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.
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.
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.
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.
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:
IN RE GRAND JURY.
Gentlemen of the Grand Jury: You have been summoned and sworn as grand jurors of the district court of the United States for the northern district of California. It now becomes my duty to in· struct you concerning the duties you will be called upon to perform under the laws of the United States. The extraordinary occurrences in this state during the past two weeks require your immediate attention, and call for a thorough and sweeping investigation. It is a matter of public notoriety that during this time a great railroad strike has prevailed; that the most important channels of trade and commerce carried by railway service have been closed, the business operations of the state paralyzed, and the passage of the mails seriously retarded and ob· structed at several points in the state. The constitution of the United States provides that congress shall have power to regulate commerce among the states and establish post offices and post roads. Pursuant to the first of these provisions, congress has provided by the Act of July 2, 1890, that
"Every contract, combination in the form of trust or otherwise or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceeding $5,000 or by imprisonment not exceeding one year, or by both said punishments in the discretIOn of the court."
"Trade" has been defined as "the exchange of commodities for other commodities or for money; the business of buying and selling; dealing by way of sale or exchange." The word "com· merce," as used in the statute and under the terms of the constitution, has, however, a broader meaning than the word "trade." Commerce among the states consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale, and exchange of commodities. County of Mobile v. Kimball, 102 U. S. 702; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 203, 5 Sup.Ct. 826. The primary object of the statute was undoubtedly to prevent the destruction of legitimate and healthy competition in interstate commerce by individuals, corporations, land trusts, grasping, engrossing, and monopolizing the markets for commodities. U. S. v. Patterson, 55 Fed. 605. But its provisions are broad enough to reach a combination or conspiracy that would interrupt the transportation of such commodities from one state to another, and in this view the scope and purpose of the statute have been the subject of consideration in the courts, notably in the case of U. S. v. Workingmen's Amal' gamated Council, 54 Fed. 995. That action was brought by the United States in the eastern district of Louisiana against the Workingmen's Amalgamated Council of New Orleans, La., and others, to restrain the defendants from interfering with interstate and foreign commerce. The facts were that a disagreement had arisen between the warehousemen and their employes and the principal draymen
should be employers t9 thede,mands of.ce,J1:uin,Jabor organ· Orleuns,and it wal!! tb,J;efl:tened tbp.t unless there was an In ail, labor. would leave work, alid would allow no wOrkiJ:l. anydepal1;m.ent of business, and 'Wras.thl'eatenedin snppprt of the demands. In some ()f b'l,s,ness theetl'qrt was made to the union men by other workmen., This was resisted by the intimidation springing from vast, ,tlle union me.n in the street, and in some instances, by violence, so that the result was that by the in9f :the qf, the a bale of goods conshtutlng the commerCe of. the country could, be moved. It was held by the tb,e'factsoLtnat, Case brought it within ,the provisions"pi the, statuie. In other words,.it was determined that a of men :who by ,violence and intimidation r,estrained trade; ul}d among t1:J,e severaJ states or with foreign natiori.swere acting in violation of this laW, :notwithstanding they may have hadin some r,e1ation to their that jn the elements Qf intiniidatioij.,an(i ItWf/.s not a case where ,the ,men'merely. quit, work\, putting their employers to no other in'tJ:tanof sec\iring' Qther men to fill their places, but it was a case where, force, were .JJsed to prevent any one in that localitf from e'ngaging in the lawful and necessary busi'ness of moving the commerce of the country. The order granting an injunctibnin that case,wa.s affirmed by the circuit court ofappeals in ,the·fitth cil'cuit.;'6,C;C. A. 258, 57 Fed. 85. rrhe law as thus declarMby. a court,(jf'recognized ability arild authority.was recently applied by J udge<M:oeKenna of the circuit C0urt of this distt'ictin.likemanner to one ;feature of the state of affairs to which I am now directing your attention. This law determines that any combination .01' conspiracy IQn the 'part of any, ¢lass of men who by violence and intimidation, prevent the passage of railroad trains engaged in transporting the interstate commerce of the country is a violation oUhe act of July 2, 1890. Another agency of the government is involved in the transporta· tionof the and to protect and secure the efficiency of that of the service it has been enacted that all railroads or parts of railroa.ds which are now or hereafter may. be in operati-on are established as.postroads (Re;v·. St. § 3964); that,the postmastergen-eral shall in all cases decide upon what traimvand in what manner the mails shaUbe conveyed (section 3, Act March 3, 1879;20 Stat. 358); and every' railwiiY ,company' oonveying the mails shall carry onanytrainw:hich tnayrun .over its road, and without extra charge therefor, al1;,mailable matter. .ditectedto be carried thereon, with the person in ,charge of the 'same (Rev. St. § 4000). It is further ,provided in; section 3995 ,of ,the. Revised Statutes that "any person who ShalLknowingly andiwUlfuH.yobstruct or retard the passage 'of the mailior any carriage, hC)l'l'le, driver or carrier carrying the $uch offense be punished by a fine of not
IN RE GRANP JURY.
more than $100." This statute has also been before the courts in cases where bodies of men operating as labor organizations have prevented the passage of trains carrying the mails. In the case of U. S. v. Clark, in the diSitrict court of the United States for the eastern district of Pennsylvania (23 Int. Rev. Rec. 306, Fed. Cas. No. 14,805), the defendant was one of a number of persons who assembled at the depot of the Lehigh Valley Railroad at South Easton, Pa. On the arrival of the mail train at the dep()lt, the defendant, who had no connection with the train, said to persons having charge of it that the mail car could go on, but not the rest of the train. The defendant afterwards got on the train, and, with others, placed it on a siding, where it remained for several days. JUdge Cadwallader, in charging the jury upon these facts, said:
"The defendant is charged with, retarding the transportation of the mail. · · · The mail, in point of fact, was retarded, as the postmaster testifies, two or three days. The oqmrrence which retarded it, according to the tendency of the' proofS, was that several persons were assembled at the depot at, Easton for no lawful purpose, and that one or more of them dp.clared that the mail might go on, but the passenger train should not. They uncoupled the mail, and afterwards coupled it for the purpose of carrying it, as they did, to a siding. If that was the fact, and their purpose was to retard the train which transported the mail, it matters not, in point of law. whether they were or were not willing that the mail car or baggage carol' the particular vehicle' calTying the maJlshould' go on." '
The learned judge then quotes with approval the opinion of Judge Drummond 'of Chicago upon the SUbject, as fOllows:
"In relation to the transportation of the mails by me!l:ns of ,railroads it is true that it appears by the evidence in this case that these defendants were Willing that the mail car should go, but it must be borne in mind that the mail car can only go in such a way as to enable the railroad to transport the mail where ,there are other cars accompanying it. It is not practicable, as a general thing, for a railroad 'to transport a mail elr by itself, because tl),at would be attended by setlous loss; so that while nominally they permit the mail car to go, they really, by preventing the transit of other passengers cars, interfere with the transportation of the mails."
You will oqserve that the law is applicable to the ease of an ob,struction interposed for a purpose other than that of retarding the mails. This was decided to be the law by the supreme court of the United States as long ago as 1868 in the cal:ie of U. S. v. Kirby, where it was said:
"When the acts which create the obstruction are, in themselves. unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been his primary chject." 7 Wall 486.
In the ease of U. S. v. Thomas, 55 Fed.SS1, the transportation of the mails had. been obstructed by some persons acting under the influence of.a strike. Judge Jackson, in addressing the jury, submitted observations intended for the strikers. He said:
"You have .no right to go into a strike and undertake to stop the transportation of the mails of the United undertake to, stop the running of the cars of the country, or undertake to stop the business which is carried 001 the great highways of the country, and whIch is the mainspring to tbe success of a country like ours. If all thIs is done. then you step upon a rigbt whIch you have Jlo right to interfeJ;e with. these general remarks on
tbls;coccaa19nWith a hope tbat I may reach the ear of the intelligent masses, tl;la.t at once the error they hare talleJ;l into. Rely not upon combl.l1ll.tionand ,strikes to protect your interests. 'I'hey are disastrous, stopping your 'mills. and stopping ,tile enterprises and, business of the community which turnish;the wage-earner the means to support his home. Do not resort to such to stop our,l)lanufactures, our mills, or the transportation of 1;lie lDaUs;Qt ,United Sta'tes, Which is so great and important an element of welfare' of soclety. If you take this thing our country tcYr the up and lOok aUt, and ponder over it, and see the result that must necessarily follow such a cOurse of action, and the train of circumstances that must necessarily acCOnlpany it, you would refuse to enter into these combinations and strikes."
That the passage of the mails over certain lines of railroad in this state has been retarded and obstructed there is no The regular receipt and dispatch mails over the roads of the Southern Pacific Qompany have in fact been suspended at the San Francisco post office for a period of about two weeks. Who is responsible for this state of affairs? the railroad company, or both? 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 the force and appliances within-reach. Any negligence in this respect Us not excused by temporary difficulties capable of being promptly removed. The damage and interruption caused by the elements usually receive prompt attention, that traffic may nl?t be suspended longer than is absolutely necessary. The same energy and g90d faith be observed with respect to the removal of labor and other difficulties. Railroad Co. v. Hazen, 84 m. The present controversy between the Southern Pacific and its appears to be in relation to the movement of Pullman cars. Both parties to this controversy have announced in the public press that they have been ready and willing from the first to move freight C8:l.'l3 l;lnd pasSenger trains without Pullman cars. In my opinion, the situation has been of such an extraordinary character, and the interruption to commerce and the transportation of the mails so s,erious and long-continued, as to have required of the railroad company to temporarily waive questions concerning the make-up of regular trains (as the officers of the company claim to have done), ahd such resources as the company had in the movement of 0tb.er trains in an effort to relieve the prevailing congestion and distress. Thisol)ligation I believe to have been a public dutY,and a willful failure to perform this duty with respect to the movement of the mails and, interstate commerce is therefore, in my judgment, Within the purview of the statute. It fs your duty to determine this question under the law as I have stated it'tQYou, and the guilty parties to the ,court for prosecntion. In: this inquiry you will not limit your exaniination tothe conduct of any particuHu'classot persons, but carefully scruthe actaQf aU parties concerned, whether they are officers of the rJ;i.Urilad company, or employes, and without fear or favor or influence of any kind point out in the proper manner the persons who have transgressed the law and imperiled the best interests of this stilte.
IN BE GRAND JURY.
see to it that those who have violated its provisions, whoever they may be, are brought to the bar of justice. In your inquiry you may find that parties have so associated themselves together in their conduct as to bring them within the law of conspiracy. The statute of the United States upon that subject is as follows:
Section M40, Rev. St.: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years, or to both fine and imprisonment, in the discretion of the court."
It is our duty to uphold the authority and majesty of the law, and
The elements of this offense are the combination or conspiracy to violate the law, and the overt act or acts to carry the conspiracy into effect. Where several persons are proved to have combined to· gether for the same illegal purpose, any act done by one of the parties in pursuance of the original concerted plan, and with reference to the common object, is, in the contemplation of the law, the act of the whole party, and therefore the proof of such act will be evi· dence against any of the others who were engaged in the same conspiracy. It is also true that any declaration made by one of the parties during the pendency of the illegal enterprise is not only evidence against himself, but is evidence against the other parties, who, as we have seen, when the combination is proved, are as much responsible as if they had done the act themselves. You will observe in this connection that the act of combination to violate the statute is the important element in the crime of conspiracy. The law regards the act of unlawful combination and confederacy as dangerous to the peace of society, and declares that such combination a,nd confederation of several persons to commit crime requires an additional restraint to those provided for the commission of the crime, and makes -criminal the conspiracy,. with penalties and punishments, distinctive from those prescribed for the crime the subject of the conspiracy. You can readily appreciate why this is true. A conspiracy becomes powerful and effective in the accjJmplishment of its illegal purpose in proportion to the numbers, power, and strength of the combination to effect it. It is also true that, as it involves a number in a lawless enterprise, it is proportionally demoralizing to the well-being and charncter of the men engaged in it, and, as a consequence, to the safety of the community to which they belong. The statutes I have cited indicate the general character of the investigation you will be required to make concerning the affairs of the railroad company in the transportation of the mails and in the movement of interstate commerce. With the merits of the controversy between the railroad company and its you hue nothing to do, except in so far as the facts relating thereto may furnish evidence as to the actual parties engaged in violating the laws of the United
Statel;):; Tlie light of labor to organize f6r itsoMlibeneftt and 'proquestioned. It has'thesanierightin. this respect as any other association, and,perll4psjID' some respects, its freedom is properly greater. The laboring ,man is entitl,ed, to the highest wages arid the best cdmlitions he ,can: command, ,but he is not entitled to interfere withtherightsiand property of others, anll by force or other unlawful means seize upon the appliances of organized ind,\lstry, and set at l!lW, of tbe government. The right of workingmen to quit work, eithei;' inngly or iIi a body (subject only to the civil obligations of contracts), is fiot denied; provided that the ab!pldonment of service, is in· a, peaceful and orderly D;1ap.:D,el'; and here again, fl;ie freedom must be exercised without interfering with the rights and property of others. It may be S,llid that this freedom or privilege accorded to the laboring men, wlththerestriction'sirintned, is of no great value, since he is thereby from' securing' the protection he ought to have for his la:bor;!and the power to'redress hill grievances. , This may be true" arid it maybe conceded!ithat the relations of labot' to capital present difticult problem for ablution, but it seeirts to'me that the intelli: genee' of the people Ought to solve this question ina peaceful and proper manner. It certllinly cannot; With the consent of the courts', lSesettled by nolenceor' any unle:wftil''liieans. It will appear to you ,from what I have said a very serious tiM importaht upon you' l:lS grand jurors of this court. Your oath requires you: 'to and'true presentments ¢ake "of such articles, matters,.and, tMngsas shnllbe givl3n you in cnarge or otherWise 'come to .your 'Mntlwledge tQcuching the present serVice." . ,The'oatn indicates impartial spirit· with which·your '(hi'tiesshould bepet'fol"tn"ed; You 'are to one from enVy, hatrffi!l!,or maUce,nor should you'leave any ohe unpresented for'tear,favor, affection, hope of reward 'or gain, but' should present all things truly as they come to your kn6wledge, according to the best of Y01:1r understanding..', In each judicial district there is a United' States attorney, appointed by the president to represent the interests of''tlie .' government in the:proseeution' of parties charged with the comm,issionof public offenses again.st!the laws of the United States. The United States attortiey for thisidistrict will therefore appear before you, and present the accusations which the government may to have considered by you. He will point out to you the laws -other than those 'I have mentioned which the government deems to have been violated;ai:l:6 will subpoena for your examination such ,witnesses' as heIIlay consider . important, and also such other Witnesses as you may direct. In .your' investigations you will receive only legal evidence, to the exclusion of mere reports, susand hearsay'eVtdence., SUbject to you wHl''l'eceive all the eWdeneepresented'which may throw light upon thfiitnatter underconsi'derlltion, wheth!er it tend to establish the innUceIiceOl': the glltl:t ofothe a.ccused. And more, if ,in the course of Jour inquiries you ha"VEl'reason to believe that there is other evidence not"presented toyoUJ withih>yoUl' reach, which. would qualifyoI"
THE NUTMEG STA.TE.
explain away the charge under investigation, it will be.your duty to order such evidence to be produced. Formerly it was held that an indictment might be found if evidence were produced sufficient to render the truth of the charge probable. But a different and a more just and merciful rule now prevails. To justify the finding of an indictment you must be convinced, so far as the evidence before you goes, that the accused is guilty; in other words, you ought not to find an indictment unless, in your judgment, the evidence before you, unexplained and uncontradicted, would warrant a conviction by a petit jury. To authorize you to find an indictment or presentment, there must be a concurrence of at least 12' of your number,a mere majority will not suffice. You are to keep your deliberations secret, and allow no one to question you as to your own action, or the action of your associates on the grand jury. In the progress of your examinations, should questions arise concerning which you may desire further instructions from the court, you may come into court for that purpose, and the law will be further explained to you with respect to such questions.
THE NUTMEG STATE. THE MONITOR. HARRIS et aI. v. THE NUTMEG STATE. TRACY et at v. THE NUTMEG STATE et aJ. (DistrlctCourt, S. D. New York. June 20, 1894.)
CoLLISION-STEAM VESSELS CROSSING-DUTY TO MAINTAIN SPEED.
A steamtug gave two whistles to a steamboat on her starboard han4. and on a crossing course, and then slowed her engines. Held in fault for the collision which ensued, because of such slowing; it being directly contrary to the meaning of her signal, aDd a thwarting of the other vessel's attempt to obey.
Libel against the steamer Nutmeg State for damages to certain barges in the tow of the steamtug Monitor. The damages were caused by a collision between the Monitor and the Nutmeg State. The Monitor was made a defendant upon the petition of the Nutmeg State. Stewart & Macklin, for Tracy and others. Carpenter & Mosher, for the Nutmeg State. James Armstrong, for the Monitor. BROWN, District Judge. On the 26th of December, 1893, at about half past 2 in the afternoon, as the steamtug Monitor, with barges belonging to libelants in tow on each side of her, was coming down about the middle of the East river, in the ebb tide, she saw, when about off pier 49, the steamer Nutmeg State coming out of her slip at pier 35, on the New York side. When the latter had cleared her slip, the Monitor gave her a signal of two whistles, to which the Nutmeg State answered with two, signifying that