We are pleased to present, in installments, a very rare yet significant book written by former Congressman Henry George Jr. in 1905.
Earlier installments are available at the Progress Report Archive.
start of CHAPTER 13, GOVERNMENT BY INJUNCTION
Stacking the Deck Against Workers
HAVING seen the nature and the origin of the recent form of the enjoining power of the equity court, let us observe the manner of its application.
While noting the difficulty of recognizing any controlling principle in the general mass of injunctions used, Judge Seabury divides them into three classes, to wit : --
First. Those cases where the courts hold that force, violence and intimidation constituting a crime have been resorted to.Judge Seabury, giving idea of the rapid development of the injunction principle, says that between 1888 and 1891 several injunctions were issued in labor disputes, prohibiting solicitations, threats, parading with banners, putting out circulars and other ways of making a boycott effective. These injunctions were all granted upon the ground that a conspiracy existed, and irreparable damage to property would result unless a court of equity interfered. Then came the next leap forward.
Second. Those cases which are based upon the Federal act of 1887 regulating inter-State commerce and the so-called anti-trust law of 1890.
Third. Those cases where the application commends itself to the judgment of the judge to whom it is addressed. (Samuel Seabury, "The Abuses of Injunctions," The Arena, June, 1903.)
"In 1892," says the judge, "an injunction was issued against a miners' union in Idaho, prohibiting the miners from entering upon mines of the Coeur d'Alene Consolidated and Mining Company, or from using force, threats, or intimidations preventing employee s from working. (Coeur d'Alene Consolidated and Mining Co. vs. Miners' Union, 51 Fed. Rep. 260.) The ground upon which the court claimed to grant this injunction was not to protect private rights, but to preserve the public peace, and thus protect public rights."
In 1893 a further step was taken by Federal Judge Taft who prohibited Grand Chief Arthur of the Brotherhood of Locomotive Engineers, and commanded him to rescind an order which he had already given boycotting a railroad (Toledo vs. Pennsylvania, 54 Fed. R ep. 730). The injunction was issued upon the ground that the Interstate Commerce Act imposed certain public duties upon the railroad company, the omission to perform which constituted a crime; that Arthur had conspired with others, by means of a boycott, to make it impossible for the railroad company to perform its obligations, and, therefore, Arthur and his associates were guilty of a crime which constituted irreparable injury to the public as well as to the railroad company. For this reason he was enjo ined.
Then came Federal Judge Ricks with the declaration that while railroad engineers might by a boycott in such circumstances be guilty of a crime, yet that engineers who refuse to haul cars in obedience to a rule of the labor union "and in good faith quit th eir employment before starting on their run, may not be in contempt" (54 Fed. Rep. 746). That is, if they resign from their employment while in process of a run, they are in contempt; but if they do so before a run has begun, they are not in contempt, no twithstanding the existence of a contract; since such employees are "exercising a personal right in quitting unconditionally and absolutely, which cannot be denied them."
From this Federal Judge Jenkins, when a strike was threatened by the employees of the Northern Pacific Railroad, owing to a reduction in "salaries and wages," not only enjoined the men from so quitting the service of the railroad, "with or without notice, as to cripple the property or to prevent or hinder the operation of said railroad," but declared that they can, in effect, be compelled to assent to a new contract where the refusal to do so would result in "crippling the property or preventing or hinder ing the operation of said railroad" (Farmers' Loan & T. Co. vs. Pas. R.R. Co., 6o Fed. Rep. 803). (See this and the Taft and Ricks injunctions reviewed in House Report No.1049, Fifty-third Congress, second session. Besides being published separately, this report is republished in Senate Doc. No.190, Fifty-seventh Congress, First session, pp. 122-143.)
But in all respects the most celebrated injunction case was that growing out of the Pullman strike in 1894. In consequence of a refusal by the Pullman Company to arbitrate the question of a proposed reduction of wages, the employees struck. (See Report o f Commission of Investigation, Senate Ex. Doc. No.7, Fifty-third Congress, third session.) The American Railway Union, of which the Pullman employees were members, then declared a boycott on all Pullman cars. On July 10, Eugene V. Debs, president of the union, was arrested on indictments of obstructing the mails and inter-State commerce. He was arraigned, but, despite his demands to be tried, the case was abandoned by the prosecution -- for want of proper evidence, it was commonly believed at the time, in absence of adequate explanation.
President Cleveland's Strike Commission subsequently declared, "There is no evidence before the Commission that the officers of the American Railway Union at any time participated in or advised intimidation, violence or destruction of property." But if a jury would not punish when it had no evidence, another way might be found. It was found through an injunction without a jury.
An "omnibus" enjoining order was, on July 17, issued by Federal Judges Woods and Grosscup against Debs and the officers of his union, all of whom it specifically named. It also included all persons whomsoever (158 U.S. 564). It was served on some person s in the accustomed way by presentation in person; but on all the persons not named it was served by publication in newspapers, tacking on telegraph poles and on freight cars and reading aloud to a great crowd of strikers and others.
Presumably on the ground that the American Railway Union was obstructing the United States mails in spite of the restraining order, although the soldiers that President Cleveland insisted on sending into Chicago were sent to the stock-yards district, wher e there were no mail cars, Debs and others were arrested for contempt of court.
They were not sentenced until December. Judge Woods, without trial of the cases before a jury, condemned Debs to six months' imprisonment and his associates to three months'. Appeal was taken to the Supreme Court for release on habeas corpus, the ground being that an equity court had no right to issue such an injunction, and thus deprive men of trial by jury. But the higher court sustained the lower one.
A legal writer of high standing, Mr. C. C. Allen, sets forth the progress of the injunction principle up to that time in this way: "The Attorney-General of the United States, acting for the United States in the exercise of its sovereignty as a nation, has sued out injunctions in nearly every large city west of the Alleghany Mountains. Injunction writs have covered the sides of cars; deputy marshals and Federal soldiers have patrolled the yards of railway termini, and chancery process has been executed by bullets and bayonets. Equity jurisdiction has passed from the theory of public rights to the domain of political prerogative. In 1888 the basis of jurisdiction was the protection of the private right of civil property; in 1893 it was the preservation of public rights; in 1904 it has become the enforcement of political powers." (Injunctions and Organized Labor," 17th Report of American Bar Association, p. 315.)
And most of this change came under the Sherman Inter-State Commerce Act, which organized labor had done so much to have passed against the trusts. Such a possible use of the law had never been dreamed of by workmen, whereas what they deemed the essential feature of it was made a dead letter. President Cleveland during the Pullman strike actually selected as special counsel for the United States Government, at Chicago, Mr. Edwin Walker, who was at that very time general counsel for the General Managers' Association, representing the twenty-four railroads centering or terminating in Chicago, and operating in utter defiance of the Sherman Anti-Trust Law. (See Strike Commission's Report, pp. xxviii-xxxi.)
But the injunctions have not stopped there. "The courts have not only prohibited persuasion, when accompanied by intimidation and threats," says Judge Seabury, "but they have actually denied the right of workmen peaceably to persuade their fellows to joi n them on strikes." And he cites the case of the York Manufacturing Cornpany vs. Obedick (10 Penn. D. Rep. 463), when the court said: "It is seriously contended by counsel for the respondents that they have a legal right to approach other workmen i n the employ of the complainant, and to persuade and induce them either to quit or not to accept such employment. . . . There is no such legal right."
Wherein were they in contempt? asks a committee of the Social Reform Club of New York, appointed to report on the ominous progress of injunctions. (This committee was composed of John Brooks Leavitt, John D. Kernan, Ernest H. Crosby, Mornay Williams and R obert van Iderstine. The report was printed and sent to all Federal and higher State judges, and circulated generally). The committee answers: The men "were punished for contempt of court for, among other things, 'reviling' and 'cursing' employees of the railroad company. If these men had not actually served out an imprisonment in jail for thirty days as a punishment for contempt of corporation, it might be thought that your committee had taken this example from opera bouffe. The legality of thi s punishment was never passed on by the Supreme Court, for the reason, as your committee understand, that the parties were unable to bear the expense of taking it there, and so served their term in jail."
More recently, during a great coal strike involving most of the mines of West Virginia, United States Judge Keller in the southern judicial district issued a blanket injunction covering some fifty mines along or near the Chesapeake and Ohio Railway. He p rohibited even "assembling near" the mines.
He went further and restrained national officers of the mine workers' organization from purchasing and distributing food to the West Virginia strikers. At the same time Judge Jackson in the northern district issued injunctions very similar in impo rt, and between the two judges most of the mines of the State were covered by restraining orders.
Some of the national organizers of the mine workers' general organization, disregarding Judge Jackson's orders, were arrested and, by summary process and without a jury trial, were by him sentenced to imprisonment for contempt of court, the judge callin g them "vampires that live and fatten on the honest labor of the coal miners of the country."
These are but a few typical injunction cases issued in great numbers from the Federal benches all over the country. The State benches have not been so useful, for one reason that State judges are elected, and thus are not so ready to brave the ill will of the body of the people by doing the bidding of the monopoly corporations; and for another reason, that State courts are backed at last resort by militia only, whereas the Federal courts can call upon United States regulars, who as a general rule manifest less sympathy and act more like machines than the State soldiery. As a consequence, Federal injunctions are preferred to those from State courts.
It was partly for this reason that in the West Virginia cases just cited, injunctions were obtained from Federal rather than from State courts. To do this, however, legal tricks had to be resorted to. As to Judge Keller's blanket injunction covering mor e than two score mines along or near the Chesapeake and Ohio Railway line, the facts were briefly these: Most of these mines were supposed to be under separate and distinct ownership, and to have no concerted action with each other. When the strike came, the mine owners affected small doubt of overcoming the local mine workers' union, which was weak both in number and funds, if the organizers and great funds of the national organization should not be permitted to help the strikers. Some of these organiz ers were in West Virginia, and some of them were outside. To enjoin all of them at once, it was necessary to have an order issued from a court having jurisdiction at once inside and outside of that State -- from a Federal court. But the mining companies in question belonging to West Virginia, and complaining of transactions within that State, could sue only in the courts of that State. To obtain an order from a Federal court application would have to be made by some one outside the State. The Chesapea ke and Ohio Coal Agency was selected to play the part. That company was incorporated in New Jersey, did business in New York, and sold the product of the great number of mines in question. But it was evident that it had nothing to do with the mine worke rs, and therefore had no right to complain of them. So a fiction was established as a fact, the Chesapeake Agency Company complaining to the court that its contract for the supply of coal was imperiled. It therefore asked the court to enjoin the fifty mi ning companies and some two hundred miners and union leaders from interfering with the carrying out of the conditions of the contract.
Of course Judge Keller and everybody else knew that this complaint had no foundation whatever, because of the "strike clause" in this contract, as in all such contracts, by which the mining companies are relieved from fulfillment of contract in the event of a strike. But the judge chose not to notice this. He acted as if he had clear jurisdiction and issued the blanket injunction, as a similar one had already been issued by Judge Jackson in the northern Federal district of the State.
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