thing forbidden, and if found guilty, is punished. Yet it may be resorted to in civil as well as in criminal actions, and also independently of civil or criminal action. While the power to punish for contempts is inherent in all courts, the exercise of the power by the courts of the United States has been regugated by statute, as follows:1 "Courts of the United States shall have power to impose and administer all necessary oaths and to punish by fine or imprisonment at the discretion of the courts contempt of their authority; provided that such power to punish for contempt shall not be construed to extend to any case except the misbehavior of any person in their presence, or so near thereto as to obstruct the officers of said court in their official transac tions, and the disobedience or resistence by such officer or by any party, juror, witness or other person to any lawful order, process, rule, decree, or command of said court." Whether a particular act constitutes a contempt, as well as the mode of proceeding against the offender, are left to be determined according to such established rules of the common law as are applicable to the situation. A federal court may punish for contempt in its presence, or so near as to obstruct justice, though the offense is indictable.2 The interference with the operation of a road by a receiver appointed by the federal court is itself a contempt, as the receiver is an officer of the court, and no specific injunction order in such cases is required. The power of the court to punish. disobedience of an injunction order by a party to the case as a contempt has been repeatedly adjudged. The power to punish for contempt is inherent in all courts of record, and it has been held that in the case of courts established by the constitution this power cannot be abridged by the legislature, as this is the inherent power of a co-ordinate branch of the government.5 6 It was intimated by the Supreme Court however that the power of the circuit courts and district courts of the United 544: In re Higgins, 27 Fed. Rep. 443; Thomas v. R. Co., 62 Fed. Rep. 803. 4 Ex Parte Lennon, 166 U. S. 548, commerce, and relates to trade disputes therein only as directly affecting such commerce. 1 Sec. 725, R. S. U. S., 1 Comp. 41 L. Ed. 1110; In re Debs, 158 U.S. Stats. p. 583. 2 In re Savin, 131 U. S. 267, 33 L. Ed. 150 (1889). 3 United States v. Kane, 23 Fed. Rep. 748; In re Doolittle. 23 Fed. Rep. 564, 39 L. Ed. 1092. 5 Commonwealth v. Carter, 96 Va. 791 (1899). 6 Ex parte Robinson, 19 Wall 505, 22 L. Ed. 205. States could be regulated by Congress, and that their power is limited by the act of 1831, cited above, and that the power to punish by fine and imprisonment is negative of all other forms of punishment. The Circuit Court said in the Debs case that the power of the court to make an order carries with it the equal power to punish for disobedience of that order and the inquiry as to the question of disobedience has been from time immemorial within the discretion of the court. It was also held that a case of contempt was not triable by jury, nor is a judgment on such charge a substitute for, or any defense to a criminal prosecution for the same act. The increasing use of injunctions, however, in trade disputes has lead to a discussion as to the inherent distinction between. direct and indirect contempts, that is, between those committed in the presence of the court and properly subject as such to summary hearing and punishment, and those of alleged disobedience to the orders of the court, not committed in its presence. It has been claimed with force that as to this latter class, particularly where parties are charged with a responsibility for acts of others under the law of conspiracy, that the hearing should not be summary, but should be regulated by law in accordance with the constitutional guarantees in criminal hearings.2 Another classification has been made of proceedings for contempts, between criminal or punitive, where conducted to preserve the power and vindicate the dignity of the court and to punish for disobedience of their orders, and civil, remedial or coercive contempts instituted to protect and enforce the rights of 1158 U. S., I. c. 594. In the 54th congress, 1896, a bill was reported from the judiciary committee, providing that contempts be divided into two classes, direct and indirect, the former including contempts committed during the sitting of a court, or of a judge in chambers, or so near thereto as to obstruct the administration of justice. These were to be punishable summarily, without written accusation; while the other, that is, indirect contempts, were to require an order to show cause and a procedure upon testimony, as in criminal cases, and a jury trial, if applied for by the accused, with a preservation of the testimony by bill of exceptions and stay of the judgment upon giving bond pending appeal. The provisions of the act applied to all proceedings for contempt in all courts except the supreme court. The bill passed the senate and was reported with amendments by the house judiciary committee (see House Report No. 2471, 54th congress), but it was not reached for passage. It has been introduced in substantially the same form in different congresses since. private parties. A criminal contempt, said the Court of Appeals in the case cited, involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little, if any, interest in the proceeding for its punishment. It was said by the supreme court in the Bessette case, which was a trade dispute not involving interstate commerce, that it may not be always easy to classify the particular act as belonging to either one of these two classes, and that it may partake of the characteristics of both. Thus, in cases involving combinations interfering with interstate commerce, whether filed directly by the government or by public carriers, it would seem that the violation of the injunction order, made for the promotion of public and not private ends, would properly fall into the class of criminal rather than civil contempts. The law of conspiracy has been applied in proceedings for contempt, and persons not parties to the record have been charged with contempt as co-conspirators with the defendants, and therefore in law responsible for their acts. The liability to punishment for contempt is not limited to parties to the record, but any person, who knowingly assists in defeating the order of a court, may be charged with contempt therefor. In such cases, however, where the injunction has been issued for the benefit of a private person with no public interest involved, the offense of the person not a party is solely that of resistance. to the authority and dignity of the court and he should be proceeded against upon that theory, and not upon the theory of being bound by the injunction as a party thereto.' An order of a Federal Circuit Court, adjudging a person not a party to a suit guilty of contempt for conspiring to violate an injunction in a trade dispute, was held reviewable by writ of error in the Circuit Court of Appeals, but in such a writ only matters of law can be considered, the decision of the trial tribunal being conclusive of the facts." In re Nevitt, Cir. Ct. App.. 8th Circuit, 55 C. C. A. 622, 117 Fed. Rep. 448, quoted by the supreme court in Bessette v. W. R. Conkey Co.. 194 U. S. 324, 1. c., p. 328, 48 L. Ed. 997. 21. c., p. 329. 4 See In re Reese, 98 Fed. Rep. 984, supra. 5 Bessette v. Conkey Co., supra (1904). See also In re Christensen Engineering Co., 194 U. S. 458, 48 L. Ed. 1072, holding reviewable by writ 3 See In re Bessette, 111 Fed. Rep. of error an order of the circuit court 417. adjudging a defendant in a patent $90. Mandatory injunctions in interstate commerce.As a preventive remedy is the only adequate remedy in the case of a threatening of commerce, the form of the preventive relief must be adapted to the emergency, and the injunction mandatory in its terms is therefore often the only remedy which meets the emergency. A mandatory injunction is one that compels the defendant to restore things to their former condition, and virtually directs him to perform the act. Specific provision is made in the Interstate Commerce Act for a mandamus to compel the performance of the duties of a carrier. Section 23 of the Interstate Commerce Act, infra. Such an injunction may be issued as well upon a proper showing on a preliminary as on a final hearing. It was said by Taft, J., that the office of a preliminary injunction is to preserve the status quo until upon final hearing the court may grant full relief, and generally this can be accomplished by an injunction prohibitory in form. It may sometimes happen, however, that the status quo is not a condition of rest, but of action, and the condition of rest is exactly what will inflet an irreparable injury upon the complainant. In such cases, therefore, it is only a mandatory injunction, compelling the traffic to flow as it is wont to flow, which will protect the complainant from injury. 2 It was said by the Supreme Court that it is one of the most useful functions of a court of equity that its methods of procedure is capable of being made such as to accommodate themselves to the development of the interests of the public in the progress of trade and traffic by new methods of intercourse and transportation, and it may be added, in securing the uninterrupted movement of commeree.3 suit guilty of contempt in disobeying the preliminary injunction and ordering him to pay a fine, one-half to the United States and one-half to the complainant on the ground that the fine payable to the United States was clearly punitive and as such reviewable without waiting for final decree in the cause. 3 In So. Cal. Co. v. Rutherford) So' Dist. of Cal.), 62 Fed. Rep. 796, the court granted an injunction to a railroad company against its employees. compelling them to perform all their regular and accustomed duties as long as they remain in the employment of the complainant company. This was in a case where the em 1Toledo, A. A., etc. R. Co. Case, ployees, while continuing in the supra. service, had boycotted the Pullman 2 Joy v. St. Louis, 138 U. S. 1, 1. c., Car Co. p. 50, 34 L. Ed. 859. CHAPTER V. THE FEDERAL CONTROL OF STATE REGULATION. § 91. State regulation of railroads under State Commissions..... 92. The power of regulation independent of state or federal incor poration..... Page. 128 129 93. The limitations of the state authority in domestic traffic............. 130 131 131 132 97. Limitation by federal authority of the state's power in regulating interstate rates ... 133 135 137 98. What is reasonableness in the limitation of state authority.. 99. No definite standard of reasonableness in railroad rates..... 100. Protection of the carrier against discriminating state legislation.. 138 101. Extent of the state power of regulation...... ... 138 140 102. The state anti-trust laws and the Fourteenth Amendment..... 103. Classification in state railroad legislation..... 142 $91. State regulation of railroads under State Commissions. The complexity of our dual form of government is nowhere more forcibly illustrated than in the administration of the railway system of the country under the state commissions as to their state traffic, and under the Interstate Commerce Commission as to their interstate traffic. The power of the states to regulate the rates of railroads and other carriers had been definitely established in the Granger cases as already seen, prior to the adoption of the Interstate Commerce Act. This power of the states could be exercised either directly by the legislature fixing the rates, or could be delegated to a commission acting for the state. Commissions had been established in many of the states prior to 1887, some with advisory powers and others with powers to fix maximum rates.1 It was held by the Supreme Court, that a railroad forming a continuous line in two or more states, and owned and managed by a corporation, whose corporate powers are derived from the legislatures of each state in which the road is situated, 1 See review of state commission statutes in Maximum Rate Case, 167 U. S. 1. c. 495 (1897), 42 L. Ed. 251. 2 Railroad Commission Cases, 116 U. S. 307 (1886), 29 L. Ed. 636. |