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In l'eGRANDJURYt

I',

Wlstrtct C9urt. $; J:)'.

,:'.;Jqne 29.

1894.)

L' ,CoNsPIllAbt"':OBSTRUCTIONOP "INTERIlTA:Ttll' :COMMERCE. wl\ich is;" Imk:lD road by and freight are carried into a state from other states and"theqcl! to other ,in within the statute declaring eVet'y"C<ttllblnation or conspiracy in restra\nt of such commerce to be an oifense.
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must, unbeyQndltl\Control, run t;J:nins In a reasonltS'the ol:dinttry' usiness Qf, comm,arce, requires, able mann,e.r," a,nd yet, where"the eolllpOsl'ttdn lit' itstrlilns, as ordinarily mMe' Up, is reasonable and appropriate 'to: ;stlrvice required, it is not obliged, "on the i refuSfll to --WOVe ,the ·trl!.!lls SO long as: Certain cars are of( SUch run rest of tJ¥l,
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WheretM, pilsilenier '1rahis; of' a railroad hate, been- :designated for the ca.",lilg 'of mail, 'tMlure of the railroad to run other 1ra!ns for 'tllat pu!1i6se:ls\not iq violation of 'tb& statute against, obstruction and Wterruptioll ma». ,,: '
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InstrUctloIlIil'g1"en.to the'grand jury by nOSS, District Judge:
(June 29, 1894.)

Gentlemenot Un:d.er and by virtue of provisions ofthe statutes of the UnitedStatesallraUroads orpar.ts of railroads Which are now in operatio'If pos'trdads, and every railroad company in the Uni,ted States, whose road is operated by steam is auto carry upon'aito overits boats, bridges, and ferries aU passengers, troops, supplies, mails, freight, and property' on their way from any sta.te to a,nother state, and to conneot with roads of other Ii'ltateS M as to lines for the transportation o,f the satrie, to the place of, destination. A railroad which is 'it lirik hi a Un-ough line of road by· which paSsengers and freight are carried into other states, and froIJl that state to other states, is engag¥1,in"thebusiness of commerce, e"ery in. restraiilt of such trade or conu'nerce IS tO"be Illegal, and the persons so coInbiningorcppspitingare by law" guilty of the commission of a <;ritile. ,Oongress regulate such commerce, and h#provided, common carrier subject wihe provj.SiOp'Il, act;,or; whenever any such common Camel' is a corpOration, any'directOr or officer thereof, or employed or any receiver, trustee, lessee, agent, or person by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully omit or fail to do any act, matter, or tbing required to be done by the act, or lilhall cause or willfully suffer or permit any act, matter, or thing so directed or required by the act to be done, not to be done, or shall aid or abet such omission or failure, shall be deemed guilty of a misdemeanor, and punished in a certain prescribed way. It is also declared by a statute of the

IN RE GRAND JURY,

835

United States that any person who shall knowingly and willfully obstruct or retard :the passage of the mail is guilty of a crime, and shall be punished. ltis further declared by a United States statute that, "if two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any actto effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than $10,000 or to imprisonment for not more than 2 years" or to both fine and imprisonment, in the discretion of the court" Rev. St. § 5440. Icharge you, gentlemen of the jury, to forthwith diligently inquire whether any of the laws of the United States to which I have specially called your attention have been violated by any person or persons within this judicial district. You must, in the language of the oath which you and each of you took when impaneled as grand jurors, "present no person from envy, hatred, or malice; neither shall you leave any person unpresented from fear, favor, affection, gain, reward, or the hope thereof, but you shall present all things truly as they come to your knowledge, according to the best of your understanding." It is of the first importance that the law be in all things and at all times maintained. This is especially true in times like the present, when there seems to be abroad in the land a spirit of unrest, and, in many instances, a defiance of law and order. Every man should know, and must be made to know, that whatever wrongs and grievances exist, no matter in what quarter, can only be corrected through lawfulmeans; for the great mass of the American people are law-loving and law-abiding, arid will never tolerate any high-handed or unlawful attempt to correct wrongs, whether they be real or. imaginary. It is true that ordinarily every man has the legal right to stop work and quit his employment whenever he chooses to do so, unless there be a contract that obliges him to continue for a definite time; but no man has a legal or moral right, while continuing in the employment of another, to refuse to do the work he is employed and en· gages to do; and where such refusal goes to the extent of violating , a law of the United States it is the solemn duty of those charged with its administration to take every step requisite and necessary to its complete vindication.
(JuJy 2. 1894, Morning Session.)

Gentlemen of the Grand Jury: I understand, through the district attorney,' that you desire some further instructions in regard to the mail. Congress has provided by statute that the postmaster general shall in all cases decide upon what trains and in what manner the mails shall be conveyed, and that officer has, through his subordinates, designated for the Southern California Railway Company and the Southern Pacific Railroad CDmpany in this judicial district the l1egular passenger trains of those roads for the carrying of the Unit· ed States mails. Neither of those companies is by the law required to run any other trains than their regular passenger trains for the carrying of the mails, and their failure to do so is not a violation of any law of the United States to which my attention has been called,

836

FEDERAL REPORTER,

'Tal. 62.

or that I have been able to find.AsI tolll you the other day, in effect, any and every person who shalLknowingly and willfully obstruct or ret3:rd the passage of the mail is ,guilty of a crime against the laws of the United States, and, if two, or more persons conspire to commit that or any other offense against the United States, and one or more of such parties do any act to effect the object of the con· spiracy, all of the parties to such conspiracy are guilty of a crime; and, if you find from your investigations, which 1 charged you, and again charge .you, diligently to pursue, that any such offense has been committed within this judicial district against the laws of the UIiitedStates, it is your imperative and solemn duty to find an in· dictmentor indictments against any and every such offending person. Using the substance of the language of Judge Jackson in a somewhat similar case that arose in West Virginia in 1893, it is proper for me to say that. exactly what is involved in the strike which has brought about a:llofthe trouble here and elsewhere is not for you or me to investigate. At this time it is not necessary to say which side is in the right nor which side is in the wrong, or whether, in fact, either side is in the wrong upon the merits of that question. It may be well to again say that there is but one way to redress a wrong known in this country, and that is through the regularly con· stituted tribunals of the country. No man, no set of men, no communistic combination of men, can lawfully undertake to .redress a wrong except in the way pointed out by law. Whenever men attempt to unlawfully combine themselves together for the purpose of redressing a wrong, they strike at the very foundation of those laws. which give them the right ofa citizen,-the protection of life, of libel'lty, and the pursuit of happiness. It is the solemn duty of all good citizens to ponder and think of these things, and be sure that their acts, whate'Ver they are, be within, and not contrary to, the laws of the country; and it is thasworn and imperative duty of those charged with the administration of the laws to take prompt and vigorous measures to bring to the bar of justice any and every infraction of them.
(July 2, 1894, Afternoon Session.)

'Gentlemen of the Grand Jury: Most of the questions propounded by some of your members are answered in substance by the in· structions already given to you by the court. The court has already told you that it is provided by a statute of the United States that the postmaster general shall in all cases decide upon what trains and in what manner the mails shall be conveyed, and that that officer has, through his subordinates, designated for the Southern California Railway Company and the Southern Pacific Railroad Company in this judicial district the regular passenger trains of those roads for'the carrying of the United States mails; and, further, that neither of those companies is by the law required to run any other trains than their regular passenger. trains for the carrying of the mails, and that their failure to do so is not a violation of any law of the United States. The court has further instructed you, and

IN'RE GRAND JURY:

837

again repeats, that any and every person who shall knowingly and willfully obstruCit or retard the passage of the mail is guilty of a crime against the United States, and that any and every person who knowingly and willfully interferes with or obstructs any interstate commerce is guilty of an offense against a law of the United States; and that, if any two or more persons-it makes no difference who they are-conspire to commit either of those offenses against the United States, and one or more of such parties do any aot to effect the object of the conspiracy, all of the parties to such conspiracy are guilty of a crime. Whenever such acts are of a character to pre· vent and obstruct the carrying of the mails, or to interfere with or obstruct any interstate commerce, and are done for the purpose and with the intent to prevent or obstruct the same, a crime is committed.
(July 3, 1894.)

Gentlemen of the Grand Jury: I especially call your attention this morning to the report of certain acts and declarations of a Doctor Ravlin at a public meeting reported to have been held at Hazard's Pavilion in this city last night, and in connection there· with I instruct you that it is declared by the statutes of the United States that "every person who incites, sets on foot, assists, or en· gages in any rebellion or insurrection against the authority of the United States, or the laws thereof, or gives aid or comfort thereto, shall be punished by imprisonment not more than ten years, or by a fine of not more than $10,000, or by both of such punishments; and shall, moreover, be incapable of holding any office under the United States" (Rev. St. § 5334); and, further, that, "if two or more persons in any state or territory conspire to overthrow, put down, or to destroy by force the government of the United States; or to levy war against them; or to oppose by force the authority thereof; or by force to prevent, hinder, or delay the execution of any law of the United States; or by force to seize, take, or possess any property of the United States contrary to the authority thereof; each of them shall be punished by a fine of not less than $500 and not more than $5,000; or by imprisonment, with or without hard labor, for a period not less than six months, nor more than six years, or by both such fine and imprisonment." ld. § 5336. You will forthwith. diligently inquire whether at the time and place men· tioned, or at any other time or place within this judicial district, any person or persons have violated either of these provisions of law, or any other provision of law of the United States; and, in the event you find that any such or have been commit· ted, you should forthwith find and return to the court an indictment or indictments against the person or persons so offending, to the end that he or they may be dealt with as law and justice demand. , And I charge you that, in the event you find that any such offense ! or offenses have been committed, the very man or men' first to be proceeded against should be the prime movers and controllers in . such unlawful acts, and the very man or men who should first be ar· rested and imprisoned are the ones who declare they will not be ar·

there be. of the .grand jury, it 1B',wellto and have it fully llnderstoQd inAimes like the present, 'that this' is 'It'government of law and that the mlljE!st,or the law must a.JI.d: surely '\VIU1:prevail. Yop..;tIld I are its ,ntinistel'snow, and not, (me' ,single duty or respollsibility ought to be shi'I'ked; evaded, or postPoned. The situation of aifilirs demands pfoniptand 'Vigorous actiothon the part of each and every officer 'Of whieh it ShoUld:be not only the wish,but the pleasure, citizen to owy; The:questions with 'which:we have to deal are wholly apart from anyiof'the lilleged 'grievances between:.,the employes of the Pullman and rgiJrMd' companies: and their employers; but the oV,ershadow, is whether' the laws 'of, the United States shall be ing' permitted to be trampled under foot with impunity; and as to that there can be but one answel',tand that iis in the negative.
(July. 11,

Gentlemen of t)).e Gra;n.d Jury: of your number has asked fol' ,further in!i!tl'Uctions; respecting the, law bearing up OIl the subjeet You have been infqrmed by the (lDurt.. of provisions of the ,statutes of the United States allrailrQadEl.or. parts of railroadswmch are now in pperation are post rOl;\ds, llndthatevery railroad company in the 9perate4 by, steam is authorized to carry United States whose bridgejil, and ferries, lill passengers, upon andover its roa<4 mails,freight, and property on their troops, government to connect with roads of way from any state ,other states so as,to fcwmicQntinuouslitttes for the transportation of the. same to the place .of: . and that a. which is a link in a thl'pugh line· of, road by whiqh and freight al'e from that state to other carried into a state frOJUJotber of illterstate c()n:imel'ce, and that states, is engaged in :every eombinatipn or in restraint of such trade 01' commerce is by statute to be illegal, and the persons so com,bining or guilty of the commission of a crime, .whether they berailrPl,u},presidents, managers,superintendents, :eonductors, Or f\remen. "Commerce with foreign countries and among ilie statel!li strictly considered," said the supreme court of the United States in County of Mobile v. Kimball, 102 U. S. 691-702, "cOnsists in intercourse and traffic, including in ·these terms and the transportation ,and tI;ansit of persons and property, as. well as the pyrchase, sale', and exchange of eormnodities/' And Mr., ,Pomeroy" in: ,his work,. on Constitutional Iiaw (section 378), referring to the signification of th.e word "commerce;" says: iuelude$ the fact otd'li1tercourse,qnd. of traffic and the subject-matter of ',intercourse and traffic.:' 'rlw fact of intercOUl.'Seand traffic, again, embracesaR,the meall,s, instruments, and :places by and inwhicbAntercourse and traffic are carried on, and, .further still, comprehend$ the act of car,rying. them on at these places and by and witi these means. ',T4esllbject-matter of inter-

IN RE GRAND

839

course or traffic may be either things, goods, chattels, merchandise, or persons. All these may therefore be regulated." Congress has passed laws to regulate such commerce, thereby requiring carriers engaged in such transportation of persons and property to transport them in accordance with and subject to the provisions of the act, and has provided, among other things, that any common carrier subject to the provisions of the interstate commerce act, or, whenever any such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, who alone or with any other corporation, company, person, or party shall willfully omit or fail to do any act, matter, or thing required to be done by the act, or shall cause or willfully suffer or permit any act, matter, or thing so directed or required by the act to be done, not to be done, or shall aid or abet such omission or failure, shall be deemed guilty of a misdemeanor, and punished in a certain prescribed way. In respect to the mails of the United States, it is declared by statute that any person who shall knowingly and willfUlly obstruct or retard the passage of the mail, is guilty of a crime, and shall be punished. It is further provided by statute of the United States that the postmaster general shall in all cases decide upon what trains and in what manner the mails shall be conveyed, and that officer has, through his subordinates, designated for the Southern California Railway Company and the Southern Pacific Railroad Company in this judicial district the regular passenger trains of those roads for the carrying of the United States mails. Neither of these companies is by the law ['equired to run any other trains than their regular pass2nger trains for the carrying of the mails, and their failure to do so is not a violation of any law of the United States. But on all of their regular passenger trains, whether they be local or through trains, they are required to carry the mails, and their failure or refusal to do so is unlawful. As respects interstate commerce, railroad companies engaged in such commerce should, unless prevented by circumstances beyond their control, run their trains in a reasonable manner, and as often as the ordinary business of commerce requires. At the same time, as owners of the property, they are legally and justly entitled to determine how many and what cars and engines shall constitute their trains; and, when the composition of trains as usually and ordinarily made up by them is reasonable and appropriate to the services required of them, the law does not, upon the refusal of their employes to move the usual and customary trains, require of such companies to divide the train, and run a less number of cars. The court has further iniltructed you, and again repeats, that any and every' person, whether an employe of a railroad company in high or low position or not employed at all, who shall knowingly and willfully obstruct or retard the passage of the mail, is guilty of a crime against the United States, and that any and every. person, whether an officer or employe of a railroad company or not, who knowingly and willfully interferes with or obstructs any interstate commerce is guilty of an

840.
Of

FEDEML REJ;!ORTER.

vol. 62.

ofteh$eagajnst a law of the United States; and that, if any two mOl'ei,perSons, it makes no difference who they are, conspire to comlDiit of those offenseli!l against the United States, and one OJ! mo.-eof,such parties do any act to effect the object of the conspiracy,all·of the parties to such conspiracy are guilty of a crime. Wb,enever acts are of a character to prevent and obstruct the carryjng, ,of the mails, or to interfere with or obstruct any interstate ,and are done for the purpose and with intent to prevent or ,obstruct the same, a crime is committed. When the acts which c.J."eate the obstruction are in themselves unlawful, the intention'toobstruct will be imputed to their author, although the attainment of other ends may have been his primary' object. Since pJ!eparing the foregoing instructions, the court is informed that lawless and criminal acts were committed in this city last night, and you are instructed to forthwith inquire whether any of such acts fall within the criminal statutes of the United States as heretofore pointed out and explained to you by the court, and, if you find thllit any of the laws of the United States were thereby violated,you should forthwitl1 indict the offending persons.

In reGRAND JURY. (District Court, N. D. California. July 13, 1894.) 1.
CONSPIRACy-OBSTRUCTION OF INTERS'fATE COMMERCE.

Any combination or conspiracy on the part of any class of men who by violencl:! .and intimidation prevent the passage of railroad trains engagW in interstate commell."Ce is in violation of Act July 2, 1890, declaring illegal every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the states.

2.

MAIL-OBSTRUCTING PASSAGE.

It is a Violation of Rev. St. i 995, declaring it an offense to knowingly and willfully obstruct or retard the passage of the mail, for one to prevent the running of a mail train as made up, though he is willing that the mail car shall go on, and his purpose is other than to retard the mails.

8.

SAME.

The railway is a great public highway, and the duty of the railroad company as a common carrier is first to the public. The road must be kept in operation for the accommodation of the public, if it is possible to do so with the force and appliances within reach. Any negligence in this respect is not excused by temporary difficulties capable of being promptly removed.

4.

SAME.

Where the transportation of the mails and interstate commerce has long been interrupted by the refusal of the employi'is of the railway company to move trains carrying,Pullman cars, it Is the duty of the railway company to Wle every effort to move the mails and interstate commerce, without regard .w the make-up of regular trains; and any willful failure to perform this duty is a violation of the statute.

6.

GRAND JURy-FINDING-INDICTMENT.

An indictment should only be. found where the grand jury believe that the evidence before them would warrant a conviction.

Charge to the grand jury by MORROW, District Judge: