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YALE 
LAW JOURNAL 

VOL. VI APRIL, 1897 NO. 5 

INJUNCTION IN THE FEDERAL COURTS. 



The jurisdiction of the National courts to issue the writ of 
injunction is not peculiar or exceptional. Within the classes of 
cases of which they may take cognizance those courts grant or 
refuse that kind of relief by the same rules and principles which 
from time immemorial have prevailed in the English Chancery 
and in the equity courts of those States of the Union which 
derived their jurisprudence from the mother country. Equity 
as a system, more perhaps than the Common Law, has been 
enlarged and modified to meet the changing conditions of busi- 
ness and civilization, and it is only natural that there should 
have been instances in which jurisdiction has been exercised in 
excess of rightful power, but when error of that kind has 
occurred it has been promptly corrected, either by direct appeal 
or by force of contemporary and more authoritative decision, 
and it is safe to say that no essential departure from recognized 
principles has become abiding or permanent. Steam power, 
electricity, railroads, telegraphs, corporate organizations, labor 
unions, trusts and other agencies and schemes of modern enter- 
prise have vastly extended the field and multiplied the occasions 
for the exercise of equity powers including the power to enjoin, 
but the character of the jurisdiction and the principles which gov- 
ern its exercise have been changed or enlarged no more than the 
provisions and underlying principles of the National Constitution 
and the powers of government thereby established have been modi- 
fied or increased by the admission of new States into the Union. 
No decision of the Supreme Court, or of any United States Circuit 
Court of Appeals, touching the subject of injunction, can be 
said to be founded on or to involve any new doctrine, or any 
application of established principle which was new save in the 
circumstances and conditions brought under consideration, and 



s 4 6 YALE LAW JOURNAL. 

with two or three exceptions the same is true of the recent Cir- 
cuit Court decisions, which have been made the subject the 
country over of discussion and criticism. Brief references to 
the more notable of these cases will not be out of place. 

In the Ann Arbor case, in the United States Circuit Court at 
Toledo, the Pennsylvania Company and other railroad compa- 
nies and their employes were enjoined against refusing to 
receive the cars of a boycotted connecting line^ and Mr. Arthur, 
the chief executive of the Brotherhood of Locomotive Engineers, 
was forbidden to issue or to continue in force any rule or order 
of the brotherhood which should require any of the employes of 
the respondent companies to refuse to receive, handle and de- 
liver cars of freight in course of transportation from one State to 
another over the boycotted road. An engineer who, without 
quitting his locomotive, refused to attach to his train cars from 
the Ann Arbor road, was declared guilty of contempt of court 
and adjudged to pay a fine. 1 

Serious objection, so far as known, has been made in no 
respectable quarter to anything actually decided in that case by 
either the circuit or district judge. Each of them delivered an 
opinion in which the right of employes individually or collect- 
ively to quit work or employment, unhindered by injunction, is 
distinctly recognized, but in the opinion of the district judge are 
dicta to the effect that it may be proper for a court of equity 
under peculiar circumstances of danger and hardship to the 
public, or in dealing with a conspiracy to boycott, to prevent an 
employe from quitting the service in which he is engaged. As 
an example of public danger which would justify the writ it is 
suggested that the engineer and fireman might be enjoined 
against abandoning a train part way on its route at a place 
where passengers and property would be imperiled. The sug- 
gestion seems impracticable. If the probability of such conduct 
could be known in time to apply for an injunction, the answer of 
the court would be : Discharge the men before they start, and 
if you cannot find trustworthy substitutes take off your train. 
There might be some danger, however, in such a course, if the 
law were as declared some years ago by a Judge of the Superior 
Court at Indianapolis, where, strikers having taken possession 
of a street railway in such manner as to make the running of 
cars impossible, the Judge, on motion of a citizen, declared the 
failure of the company to keep its lines running to be such a 
dereliction of duty to the public as to call for the appointment of 

l Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co. , 54 F. R. 730, 746. 



INJUNCTION IN THE FEDERAL COURTS. 247 

a receiver to discharge that duty. In the Southern District of 
California, upon the petition of a railway company against its 
own employes, alleging that though remaining in the employ- 
ment of the company they "refused and still refuse" to move 
any train with a Pullman car attached, an injunction was 
granted "requiring the defendants to perform all their regular and 
accustomed duties so long as they remain in the employment of 
the complainant company. ' ' 2 If not wrong that order is very 
near the line of error. The company being at liberty to dis- 
charge all who refused to do their accustomed duties and to 
employ others to take their places, why should equity interfere 
— especially to order the performance of personal service? 

The dicta of the Ann Arbor case soon ripened into a decision 
by the United States Circuit Court for the Eastern District of 
Wisconsin, reported in Farmers Loan and Trust Co. v. Northern 
Pac. R. Co., 60 F. R. 803. By the injunction granted in that 
case the employes of receivers in charge of the Northern Pacific 
Railroad, besides being forbidden to do specified acts of depre- 
dation and direct interference with the operation of the road, 
were restrained "from combining and conspiring to quit * * * 
and from so quitting the service of the said receivers, with or 
without notice, as to cripple the property or to prevent or hinder 
the operation of said railroad." That injunction in so far as it 
undertook to restrain men from quitting the employment of the 
receivers was annulled by the decision of the United States Cir- 
cuit Court of Appeals for the Seventh Circuit, in Arthur v. 
Oaks, 24 U. S. App, 239, 11 C. C. A. 209. In the opinion there 
reported, written by Mr. Justice Harlan of the Supreme Court, 
it is said: "It would be an invasion of one's natural liberty to 
compel him to work for or to remain in the personal service of 
another. One who is placed under such constraint is in a condi- 
tion of involuntary servitude — a condition which the supreme 
law of the land declares shall not exist within the United States, 
or in any place subject to their jurisdiction. * * * 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. If the 
quitting in the one case or the discharging in the other is in vio- 
lation of the contract between the parties, the one injured by 
the breach has his action for damages. * * * The exercise 

2 Sou. Cal. Ry. Co v. Rutherford, 62 F. R. 796. 



248 YALE LAW JOURNAL. 

by employes of their right to quit in consequence of a proposed 
reduction of wages could not be made to depend upon considera- 
tions of hardship or inconvenience to those interested in the 
trust property or to the public. The fact that employes of rail- 
roads 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." 

These utterances, it may be remarked in passing, made it 
natural and probable, not to say logically necessary, that Justice 
Harlan should have dissented, as he did, from the recent opinion 
of the Supreme Court in Robertson v. Baldwin, where it was 
held that, notwithstanding the Thirteenth Amendment to the 
Constitution, a seaman, who in violation of his contract of 
service had deserted a vessel, "engaged in a purely private 
business, " could be arrested and remanded against his will to 
the service of the master. 

The opinion in Arthur v. Oaks had not been handed down, 
but what it would be was known to me, when the injunction of 
July 2, 1894, was ordered against the officers of the American 
Railway Union and others engaged in riotous interference with 
interstate commerce and the carrying of the mails upon the rail- 
roads entering Chicago, and accordingly, though the application 
then made was for a writ quite as broad as that against the 
employes of the receivers of the Northern Pacific, the order pro- 
posed was so modified as to impose upon employes, individually 
or collectively, no restriction against quitting service, or strik- 
ing, if done without direct and active interference with the 
operations of the roads engaged in interstate commerce and in 
carrying the mails. The injunction was disregarded, and when 
the officers of the Railway Union were arraigned for contempt 
the jurisdiction of the court to issue the injunction was denied. 
For an understanding of the many questions raised in the course 
of the discussion of that case reference must be made to the 
opinions delivered in the Circuit Court 8 and in the Supreme 
Court of the United States. 4 The opinion in the Circuit Court 
was designed to show that the jurisdiction exercised was justifi- 

s U. S. v. Debs, 64 F. R. 724. 
4158U. S. 564. 



INJUNCTION IN THE FEDERAL COURTS. 249- 

able both upon general equitable principles and by the Act of 
Congress of July 2, 1890, known as the Anti-Trust Law. For 
reasons stated the decision was based upon the statute, though if 
the hearing had been in a court of last resort the broad equity 
ground would have been preferred, as it was by the Supreme 
Court, though that court was careful to say that it must not be 
understood that they dissented from the conclusions of the Cir- 
cuit Court in reference to the scope of the Act of Congress, and 
that they, in fact, concurred in those conclusions is demonstrated 
by a statement to that effect in the dissenting opinion of Mr. 
Justice White in United States v. Trans- Missouri Freight Asso- 
ciation, decided a short while ago — the dissenting criticism being 
that in its last decision the Supreme Court had given the statute 
a wider and an unwarranted scope. In the contempt case it 
was held, or, perhaps it would be more accurate to say, it was 
assumed, that the contracts, combinations and conspiracies 
which under the statute might be enjoined were such as would 
be deemed to be unlawful irrespective of the act; but by this 
decision the Supreme Court goes much further, holding that 
every contract, combination or conspiracy, which in fact is in 
restraint of interstate commerce, being expressly declared 
unlawful, is thereby brought within the scope of the act. The 
distinction manifestly is one of very great significance. 

The officers of the American Railway Union, when arraigned 
for contempt, demanded but were denied a trial by jury, and 
having been found guilty by the court, after a protracted and 
formal hearing, were sent to jail, one for six months and the 
others each for three months, and though such had always been 
the practice, and from the nature of an equity court there could 
have been no right to a jury trial, this denial of a demand for 
such trial was made the excuse or pretense for an attempt, not 
wholly unsuccessful, to excite public sentiment against the 
power of the courts, both of law and equity, to punish contempts 
of their authority, though the power, as every intelligent man 
must know, is essential to the usefulness of a court, and has 
been exercised, as occasion required, since the Government was 
founded. As late as April, 1894, a juror in the Federal Court 
at Indianapolis, detected in an effort to be bribed, was sum- 
marily declared guilty of contempt of court and sent to 
State prison for fifteen months; but that incident excited 
no fear that the Constitution was being undermined or the liber- 
ties of the people endangered. It is hard to believe that any 
one in his sober senses thinks the imprisonment of Debs a 



250 YALE LAW JOURNAL. 

dangerous precedent ; yet at the instigation of Grand Masters 
and Grand Chiefs of various well-known and reputable organi- 
zations, claiming to represent 800,000 railroad employes, in 
whose behalf they especially urged that in prosecutions for con- 
tempt there should be a right of trial by jury, a number of bills 
on the subject were introduced in the last Congress, one of which 
was passed by the Senate embracing that provision, together 
with others which are not essentially objectionable. It is not 
unreasonable that in a case of contempt committed out of the 
presence of the court there should be a formal procedure upon 
affidavit showing the facts supposed to constitute the con- 
tempt, to which the defendant should be allowed to make 
answer, and that the trial should be upon evidence adduced in 
open court. If the practice in such cases in any court has ever 
been essentially different the fact was not disclosed in the Sen- 
ate debate. The bill undertook to put no limit upon the amount 
of fine or imprisonment in such cases, but contained a provision 
for an appeal, which the writer thinks ought to be allowed in 
cases of all sorts when the matter is of importance and espe- 
cially when personal liberty is involved. It might well be pro- 
vided, too, that for a contempt infamous punishment should not 
be inflicted. Such punishment can be appropriate only to infa- 
mous crimes. But the privilege of trial by jury is inconsistent 
with the purpose of the power to punish in such cases and could 
only result in crippling and demoralizing the courts in the daily 
administration of justice. In a court of law, if a juror or panel 
of jurors should refuse to attend, it would be necessary that other 
jurors be summoned to try them for the contempt, and what if 
they, too, should refuse to come? And what if the marshal and 
his deputies should refuse to serve the writs of the court? An 
equity court has no jury and, unless it is to be supplied with a 
new and incongruous piece of machinery to be kept on hand, or 
summoned when needed, solely for the trial of contempts as 
they may occur, will have to send its contempt cases to a court 
of law, to be tried when in the course of business in that court 
they shall be reached, suspending meanwhile its own procedure. 
It is well to observe, moreover, that if the trial by jury were 
allowed, a strike like that of 1894 at Chicago would have no bet- 
ter chance of success. Now that the jurisdiction of the courts 
in such cases is beyond question, an injunction would certainly 
issue as before and if not heeded the President, if true to his 
trust, would send the army as before to compel submission, and 
that accomplished it would be a matter of comparatively small 



INJUNCTION IN THE FEDERAL COURTS. 351 

importance whether there should be trials for contempt, or 
whether, if had, they should be by the court or by jury. The 
question involves no more the rights and liberties of laboring 
men than of other citizens. Nobody in his right mind believes 
that there has been usurpation of power by the courts, or that 
the power exercised is the source or beginning of peril to indi- 
vidual or collective rights. Out of all that has been done by the 
courts since the Government was founded there can be deduced 
no sound reason for depriving them of their accustomed and 
well-understood power to enforce respect and order in their pres- 
ence, and to compel obedience to their writs and commands 
wherever lawfully sent. 

W. A. Woods.