bridges over certain rivers. Subsequently the commissioners of roads and revenues for the county. authorized the defendant to erectahdmaiutain a bridge within the limits of the original grant. The bill alleged that the board in granting the franchise exercised legislative:powers conferred upon it by the laws of the state, and that the grant was inthe nature of a statute of thelegislature. The court held that the question whether the subsequent action of the commissioners was in its legal.effect equivalent toa law of the state impairing the obligation. of the contract was a federal question that gave jurisdiction. The demurrer is sustained.
ti:EUR D'ALENE CONSOLIDATED
MINJNG CO. 'V. MINERS' UNION OF
(Circuit Oourt, D. Idaho. July 11, 1892;)
1. All injunction may be. to restrain labor unions and members thereof from entering upon complainant's mines, or interfering with the working thereof, or by force, threats, 'or intimidation, preventing complainant's employes from working the··mines, wl!ere the threQtened acts are such that their frequent occurrence may be exp,ected, and defendants are insolyent.
SAMll-RESTRAINING TRllSP4BS, TO R1l:AI,TY.. UNIOlllS-INTIlRlI'IlBIlNCIl WITH EMPLO'YllS.
The rule that a trespass cannot be enjoined unless on realty, and where the damIs irreparable, and after the right or title involved .has been established at law, does not apply to such a case, as no title. to realty is involved, and the acts com· plainedof are not a direct trespass to realty, but only indirectly affect the enjoyment of property and other rights.
S. SAME-RllS'l!RAINING CRIMINAL AOTS.
Neither does 'the rule. tbatequity will not interfere for the prevention of crime apply, the act!! done or threatened not being criminal, though unlawful, and such as may lead to the commission of criminal acts.
On the question of con.tinu,ing su.oh an injunction pending the suit statements su-pporting complainant's allegations, contained in a proclamation by the governor of the state. whioh is part Qf tl!erecordin the case, made by him after personal investigationofthe facts, may be cOllllidered.
SA'ME-'--GOOD FAITH OF COMPLAINANT.
An allegation by complainant that defendants' interference had compelled a former suspensiQll of work, for. whicl!j at the time, complainant gave a different reason, does not. show such bad, faith ,II,S to justify a dissolution of the injunction, where, so far as appears, both causes may have induced the suspension. '
SAME-COMPLAINANT MEMBllBOi' i!LLRGAI, ASSOCIATION.
The fact that complainant III a member of an association which is alleged to be illegal, is no ground for to entertain its Iluit, instituted in its own name, and for its oWn interest, and not appearing to be the direct result or a part of any illegal association, or conspiracy.
In Equity. Action by the ,Oceur d'Alene Consolidated & Mining Company against the Miners' Union of Wardner and others.. Order continuingirijunction against defenda.nts pending the action. Albert Hagatn and W. B. HeyQurn, for complainant. Frank Ganahl and James H. Bawley, for defendants.
<XEUE D'ALENE CONSOLIDATED & MniING CO. t1. MINEBS' UNIOB.
BEATTY, District Judge. The local interest manifested in this cause, and its possible consequences, justify a somewhat extended statement of the facts and reasons for the conclusion reached, and, while all the questions raised by counsel, who have so ably and fully presented the matter, have been considered, apology will not be offered fora failure to here elaborately review them. The bill and affidavits accompanying it show that complainant is a foreign corporation; that defendant companies are corporations and associations organized. under the laws of Idaho, and the other defendants citizens of said state; that through de:fendants' wrongful acts, complainant has been damaged in the sum 000; that complainant owns valuable mining property in Shoshone county, Idaho, which it desires to work; that defendants having conspired together, have organized themselves into the several miners' unions named, for the purpose not only of controlling and dictating the wages to be paid them,but also by means of menace and force to prevent all persons not members of such unions from working for complainant; that, to make efficient such organizations, they are bound by str.ingent oaths to secrecy, and to obedience to all edicts and commands of either of such unions; that since the formation of such unions the members thereof have adopted a systematic course of threats and intimidations against complainant, and any miners desiring to work for it who are not members of such unions; that they have notified complainant that it must employ none but those who belong to such orders, and at the wages fixed by the latter; that they have entered upon complainant's mines; and by force removed therefrom its employes, and given out and threatened that they would continue to prevent any but the members of such unions from working therein; that by reason of the premises complainant has been compelled to cease work; that all the defendants are utterlyinsolvent, and unable to respond in damages; that by the affidavits of two of complainant's employes, it appears that on the 29th day of last April about a hundred men, headed by defendant John Tobin, went to complainant's mine,where affiants were at work, and forcibly ejected them therefrom, took them to the Miners' Union Hall, at Burke, where, in the presence of a large number of men, it was demanded they should join the union or leave the camp; that upon their refusal to do either it was ordered by the meeting that they be marched out of the state; that thereupon they were escorted in the direction of Thompson Falls, Mont., by at least 200 men, who beat oil cans in imitation of drums; that they were called "scabs," and coarse indignities were frequently heaped upon them; that in this manner they were driven from the state, denied the privilege of purchasing food, and for two days were without any, and exposed to the inclemency of the weather in crossing a snowy range into the state of Montana. Upon these and similar allegations contained in said complaint and affidavits, it was ordered that the defendants be restrained from entering upon complainant's mines, or from interfering with the working thereof, or by the use of force, threats, or intimidations, or by other means, from interfering with or preventing complainant's employes from working upon its mines; and tha,tthe de-
ffiln.<4lpt$ : ,j
IWl;1yth,filY &p.QJ,dq.j n¢:'beso
. ','" .,)' ) ,
" 11).' to defqprll#1ts h,aYe affidavits deniedtl';l()stof such, and especially those cl}arging a resort. to force" to 'accomplish, .the, object of seyeral associations, wh,iQhtheystateillra for the purpose,of protecting th,ewselvesagainst the of erop]oyers, ofrnaintaining their wages, of the of labor by aqmission to order onlyofthose who are skilled worlt,tpen and "of good morals, tOJl.lleviate the sufferings of or accident, ways, byalUawful means, of mhWfBj'llng to tbisend, intemperance, imto advance, the QloraJJtY;,lIind' the, ;vices of In, l'ebuttingsuch affidavits the complainant bas prOdUCE1(l otbers, which, charge the existence of a" ,an!idemoralizing state of society" wherein a reign tElnor, and lawlessness has s\lpplanted industry, peace, andlawi 'of .bu.t :sQ.ch specific acts and' matter stated in the rebutting affidavits" which de.fendall,ts,could not, from complaina,nt'soriginal showing, so anticipate "a;tQ df;lny, ure not treated as established; ,. However, the evidence justifies tbeMJ!(}lusion that organized into a8sociations wherein SUbmission to stripgent and ll,rbjtrary rules is required; that by means approachingdiGtatioQ,theyhave attempted tooontrol employers in the selection; Qflaborers an,d the wages to lie: aid them, and have discouraged, slid, Ssfal'as they could, prevented,tuu:le who do not belong to their societies frol1l pJ,'O()uring workithat by force, in one instance, they took complainallt'alaborers from its minetl) their hall,where, upon such laborers refusing to comply witb their demands to join them, and abide by their laws, they actually ordered their banishment from the state, and in a manuel' deserving the most severe condemnation enforced their lawless decree, 4l.Qd against men. who, by reason of their birth,. and not through grace. Qfthe government, Were entitled .toall the rights of American citizenshipithat in euch numbers, and under such circumstances, as 'they have requested nonunion men to cease work, and were to such pave applied ill an offensive and threateningmantwr mostopprobriousepithets, and in other ways have annoyed and vexed laborers who refuseto.join their associations. I am not unmindful that they meet these charges by alleging in effect that when such things were done it was without their authority, and that the meeting referred to was held by citif,;enSi but such defense is too transparent to conceal the truth. Such meeting was held ip their hall, was composed largely of miners, and was prefliJed overby defendant John. Tobin, who says" he was,and now is, the president of the .Miners'. Union of Burkei" and he also says that "theroeetillg voted. that they [the men banished] should be marched up the c!illi1you,l;lpon tbeground that irthey proceeded down tbecanyon violenCl;lniightbe apprehe.l'ldeil from the, outsiders." Such explanations cannot: he reCeived in exculpation of the wrong done by defendants, but, 'on. they cast a shadow over all their statements. Moreover, of tbisstate, after a personal investigation of the facts, aided J,,(lIIl$;;<U hie official staff, did by his proclamation of June 4,
CIEUR D'ALENE CONSOLWATED& MINING
fl. MINERS' UNION.
1892, declare that it hiideome his knowledge "that there now exists iIi the county of Shoshone, stateo! Id3ho,combinations of men confederating and conspiringfor unlawful purposes, insolll'uch that the property of citizens of said county -is jeopardiZed,· and the pebple thereof terrorized,and the laws are set at naught; and *.* * the oivil authorities seem inadequate or are disinolined to suppress violence and redress wrbngs; fll1d * ** such combinations are preventing by force the ownei's of mines from working and developing the same, and from employing persons of their choice, and are interfering with railroad travel and traffic." As such proclamation is a public document, and is also made a:plirt of the record in this case, the court isjustitied in consideringit, and from the known integritY', the dispassionate jUdgment, and the impartial character of his excellency, its statements are entitled to the higliest . . After a most careful examination, the conclusion that· the foregoing is a correct statement of .the facts cannot be avoided. A wrong exists; rights have been infringed;unofIending citizens have been maltreated; the law has been overridden. May the courts be succesSfully invoked for restraining relief? That a national court has original jurisdiction in actions of this class cannot be questioned, as the parties are of diverse citizenship, and damages of over $2,000 are involved; but the important question is whether a court of chancery can exercise its power to restrain the further commission of the acts herein complained of. Theunrestrained execution of the designs, which it would seem from the record in this case the defendants entertain, would result unfortunately. Carried to their logical conclusion,theowner of property would lose itscontrol and management. It would be worked by such laborers,during such hours, at such wages, and under such regulations, as the laborers themselves rilight direct. Under such rule, its possession would become onerouS. Enterprises employing labor would cease, and, instead of activity and plenty, idleness and want would follow. Whatever enthusi. asts may hope for, in this country every oi'ner of property may work it as he will, by whom he pleases, at such wages, and upon such terms as he can make; and every laborer may work or not, as he seeS fit, for whom, and at such wages as, he pleRses; and neither can dictate to the other how he shall use his own, whether of property, time; or skill. Any other system cannot be tolerated. The association of laboring men into organizations for social enjoyment, mental improvement, for the protection of their interests, and the amelioration of their conditions, is not condemned, either by the people or the law. On the contrary, it is their right so to do, and they have the sympathy of all classes in their efforts to advance their interests by lawful means. No one will view with envy their lawfully acquired success, their comfortable homes and congenial surroundings, all attainable through industry, sobriety, and reasonable economy. Unfortunately, combinations oflabor are met by associations of employers, each trying to baffle what it deems the aggressions of the other. It is to be regretted these opposing forces have in late years gone so far in their efforts for supremacy that they now
operate upon the prlnetple that their interests· I,l.ntllgonistic. It is wthentbese contestiJ b'ecome 80 heated that of the law, the and the destruction of life and property are peace of the threll.teJ;leli, that the courts are compelled to intervene. Undesirable as is duty, the court which avoids it when presented would deserve -only contempt.·As lu.nderstand the law and the facts, this case shall be determined without.equivocation. The action results from a controversy concerning. wll.ges. The complainant refuses to accede to dedemands that the same wages be paid to all the laborers; but, while willing to pay the usual price of $3.50 per day to skilled la,borel,'s, declines t() over $3 to others. Which party may be right qn this or any other matter that may be in dispute is not for investigationby the court, but whether t4e defendants, in attempting to maintain their position, are likely to employ unlawful means, and the authorityof the court, if. it so finds, to-restrain them, alone must be determined. Among other reasons advanced why the restraining order should now be dissolved, the defendants say that complainant has in bad faith alleged thnt it was compelled in January last to close its mines because the defendants interfered with the working thereof, whereas at that time it stated that it was for the purpose of securing an adjustment of the railroad freight rates, and defendants now allE'ge that the real object was to reduce wages, and to break up the miners' unions. Certainly it is true that he who asks equity must not by his pleadings or acts attempt to mislead either the court or his opponent. So far as yet appears, the two.Qa<uses combined may have induced complainant to close its mines, as stated, and the duplicity charged against it is not so shown as to jusa dissolution of the existing order. Neither is the other objection, that cumplainant is a member of an association which it is alleged is illegal, a rear:;on why tbecourt will. not entertain i.ts suit, when instituted in its own name, and in its own interest, as the record shows has been done in this case. The wrong complainant may have committed in some other matter is not the subject of consideration here, or at least not until it is made to appear that this l;tction is the direct result and a part of some illegal associatio,o, scheme,or conspiracy. Is it true, as claimed by defendants' counsel, that the acts charged in the bill are either a trespass or anuisancej that a trespass cannot be enjoined unless upon realty, and when the damage is irreparable; and that the right at law must be established before equity will intervene? Before a permanent injunction will issue, u,ndoubtedlyaright or title involved must be established in a court oOaw, but if, .by the weight of authority, such was ever the law as applied to temporary writs, it is not so now. But, as there is no title to realty involved, and the acts complained of are not a direct trespass upon realty, but only such as indirectly affect the enjoymentofproperty and other rig):lts, the pertinency of counsel's argu- , ment cannot be admitted. With much earnestness it has been urged that equity will not interfere fWthe. p.revention of crime. But wherein is this a criminal case,
C<EUR D'ALENE CONSOLIDATED & MINING CO. '11. MINERS' UNION.
or how does the relief asked constitute this an action for injunction against the commission of a crime? It is charged that a conspiracy has been formed. An association becomes a criminal conspiracy when it is formed for an unlawful or criminal purpose, or if, when organized for a lawful purpose, it attempts, by criminal or unlawful means, to attain its object, but this action is not to prevent the formation of a conspiracy. It Is alleged that defendants have done certain unlawful acts, and threaten to continue doing them; but none of such acts are per Be criminal, or enjoined by the criminal statutes. The most that can be said of them is that they are such as interfere with the rights of others, and are therefore unlawful. It is also true that they might lead to the commission of other acts purely criminal, and that by restraining them we indirectly prevent the commission of crimes; but it is absurd to conclude that by such indirect prevention of crime this can be construed as an action to restrain its commission. Without further pursuing this view, we are brought to the important question involved,-whether the acts complained of, considered as unlawful and not criminal, may be restrained, and further injury to com,plainant avoided, or whether it must seek relief by an action at law. The threatened acts are such that their frequent occurrence migM .be expected, and to obtainlegal.redress therefor the annoyance ora multiplicity of suits would follow; also it is alleged that defendants are insolvent,-both of which lire among the prime reasons that appeal to a court of equity for its preventive relief. The question involved is not a new one. Its examination may be better made by a review of some of the numerous adjudications by other courts. In Francia v. Flinn, 118 U. S. 385, 6 Sup. Ct. Rep. 1148, the complaint was that defendants, by newspaper publications, by sundry suits, and by various and diverse ways, had confederated to destroy complainant's business. The court, while stating that it did .not specifically appear what the objectionable acts were, held that for injuries suffered from acts of the general acter named,-which were in the nature of libels on the business,-an adequate remedy existed at law. In Kidd v. Horry, 28 Fed. Rep. 774, the sole question was whether the publication of circular letters, which were alleged to be libelous against complainant's business, could be restrained, and it was held they could not. To the same effect is Oar Wheel Co. v. Bemis, 29 Fed. Rep. 95, and numerous similar cases. It is clearly established that libelous publications or statements, however damaging, will not be restrained, but for such relief something mor':l must be involved. What more, will appear from a line of authorities relied upon by complainant. Steamship Co. v. McKenna, 30 Fed. Rep, 48, was an action in which defendants, over a question of wages, had induced complainant's employes to cease work, and then attempted, by sending threatening letters to its customers and others, to so damage and interfere with complainant's business as to compel it to yield to their . demands. The court, in granting relief, said: .. All combinations and associations designed to coerce workmen to members, or to' interfere with, obstruct, vex, oraonoy them iIi working or
,": · -I
in.obtaipingvrork because tb(jY are not members, or in order to induce them tljbecollib' members, or 'desiglIed to prevent ernployet's from rnltking a just discrimination, in therateot :wages paidto:the skillful and to the u.nskillful, diligent and to the to ·the efticientand to the inefficient: and all to inl;erferewith the perfect freedom of employers in the proper management awtcpntrOl oftheir lawful business, or to dictate in any partiCular the terms u,P0nwhich business shall be conducted, by lIIeans .oftbreats of injuryor loSs, by iriterfence with their property or traffic, -or with their 'lawful employment of oUter persons as designed to abridge any ofthoserights,---are P1'O tanto illeil:al combinations or associations, aud all acts done in furthf'rance of such intentions by such means, and accompanied by dam&ges, are actionable."
In.Emackv.Kane, 34 Fed. Rep. 46, the parties were manufacturers of patent sUttes; and the court restrained one from cirCUlars to thecitlstitmers of the other, threatening them with litigation, and tending to intimidate them from dealing in and buying the rival slates. Casey v.Typographical U7J,ion, 45 Fed. 135, is a case in which the defendants demanded th'at plaintiff should employ only union printers, and at the wages fixed by the union; that, upon his refusal to comply, by the publication of handbills calling upon they boycotted his alno withdraw their pa1:ronage, and'threatened those who failed to do so with' their ill will, arid visited plaintiff's customers,and threatened them with the ill will of all organized labor. After a full review of the authorities, and noting the distinction between injury to one's business by merely libeling it, andlhat resulting from threats and intimidations against those who are the customers of or employes therein, the court held that all boycotts ofa business, or attempts to injure it through such 'threats ind intimidations, were unlawful, and could be enjoined. Justice BREWER on the circuit bench punished railroad employes who were engaged ina:t:ltiike for interfering with other employes in operating a road which was in the handsM a receiver. No force was resorted to, but only persunsions or requests to cellse work were used,but they Were made under such circumstances and by such numbers as to convey the impression that they were to be obeyed, and tended to intimidate thosewho'desired to work. All such acts were held unlawful, arid were punished by fine· and imprisonment. . U. S. v. Kane, 23 Fed. Rep. 748. Sherry v, Perkins, 147 Mass. 212, 17 N. E. Rep. 307, is a and late case, iIi which a contest arose between some workmen and their employers, and to deter other workmen from entering into his service they niarched in front of his store with a banner bearing an inscription requesting other workmen to keep away; The court sa,rs: "The wJ:0ng is not, as argued by the deflmdant's counsel, a libel upon the
C<EUR D'ALENE CONSOLIDATED &: MINING CO. tJ. MINERS' UNION.
nous unlawful act, injurious to plaintiff's business and property, and was a nuisance sucb as a court of equity will grant relief against."
-And injunction was granted. While there are numerous other authorities upon this question, further time in their review will not be consumed, as I believe the foregoing state the law. A clear distinction will be observed between the two classes of cases above noted. In the one, when the acts complained of consist of such misrepresentations of a business that they tend to its injury, and damage to its proprietor, the offense is simply a libel; and in this country the courts have with great unanimity held that they will not interfere by injunction, but that the injured party must rely upon his remedy at law. On the contrary, when the attempt to injure Clonsists of acts or words which will operate to intimidate and prevent the customers of a party from dealing with or laborers from working for him, the courts have with neady equal unanimity interposed by injunction. In the one case it is an injury to a man's business by libeling it; in the other, by force, threats, and other like means, he is prevented from pursuing it; and, while the damage might be as great in one case as in the other, -but most likely with different consequences to the good order and peace of the community,-the courts have determined upon different remedies. What constitute such actionable threats or intimidations must be determined in each case from all the circumstances attending it. If the things done or the words spoken are such that they will ex.cite fear ora reasonable apprehension of damages, and so influence those for whom designed as to ptevent them from freely doing what they oesire, and the law permits, they may be restrained, and the courts will look beyond the mere letter of the act or-word into its spirit and intent. In this case, however, it is unnecessary to enter into any close analysis of the acts complained of to deterllJine that t.hey amount to menace Hnd threats, for they clearly were in a high degree of that character. That they may not be repeated the restraining order is continued, pending the final disposition (If this action. Attention has been called to the Jact that sprvice of the order was made upon the proprietors of two newspapers, which has led to the wild report that the public press has been muzzled, and appeals have gone out that the irresistible power of the government has been exp.rcised in silencing the people's monitors, in aU of which there is much pathos untempered by truth. What reason existed for such service Up011 those two deJendants has not been specially devtloped by the evidence, but the order was not intended to, nor does it in any degree, restrain the publication of newspapers. The wisdom of the American polic)' which upholds the freedom of the press is fully indorsed by the court. If, however, those defendants were engaged in doing the acts complained of, or threatened to commit them, they were rightly enjoined, for they are amenahle to the law just as other citizens. The court,however, is slow to believe that men who occupy the high and responsible position of proprietors of newspapers, which constitute such a powerful medium for influencing, ahaping, and controlling the sentiments, the morals,
and the cqnquct qf ith.e people, would Use their columns to incite the lawless or .thoughtless to acts of violence or crime. The courts with good rellSonexpect the public press to be conservators of the peace, and, whether or not they agree with the law, either as enacted or construed, that they will in good faith advise its observance until amended or reversed.
ROBINSOIil' 'V. ALABAMA
Co. et al.
(Oircuit Oourt, N. D. Georgia. May 80, 1892.)
TRUST l)E.EP-FoRljiCLOSURB.....:,ATTORNEYB'· FEBS. ,A trust deed given to secure the bonds. of
a manufacturing company provided fot payment of the trustee's expenses upon a sale by him under the powers con· tained 11;1 the deed. The trustee, however, foreclosed by suit, which course was probably necessary because of a prior foreclosure sale in the state court. The suit was brought on request of certain bondholders, and the trustee had refused to act except lInder a stipalation tnat he should not be liable for attorney's fees. Held. tbat lie \Vas not entitled, as a matter of right, to have at.torneys' fees taxed. FowZer·v. Tr'ust'Oo., 12 Sup. Ct. Rep. 1,14,1 U. S. 884, followed. Dodge v. TuZleys, 12 Sup. Gt.Rep. mas. distiog-uished. .
I , . '
InEquity. :Bill by J. J. Robinson, trustee, to foreclose a trust deed given by the:.AJabama & Georgia Manufacturing Company and others to securepertaill bonds. A demurrer to the bill was overruled, (48 Fed. 'Rep. and a decree of foreclosure directed. The case is now heard all flo .petjtion for the allowance of attorneys' fees, and demurrer thereto... :O.ern·urrer sustained. B.F. &- Ohaa. A. Abbott and Dorsey, Brewster &- Howell, for complainants. ,N. J. k Hammond, for defendant.
NEWMAN, District Judge. In this case a final decree of foreclosure has been directed in favor of complainants, and the court is now asked to detennipe the question of an allowance for counsel fees for legal services renderep on behalf of Robinson, trustee. The petition to this end filed by . cc;>mplainants: p.rays that reasonable counsel fees may be allowed against and taxed as a part of the cost in the case. There is no the provisio,n il;1 the trust deed for the payment of counsel fees incase of foreclosure in court. ;There is a provision for the payment of the expenses of the trustee in the event he entered upon the property and sold the Slj,me as in the trust deed. The provision for the payment of expensesw,9:u,ld' propably include reasonable counsel fees if the trustcehlld in ,that manner to execute the trust, but he filed his bill in co.urt fqr a decree of foreclosure. The property embraced in the trust deedh,p,yffig been sold bya receiver in a former proceeding, how:thElproperty purchased by third parties, the proceeding in was considered a necessity; and it probably was. The court is:now called upon to determine whether or not the fees of