaint, as well as other rallroads, were generally cOmmunicated by telegram from the defendant Debs to the officers or committees of local unions at the most important railw:a;Y:' centers and cities. Thll.t copies of some or such telegrams and orderl'l,so issued by the defendant Debs, both before and after the service of injunction, are herein inserted, for the purpose of showing of that the service of the iJljunction did not affect or change the policy or conduct. ot the defendants relative to said strikes, but that, on the contrary, the (iefenCiants continued, notwithstanding the order of the court, and in direct and open violation thereof, to direct tl'le employes of the railway companies named in the writ of injunction, as well as other railway companies, to leave the service of the companies in a body, and thereby hinder, delay,l\nd prevent the. discharge of their duty to the public, and especially the, discharge of their duties as agents of the government in the transportation of the mails, as well as interstate commerce. That said telegrams, and hundreds of other telegrams, similar in form and character, were sent by the defendant Debs lwith the knowledge, authority, and approval, pr each and all of the other defendants, as well as other directors of the American Railway Union), after the service upon them of the writ of injunction; and that, in pursuance of said orders and directions, many of the employes of the several railways named were induced to leave the serVice, and' so-called "railway strikes" prevailed generally upon the lines of several of said railway companies, and the transportation of the mails and 1I;Iterstate commerce was thereby greatly hindered, delayed, and prevented, and upon some lines for several days. That, as a direct result of the orders to strike upon some of the lines,notablY. upon the Illinois Central Railroad, the Chicago, Rock Island & Pacific, 'tb,e Ohicago, Burlington & Quincy, the Chicago & Alton, the Chi· cago & Western Indiana, and upon the Pennsylvania Company's lines,there was exercised upon the part of many of the strikers or ex-employlis of the railway companies intimidation and open violence. That employes who refused. to join in the strike, and others who had been employed by the raHway companies to take the place or strikers, and were in the actual service otthe companies, were assaulted and intimidated by the strikers, and driven, from their post of duty, either by physical violence or threats of personal inlury. 'I'hat, during the 5th, 6th, and 7th days of July, the strikers, apd, others acting in sympathy with them, took forcible possession of some of the roads wIthin and adjacent to the city of Chicago, and, by physical force, preveJ:l,ted the passage of trains carrying mails and interstate That engines and trains of cars were derl;liled, and passenger trains .were assailed with stones and other missiles, as well as the employes inl;harge of such trains; and in sOlDe instances both the passenger cars and engines were. fired upon, endangering. the .lives both of employes aD,d passengers. That these mobs were in many. instances led by the strikers Qr ex-employes of the railway cOll).panies, who had gone out of service upon the orders of the defendants as officers of the American Railway Union; and mobs composed of strikers and others were massed at different pointf!, ,upon the different lines of road, within and adjacent to the city of Chicl!go,i!1- such numbers as to be beyond the .control of the government, state,aild municipal authorities. That at least 1,000 freight cars pelonging to the l'IlUway companies, some of which were loaded with interstate were set on fire and destroyed. Signal towers and other Qt,. the railWlj.yswere burned. Employlis of the railway companies .who the orders of the defendants lind other officers of Railway Union, and reJ;llained faithful to the discharge duty; were violently assaulted, beaten, and bruised, and in some of instances Wl'!reforc1bly arrested, and taken from their engines, and kept for hours,lD, confinement. That many lives were also sacrificed,-·all ot which was a. direct result of the numerous strikes ordered as aforesaid.
UNITED STATES 11. DElIll.
729
That the defendants had fulllmowledge that many of such violent actsl upon the part of the strikers or of the railroads had been perpetrated prior to tile service of the injunction; and notwithstanding such knowledge, and the further knowledge that violence invariably follows all strikes of a similar character, they daily and continuously, and in willful violation after the service of the injunction, Issued their orders and directions for the employlis of the railways to quit service in a body, and also continued such orders while the mobs were in partial possession of the railroads, and engaged in forcible resistance of the orders of this court and its officers, That the strikes were not ordered on account of any wrongful act of the railroad companies, or of their officers, towards the members of the American Railway Union or other employlis of the railroad companies; but, on the contrary, the avowed purpose of the directors of the Railwa)' Union, including the defendants, was wrongfully and unlawfully to establish 8. boycott against Pullman sleeping cars, which were use<!, In great numbers by the railroad companies in trains carrying the mall and passengers traveling tromstate to state,' and through the several states; and, to make boycott etrectual, the directors' of the American Railway Union, including the defendants, ordered that no trains or cars of any kind or character should pass over the tracks 01' any road within and adjacent to the city of Chicago until the use of Pullman cars had been abimdoned by all of said railroad comp9.nles. That the board of dIrectors 01' the' American Railway Union, including the defendants and Its authorized agents, assume the authority and power, and, as complainant believes, have fnll authority and power, to order strikes and boycotts, and to discontinue the same, under the rules of the American Railway Union. That such assumed power and authority Is clearly shown by a communication signed by Debs, Howard, and Keliher, as officers of, the union," and addressed to the railway managers, on the 12th of July, of which the following Is a. copy: "Chicago, July 12, 18M. "To the Railway Managers-Gentlemen: The existing troubles growing out of the Pullman strike having assumed continental proportions, and, there being no Indication of relief from the wide-spread business demoralization and distress incident thereto, the railway employlis, through the board ot directors of the American Railway Union, respectfully make the following proposition as a basis of settlement: "They agree to return to work in a body at once, provided they shall be restored to their former positions without prejudice, except In cases, if any there be, where they have been convicted of crime. "This proposition, looking to an immediate settlement of the existing strike on all lines of railway, is inspired by a purpose to subserve the public good. The strike, small and comparatively unimp')rtant In its inception, has extended in every direction, until now it involves or threatens not only every public interest, but the peace, security, and prosperity of our common country. The contest has waged fiercely. It has extended far beyond the limits of interests originally involveo, and has laid hold of a: vast number of industries and enterprises in no wise responsible for the differences and disagreements that led to the trouble. Factory, mill, mine, and shop have been silenced; widespread demoralization has sway. The Interests of multiplied thousands of people aresutrerlng. The common welfare is seriously menaced. The public peace and tranquillity are imperiled. Grave apprehensions for the future prevail. "This being true,-and the statement will not be controverted,-we conceive It,to be our duty as citizens, and as men, to make extraordinary etroI.1:8 to end the existing strife and approaching calamities whose shadows are even now upon us. If ended now, the contest, however serious in some of Its consequences, wlll not have been in vain. Sacrifices have been made, but they will have their compensations. Indeed, if lessons shall be taught by experience, the troubles now so widely deplored will prove a blessing <Jf inestimable value in the years to come. The ditrerences that led up to
730'
FEDJIlRA:IlBEPORTER,
vol. 6'4.
discussed. AtthlsdlUpreme cooalderatlonof dlltT'andpatrtotlsm demands that a remedy found'and':applled. ,The to do 1h,e1r",:Pt'I'bl(imeetiDg thelr·,emplorers'baltway.Let it be that they "';any condition dfsettlement except that they be returned to thl!llf,.:1 ,". Jl)lOlItt1ons. They do DOt ask the recognition of their organlzatfon;Ql'lianF(iOi'tanlzation. ,J' ,, proposition: be, fab',: reasonable, and jUst, it IS respectfully 8ubmlttM,:!'WIth the belief that its'ra&eptance wlll result In 'the-prompt relumptlon of tramc, the revival of industry, and the restoration of peace and
dO"
llkV.Debs, President, .,Ii .,,'I!ii " "G. W.Howard, Vice President, "Sylvester Kel1her, Sec'y, ,':: "American RaUway Union." OY81"t!),' Dlembers: ot the its board DebS, /.'elatlve to the ottrains, order issued Oll the .2d of July, 1894, of ,Wbichthe fol.copy:· ,....'.;, .' , . YIl.lV. Please executet:h;eorders of removal of dead from the stock yards to Globe station. This 111 ISsued by order ot the board Qf directors, of, public, .health. · Eugene V. Debs, President." That'ltlle foUoW1lJ!1.greport ot a.1l interv1ew with the' defendant Debs was the Chicago herald of JUly115th: in condition to keep the strlke on for months. but armed to-day permits the II10vitli trains. TbroughQut that great stretCii,()t oountry which t .the Mississippi river our men 8.1'9 willing to wait QIltll You wIll nO,tlce that It is Impossfble to buy a tlcket to the aettlc coast in Chicago to-day, except by way the Great Northern Road, over which no Pullman cars are run, and agaJns,tWblch we have grievance. This shows the line on which ourfutore campaign is t() .b&'Ctirtied, We shall keep the men of the west"w" ..·. the',al,r Is '.,free trom Plutocratic. combinations, in, I1n e \\l,1, .lll'." id,eas. w,e spll,".·',pe,t,'.s.lst'IU", our work of orga,niZlt.tlOn throughout the'1!laSt. As a road 't!Je' country hitherto by us taltsinto line, we shall call it out-And shall keep on doing this until the very end ot all things. It our Prllsent strogg1e, based, as. It is, on motives wh<'llly 1$ no wage earner in the land who wlll not 'fElellts benetlcent Ule year closes. And if this is true, when th.e of, the of commerce' falls into our unions wh(CblIa:vecglven us comfort require reciprocahands, tion an,d we illone;lu'elil a..J?osltion to give them material asslstapce. J. one wlll disagree with me." ADswer ot Debs, 'Howard; Rogers, and Keliher. th.,
.'4RetlJe(ittully.
!:.>'::'",
'.
'
answer, alleging:
,,' ,.;' .
a.verments ot.the information, and in substance ·. . ,,' ," .
railwa:sr s1stetl:ilt of the United States, and to procure for them, by all lawful comJ?ensa,tlon ,for the service perf()rmed by them. That III Union was open to every Qf i004 n upon the railway systems at the ',' .'. ' < ' " 'and to ljeCure and effectuate ,the objects was the desire and .one of the to, procu/.'e to bec9me members. That, 1?f pt the' said l;tallway Union, strikes could only b,e. or',4IsOOl:itiJJ.ued by ot a majority of the members of SUch "American Railway UnUm emPloyed in the service affected by any
tw
.,4n
STATESV.DEBS.
'/31
"Such strike; and tha.t the only power, authority, or office of the officers or directors of the American Railway Union, or of these defendants, or either of them, in respect to said matter,was to notify the members of the union in the service concerned in such strike of the action taken by such majority. That, on or .about the 26th' 61' 27th day of· June (contrary to the averments Qf the information), a majority of the members of the American Railway Union employed upon the Illinois Gentral Railroad and upon the otherroad'3 referred to in the information did for themselves, without any order, direction, Qr control of the American Railway Union, or of its officers or directors, Qr of these defendants, or any of them, voluntarily determine bY vote that they WOUld. strike or leave the service of said railway companies; and that, in pursuance of that vote, ·the did, on or about the time stated, leave the service of the railway companies freel)·, and of their own accord, without any order, direction, or control on the part of said American Railway Union, its officers or directors, or of these defendants, or any of them. "Upon infOrmation and belief, the defendants deny that the so leaving the service of said railway companies,as aforesaid, did so for the purpose ofhinderlng, preventing, and delaying said railway companies in the operation of trains engaged in the transportation of the United States mails and interstate commerce over the respective roads of said companies." They "deny that, ,after the service of said injunction, they or either of them carried on the work of organization other than by generally advising railroad to become members of .such union, and receiving to membership persons so applying therefor as aforesaid. They expressly deny that the <>rganization of said unions upon said roads, or any of them, was intended to confer or did confer upon said American Railway Union, its officers or directors, or upon these defendants, or· either of them, the power and authority to order strikes upon said roads, as alleged in said information or otherwise, but, on the contrary, allege that strikes could be ordered upon said road by the of said road themselves, and that such were in no manner subject to the authority or control of said American Railway Union, its officers or directors, or of these defendants, or either of them, in that regard." "They deny that orders to strike were at any time or in ,any manner communicated by said American Railway Union, its officers or directors, or these defendants, or either of them, to said local unions, or any of them, as alleged in said information or otherwise." "The defendants deny that anyone of the telegraI!ls set forth in said information was sent, or caUSed to be sent, by them, or any of them, or that they authorized or approved the same, or anyone thereof, except a certain telegram dated July 6, 1894, in the words and figures following: 'We have assurance that within forty-eight hours every labor organization in this country will come to our rescue. · · · Whatever happens, do not give credence to rumors and newspaper reports,'-which said telegram defendants admit was sent, or caused to be sent, by the defendant Debs, as in said information alleged; but save as hereinbefore admitted, defendants allege that they had no knowledge or notice whatever of the sending of said telegrams, or of the contents thereof, until the filing of said information." uTher deny that any other telegrams similar in form and character to those in said information set out were sent by the defendant Debs, or any of the defendants, with the knowledge, authority, or approval of any of said other defendants, at any time after the service of. said writ of injunction upon said defendants. and deny that any of any of the railway companies named in said information were induced by reason of any telegram sent, 01' caused to be sent, by the defendants, or any of them, by threats, intimidation, force, or violence, to leave the service of said railway companies, or that the transportation of the United States mails and interstate commerce was thereby in any way hindered, delayed, or prevented." "'rhe defendants admit that upon some of said lines' of railway there was exercised, upon the vart of some persons to the defendants unknown, violence against persons and property. They deny that they, or any of them, have any knowledge or information sufficient to form a belief as to the commission of the specific acts of violence in said information set forth, or any thereof; and, upon information and belief, they deny that any member of said American Rail-
732
FEDERAL REPORTER,
. va)' .11nlon In' Illl7 'manner particIpated In said acts of violence or any of thetn." ''They deny that, in violation of the order' of the court,· they dany ,and, ,continuously, or at all Issued any orders or directions for the of· said, raUway compa.nies, or any of them, to leave such service in a body, as aUegedln said l.nfomnatlon or otherwise. They.deny that at said time, or .aL4nl' time, they knew that violence and unlawful conduct necessarily foUowed:trom strikes of the kind mentioned in said information, and deny thatsuch,isthe fact, but, on the contrary, allege that, so far as said American RailwaY Union,or the members thereof,. are concerned, said strike, and all, strikes, of a similar character, contemplate nothing more than the quiet, peaceable,. and lawful cessation of work by such members when and for such periods as they. shall for themselVes determine. Defendants expressly deny that they, or anyone of them, did at the tIme mentioned in said Information. or at any other time, order, 'direct, counsel, advise, recommend, or approve ,the acts of violence in said Information set forth, or any of them, or or unlaWful acts of any kind or charllcter, but, on the contrary, allege that they did at aU said times counsel and advise all members 'of the B4ld,American BllJhvay Union with whom they were in communication to at aU,tlmes abstain' from violence, threats, intimidation, and to at al times l'espec1: the law and the officers thereof." "They deny that the board (' directors of said American Rallway Union, or its officers, or these defend· ·ants, or.' either of them, at any time assumed the authority and power, or have now or ever have bad any authority or power whatsoever, to order strikes and boycotts, 01' to discontinue the same." "They admit that on the 12th day of July, 1894, the communication set out in said Information was addresSed to the railway managers, and signed by the defendants, whose names are' affixed thereto, but allege that so much of said communication as implies or assumes any right, power, or authority in said defendants, Ol either of'them, to discontinue said strike, was unauthorized, and that said defendants had no other power or authority in said matter than to recommend to the members of the said American Railway Union the adoption of the proposals therein stated." "Defendants admit the sending of communication to the Panhandle yard men set forth in said information, but deny that in and by saId communication they exercised, or assumed to exercise, "lUIy .,power or authority over said men, or any thereof, but that said communication was merely a request to saId men to perform the acts therein s1fated." "They deny that they have any knowledge or information sufficient to ·form a belief as to whether the interview set forth in said information was in fact published in the Chicago Herald on July 15th, or at any other time. They deny that the defendant Debs, or any other defendants, caused said interview to be published, or uttered the statements therein contained, or any of them, but allege that said interview is wholly false, forged, and fictitious." "The defendants deny that they, or either of them, have in any way or manner interfered with, hindered,obstructed, or stopped any of the business of the railroads mentioned in said injunction, or either of them, as COmmon carriers of passengers and freight between or among the stlltes of the >United States; 01' that they, or either of them, have in any manner inter!ered with, hindered, obstructed, or stopped any mall trains, express. trains, or other trains, whether freight or passenger, engaged in interstate commerce, or carrying passengers or freight between or among the states; or that they, or either of them, have in any manner interfered with, hindered. or stopped any train carrying the mail; or that they, or either of them,have in any manner interfered with, hindered, obstructed, or stopped any engine, car,or rolling stock of any of said companies engaged 10 interstate COmmerce, or in connection with the carriage of passengers or freight between or among the states; or that they, or either of them, have in any manner interfered with, injured, or destroyed any of the property of any of said"railroads engaged in or for the purpose of or in connection with interstate commerce, or the carriage of the mails of the United States, or the transportation of passengers or freight between or among the states; or that they, or either of them, have entered upon the grounds or premises of any of said railroads for the purpose of interfering with, hindering, obstructing, or stopping any of said mail trains, passenger, or freight trains,
UNITED STATES V. DEBS.
733
engaged In Interstate commerce, or In the transportation ot passengers or freight between or among the states, or for the purpose ot interfering with, injuring, or destroying any of said property so engaged in or used in connection with interstate commerce, or the transportation of passengers or property between or among the states; or that tney, or either of them, have injUred or destroyed any part of the tracks, roadbed, or road, or permanent structures of said railroads; or that they, or either of them, have injured, destroyed, or in any way interfered with any of the signals or switches at any of said railroads; or that they, or either of them, have displaced or extinguished any of th.e signals of any at the said railroads; or that they, or either of them, have spiked, locked, or in any manner fastened any at the switches of said railroads; or that thfY, or either of them, have uncoupled or In any way hampered or obstructed the control of any of said railroads or any of the cars, engines, or parts of trains of any of said railroads engaged in interstate commerce, or in the transportation of passengers or freight bet .veen or among the states, or engaged In carrying any of the mails at the United States; or that they, or either of them, have compelled or induced, or attempted to compel or induce, by threats, intimidation, persuasion, force, or violence, any of the employes of any at said railroads to refuse or fail to perform any at their duties as employes of any of said railroads in connection with the interstate business or commerce of such railroads, or the carriage of the United States mall by such railroads, or the transportation of passengers or property between or among the states; or that they, or either of them, have compelled or induced. or attempted to compel or induce, by threats, intimidation, force, or violence, any of the employes of said railroads who are employed by such railroads and engaged in its service in the conduct of interstate business, or in the operation of any of its trains carrying the mall of the United States or doing interstate business, or in the transportation of passengers and freight between or among the states, to leave the service of such railroads; or that they, or either of them, have prevented any person whatever, by threats, Intimidation, force, or violence, from entering the service ot any of said railroads, and doing the work thereof in the carrying of the mails of the United States, or the transportation of passengers and freight between or among the states; or that they, or either of them, have done any act whatever in furtherance of any conspiracy or combination to restrain either of the said railroad companies or receivers in the free and unhindered control and handling of interstate commerce over the lines of said railroad, and of transportation of persons and freight between and among the states; or that they, or either of them, ordered, directed, aided, assisted, or abetted in any manner whatever any person or persons to commit any or either of the acts aforesaid." "And the said defendants each for himself does plead to the said information that he is not guilty of any or either or all of the acts therein charged, or of any contempt of the orders ot this court in the premises." ''Defendants further allege that, after the service of said injunction upon them, they forthwith consulted competent counsel, learned in the law, and duly authorized and licensed to practice as attorney and counselor at law in the courts of the United States, and fully and fairly stated to him all the facts in the premises, and exhibited to him the order of the court made herein, and were advised by him as to what they might rightfully and lawfully do In the premises without violation of the order of the court or contempt of its authority; and that they have since that time in all things proceeded, in their acts and conduct in regard to said strike and the persons engaged therein, in strict accordance with the advice of the said attorney so by them consulted. And the said defendants each for himself denies that he intended in any way to violate the injunction of this court, or to act in defiance or contempt of its authority in any respect. And the defendants further allege that by the organization of said American Railway Union, and by custom and usage uniformly and universally prevailing therein, at all the times in said information mentioned, which said custom and usage had the force and effect of, and stood in lieu of, by-laws of said American Railway Union, and by the general and unanimous will, consent, delegation, and acquiescence of all the members thereof, the officers and directors of said American Railway
-784
nWBRAL
REPoRTll:R, ,vol.. '64.
'theeedef4ffld.anUl, were -atlill the tllnE!s'fil"uld 'ltirorma,'tfoUlilentlMl\!d!fUlly empoWered,' and' dIrected to ad:il.s ,the agents off\h@'ttltmlbers Of' a:tIdAln,eticaiI: RailwayUnlo!l,aM 1Il101' them, and unIot18tbe.reof, whenever a" strike orcessatioli. of labor had, been'Jdftet'fi1ltied ,.upOn' by 'S81d of saId Union, or, eltMr of them, to IDfOrll:iWtM11idVllie them' concerning' the 'condition, aM, prospects thereof, anti attitude' of the seversI local union\;!' engaged therein, and to a:dvllfeltnd'couililelthiUnas to peaceful and lawful methods pursued by' them 'to H<mire' the redress' of grIeV'ances compllilned' of 'by them, and to treat anll n'egot!ate for'them, subject to their ultlmateratiflcatlon, with (their employei'i fora settlement or adjUstment:of the Causes leading to said strIke, but had ,no or authority to In any way order or com,mandany'ofsaId,memberalnrespeet to any of said matters; and they al· legethat,eacb'ud every act and thing done by them In reference to the strike In saldilaformatlon' mentioned, 'orab.y ot the persons 'engaged therein, 'was done' tniputlmanee oti!lueb power and authorlty;alld' not otherwise. Wherefore,: 'dete1tdants pray that they maybe adjullged not gniltyof contempt; that' 'the ,complainant's Information be as to them dismissed, and they go heneeoW1thout delaly." ", On July 251b tbe defendants tiled asupplemental"answer;. denying "each -and every Sllegatlon In salll' 'Ijlformationcontained, alid', ,ee.ch and every ,part thereot; 8IIte as the same are In thelrtormer answer' admitted or denlechr 1; Second Information. On ot AulPlst, 1894, a secondlntormatl,onwaspresented In ,the WUliamE. M. Good· wID, J. F;!'fe"'eall; and'lt J. Elllott. Tllis InformlLtfon,tecltes the tlUng of and the arrest of the defendants therein named persons named upon the,\\ItWot,'.ttachment Issued, ana,alleglng 'Were dltect0i'!l0r the, American Railway' Union, relteratesthe original aver· turther: 'That on or about June 27, 1894, the officers :,'mellts an,d dlrectort"of'the AmerlClin Railway Union entered Into acomblnatlon and consplracy'to 'bring about, by theli',ortlers, their advice, their counsel 'and persull'Slon, 'the strike and boycott 'm:ore particularly' described In said :origlnal blll' Of that to conduct the business of said combination and conspiracY, and to more eft'ectuallY'manage the vast ofpetlKlnS belIig' members ot's8.td American Railway Union and others engaged.Jn such Mmblnatlon and conspiracy, Said officers and board of directors, dl'V'fded up the work of such, management and direction among committees.' ,That, under said arrangement and action olthe board of direct· ors; Debs and: 'Howard wpuld thereafter they did have, charge \>f the work of,pubUcatldnand pubUclty';Rogers, Burns, and Goodwin had charge of all meetings and Speakers, and the organizatIon of lodges; and 'Hogan, emIer atone or with others of"thedlrectors, had-charge of correspond· 'ence, and, of the sending' and receiving of letters IlDd telegrams, or a coni!lIderable pottion.tbereof. That each of the directors Is responsible for every aCt done or omitted to be done by aIlol." any of, the other directors or or!iel"'rlUits or agents In connection with the business of said strike or boycott;' That,' by arralngement or agreement of' the board of directors, Rogers 'WaS to, have charge of editing and the publishing of Ii certain newspaper ,caUed the "Ra.llway Times," which was to,be the ofliclal organ of the Amerl· can Railway Union. That the paper was published ,In the cIty ot Chicago 'by 'Itogers;and that In and through said newspaperthl'l directors counseled, "encouraged; and directed the members of the AmerIcan Railway Union and aU otherrall'wayemploylls,lncluding thee,mployllsof 'the railway companies named In the'bUl, of CODilllamt;'to dlprE!gard saidordtll'andwrit of InjunctIOn, and the ordel'8 and dlrectlODsof the officers operating said railroads, respectively. That saldoftleei.'s and directors, in pursuanceof' said conspiracy, did; on :dttrerent dates In themontbs of June and JulY,1894, cause to be Bent eaCh and' all of the telegrlUn& setout in the original Information, to which the name of said Debs Iii attached, and, also the several following telegrams, which are setout by coPY; lIlso many' hundred other telegrams of, like pur· port, and with similar, Intent and purport, -copies of which, sent todift'erent I
UNITED STATES v; DEBS.
735
places in the different states, over the signature of E. V. Debs, between the dates of June 27 and July 29, 1894, are set out. That said defendants continued to send out, by telegraph, orders, directions, and advice to the meet· ing of the various unions along the lines of railroads, directing and counseling them to continue the strike and the various acts of interference with the operation of said roads; and that all of the directors have persisted in violation of the injunction, and in their defiance of the order of this court. Answer of Hogan and Others. The defendants so brought into the case filed a joint answer, not essentially different from the answer of the original defendants, except that it contains the following averments: They deny that on the 26th of June, A. D. 1894, or at any other time, the American Railway Union, through its officers and directors, or otherwise, ordered or directed all or any of the employlis of the railroad companies named in the blll, or either of them, to enter upon any strike for the purpose in the information alleged, or otherwise. They admit that at divers times during the month of June, and before the issuing of the injunction, they did counsel and advise certain of the employlis of the railway companies named in the bill, all of the employes so counseled and advised being members of the American Railway Union, to quietly, peaceably, and lawfully quit the service of their employers, and allege that, in giving such advice and counsel, they acted for the employes, and by their authority conferred upon them or each of them, as hereinafter set forth. And they deny that their purpose in giving such advice and counsel was to cause any strike with the sole purpose, or with the purpose at all, of compelling the railway companies, or either of them, to unite with the American Railway Union, or with any person or persons, in any illegal boycott, or in any boycott whatsoever, and deny that the American Railway Union, its officers, directors, and members, or these defendants, or either of them, did on the day mentioned, or at any time, for any purpose or in fact, enter into any unlawful con· spiracy or combination whatever to tie up or paralyze any of the business of any of said railroads or the carrying of the mails or interstate commerce until such company should consent to enter into any conspiracy or refuse to haul the cars of said Pullman Sleeping-Car Company, whether as alleged or otherwise, or that said combination was to be persisted in as alleged or otherwise. On the contrary thereof, the defendants allege that they were at all said times informed, and in good faith verily be· l1eved, that the railroad companies named in the bill, and all of them, had formed or organized and were members of a certain unlawful conspiracy and combination among and between themselves to reduce the wages and compensation of their employes upon said roads, and each of them, including the members of the American Railway Union thereon, and all of them; and that, pursuant to that conspiracy and combination, the railroad companies proposed and intended to make reduction in the wages of employes, including the members ·'of the American Railway Union, upon each of the lines of railroad, separately and sUCCessiVely, they, the railroad companies, uniting their powers, property, and influence to prevent the employes, including the members of the American Railway Union, upon each of the lines whereon the wages were to be successively reduced, from obtaining redress against the action of the railroad companies in pursuance of such unlawful conspiracy, and proposed and intended, by their combined and united action, to overcome successively and in detail any lawful and peaceable resistance that the employes, or any of them, might make to the reduction of their compensation. And, upon information and belief, the defendants allege that such conspiracy was in fact formed at said time with the intents and for the purposes hereinbefore set forth. "It is further alleged that at all times they were informed and did in good faith verily believe that the Pullman Palace-Car Company, a corporation organized under the laws of the state of Illinois, and engaged in the business of constructing passenger and other cars upon the lines of said railroads (which said Pullman Palace-Car Company had various contract relations with said railroad companies, and each of them,ifor the use of its
736
saldc8JrS), .1dI8Jamember oland party to sa!d conspiracy, and all the intents 8Ji.d purposes'tlhereof; and, upon Information and beUef, defendants allege that such was.the· fact in regard thereto." They allege that very many of i:lt the Pullman Palace-Car Company were members of the the said American 'Railway Union at the time in the information mentioned, and for BOme; months prior. thereto had been such members. They deny that they, or ·e!ther· of them, ]mew, or could have known, that any such acts were certain or almost certain or probable or reasonably to be expected to follow from such strike 01" cessation of labor, or that the same were in any mll.nner due. to or :occasloned. by or resulted naturally 'orotherwise from the orders, . counsel" or advice or acts" or either thereof, of the omcers and directors of said American Railway Union, ore1ther of them, or these defenda.v.ts. .i; , . They tbatobstructions of the business of the. railroad companies, ori:elther of ,them, by the so-called "strike," was occasioned solely by the [.rea, voluntar,y, peaceable action of the of said railway companies in mJJtUP., the service thereof, for the purpose of protecting themselves and thf:lllr, rights and interests, and tor their own purposes, and to BljCure thelrQwn ,ends, without any orders, directions, control, counsel, or asslstanee these defendants, or either of them. And they allege, on informationaJ),{J.beUef, that the railway companies, and each of them, in pursuanCf:) of said conspiracy, and for the purpose of maintaining the said Pullman Palace-Car : Company in its dispute· With its said and for the purpose. of overcoming the resistance of their to the acts threatened and contemplated by them. as aforesaid, and to bring down upon said the penalties. of law, and endeavor to invoke against the emthe action of the courts of the United States, did, by their efforts, contribute to the hindering and impeding of said transportation of mails and iDterstate commerce; and that said railway companies could, had they been So 4lsposed, have fully performed their duties, under the laws of the United States, in that regard. They allege that they and each of them have uniformly and consistently and at all times in said petition mentioned, by speech and writing, advised .a great number of said American Railway Union Il}embers, and all persons acting with them, to use only peaceable and, lawful methods, and to refrain from any force or violence conduct whatever, and from any Violation of the laws of the United States Qr any of the states thereof, or any order of the courts to them di/.'ected. . Defendants admit the proceedings in the nature ot contempt had In this court against Eugene V. Debs, George W. Howard, Sylvester KeUher, and L. W. Rogers,and admlttl;lat In said information against such persons it was charged that they had caused to be sent certain telegrams, and that, In their answers, they deny. the sending of all said telegrams except a certain one dated . July 6, 1894. They deny that any or all of the telegrams set out in said information were sent, or caused to be sent, by the omcers and directors. ot said American Railway Union except as hereinafter admitted, or that any other telegrams In relation to said strike were sent except as hereinafter admitted, and deny t.lJ.at any telegrams were sent by said officers and directors, or either of them, in pursuance ot any combination or conspiracy, or to accomplish the purposes thereof. They deny that there was any specific division among the omcers and directors ot the American Railway Union of the business and duties of the organization or the labors occasioned by their relation to the cessation of labor or strike hereInbefore mentioned, but allege that, in respect to said work, each of said omcers and, directors performed generally the work and things coming under his notice, and seeming to him fit and proper to be done. They deny that said work was divided in the manner alleged in said Information or otherwise, or any ot said omcers or directors had charge of the alleged divisions of work stated in said information, or any such divisions or departments of work. They allege that, in the actual practice of work, some tacit and occasional division actually occurred, but that the same was in nowise formally or generally observed; and,that each and every one of said omcers and dlrectoal acted for himself, upon his own judgment and respon-
UNITED STATES tl. DEBt!.
737
sibility, except where, by conference upon a given subject, a course was determined upon; and that each one of said officers and directors was responsible solely for the specific acts by him done, and not otherwise. They allege that each and all the acts done by said officers and directors and by these defendants, and each of them, were so done in pursuance of the authority conferred upon them by the members of said American Railway Union as the same is hereinbefore alleged, and not otherwise. Defendants deny that, in pursuance of any arrangement or agreement or otherwise, the defendant Rogers was to have charge of the editing or publishing of the so-called "Railway Times"; or that said Rogers caused said paper to be published in the said city of Chicago, as alleged, or otherwise; or that, by said newspaper or otherwise, said directors, or either of them, have counseled, encouraged; directed, or advised the members of said American Railway Union, or any other person or persons, or class of persons, to disregard the order and writ of injunction of this court, or any order or writ of any court, or to disregard the orders and directions of the persons operating any railway at any time. They admit and allege that the telegrams set forth in said information were sent by the defendant James Hogan; and allege that the same were sent by him for the purpose and with the intent of peacefully and lawfully counseling and advising men who had, by reason of the grievances done or threatened to them, and by reason of the unlawful conspiracy of said railway companies and said Pullman Palace-Car Company, hereinbefore set forth, peaceably, lawfully, and voluntarily quit the service of said railway companies; and allege th.at said telegrams, and all of them, had no other relation to or effect upon said strike, or any of the matters incident to or growing out of the same, than might well result from the lawtul and peaceful counsel to the members of the said American Railway Union as to such of their own personal rights and interests as were involved in said controversy. The said defendants each for himself denies that he intended in any way, in any act or thing by him done, to violate the injunction of this court, or to act in defiance or contempt of its authority. And the said defendants each for himself does plead to said information that he is not guilty of any of either or all of the acts therein charged, or of any contempt of the authority of this court in the premises. The petition of the receivers shows their appointment in December, 1893; that, by the order appointing them, all persons were forbidden to interfere with their possession and management; that the road extends through a number of states, and is an important line of commerce, using Pullman sleepers under contract; that on the 22d of June, 1894, the defendants, being officers of the American Railway Union, entered into a conspiracy to boycott Pullman cars, and, upon the refusal of the receivers to submit to their dictation, proceeded to employ substantially the same modes of interference as are charged in the information presented in the other case in the name of the United States. In addition to the order made when the receivers were appointed, it is also shown that on June 29, 1894, this court issued an additional order, for the protection of the receivers in the management of the property, whereby "all persons were enjoined and restrained from interfering in any manner with trains, cars, switches. or other property, and from interfering, by intimidation, threats, violence, or in any other manner, with the of said receivers in the performance of their duties"; that this order was published in the evening papers of Chicago on June 29th, and in morning papers of the 30th; and that on July 2d an injunction was issued, upon the petition 01' the United States, enjoining the defendants, and others in conspiracy with them, from interfering with the railroads named, including the Atchison, Topeka & Santa that, notwithstanding these orders and injunctions, the defendants persisted in "their illegal acts and doings, Without change or abatement," etc. The defendants Debs, Howard, Keliher, and Rogers, who only, in the first instance, were named in this information, filed an answer, differing in no respect which need be pointed out from their answer in the other case. The names of Hogan, Burns, Goodwin, McVean, and Elliott were afterwards
v.64F.no.6-47
738
PEDER4J. REPORTER"vol.
64.
insertedfn"thEdnforntation, ,by leave of court; andU was agreed that tbey should ·ha",e!,tbe· fbeJ1etltof the answer already filed by· Debs and others as if it were'their: own. The tWl) cases were heard at the same time, upon an agreement that, they should :be considered to be separate hearings, but, that any e:vidence.tntroducedlneither case might be, considered in the other. if relevant.
T. E. MUchrist, U. S. Atty., for the United States. E. JohnS. Miller, for receivers. W. W. Darrow, and S. ()-regory, .for defendants. The attof11ey", ,for' the rece.ivers presented the following propositions and citations of authoclties: , Any With propartY ·In the custody of the court 'is a contempt Richards v. Ill. 551; Noev. Gibson, 7 Paige, 513; In re Sowles, 41 Fed. 752: '.· SUCh, also, Is any act of interference by. force or threats with In Chll.l'geof such property. Secor v. Toledo, P. & W. R. Co., 7 BIss.518, Fed. OaEI.No. 12,605; KIng v. OhIo & M. R: Co., 7 Biss. 529, Fed. Cas: No. 7,8OOj Illle Wabash R.Co., 24 Fed. 217; In re Higgins, 27 Fed. 443; Inre Doollttle,:23 Fed. 544; U. S. v. Kane, Id.748. See, also, In re OhIles, 22' v. SeWing Mach. Co., 9 Fed. 698; Sherry Vo PerkIns, 147 Mass. 219, 17 N. E. 307. Where the court has jurisdiction of the person; a. dIsobedience of. the court's order is contempt, though comnUtted III another dIstrict. McCaulay v. Sewing, iMach. Co., supra; Willia'ms v. Hlnte1lIlleister, 26 Fed. 889, 890. Aiding, advisIng, or persuading another to doa forbidden act, or even permitting another whose action can. be controlled: to do the forbidden act, is contempt. Societe Anonyme dela Distillerlede la LIqueur Benedictine de l'Abbayede Fecamp v. Western Uistllling Co., 42 Fed. 96; . Blood v. Martin, 21 Ga. 127; Neale v. OsbOrne, 14 How. Pro 81; Wheeler v. Gilsey, 35 How. Pro 139; Stimpson v. Putnam, 41 Vt. 238; Poertner V. Russell, 33 WIs. 193;
WOODS, Circuit Judge,after malting the foregoing statement: If the case presented were itself of less moment, the very great importance of some of theqnestions involved could not be over· study of them I have devoted more time than looked. To could well be'.:i!!pared from other duties. It is due to counsel to say that the of the court, protracted and painstaking as it has been, has been greatly by the contributions of learning and whi(lll ,tpey brought.to the discussion. While the principles not new, in the question of the validity of the injunction which ,the defendants are charged with violating there are involved inquiries which in .somerespects go beyond the lines of tablished orpp,questioned precedent. , .A prelimm.!ilrwquestion.in the case was whether or not, upon the fUing of theirauswers, the defendants were entitled to be discharged Without 'an. ,inquiry into .. the facts. The authorities ,. seem to be agreed, 'ah,\:l':.i\¢c(\rdingly the court ruled, District Judge Grosscup participating.J;o. the, decision, that,. in a proceeding for contempt in equity,.a sWol'D.Janswer, however full and unequivocal,is not conclusive. King v. The 2 Doug. 516; Underwood's Case, 2 Humph. 48, 49; Rutherford v.. Metcalf; 5. Hayw. (Tenn.) 58, 61, 62; 4 :N.J. Eq. 433,434; State v. Harper's Ferry Magennis V. Boat Co., 16 W. Va. 864,873; Crook v. People, 16 534, 537; Buck
m.
UNITED STATES V.DEBS;
739
v. Buck,60 m. 105,106; Welch v. People, 30 nl. App. 399, 409; Yates' Case (Kent, Oh. J.) 4 Johns. 317, 373; McCredie v. Senior, 4 Paige, 378, 381, 382; Bank v. Schermerhorn, 9 Paige, 372, 375; U. S. v. Anon., 21 Fed. 761, 768; The objection raised by demurrer that the injunction was illegal and void was overruled at the time of presentation, but with leave for further argument at the final hearing upon the evidence. A .great body of evidence, consisting of the testimony of witnesses, telegrams, and other documents, has been adduced to show the guilt of the accused. The defendants, claiming the constitutional privilege against self-incrimination, refused to testify at the instance of the prosecution, and have offered no evidence in their own behalf, excepting parts of certain documents which were allowed to be read in connection with other parts offered by the prosecution. Besides denying that any violation of the injunction has been proved against them, the defendants now reassert and insist that the in.junction is invalid, on the two grounds that the court had no jurisdiction to hear and the case in which the injunction was ordered, and that, though possessed of such jurisdiction, the court lacked organic power to make the particular order in question. Reference is made to Ex parte Fisk, 113 U. S. 713, 718, 719, 5 Sup. Ct. 724; In re Sawyer, 124 U. S. 200, 220-222, 8 Sup. Ct. 482; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77; Windsor v. McVeigh, 93 U. S. 274, 282, 283; Kerfoot v. People, 51 m. App. 409. If the injunction was, for any reason, totally invalid, no violation or disregard of it could constitute a punishable contempt; but if the court acquired jurisdiction, and did not exceed its powers in the particular case, no irregularity or error in the procedure or in the order itself could justify disobedience of the writ. Elliott v. Peirsol, 1 Pet. 340; Ex parte Watkins, 3 Pet. 193; In re Coy, 127 U. S. 731, 8 Sup. Ct. 1263. The considerations of public policy on which this rule rests are too plain and well understood to need restatement. Was the case one of which the court had jurisdiction? No question is made, or could be made in a proceeding for contempt, of the sufficiency of the petition for the injunction in respect to matters of form and averment merely. In Coy's Case, supra, the court said: "In all such cases, when the question of jurisdiction is raised, the point to be decided is whether the court has jurisdiction of that class of offenses. It the statute has invested the court which tried the prisoner with jurisdiction to punish a well-defined ciass of offenses,-as forgery of its bonds, or perjury in its courts,-its judgment as to what acts were necessary under these statutes to constitute the crime is not reviewable on a writ of habeas corpus."
The question here, therefore, is whether the case presented by the petition was of a class which in a federal court admits of the remedy by injunction. Without going into the details of averment, the charge made against the defendants was that they were engaged in a conspiracy to hinder and interrupt interstate commerce and the carriage of the mails upon the railroads centering in Chicago, by means and in a manner to constitute, within the recognized definitions, a public nuisance. A nuisance is "anything that unlawfully work-
740
J'EJ>)mAL REPORTER,
eth hurt" or damage." 3 Bl. Comm. 216. itA public nuiaance is such an inconvenience or troublesOl;ne offense .tlie.. 'whole community inrgeneral, and ,not merely some particular person." Id. 166. As defined in Wood on Nuisances (page 38)" ";:l.puplic nuisance is a. violation of a public right, either upon public rights or property, or by by a doing sOIQe'.act which tends to a common injury, or by omitting to do somea,ct which the common gPQd requires, and which it is the duty of a to the omission to do which, results injp.riously to the public." " rA. form of public nuisance of which coghasbeell taken by the courts of equity in England and in count.l1 is,called "purpresture," Which is defined to be "an enlands, or rights and easements incident thereto, belonging to, the pllblic, aJ}d to which the public have a right of fJ,cceSS or of. ellj9YJnent,and encroachment upon navigable streams." "The remedy for a purpresture, simply, is by information in equity at the suit of theati;orney general or other proper, officer." Wood, Nl,lis. pp. 107, 117; Peopley. Vanderbilt, 28 N. Y. 396; New Orleans v. U. S., 10 J:>et.., 662; Attotlley General v. Forbes, 2 Mylne & C. 123. m Kerr on Injunctions (page 395) it is s,aid: . ''There is a wide dilference' between a purpresture and a nuisance. Al· though they may >coexlst, either may exist without the other. If the act complained of be a purpresture, it may be restrained at the limit of the attorney genei"lU,whether it be &' nuisance or not. Being an encroachment on the solI of the ,sovereign,l1ketrespass on the soil of an individual, it will support an aetlj)lllrrespectlv:e of any damage which may accrue. But, to constitute & public. nuisance, damage to the public right of navigation or other public right, must be shown to exist. It the act complained of be a mere purpresttire; Without being at the same tfme a nuisance, the court will usually direct an. InqUiry to be made whether it will be more beneficial to the crown to abateitbe purpresture or to suffer the erection to remain and be l!JTested; but,. it ·the purpresture be also a public nUisance, this oannot be done, for the <:t'own cannot sanction & public nuisance."
Accordingly, it is contended, and numerous decisions and texts are cited to shoW, that" "equity had jurisdiction to restrain publio Iluisances 'qpon. bill· or information filed by the attorney general on l:lehalf of th,e: Righ, Inj. §§ 745, 759, 764, 1570; Porn. Eq. Jur. § 1349; ,Wood, Nuis.p. 124; Story, Eq. Jur. §§ 921-924; 1 Daniell, Ch.Er.], 8; Mitf. Eq. PI. 104, 117, 196; Attorney General v. ,Johnson, 2Wils. Ch.81'; Attorney General v. Forbes, 2 Mylne & C. 123; Attorney General v. Terry, 9 Cli. App. 423; Attorney General v. Bi,J1ningham, 4 Kay & J. 528; People v. Miner, 2 Lans. 396; People v.lrerry Co., 68 N. Y. 71; Davis v. Mayor, etc., 14 N. Y. 526; People v. Vanderbilt, 28 N. Y. 396; Id., 26 N. Y. 287; Attorney General v,. ,IJ:unter, 1 Dev. Eq. 12. I quote passages, some of upon the principal question of jurisdiction, will be found to be determinative of other questions which have cOme undeldis.cussion. . Story says: Section 921: "In regard to pUblic nuisances, the jurisdiction of courts of eqUity seems to be of a very ancient date. ... ... ... The jurisdiction is applicable, not only to 'publlonulsances,' strictly so called, but also to pur.prestures upon public rights and property. ... ... ... In its common accep.tation it [purpresture] is now understood to mean an encroachment upon the
741
king, either upon part of hIs demesne lands, or upon rights and held by the crown of the public, such as open highways, public rivers, forts, streets, etc., and other public accommodations." Oity of New Orleans v. U. S., 10 Pet. 662; Mohawk Bridge 00. v. Utica & S. R. 00., 6 Paige, 554; Attorney General v. Oohoes Bridge 00., 6 Paige, 13H. Section 923: "In cases of 'public nuisances,' properly so called, an indictmellt lies to abate them, and to punish the offenders; but an information also lies In equity to redress the grievance by way of Injunction. The instances of the interposition of the court, however, are, it is said, rare, and principally confined to informations seeking preventive relief. Thus, Informations in equity have been malntained against a public nuisance by stopping a highway." Section 924: "The ground of this jurisdiction of courts of equity in cases of purpresture,. as well as of pUblic nuisances, undoubtediy Is their ablIlty to give a more complete and perfect remedy than is attainable at law, in order to prevent irrreparable mischief, and also to suppress oppressive and vexatious litigations. In the first place, they can interpose, where the courts of law cannot, to restrain and prevent such nuisances which are threatened or are in progress, as well as to abate those already existing. In the next place, by a perpetual injunction, the remedy Is made complete through all future time."
So Pomeroy, in section 1349, says: "A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction, at the suit of the attorney general, in England, and at the suit of the state, or the people, or municipality, or some proper officer representing the commonwealth, in this country." Attorney General v. Eau Claire, 37 Wis. 400; State v. Eau Claire, 40 Wis. 533; Rochester v. Erickson, 46 Barb. 92; Pennsylvania v. Wheeling, etc., Bridge 00., 13 How. 518.
Wood (volume 1, p. 124) says: "While, at the close of the Revolution, the people of each state, in thell' sovereign capacity, acquired the absolute right to all navigable waters and the soil under them, yet where the state has permitted a use of navigable waters connecting the two states that interferes with navigation, the general government, under the power given it by the constitution to regulate commerce between the states, may exercise jurisdiction over the waters, and procure an· abatement of such obstructions." Insurance 00. v. Ourtenius, 6 McLean, 209, Fed. Cas. No. 3,045.
High says: Section 1554: "When the right involved Is purely of a public nature, and the grievance which it is sought to enjoin is one which affects the public at large, the proceeding Is usually instituted, both In Englana and in this country, by the attorney general in behalf of the people, sometimes proceeding in his own name or that of the people absolutely, and sometimes upon the relation of a citizen; and In actions to enjoin the erection or continuance of public nuisances this course is generally pursued." State v. Dayton & S. E. R. Co" 36 Ohio St. 434; People v. Vanderbilt, 28 N. Y. 396. Section 764: "When procee<iings are had to enjoin a public nuisance, such as the pollution of a river by a board of municipal officers in violation of an act of parliament under which they are acting, a distinction Is drawn, as to the necessity of proving an actual injury, between the case of an informlV tion filed by the attorney general in behalf of the public and a bill filed by private citizens in their own behalf; and in the former case it is beld to be unnecessary for the attorney general to establish any actual Injury, the statute having prohibited the act complained of." Section 745: "It is, however, to be observed that the fact that the commission of the threatened act, which it is sought to enjoin as a nuisance, may be punished criminally as such, will not prevent the exercise of the restraining power of equity." People v. St. Louis, 5 Gilman, H51; Attorney General Y. Hunter, 1 Dey. Eq. 12; Gilbert Y. Canal, etc., Co., 8 N. J. Eq. 495.
Ed.) p. 1636, it t. called, an indict· theiji, land to' :the oftender; but an informationw'ill also lie in equity to. stop the mischief; and to restrainthe it"; and amoliigthe cases cited in support <If the 16 yes. 338; Attorney (leneral v. ,2 Mylp.e, .& C. 123: Atto.,rne. Oonsumers',GasOo., L. R.;6. Eq. 282; Bunnell's Appeal, 69 Pa. St. 59. See;l!dso j Oraig.v. 'People, 47 Ilk 487; Attorney General v. Railroad Wis. 527; Attorney General v. City of Ean Claire, 37; '"I';is.JQO., . ... . .' '...... .' The of,4neUnited States has spoken on thesnbject. In, the ease of Mayor' of Georgetown v. Alexandria Oanal Co., 12 an injnnction was songhtagainst ob· river, the court said: . '.
0t
"Besides Jaw, ,tt i8 now settled that a court of equity may take jW1sdiction, in cases of public nuisance, by an information flIed by the attorney general. This jurisdiction seems to have been acted on with caution and hesitancy. Thus, it is sald,by tl1ecbancellor, In 18 Yes; 217, that the instancesoLthe.lnterpqsitipn of the. CQurt were and rare., He referred, lUI tp on subject, to What had been done in the court of, the discussion or the tight Of the attorney ,sPecies of information, to seek, on the equitable side of the general, by court, relief as tonuisance"an'd rellef. Chancellor Kent, in Attorney Gelle;ral y... Co., 2 J<,>hllS.Ch. 382, remarks that the equity jurisdictiOn'ln cases ot public nuisance, in the only cases in Which it had been exercised (that is, in cases of encroachment on the king's soil), had lain dor· mant for a century and a halt (that is, from Charles :Ldown to the year 1795). Yet tbe.. j¢isdic1;ion has been finally sustained upon the principle that equi1:ycan glve more a4:equate and complete rellef than can be obtafned at 11l.w.WhUe, therefore,it is admitted by aU that it is confessedly one of delicacy, aDd accordingly the instances where it ,.is exercised are rare, yet it may be e#tcised ill t)lose. cases in 'Yhich' there is eminent danger· or irreparable ¥ol'e.p.te tal"diness.Of the ,law can reach It."
See, also, the opinion ill :Pennsylvania v. Wheeling, etc., Bridge 00., 13 How. 518, where a bridge across the Ohio river was held to be a publio nuisance, and ordered abated, at the suit of the state of ,Pennsylvania.. .But while this jurisdiction of the English courts of chancery and of the equity several states of the Union is not understood to be displltedJ)y,counsel for the defend:;mts, they do insist that, in the by congress conferring the authority, the federal co:ttrtscan do nothing for the protection of the highways of 'commerce, whether upon land or water. They .cite the from the opinion in Parkersburg . &: <;>. R. Transp. Co. v"City of Parkersburg, 107 U. S. 691,2 Sup. ct. 732, in which Pennsylvania v. Wheeling, etc., Bridge 00., it maybe observed, is declared' wbe "a pecnliar case": , "Now, wharves, levees,'8.nd landing places. are e.ssentlal to commerce by water, no less than a 'navigable channel and a c\ear river. But they are attached to the land; lU'e private propertY,-real estate; and they are, primarily at least, subjeCt to the local state laws. Congress has never yet interfered to supervise their ll.dministration; it has hitherto left this exclusively to the 8tates.There 'is little doubt, however, that congress. it ill
UNITED STATES ,. DEBS.
748
saw fit, In cases of prevailing abuses In the management ot wharf property,-abuses materially Interfering with the prosecution ot commerce,might Interpose and make regulations to prevent such abuses. When It shall have done so It will be time enough for the courts to carry its regula. tions into effect by judicial proceedings properly: lIistltuted; bUt, until con· gress has acted, the courts of the United States cannot assume control over the subject as a matter of federal cognizance. It Is congress, and not the jUdicial department, to which the constitution has given the power to regulate commerce with foreign nations and among the several states. The courts can never take the iJiltiative on this subject."
And from Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. following:
at. 811, the
"'rhe power of congress to pass laws for the regulation of the naviglltioD of public rivers, and to prevent any and all obstructions therein, Is not qU65tioned; but, until It does pass some such law, there Is no common law of the United States which prohibits obstructions and nuisances in navigable rivers, unless it be the maritime law, admintstered by the courts of admiralty and maritime jurisdiction. No precedent, however, exists for the enforcement of any such law; and, If such law could be enforced (a point which we do not undertake to decide), It would not avail to sustain the bill in equity filed in the original case. There must be a direct statute of the United States In order to bring within the scope of Its laws, as administered by the courts of law and'equlty, obstructions and nuisances In navigable streams within the states. Such obstructions and nuisances are offenses against the laws of the .states within which the navigable waters lie, and may be indicted or prohibited as such; but they are not offenses against United States laws which do not eXist, and none such exist except what arB to be found on the statute book."
Accordingly, notwithstanding the provision, in the "Act for the admission of Oregon into the Union" that "all the navigable waters of said state shall be common highways and forever free," it was held in that case that the bridge which it was sought to remove was not an offense against the United States, in the absence of direct legislation obstructions and nuisances in navigable streams within the scope of national law. In reply to this position of the defense, reference is made to the "Act to regulate commerce," as amended by the act of March 2, 1889 (25 Stat. 855); and it is contended that by force of the provisions of that statute, passed in exercise of the power conferred on congress by the constitution "to regulate commerce among the several states," the national control has been extended over the channels and agencies of interstate commerce, including railways as well as navigable waters, and that out of this legislation, whatever had been the rule before, has arisen by necessary implication the jurisdiction of the federal courts, in accordance ",ith the principles of equity, to protect that commerce against interference or obstruction. The right of the federal government to obtain the injunction is also asserted upon the ground of property right in the mails. That the nation owns the mail bags is of course beyond dispute, and that it pays large sums annually for the carrying of the mails npon the railroads is well understood. In Searight v. Stokes, 3 How. 151, where the question was whether vehicles carrying the mails were "laden with the property of the United States," and thereiore exempt from toll on the Cumberland road, in Pennsylvania, the supreme court said:
744.'
FEDERA.L REPORTER,
UnltecpStates havll unquestionably a property in the mails. They are.,notr.merec6m:Qloncarriers, but a government, performIng a high official dUtYjlWtioldtng, ,and guardIng its own property as well as that of its citizenllcommltteci,.to, Its care;' for avery large portion Of. the letters and packages cOD,veyeq,on thtsroa,d, especially during the sessiolls of congress, consists :of'communications to or from the officers of the executive department, or members ,'Of the. legislature, on pUblic service or in relation to matters of public concern.!'
It is said, 011' the contrary, to be easy "to show that, at common law, the chancery on information of the attorney general to restl'nma: purpresture or nuisance rests on the idea that the king owns tb.eland whereon it exists." It is doubtless true that, in the the jurisdiction was invoked, the king was the owner of because the land under navigable waters in England has always belonged to thecl'Own; but the object of the suits has always been, not to vindicate the title to the land, which could haye been done by theactiQn of ejectment, but. to prevent or remove obl!ltructions to navigation, which required the prompt and efficient methods of equity; and it is not to be believed that if in England, as along the fresh-water rivers of this country, the title of lands under the water had belonged to the riparian owners, the same jurisdiction would not have been exercised for the protection of the public right of navigation. The public interest is concerned in the unobstructed use of the water, and it is sticking in the mud to say that the right to protect that use is dependent upon the ownership of the underlying soil. If, however, the jurisdiction in such cases' must be held to rest upon some legal title or property right, which by flctionshall be deemed to be worthy of equitable protection,or to afford a basis of jurisdiction for protecting incidental rights, it would seem that the property which the government has been declared to have in the mails and its unquestioned ownership of mail bags might well be deemed sufficient for the purpose. Justice Brewer said in U. S. v. W.U. Tel. Co., 50 Fed. 28, 42: "The dollar is not always the test of real interest. It may properly be sacrificed if anything of higher value be thereby attained." "Rut," say counsel, "this whole subject is utterly foreign to the question in this case. * * * Waterways are not railways. They are free to all comers, and are not the subject of private ownership nor control, but only of municipal regulation by public authority. Lake Front Case, 146 U. S. 387, 13 Sup. Ct. 110. The control of the railway is primarily with the company that owns and operates it. These great interests are entirely able to cope with any interference with their property. If they be held, in a high sense, as trustees for the pUblic, why should equity entertain a suit by the beneficiaries of this trust until the trustees have proved recreant? These companies own the land over. which their lines run, or a right of way in perpetuity, and, though charged with public duties, are still private pecuniary corporations operated for gain. As to all local matters, viz. the speed of trains, stopping at crossings, elevation of tracks, and things of that character, they are subject to local or state regulation. This could not be were the power of congress exclusive as in the matter of interstate rates. Wabash) etc.) By.
UNITED STATES .,. DEBS.
745
Co. v. People of TIlinois, 118 U. S. 557, 7 Sup. Ct. 4." It is, of course, true that waterways are not railways; that the latter and the title to the land under them are owned and controlled, under legal limitations, by companies which operate them for gain; but so are the boats which ply the rivers and lakes of the country; and I see no reason in any of the suggestions advanced for saying that the oourts may give to commerce on the rivers a protection which they may not extend to commerCe on the railways. The railroad companies are clothed with the power of eminent domain, to enable them to acquire lands necessary for their purposes, because the proposed use is for the public benefit. To the extent of the share which the companies have in interstate commerce they hold their lands and rights of way for the benefit of the general public and subject to the national control. "For this purpose," to use the expression of the supreme court in Gilman v. Philadelphia, 3 Wall. 713, in respect of navigable waters, "they are the publio property of the nation, and subject to all the requisite legislation of congress." But while the reasons to justify, on the grounds considered, the issuing of the injunction for the purpose of protecting, against obstruction or interruption, either the mails alone or interstate commerce, of which the carrying of the mails is a part, are strong, and perhaps ought to be accepted as convincing, there seems to be no precedent for so holding, and the responsibility of making a precedent need not now be assumed. While, however, the point is not decided, the authol'ities on the subject have been brought forward so fully because, in part, their bearing upon the question now to be considered,-whether or not the injunction was authorized by the act of July 2, 1890. It was under that act that the order was asked and was granted; but it has been seriously questioned in this proceeding, as well as by an eminent judge and by lawyers elsewhere, whether the statute is 1>-y its terms applicable, or consistently with constitutional guaranties can be applied, to cases like this. It is admitted in one of the briefs for the defendants, and the authorities already quoted clearly demonstrate, "that were congress to declare that the United States might maintain a bill to enjoin the obstruction of interstate commerce on railroads engaged therein, where such obstructions amounted to What, on a public highway, would be a public nuisance, such legislation would be admissible." Such an act, not going beyond the scope of equity jurisdiction in England at the time when the federal constitution was adopted, it is plain would not be obnoxious to the objection that it was an invasion of the field of criminal law which involved interference with the right of trial by jury. The jurisdiction of the courts of equity, and by implication their right to punish for contempt, are established by the constitution, equally with the right of trial by jury; and so long as there is no attempt to extend jurisdiction over subjects not properly cognizable in equity, there can be no ground for the assertion that the right of jury trial has been taken away or impaired. The same act may constitute a contempt and a crime. But the contempt is one thing, the crime another; and the punishment for one is not a dupli·
,746
I'EBER.A.LREPORTER,
cation of the punishment of the other. The contempt can be tried aridpilnished ()nly by the court, while the charge of crime can be tried only by a jury. The first and fourth sections of the act of July 2, 1890 (2G stat. read as follows: Section :1: "Every contract, 'combination In the form of trust, or otherwise, or cOllspltacy. in re.straint of trade or commerce among the several states, or withforeJgn nations, is hereby declared to be illegal. Every person who sball make', any, such contractor engage in auy such combination or conspiracy, .shall be deemed, guilty ofaxnlsdemeanor, and, OLl conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year; or by both said punishments, in the discretion of the C01Wt." , Section 4:., "Tile several ch:cult courts of the United States are llereby Int()prevent and restrain violations of this act; and vested it shall 'be the d,uty of the several district attorneys of the United States, in their resp!!ctive districts, under the direction Of the attorney general, to institute proceediIlgs in equity to prevent and restraillsuch violatiouH, Such proceedings may be by Way 9t petition setting forth the cause and praying that such, vi,olatlon sllallbe enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall' proeeed, as soon as ,may .be, to the hearing and determination of the case; and pending such petition and before final decree, the court may at any ti,¥e II1al\e such temporary restraining oj.'der or prohibition. as shall be deemed' just. in the premlses,it '. '.
construction or interpretation of these, except the sixth, to which reference will be further along. The position of the defendapts in respecttQ this statute, as stated in one of the briefs, is that it "is directed at capital," "at dangers very generally supposed to result from vast aggregations of capital;" that "the evil aitned at is one of a contractual character, and not of force and violence." In another briefit is said more definitely: "That, sections '1 and 6 being construed together, it Is apparent that the statute is aIJned at monopoly of trade or commerce by which trade should be engrossed, llJld in and by which property should be employed and secured, but that, even should .this contention be denied, still the statute does not confer a right on the gOvernment to proceed. under the direction of the attorney general to abate ia public nuisance existing in a highway of inter"tate commerce, but generally, by section 4, to prevent and restrain, by \njunction, violations of .a penal statute. It is thought, therefore, that, as aeld by Judge Putnam ill U. S. v. Patterson, 55 Fed. 605, this act is inapplicable; but, if it is, it is unconstitutional as an attempt to enforce a penal statute in equity, ana not a justifiable authority for a proceeding familiar to equitY,and, under congressional authol'ity, admissible in the federal couMs in the name of the government."
It is not contended that other seetions bear materially upon the
The very elaborate arguments presented in support of these propositions are the same, in the main, as were made and reported at length in the case referred to (U. S. v. Patterson), and therefore need not be restated. Reference was made in that case, and has been made in this, tothe debates in congress while the measure was under consideration in that body; and, though it is conceded that we cannot take the views or purposes expressed in debate as supplying the construction of statutes, it is said we may gather from the debates in from any other sonrce,"the history of the evil which the legislation was intended to' l'emedy." Doubtless, that is often
UNITED STA-TES V. DEBS.
747
true; and in this instance'it is perhapsapparentthattheoriginalmeas· ure, as proposed in the senate, "was directed wholly against trusts, and not at organizations oflabor in any form." Butit also appears that before the bill left the senate its title had been and mate· rial additions made to the text; and it is worthy of note that a proviso to the effect that the act should not be construed to apply "to any arrangements, agreements or combinations made between laborers with a view of lessening hours of labor or of increasing their wages, nor to any arrangements, agreements or combinations among persons engaged in horticulture or agriculture made with the view of enhancing the price of ,agricultural or horticultural prodnets," was not adopted. Such an amendment, doubtless, was not necessary in order to exclude agreements and arrangements of the kind mentioned; but the offering of the proposition shows that the possible application of the statute to cases not in the nature of trusts or monopolies,and in which workmen or farmers should be con. cerned, was not overlooked. But it is more significant that, upon the introduction of the bill into the house, the chairman of the judiciary committee, as reported in the Congressional Record (volume 21, pt. 5, p. 40$9), made the following statement: "Now. just what contracts, what combinations in the form of trusts, or what consplracieswlll be in restraint of trade or commerce, mentioned In the bill, will not be known until the courts have construed and interpreted this provision." , "
It is therefore the privilege and duty of the court, uncontrolled by of considerations drawn from other sources, to find the the statute in the terms of its provisions, interpreted by the settled rules of construction. That the original design to suppress trusts and monopolies created by contract or combination in the form of trust,which of course would be of a "contractual character," was adhered to, is clear; but it is equally clear that a further and more comprehensive purpose came to be entertained, and was embodied in the final form, of the enactment. Combinations are condemned, not only when they take the form of trusts, but in whatever form found, if they be in restraint of trade. That is the effect of the words "or otherwise." It may be that those words should be deemed to include oDly forms of like character,-that is to say, some form of contract as distinguished from tort; but, if that be so, it only em· phasizes, and makes imperative the inference, which otherwise it seems to me would be sufficiently clear, that the word "conspiracy" should be interpreted independently of the preceding words. It Is hardly to be believed that the words "or otherwise" were used simply for the purpose of giving fuller scope to the antecedent words ('contract" and "combination," and then "conspiracy" added merely for the same purpose. Construed literally, the terms used in the body of this act fOTbid all contracts or combinations in restraint of trade or commerce; but that construction is controlled by the title, which shows that only unlawful restraints were intend· ed. But what C()nstitutes an uDlawful restraint is not definedjand, under the familiar rule that such federal enactments will be interPreted by tbelight of the common law,I have no doubt but that thia
,
I
statute, mso laras it is direeted against contracts or eom'6inatlons in tllecformoftrllsts, or in any form of a ",contractual character," should be limited to contracts and combinations such, in their general characteristics, as the courts have declared unlawful. But to put any such limitation upon the word "conspiracy" is neit'her necessary, nor, as I think, permissible. To do so would deprive the word, as here used, of all significance. It is a word whose meaning is quiteas well established in the law as the meaning of the phrase "in restraint of trade," when used....-as. commonly, if not universally, that phrase has been used-in reference to contracts. A conspiracy, to' be sure, consists in an agreement to do IilOIIlething; but in the sense of the law, and therefore in the sense of this statute, it must be an agreement between two or more to do, by concerted action, something criminal or. unlawful, Of, it may be, to do something lawful by criminal or unlaw.ful means. A conspiracy, therefore, is in itself unlawful, and, in so far astbis statute is' directed against conspiracies in restraint of trade among. the several stateS; it is not necessary to look for the illegality of the offense in the kind of restraint proposed; and, since it would be unileeessary, it would be illogical, to conclude that only conspiracies which are founded upon, or are intended to be accomplished by mea.I.\lil of, contracts or combinations in restraint of trade, are within the purnew of the act. It would be to make tautologous words which have distinctly different meanings, and to deprive the statute, in a large measure, of its just and needful scope. Any proposed restraint of trade, though it be in itself innocent, if it is to be accomplished by conspiracy, is unlawful. A distinction has been suggested between the phrase "in restraint of trade" and the phrases "to injure trade" .and "to restrain trade." Though perceptible, the distinction does pot seem to me IilO significant that the use of one expression rather than the other should vary the interpretation of this statute. Any contract, combination, or conspiracy, to be ''in restraint of trade," must involve the use of means of which the effect is "to injure" or 'Ito restrain" trade. A contract, combination, or conspiracy in restraint of trade is therefore a contract, combination, or conspiracy to restrain 01' to injure trade. It would not, I suppose, be enough, in an indictment, to charge conspiracy in restraint of trade in the lauguage of the statute, but it would be necessary, unless the proposed restraint be shown to be in itself unlawful, to allege .the illegal means intended to be used in order to effect the restraint; and whether the means should be averred to have been used "in reo straint of" or. restraiu" trade could· hardly be impOrtant. There are many cases" 'doubtless, in which the rule that every word of a statute should be given effect is'inapplicable, because, when synonymous words· are used, the! court is powerless to give them different meanings; but, when words of different significanee are employed, the .rule forbids that the scope of the statute be compressed within the .limits of· the narrower word. "Drinking house" and "tippling house" are necessarily one, and it was well held in Reg. v. McCulley, 2 Moody, Or. Gas. 34, that "ram, ewe, sheep, and, were all covered by the' word but,.if the words had "ram, ewe, OJ.!. sheep'" it wou.ld have been a plain violation of to reject . I
UNITED STATES fl. DEBS.
'149
the comprehensive word "sheep,"and say that lambs or wethers were not included. Rice v. Railroad Co., 1 Black, 379; Gelpcke v. City of Dubuque, 1 Wail. 220; Fau v. Marsteller, 2 Cranch, 10; Adams v. Woods, Id. 337; U. v. Coombs, 12 Pet. 72; Maillard v. Lawrence, 16 How. 251; Market Co. v. Hoffman, 101 U. S. 115; Thornley v. U. S., 113 U. S. 313, 5 Sup. Ct 491. And it is no more legitimate here to reject the word "conspiracy," or, what is practically the same thing, strip it of its well-settled criminal significance by confining it within forms of contract or of combinations in the form of trusts. For like reasons I am unable to regard the word "commerce," in this statute, as synonymous with "trade," as used in the common-law phrase "restraint of trade." In its general sense, trade comprehends every species of exchange or dealing, but its chief use is "to denote the barter or purchase and sale of goods, wares, and merchandise, either by wholesale or retail," and so it is used in the phrase mentioned. But "commerce" is a broader term. It is the word in that clause of the constitution by which power is conferred on congress "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Cons'!. U. S. art. 1, § 8. In a broader and more distinct exercise of that power than ever before asserted, passed the enactments of 1887 and 1888 known as the 4'J:nterstate Commerce Law." The present statute is another exer· dse of that constitutional power, and the word "commerce," as used in this statute, as it seems to me, need not and should not be given a meaning more restricted than it has in the constitution. That meaning has often been defined by the supreme court. Gibbons v. Ogden, 9 Wheat. 195, 197; Gilman v. Philadelphia, 3 Wall. 713; The Daniel Ball, 10 Wall. 557; The Case of the State Freight Tax, 15 Wall. 232, 275; Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1; Ex parte Siebold, 100 U. S. 371, 395; County of Mobile v. Kimball, 102 U. S. 691; Wabash, etc., By. Co. v. lllinois, 118 U. S. 569, 7 Sup. Ct. 4; Cherokee Nation v. Southern Kansas By. Co., 135 U. S. 641, 657, 10 Sup. Ct. 965. I quote passages which will serve in· cidentally to dispose of a number of points raised in the course ot the argument, without referring to them more directly: "The power of congress," said Chief Justice Marshall, In Gibbons v. Ogden, in 1824, when railroads were unknown, "comprehends navigation within the limits of every state In the Union, so far as that navigation may be, In any manner, connected with 'commerce with foreign nations, or among the sev· eral states, or with the Indian tribes,' ..
In Gilman v. Philadelphia it is said: "The power to regulate commerce comprehends the control for that pur· pose, and to the extent necessary. of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they. are the public property of the nation, and SUbject to all the requisite legislation of congress. This necessarily Includes the power to keep them open and tree from any obstruction to their navigation, Imposed by the states or otherwise. · · · It Is for congress to determine when Its full power shall be brought into activity, and as to the regu.l.ations and sanctions which shall be provided."
In the case of The Daniel Ball, a steamer employed on Grand river between Grand Rapids and Grand Haven, Mich., Justice Field, 4Jpeaking for the court, said:
REFORTER, ''-a.I;. (a.s.i ,Pt.'e. s.teamer '. ... , . ..e. lJ}.I..·. trlLn . ..s.porting gOOds de.filtin. for- . goods btottght :'fromwithoutthe limits ofM'1cliigllu'and deih:lfied',t'CY P\ll.Ces within .that state, she was engaged in commerce1letween tl1elltatea.I·,antl,. however"lltnited that commerce may have been, she was, so far" as subjllCt tQ t4e legisllj,tlonof, congrt'ss. She was· employed as anlJlstrUIllent .of that comu\erce;for,whenever a commodity has begun to article of trade from one s14te to another, commerce in that comm6 Jltyl:'retween the statellhas' commenced. The fact that sevel'al dif· ferent llnd,bidependeut agel,1cies: are' employed lu transporting the commodity, entirely In QUe ,state, and some'acting through two or more· in no respectatfect the. character of the. transaction. To the states, agency acts in ,that transportation, it is subject to the extent in regulation of congtess." ... w' : .
In the
FreightTa:f Case,
Strong said:
"Bey.onda.u·q:u. "th.e t..... ' $portation. 0. ffreight. or Qf.th6. '.s.ubjects of' .. commerce, f o tb.epurpose of })Jrchange or. sale, is a constituent of com· 1' merce Uself. This has nevel'been dOUbted, and probably tIle transportation of articles 'of tradeifrom 6tle)stam'to anothln' was the prominent idea in the minds· of:!tbedramers' Qf: We constitution:when to congress was committed the several ,states. A power to preventeIIlRafrassing.,rt1sttIctlops by asj,;ate wll,sthe thing .desired. The power was giyen 1IYtbe same. ;words, ,and in t)lesame clause, by which was conferred power t6 regulate 'commerce' with foreign nations. It would be absurd to':supPose' that. the transmission, of the .subjects of trade from the to tl).e or place. of. to the market, was not cq!ltl;)mplated, for that there could 00 consummate4 trade with foreign nations 01" among the states. In his work on the constitutIOn (section 1057), JildgeStory'asserts that the sense in which the word 'com· merce' is. used in that instrument includes not only traffic. but intercourse and llavigll,tiAn;aIulin the,Pa!!senger:Qllses, 7 How. 416,lt was said: in the superftuitY;in .articles . of necessity, .tJ,S wellproductiol}s. as manufactures; in buYing from. one nahon and I!ellingtdanother; brtll transporting the merchandise from the seller to'the buyel."tb gain the freighL' Nor dogs, it ·make any difference whether tJ1is interchangeofcolIl,iIlo\ii't1es ill by land. or by water; In either case, good,s from the seller .to the buyer· is commerce." '.; I,1l'. FensacolaTeI. Cli :V. W. U. Tel. Co., :Mr. Chief Justice Waite,.
sp'eaking for the court, after reciting the proYisionsof the consti· tution) says :
.liThe powers thus granted'are not confined to the instrumentalities of commerce, or the postlll service known or in use when the constitution was adpllted, but tber keep .pac!! .wUh the progress. of the country, and adapt "t4f:!Illl!elves to the.new ·developments of time. and circumstances. They ex· from the p.orlle with, its rider to the stagecoach, from the sailing vessel to"tPe ir,om,the coach and the to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing pODulation and wealth. They were intended for the government. of the business·to which they relate, times. and uIJ.der all circumstances. As they were, iI:ltrusted to the government for the good of the nation, it is not only the right. b,-gP: the du1:y:, .of·· ,congress to see to it that intercourse among the states· IW,dtlle of intelligence are not obstructed or unnecessarily hj.I;lqered by o:vel,' I:lubj ec,t,Jt is ,said: "That power is indeed without llmitation. It authorizes congress to preth.lI ,. . . POA. In. a.11 itS form.. s", spall. be con..' ' ducted between our' tbe Cl.tizens or SUbjects of other countries, and l !the' -Of the several states,. 'and W adopt measures to. promQte Its growth and insure Its safety." ..: ' . .
",.JnmbaJl, in reference to the power of
,; UNITED STATES
v.
DEBS.
751
In Wabash, etc., Ry. Co. v. Illinois, Justice Miller, in the course of an exhaustive discussion, says: "It cannot be too strongly insisted upon that the right of continued transportation from one end of the country to the other is essential in modern times to that freedom of commerce from the restraints which the state might choose to impose upon it, that the commerce clause was intended to secure. This clause, giving to congress the power to regulate commerce among the states and with foreign nations, as this court has said before, was among the most important of, the subjects which prompted the formation of the constitution (Cook v. Pennsylvania, 97 U. S. 566, 574; Brown v. Maryland, 12 Wheat. 419, 446); and it would be a very feeble and almost useless provision, but poorly adapted to secure the entire freedom of commerce among the states which was deemed essential to a more perfect union by the framers of the constitution, if, at every stage of the transportation of goods and chattels through the country, the state within whose limits a part of this transportation must be done could impose regulations concerning the price, compensation, or taxation, or any other restrictive regulation interfering with and seriously embarrassing this commerce."
Speaking by the same judge, in Ex parte Siebold, the court had said: "We hold it to be an incontrovertible principle that the of the United States may, by means of physical force exercised through its official agents, execnte on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws and to exercise its functions in all places does not derogate from the power of the state to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case, the words of the constitution itself show which is to yield: "This constitution alid all laws which shall be made in pursuance thereof · · * shall be the supreme law of the land.' * * * The government must execute its powers, or it is no government. It must execute them on the land as well as on the sea; on things as well as on persons."
In Cherokee Nation v. Southern Kan. Ry. Co., the court, speaking by Mr. Justice Harlan, says: "Congress has power to regulate commerce, not only with foreign nations and among the several states, but with the'Indian tribes. It is not necessary that an act of congress should express in words the purpose for which it was passed. The court will determine for itself whether the means employed by congress have any relation to the powers granted by the constitution. * * * The question is no longer an open one, whether a railroad is a public highway, established primarily for the convenience of the people, and to subserve public ends, and therefore subject to governmental control and regulation."
These definitions and' expositions of the scope and law of interstate commerce, except the last, preceded the enactments by congress on the subject. It was therefore of commerce so defined, embracing all instrumentalities and subjects of transportation among the states, that congress, by that legislation, assumed the control; and I see no reason for thinking that as employed in the act of 1890, which is essentially supplemental of the other acts, the word was intended to be less comprehensive. It has been decided in a number of cases in the circuit courts, and in one instance by a circuit court of appeals, that this act cannot be applied to trusts or monopolies in the manufacture Oi" production of articles of commerce. For instance, in Greene's Oase, 52 Fed.
162 . Jackson held, that congress had not tlie constitutional power, and by this act had not attempted, limit the right of a. .created by a state, in the acquisition, control, and disposition:' ,of property in the several ,states, even if carried to the extent necessary for the control of traffic in a species of property anlOngthe several states. To the same effect was the ruling in U. wbich was affirmed by the United States cir· cuit court of appeals for the Third circuit. 60 Fed. 306; ld., 60 Fed. 934, 9 C. C. A. 297. This case is pending on appeal in the supreme court,l See, also, Dueber Watch.Qase Manuf'g Co. v. E. Howard Watch & Clock Co., 55 Fed. 851. If ,these decisions are right (a})oint upon which I express no opinion), it follows that the act in· question has relation. only to commodities, and possibly to persons, in the course of movement among the states, and to the agencies or means of transportation; and if, as is contended, and as seems to have been decided in U. S. v. Patterson, supra, it covers only contracts, combinations, or conspiracies "intended to engross or monopolize the market," it is an act of very narrow scope. Why should it not be construed to embrace all conspiracies which shall be contrived with intent, or of which the necessat"y or probable effect interstate, com· shall be, to restrain, hinder, interrupt, or ' merce? The argument to the contrary, drawn from the sixth section of the act, is not controlling, nor, as it seems to me, even strongly persuasive. That section provides for th,e forfeiture of "anY property owned under any contractor by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in this act, and being in the ,course of transportation from one state to another, or to a foreign country"; but it does not say nor imply that only cases, wbether of contract or combination or conspiracy, in which property shall be found subject to forfeiture, shall be deemed to come within the scope of the act. The force of the section is the same, I think,as if it read: "If in any case there shall be found any property owned," etc., "it shall be forfeited," etc.; and so read it neither expresses nor impHes any limitation of the provisions of other sections. At this point is interposed·the constitnti.onal objection which, it is urged, forbids a constrUction that goes beyond trusts and monopolies to include conspiracies to employ force or violence in restraint of The argument was employed and amplified hi the Patterson Case, 55 Fed. 605, 629-632·. It Was contended there if two.ol' more pers(;ms .commit an act of murder, robbery, forgery, sfore-burning, champerty, or maintenance, which in facthas a though unintended, result of interfereAce with interstate commerce, they are liable criminally for a conspiracy to interfere with interstate commerce, if the statute broadly covers conspiracY merely'M:interfere with it." This proposition is built on the I believe is supported neither by authority nor co--conspirators are. responsible as conspirators for the natural, though unintended,results of the commission or attempt by one' of them to commit the partioular offense il
AtIlrmed, 15 Sup. Ct. 249.
753
originally agreed upon or intended. It is a fundamental and es· sential principle of law, and of social order, that all engaged in the commission of a particular crime, whether as counselors, aiders, abettors, or otherwise, are individually responsible criminally for other offenses which result naturally from the commission or attempt to commit the crime intended; but, as agreement and intnt are of the essence of a conspimcy, a conspiracy to commit a particular offense can hardly be deemed to include another conspiracy to commit another offense, unless the latter was the necessary result of the commission or attempt to commit the crime intended, or to such a degree the probable result that it could itself be charged in the indictment to have been intended. But if it were possible, by a course of technical reasoning and refinement, to extend the law of conspiracy to all crimes known to the law where two or more persons are implicated, it would, as Judge Putnam held, not involve the constitutionality of this act, which is limited to the field of interstate commerce, where the power of congress is unrestrictd and supreme. The question here, however, is of the validity of the fourth, rather than of the first, section of the act. It is urged that the power given by that section "to prevent and restrain violations" of the act is an unwarranted invasion of the right of trial by jury, and in support of the proposition are cited Puterbaugh v. Smith, 131 Ill. 199, 23 N. E. 428; Carleton v. Rugg, 149 Mass. 550-557, 22 N. E. 55; Littleton v. Fritz, 65 Iowa, 488, 22 N. W. 641; Eilenbecker v. Plymouth Co., 134 U. S. 31, 10 Sup. Ct. 424; Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712; Pearson v. Yewdall, 95 U. S. 294; Boyd v. U. S., 116 U. S. 616-634, 6 Sup. Ct. 524; Counselman v. Hitchcock, 142 U. S. 547-582 12 Sup. Ct. 195. Little need be added to what has already been said upon that subject. The same act may be a crime and a contempt of court. If an assault or m1lrder be committed in the presence of a court, the offender will be punishable both for the crime and for the contempt, and so with any other act committed in violation both of a criminal statute and of an injunction or order of court. Within the proper subjects of equitable cognizance, as established when the constitution was adopted, it was competent for congress to vest the courts with the jurisdiction granted by this section, and to impose upon them the duty of its exercise in proper cases. Just as, in construing the first section of the act, its general words are limited by force of the title to unlawful restraint, and the words "in restraint of trade," in tbeir connection with the words "contra£t·' and "combination," are to be given their common-law significance, so the jurisdiction in equity, though given in broad and general terms, will be deemed to be limited so as not to extend to a case which is not of equitable cognizance. Indeed, if the sixth section of the act may legitimately be used in aid of the construction of the first section, tbe fourth section warrants, if it does not require, that the first section be restricted to cases in which, in accordance with established precedent, an injunction could issue,-a limitation which would not be essentially uncertain or of difficult application, v.04F.no.6-48
,:andwHlchrif necessary'itothe upholding of the IltatUte, might welt be . . is one of equitable character is clear, and, as I u.nderatmld, has Dot been questioned by counsel; their conten· tion betngthat neither'by this statute, nor upon general princi. pIes, lsthe case withihthe jurisdiction of a federal court. Ex· cepting'thecase of U; s. v.Patterson, I know of no ruling incon· sistent with the jurisdiction here exercised. The case of U. S. v. TranB'-Mi$Souri Freight Ass'n, 53 Fed. 440; Id., 7 C. C. A. 15, 58 Fed. 58, bad reference to a contract between railroads, which was alleged to have been made in violation of the act, but was held to be notitnlaWful. In the case of U. S. v. Workingmen's Amalgamated Council of New Orleans, 54 Fed. 994, the late Judge Billings, under thIs statute, granted an injunction upon facts which made the question of jurisdiction the same' as it is here, and in respect to that question his ruling and opinioo were distinctly approved by the cireuit court of for the Fifth circuit (6 C. C. A. 258, 57 Fed. 85). The court said: "The asstghaserror the overruling by the circuit court ot each of of objection urged In that court against the granting of eald Inju,ncti0ll:.These are; well diSCUSSed, and dIsposed of In the verY, alllll 9Jl1It.ions of the the Circuit court whQ passed the decree now soUght to be reversed. The matters of law presented to and con· sidered by him were not well taken by' the appellants (respondents below} and .the. circuit 'court's ruling to that effect was correct. The bill exhibited lscleady within the statute, and the pleAdings of the respondents were not such asto1W1ufre the retusalof the prayer tora temporarylnjunctlon."
SeE\ alsO, the opinion of Judge Speer in Waterhouse v. Comer, 55 Fed. 149. ' III the Case of Phelan, 62 Fed. 803, who was charged with contempt of. States circuit court at Cincinnati, growing out of thestrllte of last summer, and involving facts essentially identical with thefac'tft. of this case) Judge Taft declared the combination to l>e "in the.teeth of the act of July 2; 1890,'1 and after quoting from tbe act, aJild .referringto the rUlings of other judges in accord with his own view, said: 55. Fed. 600; but, after consideration, Judge Lurton and I cannot. concur with the reasoning of that learned judge. The fact that It was the purpollei>t Debs. Phelan. and their associates to paralyze the Interstate commerce of this country. Is shown conclusively in this case, and Is known of all men. Therefore, thelrcombi::latlon was tor an unlawful purpose, and Is a within the statute cited." In the recent case of U. S. v. Elliott, 64 Fed. 27, Judge Philips T.
"A. different view has been taken by Judge Putnam In the case of U. 8.
declares similar views. The facts of this case suggest mustrations of the impropriety 8.8 well as inoonsistency of putting upon the statute the restrictive con· 'struction .proposed. If,· for example, the manufacturers of other sleeping cal'S; in their own interest,should enlist the brakemen and IIwitchnie1l or other of the railroads, either individually or in bodii!S,· in a conspiracy to prevent or restrain the use of. Pullman· sleepers) by refusing to move them, by secretly un· coupling/_ t)r.byothel' elu$ive means, the monopolistio character of
DNlT]j;D$TATEB V. DEBS.
the conspiracy would 1le so evident that, even on the theory that the statute is aimed at contracts or combinations intended to engross or monopolize the market, it would be agreed that the offense ought to be punishable. But in such a case if the officers or agents of the car companies, who might or might not be capitalists, would be individually responsLble for violating the statute, upon what principle could the brakeman or switchman be exempt? Can workingmen, or,it you will, poor men, acting by themselws, upon their own motion and for their own purposes, whether avowed or secret, do things forbidden by the statute, without criminal responsibility, and yet be criminally responsible for the same things done at the instance and to promote the purposes of others? Or will it be said that under this statute one who is not a capitalist may, without criminality, assist capitalists in the doing of things which on their part are criminal? If that be so, then, if a capitalist and one who is not a capitalist joiT! in doing things forbidden by this statute, neither can be punished. because alone cannot be guilty of conRpiracy. The persistent effort of the defendants, as the proof shows, was to force the railroad companies-the largest capitalists of the country-to co·operate, or at least to acquiesce, in a scheme to stop the use of Pullman sleepers; and for a time they had the agreement of a manager and other officers of one road to quit the use of the obnoxious cars, and perhaps a qualified submission of the officers of another road or two to the same dictation: Does the guilt or innocence of the defendants of the charge of conspiracy, under this statute, depend on the proof there may be of their success in drawing to the support of their design those whomay be called capitalists, or does it depend upon the character of the design itself, and upon what has been done towards its accomplishment by themselves and by those in voluntary co-operation with them, from whatever employment or walk in life? I have not failed, I think, to appreciate the just force. of the argument to the contrary of my opinion,-it has sometimes entangled me in doubt,-but my conclusion is clear that, under the act of 1890, the court had jurisdiction of the case presented in the appli. cation, and that the injunction granted was not without authority of law, nor for any reason invalid. This brings me to the question of fact: Did the defendants violate the injunction? The evidence upon the question is voluminous, but need not be reviewed in detail. The injunction issued July 2d, and on the 3d and 4th was served upon the defendants Debs, Howard, Rogers, and Keliher. It was not served upon the other defendants, and in one of the briefs it is contended that only parties to a bill can be charged with violating an injunction; that while strangers to a suit in chancery may be liable for willful interference, their cases stand upon the same footing as ordinary criminal contempts, and their answers are conclusive. Authorities cited: Watson v. Fuller, 9 How. Pro 425; Kip v·. Deniston, 4 Johns. 24; Boyd V. State, 19 Ne1:;l. 128, 26 N. W. 925; Lord Elden's V. Anderson, 5 Kan., 90, 114.; EI· Opinion, 7 Ves. liott v. Osborne, 1 Oal. 396; Jewett v. Bowman, 27N. J. Eq. 171;
756
ODERAt. REPORTER, vol.
aUtb.Qrlty is concededitti:be that one who has actualnotiee of an
OOddington v. Webb, 4: SandI. 639. In another brief the weight of thjtlllction is bound by it. Rapalje, Contempt, 46; Ewing v. Johnson, 84;;:aow. Pro 202; Waftle v. Vanderheyden, 8 Paige, 45. I know of noa;nthority and perceive no reason for treating the answer of a to the bill as conclusive, while the answer of a party to is not conclusive. ,The testimony of newspaper reporters shows that on July 4th D'¢bs ,said to one of them:
.'!I done nothingunlawtul. I have kept myselrstrIctly within the Pl'oy!sions or Judge Caldwell's decision, · · · and I shan't change my course of conduct in any by reason ot the service ot this injunction."
on the 7th, that: had been Injunction served upon him, and It should not make the slightest difference in the manner in which, the American Railway 'tJDion was doing its business; It had kept within the bounds ot the law."
on July2d, he had said, in substance"That he was not afra.i<1.ot any court or grand jury, or ot any Injunction as he' had done nothing to be enjoined against, and that the American Rallway mUon would eontinue the ftghtonthe same lines they had commenced."
the defendant Burns, who, it should be observed, in responding jointly with his codefendants Hogan and others to interrogatories, had asserted that they were not informed of the injunctJon until near the end of the strike, in answer to the inquiry do about it, said: of tllerepl>rter what they woula simply laugh at the Injunction; that the Railway Union kne,wU:s rights; that they had not done anything wrong,-had not interrered .With interstate commerce or malls or passengers: that' they had simply eaIled off their men: that they had not done anything contrary to the injunction: that they had a right to atrlkepeaceably."
declarations are not brought forward for the purpose of showlngthat the defendants held or expressed sentiments of contempt for the order of the court. Whether they did or not is tmmaterial here. Their conduct only is in question, and these expressions are quoted because they cOnfirm the inference deducible from other evidence, that no essential and voluntary modific,ation of their course of action either followed or was caused by the injunction. Their original intention, it is true, was only to prevent the use of, Pullman cars, but finding, as they did, immediately, that that ai;m. would be thwarWd by the discharge from service of men who refUsed to handle those cars, they began as early as June 27th, the day after the boycott was proclaimed, to issue orders to strike; and from that· time to the end, to the extent of their ability, they conducted and controlled the strike with persistent consistency of purposel'and with unchanged methods of action. What they did the first day they did, in' substance, each succeeding day, so that it is not necessary to discriminate very closely between what was donebefoI'e and what after service of the injunction. Asoffioors of the Atnerican Railway Union, it is beyond question that the defe!lda.Bts had practical control of the strike, guiding as they chose tlie mO'\l'ements of the men actively engaged. Is it
UNITED STATES fJ. DEBS.
757
true, as they assert, that they did nothing, and advised or insti· gated nothing, unlawful, and nothing contrary to the injunction? Leaving out of view for the moment the rule that co-conspirators are responsible for the deeds of each other, done in furtherance of the common design, is it true that the defendants, in the exercise of their acknowledged leadership, did no more than advise a peaceable strike or withdrawal of their followers from railroad service, or did they counsel and encourage such violence and intimidation as they knew to be necessary to prevent the equipment and moving of trains? To the charge of the information that they knew "that violence invariably follows all strikes of a similar they answered by denying that "they knew that violence and unlawful conduct necessarily follows from strikes of the kind mentioned." When, at an early stage of the case, the court suggested that in the use of the word "necessarily" the answer was not responsive to the information, where the word "invariably" was employed, the variance was stated by counsel to have been inadvertent, and leave was taken to amend; but, instead of an amendment curing the defect, a supplemental answer was filed, which merely denies such averments and parts of the information as they had not "in their former answer expressly admitted or denied." On this point, Hogan and the other defendants to the second information speak more explicitly, denying "that they or either of them knew or could have known that any such acts were certllin or almost certain. or probable or reasonably to be expected, to follow from such strikes or cessation of labor." While this is not perceived to be equivocal or evasive, it is difficult to understand how intelligent men familiar with the subject, as these men may be presumed to have been, could honestly affirm it. Strikes by rHilroad employes have not been infrequent of late years in this country, and the testimony of the one witness who spoke on the subject, and whose experience and intelligence made him apparently quite competent to speak; accord with what I suppose to be common knowledge,-that they have been attended generally, if not in every instance, with some form of intimidation or force. The witness said he knew of no exception. Under the conditions of last summer, when there were many idle men seeking employment, it was impossible that a strike which aimed at a general cessation of business upon the railroads of the country should succeed without violence; and it is not to be believed that the defendants entered upon -the execution of their scheme without appreciating the fact, and without having determined how to deal with it. The inference therefore is a fair one, aside from direct evidence to the point, that they expected and intended that this strike should differ from others only in magnitude of design and boldness of execution, and that the accustomed accessories of intimidation and violence, so far at least as found essential to success, would not be omitted. For that much the striking workmen, acting on the promptings of self·interest, without instigation or direct suggestion, and even in spite of admonitions to the contrary, may ordi:narily be counted on. Such admonitions against violence were
758';
Jl'EDElU.Il REPORTER, ·vO'l.64.
defendants, 'but It does.<not,'appear that' they were everheedel;l;:and'I am notable to believe,oJl;1hEi evidence that; ;-in :the fullest seBse, it, was ,upected or intended tlt,at they sbQuld be. lam able and quite ready to believe that the: defendants.. not only did not favor; but deprecated, which might lead,toithe destruction of property or of human life. But they were .not l;lnwilling that coupling pins should Le drawn; that Pullman ,eM's should be · !'cut out" and side tracked; that switches, should... wld.tvains derailed; thatcahrshould be over()bstmcted; that false or contradictory signals shollldbe given to moving trains; that the strikers and lawless-wear a common badge, and should assemble together' upon the, tJiacks and.yards of the companies to obstruct business; and should .be pulled frOID their cabs, if by persUaalon 01' threats they could not be induced to leave them; should be deterred by threats or abuse from· takipg of strikers;an.d that engines li!hould.be "plugged," 01' ptl;J.emYJ:IJB things, and the lil{e of them, done:':dlill"Y: in Chicagoaqdelsewhere by members, and sometimes. the .10ca,l;1,1llions, without protestor condemnation, by flQd them at; :t4eJnstigation of the defendants, who, it can hardly be. doll bted, were:well aware of what was, going on. When, therefQffl, i:p"his of June 29th, '''1'0 the :Qailway Employes of Debs sai!J,:, appeal to the strikers everywhere to· refrl1in"frQm any act of violence. ;Let there be no interference with thearf(airsof the companies involved, 'and, above all, let there be no.actqfdepredatiQP; man who will destroy property or violate .law. an enemy, lUid not a friend, to the cause of labor. The great ppblic :is with uS,"t\tc.,.....the chief aim, I am convinced, was to secuJ,:e,.· th,e good will: of the publie. To that end the warnings, 01 or visible of property, it against may, vvelJ: b,elieved, sincere; but their followers did not and the court cannot believe, that· it was intended to· forbidlnti.midation and the ,milder forms of violence, which'did not directly,..lpYQIVie the .of property or severe injury to person, alld whi,ch for that reason, it !leems, were assumed to be not unhtwfu;I,when the interests of organized labor in a contest, with "an alliance of rich and powerfuL corporations." By of law and duty they were governed might be better "llnqerstood, perhaps, if in that part of ,the answer which alleges; "t1lat upon the service of the injunction the defendants-· consulted, competent cqunsel, learned. in the law, and, upon a full in the premises, they were advised and fair'.'statement of what tJl,eymightrightfully and lawfully do without violating the order (}f th,e court, and that since that time they have in all things accordance 'with that advice," they had disclOsed, asthey to have, just what statement of the facts they ms;t<1e received. Without su;ch, discloSure, either .m Or the proof, the alleged adVIce justifies no.I'm,t.ti. ',e, ,w.rq.llg or error committed In purtga.·,.*. suance of .the ' rather, a presumption that a full
759
statement would not be advantageous. Proof was made of portions of the testimony of Mr. Debs on the 20th of August before the commission appointed by the president, wherein, among other things, he said: "It Is understood that a strike is war; not necessarily a war of blood and bullets. but a war in the sense that it Is a conflict between two contending interests or classes of Interesls. There Is more or less strategy, too, in war, and this was necessary in our operation. Orders were issued from here, questions were answered, and our men were kept in line from here. · · · .As soon as the employ{ls found that we were arrested, and taken from the scene of action, they became demoralized, and that ended the strike. It was not the soldiers that ended the strike. It was not the old brotherhoods that ended the strike. It was simply the United States courts that ended the strike. Our men were in a position that never would have been shaken, under any circumstances, it we had been permitted to remain upon the field, among them. Once we were taken from the scene of action, and restrained from sending telegrams or issuing orders or answering questions, then the minions of the corporations would be put to work.. · · · Our headquarters were temporarily demoralized and abandoned, and we could not answer any messages. The men went back to work, and the ranks were broken, and the strike was broken up, · · · not by the army, and not by any other power, but simply and solely by the action of the United States court In restraining us from discharging our duties as officers and representatives of our employ{lB.
In answer to an inquiry what, if anything, he did to ascertain whether his men were concerned in violence, he said: "We did that [by] our committee, which called at headquarters every eventng and advised us. They were instructed to guard the company's property, lt they were near it at ali, and to apprehend anyone that might be caught destroying property. This iustruction was given again and again to the central committee that went out from headquarters. 'Ve said we knew that It there was trouble, it there was disorder and riot, we would lose, because we knew enough by experience in the past that we had everything to lose by riot, and nothing to gain. We said that man who Incites riot or disorder Is our enemy, and we have got to be the first to apprehend and bring him to justice. So we called upon our men, and advised them, urged them, to do everything In their power to maintain order, because we felt and knew that it there was perfect order there was no pretext upon which they could call out the soldIers, or appeal for the Intervention of the court, and we would wIn without a question of a doubt."
One or two reflections upon these statements will be enough: First, with all that is said about guarding property, keeping the peace, and being the first to arrest offenders, not one was arrested, and no effort was made by strikers or members of the Railway Union to preserve the peace or to protect property. On the contrary, many of them were leaders in scenes of violence and disorder. Second, if this strike, like others, was understood to be war, not necessarily of blood and bullets, but a conflict between contending interests or classes of interests, in which strategy had to be employed to keep the men in line, it was more than a peace· a.ble strike, or mere cessation from work. Had it been only that, the injunction, instead of being a hindrance, would have been in their hands the very weapon they needed to enable them to suppress the violence and disorder in which alone, they say, they saw possible danger to the success of their cause. "When the trouble began," said Mr. Debs again, in his testimony before the commission, "there were thousands of telegrams and communi-
160
FEDEBAL REPORTER,
cationspbnringin, and 'it was impossi6le for me to see them all personally, because Lwas out among the men, meeting with committees, meeting at different cities, and addressing meetings, and all that kind of work; so it was really impossible for all those telegrams that were coming in to come under my personal notice. So then the work was apportioned by the board to its members. This young man named Benedict (who had been employed as an assistant secretary) answered, by instruction of the board, 'some telegrams" and in other cases, where the board was all absent, he answered telegrams himself. Telegrams, when he had answered of a kindred character, he would answer without instructions." The inconsistency of these statements with the averments of,the answer of the defendants to the original information, denying responsibility for the telegrams sent and received, is too evident to, need comment, but they are quoted here not so much to point ont the discrepancy as to show the activity of Mr. Debs, his intimate connection with the conduct of the strike, and consequently his direct responsibility for what was done. By his admission, he was out among the men, meeting committees, and addressing meetings. It is shown also by the testimony of two or more witnesses that on the night of June 29th he and Howard and Keliher attended a meeting of the local union at Blue Island" a suburb of Chicago, on the line of the Rock Island & Pacific Rail· road; that he and Howard each addressed the men, urging them to join the strike; that, among other things, one or both of them said the men "ought to stand together and go out in a body"; that if others came to. take their places "they ought to make them walk the plank." In the language of the witnesses, "They told the workmen there that the only way to resist the orders of the general .t:tl.anagers fu cutting down the wages of the men in detail on the 'different roads was by unanimously organizing and, standing by, -,-all standing together. Debs told them not to molest the mail trains, but," as the witness puts it, "not to let the Pullman cars out, at no hazards." Howard "advised the men not to do any violenl:le, or anything like that, but to 'go out, and stay out, man to man, and they would win the victory." "Howard said not to com· mit any violence, but not to allow any Pullman cars to run, at no hazard." '''He said all 'those that didn't go out and stay out, and help the laboring class of people out of trouble, will have to walk the plank in the future." These speeches did not mean, and WE're not understood'by the men to whom they were addressed to mean, that no resistl1D.ce should' be made by them to the running of Pullman cars,or that they should submit unresistingly to the employment of other men to take ·their places. They voted that night to. join the .stHke, and on the next. day inau!iturated "a condition of turbulence" Which a witness declared he '%d not believe could exist." "A body of men, princrpally ex-employes of the Rock 'Island road, blockaded traffic, threatened violence, and tied up the road." "The same condition, only worse, July 1st," and notwithiltanding the efforts of the United .States marshal, by reading the injunction and otherwise, to quell the disturbance, nothing was
UNITED 8TATES ,. DBSI.
761
complished until tIle 5th of July, when federal soldiers arrived, With that assistance, through trains began to be moved, and the transportation of the mails was resumed on the 7th or 8th, but it was not until the 14th that traffio on that line was fully restored. These things directly followed, and in large measure, I think it. not unwarranted to say, were the natural and probable result of, the I!lpeeches made and counsel given to the men by Debs and Howard at the meeting on the night of the 29th at Blue Island. Similar suggestions, calculated to incite to acts of violence or intimidation, were contained in many of the telegrams which were sent out over the name of Debs, and for which, notwithstanding the averment of their sworn answers to the contrary, it is no longer possible for any of the defendants to evade some measure of reo sponsibility. I quote from a few of them, commencing June 27th: "A boycott has been declared against the Pullman Company, and no Pullmun cars are to be handled." "If men are discharged for refusing to handle Puliman cars, every employ6 should at once leave the service of the company."
June 28th: "No forcible interference wlth mall traIns, but any man who handles trains or cars will be a scab." "No loyal man wUl handle any train at all on your system." "Tie up every line possible, to enforce boycott. Do not cmt any cars from mall traIns, but no loyal man wIll move a train ot any kInd under existing conditions." "Passenger train came south thIs morn· lng, and wlll be held here" (To Debs from La8 Vegas.) "It your company refuses to boycott Pullman, tie it up."
June 29th: In substance: Leave denied tor train at LivIngston, Montana, to proceed with sicli. passengers. "All taking part in this struggle will receive protection ot A. R. U., whflther members or not." "Pay no attention to Injunction orders. Men wlll not be slaves."
June 30th: "This is a fight against combined capital and oppression, and we are asaured winners. Do no violence, but every man stand pat and fum." "No tear about reinstatement. All llnes In Chicago are paralyzed. Impossible to get scabs to fill places In time." "Do not interfere with mall trains In an,. manner."
July 1st: "Knock it to them as hard as possible." "Have men stand ftrm. They .how a better front in Ohio than you. · · · I do not suspect Grand Junction ot housing scabs or sucklings ot autocrats."
July 2d: "The train will haul your car to Its destination on presentation ot this telesram." (To Mrs. Leland Stantord.) "All who work during present strike wlll be branded as scabs."
July 3d: ''This is authority to call out roads named." "TIe up Big Four." "Get your men out immediately." "It will take more than injunctions te move trains. Get everybody out." "Wear a white ribbon, instead ot red. We have requested our friends to wear white in Chicago." "Let everybody wear white ribbon who are in tavor, and all opposed wear red." "Do not let order scare you. I have had orders served on me. We are break. Ing no laws. You and allstrlkers have quit your place. peaceably, as la your rlgbt. · · · Don't be silly."
762, Julyr4:th'I':!lJ!OJ
nDIlBAU BEPORTEB,
vaL.. 64.
"Ha.ve'J'ottrn:nen Il.tand pat.l:l1hey will have .to make many', arrests before this all stand,. firm. Arresting men. will not operate the road." '9f!-t tro?JilS an old of .commit no vl()len&. 'every man'stand pat. TrOops cannot move trains. Not scabs'in ilie \vbrld; to fill places, and more occurring hourly." "This is authorl.ty to out:P; D. & E." ',
July 5th':
,\
' ,
"The llnesare'ti6wSha.l-ply drllwn: Capital has deeJ.ared war. Any man who works is' alli/tsting capital to defeat labor." (Richards of St. Paul to Debs): "Send'lUl'good news · · · Look after locals on all and, play. ij:lestrongest card left."
, July 8th:
"You cannot paralyze the wOllldin 11, minute; Do not·let strong men become chlldlSb.. · · · YOt;l apPtB-r to be paying more attention to newstllanto . ,
July 10th: ''Debs,'Roward,Xellher. Rl>geri, 'lnjail. Rest expect to go. This is the last act of the corporations. Our cause Is just. Victory certain. Stand pat., [Signed] H()gan."
'July 14th: "All' negotiations off. Stand' toll. finish now."
condition as it was, op.the 12th of July is aptly described in the letter of that date signed by Debs, Howard, and Keliher, as officers of the American Railway Union, and addressed, "To the Railway Managers." It is set out in full as apart of the information,l and evidence pf the nature of the strike, and of the direct, personal and official responsibility of the defendants for what wllsdone, and for the reSUlts, wei'e needed, it is found in that document. 'But the defendants are not entitled to be judged solely by the rules which, determine the responsibility of one who. has acted without combination or agreement with another. The bill upon which the injunction wacs ordered charged them with conspiracy, as, under the statute, itmnst have done, in order to bring them within the cognizance of the court. Conforming to the allegations of the bill, the injunction, in substance, commanded them, and all combining or conspiring with them, "to desist and. from interfering with the busihess, roIIingstock, and other property of the roads named; from using force, threats, or persuasion to induce employes of the roads to neglect duty; from using force or threats to induce employes to (Jllit,or other not to enter, the service of the roads; from doing any act in furtherance of a conspiracy to interfere with interstate commerce on the roads; and from ordering, aiding, or abetting any person to do the forbidden things. It is not necessary to consider injuncti&n, when properly construed, forbids, or wMther it might lawfl,1.Uy have been made to forbid, the employes of the. railroad to,.·qnit work ,in furtherance of the alleged conspiracy, or to forbid others, in aid of the conspiracy, to persuade or advise them to quit, The order was not iutended when issued, . '
1
Ante, p. 729.
UNI'1l1!:D STATJilS iv. DEBS.
and will not now be construed, to go SO far.' In the recent case of Arthur v. Oakes (C. C. A., 7th Circuit), 63 Fed. 310, it was decided, with Illy full concurrence in the opinion, that a court of equity will not; Ilunder any circumstances, by injunction, prevent one individual from quitting the personal service of another"; and in respect to the right of employes, singly or in concert, to quit work, and of others to advise them on the subject, there is no present necessity for adding to what was said in that case, further than to observe that neither .expressly nor by implication does the opinion there delivered lend the remotest sanction to the proposition asserted by one of the counsel for the defendants, that in free America every man has a right to abandon his position, for a good or a bad reason, and that another. for good or bad reason,.may advise or persuade him to do so. Manifestly that is not true. If it were, a servant might quit his place, and another might advise him to quit, in order to make way for the entry of thieves or burglars into the employer'shouse,-a snggestior, at which simple minds revolt, and for which the acutest can inven/Ineither justification nor apology. The rule is familiar in criminal jurisprudence th'at any act, however innocent in itself, become& wrongful or criminal when done in furtherance of an unlawful design. But whether or not, in a particular case, an injunction will be appropriate, and to what extent it shall go if granted, will depend on other considerations than the mere wrongfulness or illegality of the act or conduct proposed to be enjoined. The right of men to strike peaceably, and the right to advise a peaceable strike, which the law does not presume to be impossible, is not questioned. But if men enter into a conspiracy to do an unlawful thing, and, in order to accomplish their purpose, advise to go upon a strike, knowing that violence and wrong will be the probable outcome, neither in law nor in morals can they escape responsibility. The evidence establishes, and it has not been denied, that on the 21st day of June, 1894, the American Railway Union, in convention at Chicago, declared a boycott against the Pullman palace cars, to take effect after five days if meanwhile the Pullman Company should not accede to a proposed arbitration with striking workmen; that the convention, after conferring upon the directors of the union jurisdiction over all matters connected with the boycott, adjourned on the 25th of June; that on the next day the following notice or order was issued, over the signature of the president of the union: uJune 26, 1894, 1 :30 p. m. Boycott against Pullman cars in effect at noon to-day. By order of convention. E. V. Debs,"-,and that on the same day the following telegram was sent to the general officers of labor organizations throughout the country: "A boycott against the Pullman Company, to take effect at noon to-day, has been declared by the American Railway Union. We earnestly request :l'0ur aid o,nd co-operation in the fight of organized labor ag-ainsta powerful .and oppressive monopoly. Please advise if you can meet with us in confer-ance, and, if not, if you will authorize some one to represent you in this matter. Address 421 Ashland Block. Eugene V. Debs, President."
Pullman cars in use upon the roads are instrumentalities of commerce; and it follows that from the time of this announcement, if not
764
I'EJ>]ilRAL RlilPQRTlilR,
from the adoption of the resolution by the convention; the American RailwayUnionwascomn,dtted to a conspiracy in restraint of interviolation of the act of July 2, 1890, and that the state association, and all others who joined in the movement, bec",me criminally, .responsible each for theaets of others done in ful"tAel'anceQf the common purpose, whether intended by him or not. The officers became,.responsible for the men, and the men for the oftiQers. While I do not accede to the proposition which was advanced, ill. Patterson'l!Icase, for the purpose of invalidating or of putting' a narJ'Qw construction upon. the statute,' that a conspiracy to commits specified offense includes .a conspiracy to commit any other otfensewhich may result and does result from an attempt to commit the. offense intended; the rule is well settled, and I suppose well underlilWod, that. all who engage, either as principals or as advisers, aidel'$,or abettors,. in th'e commission of an unlawful or crimiindividually responsible for the criminal or injurious renal sults which follow the commission or an attempt by any of their number tQ commit the intended crime or wrong. It is by the same rule that eo-conspirators are responsible for the acts and declarationl!l of each.other in thefurtll'lLlrance of their unlawful purpose. Brennan v.People, 15 Ill. 511; Hanna v. People, 86 Ill. 243; Lamb v. People, 96 Ill. 74; Whart. Cr. Law, § 1405; 1 Bish. Cr. Law, 636; Hawk. P. C. c. 29, § 8. I quote: "Upon this ground [says Hawkins, supra], it has been adjudged that where persons comoinetogether to .stand by one another in the breach of the peace, with a general resolution to all opposers, and In the execution of their design a murder is committed, all the company are equallypr:incipals, though at the time of the fact some of them were at such a distance as to be out of view." "A. man may be gullty of a wrong which he did not specifically intend [says Bishop], If it came natural'y, or even accidentally, through some other specific. or a general, evil purpose. When. therefore, persons combine to do an unlaWful thing, if the act of one, proceeding and growing out of the common .plan, terminates in a Q1'imlnal result, though not the particular result meant, all are llable."
In State v. McCahill (Iowa) 30 N. W. 553, the court said: "Where there 18& conspIra.cy to accomplish an unlawful purpose, and thlt Uleans are not specifically agreed upon or understood, each conspirator be(lOmes responsible for the means used by any co-conspirator In the accomplishment of the purpose in which they are all at the time engaged."
These defendants the directors and general officers of the American Railway Union, and had practical control of the organization. They. procured the adoption of the resolutions by which the boycott of the Pullman cars was declared, and authority given themselves to begin and control the :movement. They put themselves at once in telegraphic communication with the officers of local unions, advising them of the action of the convention, and that no P1Jllman .cars Were to be handled; but, it appearing very soon that men who .retvi:led to ha,ndle Pullman cars were being discharged, they determined to prevent the running of all trains upon all the roads until the 'OOmpa:n.ies should accede to their demands, including the reinstatement of men who had been. discharged. Later the Pullman strikers were abandoned, and only the re-employment of
765
railroad men insisted on. As early as the 27th of June they sent out telegrams directing men to quit work if the running of Pullman cars was insisted upon, and unless discharged men were restored to their places, and by the 28th it had become the distinct policy "to get the men out"; "to tie up" or paralyze the roads; to promise full protection to all who joined in the strike; to denounce as scabs, or as traitors to the cause of labor, all who refused to go out, and all who should consent to take places which others had abandoned,and later the form or substance of expression became: "All employes of all roads will stand together"; "None will return until all return." By this course the original conspiracy against the use of Pullman cars became a conspiracy against transportation and travel by railroad. Upon their own authority, without consulting the local unions, the defendants converted the boycott into a strike; and with the aid of followers, some of whom stopped at no means between the drawing of a coupling pin and the undermining of a bridge, whereby men should be hurled to death, they pushed the strike to the conditions which prevailed when the intervention of the court was asked, and which, in the end, compelled the employment of military force to re-establish peace and start again the activities of commerce. The evidence leaves no feature of the case in doubt. The substance of it, briefly stated, is that the defendants, in combination with the members of the American Railway Union and others, who were prevailed upon to co-operate, were engaged in a conspiracy in restraint or hindrance of interstate commerce over the railroads entering Chicago, and, in furtherance of their deSlign, those actively engaged in the strike were using threats, Violence, and other unlawful means of interference with the operations of the roads; that by the injunction they were commanded to desist, but, instead of respecting the order, they persisted in their purpose, without essential change of conduct, until compelled to yield to superior force. Much has been said, but without proof, of the wrongs of the work· men at Pullman, of an alliance between the Pullman Company and the railway managers to depress wages, and generally of cor· porate oppression and arrogance. But it is evident that these things, whatever the facts might have been proved or imagined to be,could furnish neither justification nor palliation for giving up a city to disorder, and for paralyzing the industries and commerce of the country. :My conclusion in the case on the information of the United States implies a like conclusion in the other case, tried at the same time and upon the same evidence, wherein, by an information presented by the receivers of the Santa Fe Railroad, the defendants were charged with wrongful and violent interference with the operation of that road pending the strike. That they did interfere as alleged, is established by the evidence already considered. Though violation of the injunction of July 2d is alleged in the bill, the questions of jurisdiction and of the construction and application of the act of 1890 are not essentially involved, because, the property being in the custody of the court, any improper interference with its manage·
·' 'ity;
eumulative.·
constlttiteda. c6nteinpt .of tM cottrl'.,a;l1tthormakintt' the order appointing and ,Mt'e,rf,e1'ence with'their control.. The .decision, or rather referred to, but, while that; recognized the ,tight' 'Of .employ-ESe .to quit· tlie . service of the receivers, it contaiIrt:!dt'uf)l 'W8.t'rant . forfutimidating: or abusing .those who were willing, :fo1' otherwise interfering directly, as the.defend8!n8'a:nd thei1"fdUowers did, with the management and operation 0the' road. The .court therefore finds the defendants (except McVeatn;' whose case is held under advisement) guilty of contempt as chargedlnteMhiof:the casel!.' The same sentences will be, ordered'Ul.both cases,' but it .is not intended that they: shall be
:
'WILLIAMES et oJ. v. McNEELY et aL <Aun,
lj). No. 44-
December 4, 1894.) '
'1. P....TBNTs-:-siij,U[·HitATil'fG
The WlIUaines patent,' No. 256,089, tot'. an improvement In steam-hea.tIng apIiaratus to!.' bulldings,provldil1gfor, an unobstructed exhaust pipe, and hell-ting coils opening,from it, in .combination wiUJ, a bleeder pipe With aJld p,t the bottom')nto a hot well, In which a partial vacuuIIlls main,talnedfor the of drawing the steam tll.l.'ough the colls,Is' 'not anticlp'ated by an apparatus for condensingientlD",' 'to. as instantaneous a condensation of the IIteamJljilpoS$ible, or by the Oorey, invention of an improvement in wateJ,' Jlot111s tojlit1l1ze escape steam from the engines, etc., to cop-tiibute to the supply of hot water, neither of which inventions had any tefetence to hes.tlngbuildings.
an
The 'reasonableness of 'the delay to enter a disclaimer of the parts of a patent to which the patentee is not entitled (Rev. Bt. §§ 4917, 4922) must be determlue(l, with refl1renceto the tiOle when the party acquired knowledge that he')v!18 not the true inventor of such parts; and the decree of a court Ofl1r'st instanceh6lding his claim invalid is not to be taken as , decisive of tI'.1. such knowledge as of the date of its promulto appeal, and the patentee, bl good
41l17.4922-UNREASONABLIIl DELAT.
'l
ApplW>. Complainants are not concluded in such. case on the ground that they unduly delayed to take an appeal, WMre the time allowed by law thet&for ha.s not expired. '
This bilI by W. Wil1iames and W,u-ren Webster jagainstOha1'le$ ik, Co. to restrain infringement of a " , ' patent. Ernest Howard Hunter,fo1' complainants. ", Ma,ye1' C. Fraley, for defendants. DALLAS,Circuit Judge. This is a,suit in equity for aUeged infringement: patent No. 2.56,089, grante<l to. Napoleon W. Williames ,under da.te' ,of April 4, 1882. The claims alleged to be infringed: Sitt.asfollQwli;
WILLIAMES
)J'NEELY.
767
"(1) In apparatus for heating buildings, the unobstructed exhaust pipe, and heating coils opening from it, in combination with a bleeder pipe connecting with said coil, and opening at the bottom into a hot well, in which a partial vacuum is maintained, substantially as and for the purposes specified." "(3) In apparatus for heating buildings, the unobstructed exhaust pipe, A, heating coils, B, bleeder main, D, hot well, E, suction or exhaust fal\ F, and feed-water pipe, N, substantially as and for the purpose specified."
The allegation of infringement has been maintained. The larger and extended pipe, which in the defendants' arrangement is placed between the vacuum pump and the anterior portion of their ap. paratus, is substantially identical with the "hot weIr' of the patent; and in nO other particular has it been attempted to distinguish the defendants' construction from that of the plaintiffs. The claims in suit were sustained .by the circuit court for the Southern district of New York in the case of Williames v. Barnard, 41 Fed. 358. In the same case the broader claims, viz. the second, the fifth, and the seventh, were disallowed, and it is here contended that "the difference between the claims adjudicated to be void and those now in controversy is not patentable,"-that the latter are "void for lack of· patentable novelty"; and, to uphold this contention, certain evidence has been adduced in the present case which was not presented in the former one. This additional evidence consists of publications in the Circle of Sciences (volume 2, p. 871), and in Practical Notes on the Steam Engine, Propellers, etc. (page 145), and United States patent No. 144,834, issued to James H. Corey on November 25, 1872. The two publications first mentioned relate to low-pressure or condensing engines. They do not refer to heating, nor suggest any means to that end. They deal with condensers for steam engines, and, as was admitted by defendants' expert, the forms of condensing apparatus of which they treat are designedly constructed to produce as instantaneous a condensation of the steam as possible, whereas in the complainants' heating system the steam does-and, to accomplish the desired resnlt, mnst-remain almost wholly uncondensed in its passage through the pipes (generally of considerable length) which feed the radiators from which the heat supplied is immediately derived. The Corey patent is not anticipatory of the patent in suit. Corey had no thought of heating. He described his invention as "an improvement in water tanks for hotels," consisting "in so constructing the water tanks of hotels and other buildings as to utilize, as far as possible, all the escape steam from the engines, and all the drip from the heaters, kitchens, wash house, laundry, etc." He proposed, primarily, to use the escape from the engine, and to add to this the drip from other sources, including that from the heaters, but with the sole object of making it "available and useful" for obtaining an "ample supply of hot water." The return pipes from the kitchen, laundry, or any steam-heating apparatus, and from the steam coils for heating the building, were represented, but only to show the manner in which this single specified objeCt was to be effected. They were all to contribute to the supply of hot water, but the inventor had no more idea of affecting the heating system than he had of interfering with the operations of the kitchen or of the laundry. Nor
JrEDmRALREPORTllR,
in,cldentallyin.<1icate the Williames contrivance for proHe suggested that "an e:x:hallst pump may bea1;ta'Qhed to the, discharge pipe of steam tank, D, at M, and to- the steam coil, L,ofwater tank, E, F, at A, to remove the pressure, thus, making the engines, pumps, etc., connected th,,:reto act at low pressure"; but he made no claim based upon, thia suggestion and could not have done so with success. It to nothing more than a recognition of the possibility of applying; devices whereby exhaust steam can be led to an exhaust pump"whtch, ill a petfeCtlywell known manner, acts to produce the to the "low-pressure system of steam engines, but which, ,as has already 'been shown, differs essentially from that which wMdesigned and attained by the invention.of this patentee. The onlY. remaining defense which has been pressed is that "the patent ,is ,iVoid in toto because," as is alleged,"the patentee has unreasona:1:Hyneglectedand delayed to disclaim the,parts of which he is not the original _ and first inventor." The privilege of disclaimer 1s by 'section 4917 of the Revised Statutes; and section. 4922 provides that' a suit may be maintained by the owner ofa patent for the infringement of any part thereof which is bona fide his own,notwithl!ltanding the specifications may embrace more than he has mvented,but unless the proper disclaimer shall have been entered he shall not recover costs, and no patentee "shall be entitled to the benefit of this section if he has unreasonably neg'delayed to enter disclaimer." I think that the ruling of JudgeCoxe that the Reid an9 Billington apparatus anticipates the brOllll claims of the Williames patent should be followed, and therefore, no disclaimer having been entered as to them, that no costs. can be recovered by the complainants, notwithstanding the fact that; this suit has been brought fol.' a part thereof which is bonafide their own. But I do not think that the right to protection from infringement of the two-narrower claims which were sustained in Williames v. Barnard has been lost through unreasonable neglect or delay to enter a disclaimer. It has not been conclusively settled that Willittmes claimed anything of which he was not the original and fil'l!lt inventor. It is true that a circuit court has held that he did, andit appears that when the opinion of that court was written it was supposed that a disclaimer should precede the entry of its decree in the complainants' favor upon the claims which it held to be valid. That decree, however, was in fact entered without disclaimer being made, and doubtless for the reason that the learned judge had" observed, after his opinion had been delivered, that, while the'statute deprives plaintiffs of costs in such cases, it does not authorize the requirement of the disclaimer of unfounded claims as 'a condition of granting relief upon those which are supported.There is, then, no decree for disclaimer, and there should be none; and there is no legislation which prescribes that, upon a patent being judicially held to be invalid in part, a disclaimer must then, or in a reasonable time thereafter, be entered. The reasonableness of the delay occurring in any case must be determined with reference to the time when the party acquired
a,
CHASE II. CATLIN.
769
knowledge that he was not the true inventor of any material or substantial part of the thing patented. Must the decision of a court of first instance be taken to be decisive of the acquisition of such knowledge at the date of its promulgation? In my opinion this question should be answered negatively, and if I am right in this the defense under consideration fails, for it is based wholly upon the opposite assumption. If the opinion of a single judge of a subordinate tribunal finally settled the matter, then, perhaps, it would be unreasonable to postpone the entry of a disclaimer for even a very brief period after such a decision, indicating its necessity, had been announced, and the right of appeal would be practically frustrated. It is, however, further contended that these complainants have unduly delayed to take an appeal, and that, therefore, they are concluded by the decree of the circuit court; but the sufficient answer to this is that the time allowed by law for taking an appeal has not expired. In the meantime, the plaintiffs insist that the decree of Judge Coxe, in so far as it is adverse to them, is erroneous; and their counsel has submitted in the present case an argument in support of this insistence, which I may say, though I have no intention to intimate any opinion on the subject with which it deals, is certainly neither feigned nor frivolous. The disclaimer which it is contended should have been entered would, if made, have absolutely and irrevocably effaced material parts of the patent; and in my opinion the plaintiffs were not bound to relinquish their claims to those parts, merely because they had been adjudged to be invalid by a decree which is still subject to appeal, and which they, in good faith, protest is incorrect. Decree for complainants, without costs.
CRASE v. CATLIN et aL (Circuit Court, S. D. New York. December 6, 1894.)
1.
PATENTS-ANTICIPATION-UNDERSHIRTS.
A knitted vest, designed to produce a close fit, and to be worn next the skin, is anticipated by a knitted vest, siuvlar in form and function, though designed to be worn over a,corset. Appleton's patent, No. 240,569, for an improvement in undershirts, the middle part of which is knitted in plain stitch, and the upper or lower part, or both, in tuck stitch, to produce a better fit, held to have been anticipated by the "spencer," which is similar in form and function, though designed to be worn over the corset.
2.
SAME.
Final Hearing in Equity. This was a suit by Richard F. M. Chase against Julius Catlin and others for infringement of a patent. This action is based upon letters patent No. 240,569, granted April 26, 1881, to Robert M. Appleton for an improvement in undershirts. The specification says: " "The object of my invention is to furnish an improved undershirt or vest which will retain its original woven shape after washing and fit the form of the body in an easy and comfortable manner. The invention consists of an undershirt in which plain knitting and tuck'knitting are combined in
v.64F.no.6-49