ARTHUR 11. OAKES.
313
Subsequently the Farmers' Loan & Trust Company, as trustee for the holders of bonds and collateral trust indentures, filed an original bill in the same court against the Northern Pacific Railroad Company, the individual plaintiffs in the first suit, and the receivers. The relief asked was that the plaintiff, as trustee un· der the mortgages named in the bill, be placed in possession of the mortgaged premises, or that receivers of the rights, ,franchises. and property of the railroad company be with authority to operate its railroads and carryon its business under the protection of the court; that the liens created by the several mortgages be ascertained and declared; and that the mortgaged property, in certain contingencies, be sold, and the proceeds applied according to the rights of parties. The railroad company having appeared in that suit, an order was entered appointing the same persons receivers who were appointed in the first suit, and the two suits were consolidated, to proceed together under the title of the Farmers' Loan & Trul!lt Company v. Northern Pacific Railroad Company, etc. . By a writ of injunction dated December 19, 1893, the officers, agents, and employes of the receivers, including engineers, firemen, trainmen, train dispatchers, telegraphers, conductors, switchmen, and all persons, associations, and combinations, voluntary or otherwise, whether in the service of the receivers or not, were enjoined1'rom disabling, or rendering in any wise unfit for oonvenient am! immediate use, any engine, cars, or other property of the receivers; From interfering in any manner with the possession of locomotives, cars, or property of the receivers, or in their custody; From interfering in any manner, by force, threats, or otherwise, with men who desire to continue in the service of the receivers, or with men employed by them to take the place of those who quit; From interfering with or obstructing in any wise the operation of the railroad, or any portion thereof, or the running of enbrines or trains thereon as usual; . From any interference with the telegraph lines of the receivers along the lines of railways operated by them, or the operation thereof; From combining and conspiring to quit, with or without n{)tice, the service of said receivers, with the object and intent of crippling the property in their custody or embarrassing the operation of said railroad, and from so quitting the service of the said receivers, with or without notice, as to cripple the property or prevent or hinder the operation of said railroad; and, generally, From interfering with the officers and agents of the receivers or their employes in any manner, by actual violence or by intimida· tion, threats, or otherwise, in the full and complete possession and management {)f the railroad and of all the property thereunto per· taining, and from interfering with any and all property in the custody of the receivers, whether belonging to them or to shippers or other owners, and from interfering with, intimidating, or otherwise
FEDERAL BE1'O'RTER,
vol. 63.
otdelaying the passenger,s being transtrltnspotited over the railway Qfthe receivers, thereof; 61' by'interfering in any manner, by actual violence'.o'i· threat; 'and ;'otherwise pt'eventing orend-eaV'oring to prevent the shipmenitof freight or the transportation Of the mails of the United States o",er the road operated by the re{:eivers, until the furthel' ord'erof thi's' court. ' was ba.sed on a petition of the receivers, urging, in view c;>f the general 'depr ssion in the business of transportation, tbe necessity of and representing to the court that many employes were threatening that if their compensation were diminished as indidated in a revised schedule of wages which the receivers had adopted, to take effect January 1,1894, they would prevent or dbstruct of the 'in the hands of the Upon of the petition, and before the writ Of injunction was issued, the couft adjudged and decreed that the receivel'$-""Be, and they are hetebY,ltU1;borized and instructed to put in operation and mairitairi upon the Northern Pacific Railroad the revised schedule and rates, more specifically in 'said petition described,and ordered by said receivers to take effect J;apuo,ry I, A. D., ;1894. and for that purpose, and to that end, their action in abrogating and revoking the schedules in force on said railroad at the time of 'their appointment as such receivers, Al1gtlSt 15, 1893, is herebY confirmed,", ' ,
01'
A secoI;ld. writ of injp.nction was issued December 22, 1893. It a supplemeJ:l,tal petition of the receivers, and was in all res}Jects li'ke' the former one, except that it contained, in addition, a clause by which the .persons and associations to whom it was addressed were enjoined--From combining or conspirin'g together, or with others, either jointly or severally, or as committees, or as officers of any so-called labor organization, with the design or purpose of causing a strike upon the lines of railroad operated by said receivers, and from ordering, recommending, nplJroving, or advising others to quit the service of the receivers of the Northern Pacific Rail1"oad Company on January I" 1894, or at any ollrer time, and from ordering, recommending,
adnsing, or approving, by communication or instruction or otherwise, the employes of said receivers, or any of them, or of said Northern Pacific Railroad Company, to joinin a strike on said January 1, 1894, or at any other tilne, and from ordering, recommending, or advising any committee or committees, or class or classes of employes of said receivers, to strike or join in a strike, on January 1, 1894, or at any other time, until the further order of this court. The appellants, as chief executiYe officers, respectively, of the Bl'otherhoodof Locomotive Engineers, the Order of Railway Conductors, the Brotherhood Of Locomotive Firemen, the Order of RaHway Telegraphers, the Brotherhood of Railway Trainmen, and the Mutual Aid Ass()ciation, appeared in court on behalf of themselves and their respective organizations and associations, as well as on behalf of such employes of the receivers as were members of those associations and organizations, or of some of them,
V. OAKJJ:8,.,
315
:and moved that the court modify the orders and injunctions of Deeember 19, 1893, and December 22,1893-' (1) By striking from both writs of injunction these words: "And from combining: and conspiring to quit, with or without notice, the service of said receivers, with the object and intent of crippling the property in their custody or embarrassing the operation of'said railroad, and from so quitting the service of said receivers, with or without notice, as to cripple the property or prevent or hinder the operation of said railroad." (2) By striking from the writ of injunction of December 22, 1893, the above clause or paragraph relating specially to "strikes," which was not in the writ issued December 19, 1893. The motion was in writing, and upon its face purported to be based on the petition and' supplemental petition filed by the reon the orders of the court made December 19 and 22, 1893, .respectively, and on the abo,e writs of injunction. Beyond the facts set out in those petitions, the only evidence adduced at the hearing of the motion was documentary in its nature, to wit, the ,constitutions and by-laws of the associations whose principal officers had been permitted to intervene inthe cause. The court,upon the hearing of the motion, modified the wrltof injunction of December 22, 1893, by striking therefrom' the above words in italics: "And from ordering, recommending, approving, or advising others to quit service of the receivers of the Northern Pacific Railroad Company on January 1, 1894, or at any other time.," The grounds upon which these words were stricken from the second writ of injunction are thus stated in the opinion of the court: "In fairness this clause must be read in the light of the statements of the petition. It was therein asserted to the court that the men would not strike unless ordered so to do by the executive heads of the national labor organizations, and that the men would obey such orders, instead of following the direction of the court. The clause is specially directed to the chiefs of the several labor organizations. The use of the words 'order, recommend, approve, or advise' was to meet the various formll of expression under which, by the constitution or by-laws of these organizations, the command was ,cloaked, as, for instance, in one organization the chief head 'advises' a strike; in another, he 'approves' a strike; in another, he "recommends' the quitting of employment. Whatever terms may be employed, the effect is the same. It is a command which may not be disregarded, under penalty of expulsion from the order and of social ostracism. This language was employed to ,'fortify the restraints of the other portions of the writ, and to meet the various disguises under which the command is cloaked. It was so inserted out of abundant caution, that the meaning of the court might be clear; that there should be no unwarrantable interference with this property, no intimidation, no violence, no strike. It was perhaps unnecessary, being comprehended within the clause restraining the heads of these organizations from ordering, recommending, or advising a strike, or joinder in a strike. "It is said, howe,er, that the clause restrains an individual from friendly advice to the employes as a body, or individually, as to their or his best interin respect of remaining in the service of the receivers. Read in the light of the petitions upon which the injunction was founded, I do not think that such construction can be indulged by any fair and impartial mind. It might be used as a text for a declamatory address to excite the passions and prejudices of men, but could not, I think, be susceptible of such strained construc. tion by a judicial mind. '1'he language of a writ of injunction should, however, be clear and explicit, and, if possible, above criticism as to its meaning. Since, therefore, the language of this particular phrase may be misconceived,
316
FlWEBALlUlPORTEB,
and the testraint intended is, in my jUdgment, comprehended within the other provisions of the writ, the motion in that respect will be granted, and the clause stricken frQt):l the, writ."
Except in the particulars mentioned in the opinion of the circuit eo"lU't, the motion .to modify the injunctions was denied, and the in· junctions continued in force. Of this action of the court the in· terveners complain. In eonsidering the important questions presented by the record, we have assumed, as did the circuit court, the. truth of' all the mao terialfacts set out in the petition and supplemental petition of the receivers. ' Thisls the necessary result of th,e interveners having based their motion on those petitions, and on the orders of the court directing writs of injunction to be issued. As those orders were based ,on the petitions of the receivers, it must be taken that the in· terveners, although insisting that the injunction should have been modified to the full extent indicated by their motion, concede, for the purposes of the motion, the facts to be as alleged in those It to be regarded as undisputed in this cause that at the time the writ of December 19, 1893, was issued, some of the railroad were giVing it· out aijd threatening that if the reVised l!lchedulesand rates in question were enforced they would suddenly quit the service of the receivers; by threats, force, and to quit such service, and by Violence would compel other others from taking the organized effort and intimidation places ,of those who might quit; would disable locomotives and cars so that they could not be safely used, or used only after expensive repairs; would take possession of the cars, engines, shops, and roadbeds, in the possession of the receivers, and otherwise prevent their being' uSed; would so conduct themselves with regard to the prop· erty in the hands of the receivers as to hinder and embarrass them, their officers and agents, in its management and in the operation of trains; and that such dissatilSfied and others not in the employ of the receivers, but co-operating with those from a spirit of sympathy or mischief, would, unless restrained by the order 'of court, have carried out their threats, with the result that the receivers would not only have been compelled to abandon the revlsedschedules and rates proposed to be enforced, but would have been disabled from operating the railroads in their custody, from discharging their duties to the public as carriers of passengers and freight, and from transporting the mails of the United States, bring· ing thereby incalculable loss, upon the trust property, as well as causing inconvenience and hardship to the public, particularly to the people in that part of the country traversed by the Northern Pacific Railroad, who were dependent upon the regular, continuous operation of that road for commercial facilities of every kind, as well as for fuel, provisions, and clothing. It will be observed that the motion of the interveners does not question the power of the court ,to restrain acts upon the part of the or others which would have directly interfered with the receivers'possession of the trust property, or obstructed their control and management of it, as well as attempts, by force, intinlidation, or threats, or otherwise, to molest or interfere with per·
ARTHUR 'D. OAKES.
317
lions who remained in the service of the receivers or with others who were willing to take the places of those withdrawing from such service. But it was contended that the circuit court exceeded its powers when it enjoined the employes of the receivers "from combining and conspiring to quit, with or without notice, the service of said receivers, with the object and intent of crippling the property in their custody, or embarrassing the operation of said railroad, and from so quitting the service of said receivers, with or without notice, as to cripple the property, or prevent or hinder the operation of said railroad." This clause embodies two distinct propositions,-one, relating to combinations and conspiracies to quit the service of the receivers with the object and ir..tent of crippling the property or embarrassing the operation of the railroads in their charge; the other, having no reference to combinations and conspiracies to quit, or to the object and intent of any quitting, but only to employes "so quitting" as to cripple the property or prevent or hinder the operation of the railroad. Considering these propositions in their inverse order, we remark that the injunction against employes so quitting as to cripple the property or prevent or hinder the operation of the railroad was equivalent to a command by the court that they should remain in the active employment of the receivers, and perform. the services appropriate to their respective positions, until they could withdraw without crippling the property or preventing or hindering the operation of the railroad. The time when they could quit without violat· ing the injunction is not otherwise indicated by the order of the court. Under what circumstances may the employes of the receivers, of right, quit the service in which they are engaged? Much of the argument of counsel was directed to this question. We shall not attempt to lay down any general rule applicable to every case that may arise between employer and employes. If an employe quits without cause, and in violation of an express contract to serve for a stated time, then his quitting would not be of right, and he would be liable for any damages resulting from a breach of his agreement, and perhaps, in some states of case, to criminal prosecution for loss of life or limb by passengers or others, directly resulting from his abandoning his post at a time when care and watchfulness were required upon his part in the discharge of a duty he had undertaken to perform. And it may be assumed for the purposes of this discussion that he would be liable in like manner where the contract of service, by necessary implication arising out of the nature or the circumstances of the employment, required him not to quit the service of his employer suddenly, and without reasonable notice of his intention to do so. But the vital question remains whether a court of equity will, under any circumstances, by injunction, prevent one individual from quitting the personal service of another? An affirmative answel' to this question is not, we think, justified by any authority to which our attention has been called or of which we are aware. It would be an invasion of one's natural liberty to compel him to work for or
FEDERAL REPORTER,
One:who ,is: ,placed underauch constraint, is in a COndition of involuntary semritude,-:a condition which the supreme law of the land declares shall not existl,Vitliin the United 8tatesror iurany place subject to their juris:dietiouJ. Oourts' of equity have sometiJnessought to sustain a contract for services requiring ispecial .knowledge or peculiar skill" by. etljoining acts'vr conduct that would constitute a breach of such. contrltct. 'To: tbis class belong the cases of singers, actors, or musicians, who, after agreeing, for a vahlable consideration, to give their professional servre.e, at a named place and during a specified time, for the benefit of certain parties, refuse to meet their engagement, and undertake to appear during tbe same period for the benefit of other parties at :.another place.:, Lumley v. ,Wagner, 1 De Gex, M. & G.604,617; Id., 5 De 16 Jur. 871; Montagne v. Flockton, L.. R. 16 Eq. '189. While in such cases the singer, actor, or musician has been enjoined from appearing during the, period named a.ta place and for 'parties different from those specified: in his first engagement, it was "never supposed that the oourt could by injunction compel the affirmative performance of the agreement to sing or to act or to play. In Powell Duffryn Steam-Coal Co; v; Taff Vale, J;ty.;Oo., 9 Ch. A.pp. 331, 335,Lord Justice James observed thatwheIHwhat is re"'l}uired is not merely to restrain a party from doing an act of wrong, but. to oblige him to do some continuous act involving labor and 'Care, the court has never found It8way to do this by injunction. In the Ba:mecase LoOO Justice Me1l1sh, stated the principle still more broadly, perhaps too broadly, when he !'\Rid that a court can only order the doing of something which has to be done once for all, so that the court can see to its being done. The rule, we think, is without exception that equity will not compel the actual, affirmative performance by an employe of merely per;sonal services, any more than it will compel an employer to retain in ,his personal service one who, no matter for what cause, is not acceptable to him for service of ,that character. The right of an 'employe engaged to perform personalsenice to quit that service rests upon the same basis as the right of his employer to discharge him from further personal service. If the quitting in the one case or'the discharging in the other is in violation of the contract between the parties,the one injured by the breach has his action for damages; and a court of equity will not, indirectly or negatively, by means of an injunction restraining the violation of the contract, -compel the affirmative performance from daY to day or the affirmative,acceptance of merely personalser'Vices. Relief of that character has been regarded as impracticable. Toledo, A. A. & N. M.Ry. 00. v. Pennsylvania 00., 54 Fed. 730, 740, Taft, J., and authOrities cited; Fry, 8pec. Perf. (3d Am. Ed.) §§ 87-91, and authorities cited. It is supposed that these principles are inapplicable or should not be applied in the case of employes of a railroad company, which, under legislative sanction, constructs and maintains a public highway primarily for the convenience of the people, and in the regular operation of which the public are vitally interested. Undoubtedly I
<to remain in the personal service of, another.
A.RTHUR fl. OAKES.
319
the simuitaneous cessation of work by any considerable number ot the employes of a railroad corporation, without previous notice, will have an injurious effect, and for a time inconvenience the public. But these evils, great as they are, and although arising in many cases from the. inconsiderate conduct of employes and employers, both equally indifferent to the general welfare, are to be met and remedied by legislation restraining alike employes and employers so far as necessary adequately to guard the rights of the public as inVQlved in the existence, maintenance and safe management of public highways. In the absence of legislation to the contrary, the right ot one in the service of a quasi public corporation to withdraw therefrom at such time as he sees fit, and the right of the managers of from service whenever such a corporation to discharge an they see fit, must be deemed so far absolute that no court of equity will compel him, against his will, to remain in such service, or actually to perform the personal acts required in such employments, or compel such managers, against their will, to keep a particular in their service. It was competent for the receivers in this case, subject to the approval of the court, to adopt a schedule of ''We will pay according to wages or salaries, and say to this schedule, and if you are not willing to accept such wages you to say, "I will be discharged." It was competent for an will not remain in your service under that schedule, and if it is to be enforced I will withdraw, leaving you to manage the property as best you may without my assistance." In the one case, the exercise by the receivers of their right to adopt a new schedule of wages could not, at least in the case of "a general employment without limit as to time, be made to depend upon considerations of hardship and inconvenience to In the other, the exercise by employes of their right to quit in consequence of a proposed reduotion of wages could not be made to depend upon considerations of hardship or inconvenience to those interested in the trust property or to the public. The fact that of railroads may quit under circumstances that would show bad faith upon their part, or a reckless disregard of their contract or of the convenience and interests of both employer and the public, does not justify a departure from the general rule that equity will not compel the actual, affirmative performance of merely personal services, or (which is the same thing} require employes, against their will, to remain in the personal service of their employer. The result of these views is that the court below should have eliminated from the writ of injunction the words, "and from so quitting the service of the said receivers, with or without notice, as to cripple the property or prevent or hinder the operation of said railroad." But considerations must control in respect to the words in the same paragraph of the writs of injuDction, "and from combining and conspiring to quit, with or without notice, the ice of said receivers, with the object and intent of cripplng the property in their custody, or embarrassing the operation of said railroad." We have said that, if were unwilling to reo
FEDERA,.L REPORTER,
mailJtntlLe Elervice 'Of the receivers tor the, compensation preser,iPe(l,tQ'lhtlLem by the revised schedules, it the right of each tQ withdraw from such service. It was equally their right, withQ'Ut reference to ,the effect 'Up9n,the property or upon the ()peration of the road"to confer with each other upon the subject of the proposed reduction in wages, and to withdraw in a body from.·the service of the ,receivers of the proposed change. their right, as a body of employes by the of wages, to demand given rates of com· penlul;tion as a condition of their remaining in the service, was as absolute aud perfect as was the right of the receivers representing the aggregation of persons, creditors, and stockholders interested in the trust property, and the general public, to fix the, rates they were willing to pay their respective employes. But that is a very different matter from a combination and conspiracy em· ployes, with the object and intent, not simply of quHting the service oftha receivers because of the reduction of wages, but of crippling the property in their hands, and embarrassing the operation of the railroad. When the order for the original injunction was applied for it was represented-and the interveners admit by their motion that it was correctly represented-that unless the restraining power of the court was exerted the dissatisfied employes, and others co-operating with them, would physically disable and render unfit for use the cars and other property in the possession of the receivers, and by force, threats, and intimidation used against employes remaining in their service, and against those desiring to take the places of those quitting, would prevent the receivers from operating the roads in their custody, and from discharging the duties which they owed on behalf of the corporation to the parties interested in the trust propei'ty, to the government, and to the public. ' The general inhibition against combinations and conspiracies formed with the object and intent of crippling the property and em· barrassing the operation of the railroad must be construed as referring only to acts of violence, intimidation, and wrong of the same nature or class as those specifically described in the previous clauses of the writ. We do not interpi'et the words last above quoted as embracing the case of employes who, being dissatisfied with the proposed reduction of their wages, merely withdraw on that account, singly or by copcerted action, from the service of the receivers, using neither force, threats, persecution, n'oi' intimidation towards em· who do not join them, noi' any device to molest, hinder, alarm, or intel'fere with other.a who take 0'1' desire to take their places. We use the .word "device" here as applicable to cases like that of Sherry v. Perkins, 147 Mass, 212/ in which it appeared that parties belonging to a labor organization displayed and main· tained certain banners in front of the plaintijf's place of business for the purpose of detei'ring w,orkmen from remaining in or entering his service. As the acts complained of were injurious to the 117 N. Eo 807.
ARTHUR
v.
OAKES.
321
plaintiff's business and were a nuisance, it was held that they could be reached and restrained by injunction. So in Spinning Co. v. Riley, L. R. 6 Eq. 551, equity interfered by injunction to reo strain the conduct of parties, <lfficers of a trades union, who gave notice to workmen, by means of placards and advertisements, that they were not to hire themselves to the plaintiff pending a dispute between the union and the plaintiff. See, also, U. S. v. Kane, 23 Fed. 748; Emack v. Kane, 34 Fed. 46; Casey v. Typographical Union, 45 Fed. 135 ; Walker v. Cronin, 107 Mass. 555. These employes having taken service first with the company, and afterwards with the receivers, under a general c·ontract of employment, which did not limit the exercise of the right to quit the service, their peaceable co-operation as the result of friendly argument, persuasion, or conference among themselves, in asserting the right of each and all to refuse further service under a schedule of reduced wages, would not have been illegal or criminal, although they may have so acted in the firm belief and expectation that a simultaneous quitting without notice would temporarily inconven· ience the receivers and the public. If, in good faith and peaceably, they exercise their right of quitting the service, intending thereby only to better their c.ondition by securing such wages as they deem just, but not to injure or interfere with the free action of others, they cannot be legally charged with any loss to the trust property resulting from their cessation of work in consequence of the refusal of the receivers to accede to the terms upon which they were willing to remain in the service. Such a loss, under the circumstances stated, would be incidental to the situation, and oould not be attributed to employes exercising lawful rights in orderly ways, or to the receivers, when, in good faith and in fidelity to their trust, they declare a reduction of wages, and thereby cause dissatisfaction among employes, and their withdrawal from service. The combinations or conspiracies which the law does not tolerate are of a different character. According to the principles of the common law, a conspiracy upon the part of two or more persons, with the intent. by their combined power, to wrong others, or to prejudice the rights of the public, is in itself illegal, although nothing be actually done in execution of such cOllilpiracy. This is fundamental in our jurisprudence. So a combination or conspiracy to procure an employe or body of employes to quit service in violation of the contract of service would be unlawful, and in a proper case might be enjoined, if the injury threatened would be irremediable at law. It is one thing for a single individual, or for several individuals each acting upon his own responsibility and not in co-operation with others, to form the purpose of inflicting actual injury upon the property or rights of others. It is quite a different thing, in the eye of the law, for many persons to or conspire together with the intent, not simply of their rights or of accomplishing lawful ends by peaceable methods, but of employing their united energies to injure others or the public. v.63F.no.3-21
822,
FEDERAL REPQSTER,
Anltltent upon: the pam ()f. a single:person ito injure the rights of others or of the public. is not in itself a wrong of which the law will take oognizance,unles$ some U1jurious act be doneln execution unlawful intent. But a combination of two or more persons with such an intent, and under circumstances that give them, when so coxnbined, a power -00 do an injury they would not possess as individwUs acting singly, has always been recognized as in itself wrongful,anil,illegal. The general principle, is illustrated in Callan v.WUson, 127 u. S. 555, 8 Sup. Ct. 1301. That was an information in the police court . Of the District of COlumbia charging. the defendants Callan and others with a conspiracy to prevent certain named persOns, who bad been expelled from a local association, a branch of a larger one known astbe Knights of Labor of America, from pursuing their calling of, musicians anywhere in the United States. This reault,the inforQlation charged" was to be. effected .by the defendantsrefnaing to ,work as musicians, or in any other capacity, with the penoJls so named, 01' with, or for any person, :(irm, or 001'poration working with or. employing them;. by procuring aU other members of those .organization.s,' an.,d all other workmen and tradesmen, not to work;in any capacity with or for them or either of them, ot for any firm' or corporation that employed either of them; and by warning and threatening every person, firm, or corporation employing suchobnQxions persons that, if they did not forthwith cease to employ and refuse to employ them, they should not receive the custom or patr()Dage either of the perSlons so conspiring,;or of other'members of said organizations. The question in the Case Wl+S whether the. accused were entitled to a trial by jury or whether the offense charged was of the class called "petty," for the trial of which a defendant .could not at common law claim, of right, a jury. The court beld that the offense charged was not a petty or trivial one, but one of a grave cbaracter, affect· ing the public at large, and for the trial of which a jury was therefore demandable as of right. Among the authorities cited in,that case were Com. v. Hunt, 4 Mete. (Mass.) 111, 121, in which it was said that "the general rule of the COplmon law is.that it is a criminal and indictable offense for two or more to confederate and combine together, by concerted means, to do that which is unlawful or criminal, to the injury of the public, Qr portions or classes of the community, or even to the rights of an individual;" State v. Burnham, 15 N. H. 401, where it was held that "combinations against law or against individuals are always dangerous to the public peace and to public security; to guard againstthe union. of individuals to effect an unlawful design is not easy, and to detect and punish them is often extrem diftjicult;" and Reg. ly 14 Cox, Cr. Oas. 508, 514, where the 'court observed, that "an agreement to effect an injury or wrong to another' by two or more persons is constituted an offense, because the wrong to be effected oy a combination asaumes a formidable cha.raeter; when done by one alone it is but a
ARTHUR V.OAKES.
323
civil injury, but it a!jsumes a formidable or aggravated character when it is to be effected by the powers of a combination." One of the cases cited in Callan v. Wilson is Com. v. Carlisle, Brightly, N. P. 36,39" 40, in which Mr. Justice Gibson considered the law of conspiracy with care, and amQng other things said: "There is between the different parts of the body politic a reciprocity of action on each other, which, like the action of antagonizing muscles in the natural body, not only prescribes to each its appropriate state and action, but regulates the motion of the whole. The effort of an individual. to dis,turb this equilibrium can never be perceptible, nOr carry the operation of his interest or that of any other individual beyond the limits of fair oompetition. But, the increase of power by combination of meanS being in geometrical proportion to the number concerned, an association maybe able to give an impulse, not only oppressive to individuals, but mischievous to the public at large; and it is the employment of an engine so powerful and dangerous that gives criminality to an act that would be perfectly hino-cent, at least in a legal view, when done by an individual."
There are many other adjudged cases to the same effect. In State v. Stewart, 59 Vt. 273, 286, 9 Atl. 559, it was held, after an extended review of the authorities, that: "A combination of two or more persons to effect an illegal purpose, either by legal or illegal means, whether such purpose be illegal at common lawor by statute, or to effect a legal purpose by illegal means, whether such mean;: be illegal at common law or by 13tatute, is a common-law conspiracy. Such -combinations are equally illegal whether they promote objects or adopt means that are per se indictable, or promote objects or adopt means that are per se oppressive, immoral, or wrongfully prejudicial to the rig4ts of others. If they seek to restrain trade, or tend to the destruction of the material property of the country, they work injury to the whole people."
In State v. Buchanan, 5 Har. & J. 317, 352, 355, the court of appeals of Maryland adjudged that: "Every conspiracy to do an unlawful act, or to do a lawful act for an Illegal, fraudulent, malicious, or corrupt purpose, or for a purpose which has a tendency to prejudice the public in general, is at common law an indictable offense, though nothing be done in execution of it, and no matter by what means the conspiracy was intended to be effected, which may be perfectly indifferent, and makeS no ingredient 'of the crime, and therefore need not be stated in the indictment."
In State v. Glidden, 55 Conn. 46, 75,8 Atl. 890, the court said: "Anyone man, or anyone of several men acting independently, is power· less; but when several combine, and direct their united energies to the accomplishment of ,a bad purpose, the combination is formidable. Its power for evil increases as its number increases. · · · The combination becomes dangerous, and subversive of the rights of others, and the law wisely says that it is a crime."
In Queen v. Kenrick, 5 Q. B. 49, Chief Justice Denman said that by the law of conspiracy, as it had been administered for at least the previous hundred years, any combination to prejudice another
824,
FEDERAL
,vol. 63.
aB the offense, and that the offense C"Qnsisted in the, conl:lpira9Y, and nGt in the acts committed for'ic8,l."rying)t into effect. ' .carew v. Rutherford, iJr06 Mass. 1, 13; Steamship Co. v. McKenpa" 30 Fed. 48; C<leur d'41ane;C. & M. Co. v. Miners' Union, 267; 3 Whart. Cr. Law (8th Ed.) § 1337 et seq.; 2 Archb. Cr. 'Pr.& PI. (Pom. Ed.) 1830, note; ,2Bish. Cr. Law, § 180 et seq. It seems entirely clear, upon authority, th3Jt any combination or conspiracy upon the part of these employes would be illegal, which for its' object to cripple, thepnoperty in the hands of the receivers, and to embarrass the operation of the railroads under their management, either by disabling or rendering unfit for use engines, cars,ol"other property in their hands, or by interfering with their possession, or by actually obstructing their control and management' of the property, or by using force, intimidation, threats, or otherwr()ngful, methods against the ,receivers or their agents, or againsteIPployes remaining in their service, or by using like methOds to cause employes to quit or prevent or deter others from entering the service in place 'of those leaving it. Combinations,of that characterdiBturb the peace of society, and are mischievous fn the extreme., They imperil the interests of the public, rightfully demand that the free course of trade shall not be unreasonably obstructed. They endanger, the personal security and the personal liberty of individuals who, in the exercise of their inalienable privilege of choosing the terms upon which they shall labor, enter or attempt to enter the service of those against whom such combinations are specially aimed. And as acts of the character referred to would have defeated a proper administration of the trust estate, and in:fl.ictedirreparable injury upon it, as well aB prejudiced the rights of the public, the circuit court properly framed its injunction so as to restrain all such acts as are specifically mentioned, aB well as combinations and conspiracies having the object and intent of physically injuring the property, or of actually interfering with the regular, continuous operation of the railroad by the receivers. Some reference was made in argument to the act of oongress of June 29, 1886, legalizing the incorporation of national trades unions. ,24 Stat. 86, c. 567. It is not perceived that'this reference is at all pertinent to the present discussJon. That act does not in any degree sanction illegal combinations. It recognizes the legal character of any association' of working people having two or more branches in the states or territories of the United States, and estabUl;lhed "for the purpose of aiding its members to become more skillful and efficient workers, the promotion of their general intelligence, the elevation of their character, the regulation of their wages and their hours and conditions of labor, the protection of their individual rights in the prosecution of their trade or trades, the raising' of funds for the benefit of the sick, disabled, or unemployed members or the families of deceased members, or for such other object or objects for which working people may unlawfully combine, having in view their mutual protection or benefit." As-
ARTHUR V. OAKES.
325
sociations of that character are authorized to make and establish such constitutions, rules, and by-laws as they deem proper to carry out their lawful objects. Those objects, as defined by oongress, are most praiseworthy, and should be sustained by the courts whenever their power to that end is properly invoked. What we have said about illegal combinations has no reference to such associations, but only to combinations formed with the intent to employ force, intimidation, threats, or -other wrongful methods whereby the public will be injured, or whereby will be impaired the absolute right of individuals, whether belonging to such combinations or not, to dispose of their labor or property upon such terms as to them seem best. The principle that a combination or conspiracy of two or more persons to injure the rights of others is illegal, although nothing may have been done in execution of that intent, has been embodied in the statutes of Wisconsin, in which state the present cause 'is pending. By an act passed April 2, 1887, it was declared that: "Any two or more persons who shall combine, associate, agree, mutually undertake or concert together for the purpose of wilfully or maliciously injuring another in his reputation, trade, business or. profession, by any means whatever, or for the purpose of maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act, shall be punishable by imprisonment in the county jail not more than one year, or by fine not exceeding five hundred dollars."
And by a subsequent act, passed April 8, 1887, it was declared tllat: "Any two or more employers who shall agree, combine, and confederate together for the purpose of interfering with or preventing any person or persons seeking employment, either by threats, promises,· or by circulating or causing the cirCUlation of a so-called black list, or by any means whatsoever, or for the purpose of procuring and causing the discharge of any employe or employes, by any means whatsoever, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in th0 county jail for a period of not more than one year, or by a fine of not less than fifty dollars, or by both." 1 Laws Wis. 1887, pp. 299,3®, ce. 287, 349: 2 Sanb. & B. St. Wis. §§ 4466a, 4466b.
This legislation was followed by an act published May 3, 1887, providing: "Section 1. Any person who by threats, intimidation, force or coercion ot any kind shall hinder or prevent any other person from engaging in or con· tinuing in any lawful work or employment, either for himself or as a wage· worker, or who shall attempt to so hinder or prevent, shall be punished by fine not exceeding one hundred dollars or by imprisonment in the county jail not more than six months, or by both fine and imprisonment in the discretion of the court. "Sec. 2. Any person who shall individually or in association with one or more others, wilfully break, injure or remove any part or pa,rts of any railway car or locomotive, or any other portable vehicle or traction engine, or any part or parts of any stationary engine, machine, implement or machinery, for the purpose of destroying such locomotive. engines, car, vehicle, implement or machinery, or of preventing the useful operation thereof, or who shall in any other way wilfully or maliciously interfere with or prevent the
326
,of.
engine or mac41uery, shall be pun-
,',J,',>,"''," dll, 'JW,',1t, dollars the JlllUhl tpe state prison not ex(!eeding two or by im,pri,sonment in and years, or by both fine in the discretion of the court." 1 Laws Wis. p. 462,c. 427.
that Mmbinahons and conspiracies by two or mqre the intent tQ ,injure the rights of others were illegal atcoDtWlOn are public offenses in the state where this is, :Pending. " , For stated, we opinion that the circuit court propElrly, to strike from"the writs of injuncHon the words, "And from combining and conspirlng to quit with or without notice the service'of said receivers, with the object and intent of crippling the property in their custody .orembarrassing the operation of said railroad!' ; " We come next to that clause in, tlle writ of injunction of Decem· 1893, expressly relating to strikes. bel' What is, to be deemedi a strike, within the meaning of the order of the circuit court? In the opinion of the circuit judge, made a part of the record, we are informed tl:J.at at the argument belo\v the definition, ,proffered to the court ,by the interveners as one recognized by the labor of, the country was as follows: "A strike' 1s a concerted cessation of ,or refusal to work until or unless certain cOnditions or ll.re lp.cident to the terms of employment arechangE!d. The declines to longer work, knowing full well that the employer may employ another to fill his place, also knowing that he mayor may not be re-employed or returned to service. The employer has the option of ,acceding to the demand and returning the old employ/i to service, of employIng new men, or of forcing conditions under which the old men are glad to return to service under the old con· ;ditions."
The learned circuitju4gesaid that a more exact definition of a strike was "a combined. effort among workmen to compel the master to the concession of ,a certain demand by preventing the conduct the demand," and he said: of his business until compliance "It is Idle to talk of a ,pelI.ceful strike. None such ever The intelligence. All combinations to intersuggestion is an fere with perfect freedom in the proper IDJlnagement of one's lawful business, to dictate the terms upon which such business shall be conducted, by means of threats or by interference witl;l.property or traffic, or with the lawful employment of others, are within the condemnation of the law. It has been well said that the wit of man could not devise a legal strike, because compulsion is the leading idea of it. A strike is essentially a conspirll.cy to extort by violence; the means employed to effect the end being not only the cessation of labor by the conspirators, but by the necessary prevention of labor by those who are willing to assume their places, and as a last resort, and in many instances an essential element of success, the disabling and destruction of the property of the master; and so, by intimidatIon and by the compulsion of force, to accomplish the end designed."
Under this, view of the nature and 1()bject of strikes the injunction was directed, generally, againstcolllbinations and conspiracies upon the part of employes with the design or purpose of caueing a strikeQn the,lines of railroad operated by the receivers; against the Qrdering,recommending, advising, ,or approving the employes
327
to join in a strike;· and against the ordering, recommending, or advising any committee or class of employes to strike, or to join in a strike. If the word "strike" means in law what the circuit court held it to mean, the order of injunction, so far as it relates to strikes, is not liable to objection as being in excess of the power' of a court of equity. Indeed, upon the facts presented by the recei\'ers and admitted by the motion of the interveners, it was made the duty of the court to exert its utmost authority to protect both the property in its charge and the interests of the public against all strikes of the character described in the opinion of the circuit judgt'. But in our judgment the injunction was not sufficiently specific in respect to strik.es. We are not prepared, in the absence of evidence, to hold, as matter of law, that a combination among employes, having for its object their orderly withdrawal in large numbers or in a body from the service of their employers, on account simply of a reduction in their wages, is not a "strike," within the meaning of the word as c·ommonly used. Such a withdrawal, although amounting to a strike, is not, as we have all'eady said. either illegal or criminal. In Farrer v. Close, L. R. 4 Q. B. 602, 612, Sir James Hannen, afterwards lord of appeal in ordinary, said: "I am. however, of opinion that strikes are not necessarily illegal. A 'strike' is properly defined as 'a simultaneous cessation of work on the part of the workmen;' and its legality or illegality must depend on the means by which it is enforced, and on Its objects. It may be criminal, as if it be a part of a combination for the purpose of injuring or molesting either masters or men; or it may be simply illegal, as if it be the result of an agree· ment depriving those engaged in it of their liberty of action, similar to that by which the employers bound themselves in the case of Hnton v. Eckersley, 6 EI. & BI. 47, 6G; or it may be perfectly innocent, as if it be the result of the voluntary combination of the men for the purpose only of benefitin;:; themselves by raising their wages, or for the purpose of compelling the fulfillment of an engagement entered into between employers and employes. or any other lawful purpose."
In our opinion the order should describe more distinctly than it does the strikes which the injunction was intended to restrain. That employes and their associates may not unwittingly place them· selves in antagonism to the court's authority, and become subject to fine and imprisonment as for contempt, the order should indicate more clearly than has been done that the strikes intended to be restrained were those designed to physically cripple the trust propertj", or to actually obstruct the receivers in the operation of the road, 01' to interfere with their employes who do not wish to quit, or to prevent, by intimidation or other wrongful modes, or by any device. the employment of others to take the places of those quitting, and not such as were the result of the exercise by employes, in peaceable ways, of rights clearly belonging to them, and were not designed to embarrass or injure others, or to interfere with the actual possession and management of the property by the receivers. In our consideration of this case we have not overlooked the op· servations of counsel in respect to the use of special injunctions to prevent wrongs which, if committed, may be otherwise reached by
328
the courts. It is quite true that this part of the jurisdiction of a court of equity should be exercised with extreme caution, and only in clear cases. Brown v. Newall, 2 Mylne & O. 558, 570. Mr. Justice :Baldwin, in Bonaparte v. Railroad Co., Baldw. 205, 217, Fed. Oas. No. 1,617, properly said: "There is no power, the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, .than the Issuing an Injunction. It Is the strong arm of equity, that neveroll,ght to be extended, unless in cases. of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury Impending or threatened, so as to be averted only by the protecting preventive process of injunction; but that wHl not be awarded in doubtfUl cases, or new ones not coming within well-establlslred principles, for if it issues erroneously an Irreparable injury is Intlicted, for which there can be no redress, it being the act of a court, not ot the party who prays for It. It will be refused till the court are satisfied that the case before them is· of a right about to be destroyed, irreparably injured, or great and lasting Injury about to be done by an illegal act. In such a case. the court owes it to its own suitors and Its own principles to administer' the only remedy the law allows to prevent the commission ot the acto"
hand require it to be done in order to protect rights of PIloperty against irreparable damage by wrongdoers. ltis, Justice Story said, because of the varying circumstances of oases, "that courts of equity constantly decline to lay down any rule which shall limit their power and discretion as to t4eparticular cases in which such injunctions shall be granted or withheld." "And," the author proceeds, "there is wisdom in this course, for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights or redress wrongs. The jurisdiction of these courts, thus operating by special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence." Story, Eq. JUl'. § 959b. In using a special injunction to protect the property in the custody of the receivers against. threatened acts which it is admitted would, if not restrained, have been committed, and would have in:fI.icted.irreparable loss upon that property, and seriously prejudiced the interests of the public, as involVied in the regular, continuous operation of the Northern Pacific Railroad, the circuit court, except in the particulars indicated, did not restrain any act which, upon the facts admitted by the motion, it was not its plain duty to restrain. No other remedy was full, adequate, and complete for the protection of the trust property, and for the preservation of the rights of individual suitors and of the public in its due and orderly administration by the court's receivers. "It is not enough," the court said in Boyce's Ex'rs v. Grundy, 3 Pet. 210, "that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and efficient tJO the ends of justice and its prompt administration, the remedy in equity." And the application of the rule that equity will not interfere where there is an adequate
to use this power when the circumstances of the particular case in
The authorities all agree that a court of equity should not hesitate
329
remedy at law must depend upon the circumstances of each case as it arises. Watson v. Sutherland, 5 Wall. 74, 79. That some of the acts enjoined would have been criminal, subjecting the wrongdoers to actions for damages or to criminal prosecution, does not therefore in itself determine the question as to interference by injunction. If the acts stopped at crime, or involved merely crime, or if the injury threatened could, if done, be adequately compensated in damages, equity would not interfere. But as the acts threatened involved irreparable injury to and destruction of property for all the purposes for which that property was adapted, as well as continuous acts of trespass, to say nothing of the rights of the public, the remedy at law would have been inadequate. "Formerly," Mr. Justice Story says, "courts of equity were extremely reluctant to tnterfere at all, even in regard to cases of repeated trespasses. But now there is not the slightest hesitation, if the acts done, or threatened to be done, to the property would be ruinous or irreparable, or would impair the just enjoyment of the property in future. If, indeed, courts of equity did not interfere in cases of this sort, there would, as has been truly said, be a great failure of justice in this country." 2 Story, Eq. Jur. § 928. So, in respect to acts which constitute a nuisance injurious to property, if "the injury is of so material a nature that it cannot be well or fully compensated by the recovery of damages, or be such as from its continuance and permanent mischief might occasion a cOllstantly recurring grievan.ce, a foundation is laid for the interference of the court by way of injunction." Kerr, lnj. 166, c. 6, and authorities there cited. This jurisdiction, the author says, was formerly exercised sparingly and with caution, ''but it is now fully established, and will be exercised as freely as in other cases in which the aid of the court is sought for the purpose of protecting legal rights from violation." In the course of the argument some reference was made to the act of congress of July 2, 1890, entitled "An act to protect trade and commerce against unlawful restraints and monopolies." 26 Stat. 209. It is not necessary in this case to decide whether, within the meaning of that statute, the acts and combinations against which the injunction was aimed would have been in restraint of trade or commerce among the several states. This case was not based upon that act. The questions now before the court have been determined without reference to the above act, and upon the general principles that control the exercise of jurisdiction by courts of equity. For the reasons we have stated the order complained of is reversed in part, and the cause is remanded with directions to sustain the motion to strike out and modify the injunction to the extent indicated in this opinion. Reversed.
330
Rl!JPORTElR,
CLAY at atv. DESKINS et al. (Circuit Court of Appeals,Fourth Circuit. No.75. RES JT1DTCA1'A-IDENTITY OF ISSUES.
October 2, 1894.)
"Whel',e, In a suit to set ar;ide a !lale'of lands as in fraud of the rights of complainants therein, who claim the land under a prior contract of purchase, a state court decides that they have lost all rights under their contract, and hence cannot attack the sale, such decision is conclusive of complainants' rights Ina subsequent suit by them in a federal court against thesaJPe defendants to recover, on the strength of the same contract of Purchase, the profits made by the vendee in the fraudulent.sale on a resale of the land.
Appeal from the (Circuit oOurtof the United States for the District of West Virginia. ' This was a bill by Samuel Olay,Jr., and George W. Headlf'y, against:L. S. Deskins, W. H. Des-kins, Stuart Wood, William Blackham, arid Annie Blackham,his wife, to recover the profits on the sale of certain land byW. H. Deskins to defendant Wood. A deillurrer to the bill was and complainants appeal. Affirmed. . Clay Rrid' Headley, the appellants ,'In this case, on 25th May, 1888,. entered into aconltnact with L. S. Deskins and William Blackham ,for the purchase of a In West Virginia of some 5,000 acres., By the terms of the contract,theprjce of the 'land was to be '$3 per acre, of which the sum of $230 was to be, paid, and was paid 10 cash, the remainder within 10 months from date, atwliicbtlme, and on receipt of the money, a deed of the land would be executed by, the vendors. At the date' of this contract, there was pending in :W. Va., a suit in chancery against L. S.Deskins. one of the contractlnl( ,vendors,-a creditors' bill, Pattoll Bros. v. L. S. Deskins and others,-seeklng, among other things, the. enforcement of a judgment agaInst him for Some $262.57, and a decree had been entered thereon 6th October, 1886, and an order for sale of these lands contracted to be sold for the satisfaction of the decree. Owing to the absence and inability of the commissioner appointed to conduct the sale, and some delay in appointing a substitute, the sale dld not take place UlltU 1st April, 1889. On that day, H. K. Shumate, duly appointed commissioner, ,offered the laI:l-ds at public auction, and they were bid in by W. H. Deskins, at the sum of $10,000. Shortly afterwards, owing tQ a higher: offer by another person, the bid was raised to $15,000. At that price the land was conveyed by Shumate, the commissioner, to W. H. Deskins, and the sale was confirmed by the court. Thereupon, Samuel Clay and George W. Headley, who are now the appellants in this case, instituted proceedings by way of blIl in equity. in Logan county, W. Va., against Shumate, the commissioner, who made the sale, L. S. Deskins, and William Blackham, who had made the contract of sale, and W. H. Deskins, the purchaser at the sale, and Stuart Wood, who had contracted to buy the land from W.H. Deskins. The bill charged that the sale was fraudulent and void as against the complainants, and that it infringed against, and, was an attempt to destroy, the rights acquired by them on the contract; 'Fhis contract set out in the first paragraph of the bill, and claim and rely on it as the foundation of their right of action. The circuit court of Logan county, after full hearing, sustained the allegations of the bill, set aside the sale as fraudulent and void, and declared that the complainants were entitled to the relief prayed tor in the bill. A part of this relief, and as a consequence of setting aside the sale, was that L. S. Deskins and William Blackham, upon receipt of theremainderof the purchase money under the contract, would be compelled to make to the complainants a proper deed of conveyance of these lands. The cause was carried into the supreme court of West Virginia by appeal 00 the