Lynch et al. v. Boston et al. (Superior Court, Mass. Jan. 25, 1897.)

Here the plaintiffs had a contract with the city of Boston to build a bath house. The contract provided that the contractors should give preference to union labor. A portion of the men employed by them in work under the contract were non-union men. The architects by the direction of the mayor of the city, requested the contractors to discharge the non-union men. This was done at the request of the labor union and, as the mayor claimed, to prevent a strike by the union men and the stopping of the work thereby.

The contractors refused to discharge the non-union men and then the architects by direction of the mayor notified the contractors to discontinue all further work under the contract. This it was claimed could be done under a provision in the contract authorizing the city by the architects to terminate the contract.

The contractors then attempted to go on with the work when the mayor caused the police to forcibly prevent them and their men from entering and completing the building. The contractors then brought a suit in equity against the mayor, the architects, and the superintendent of public buildings, to enjoin them from preventing the contractors from completing the building according to contract.

There was no evidence of irreparable injury or that the defendants were not responsible for any damages which might be recovered against them at law. But the court, Richardson, J., found that the contract had not been terminated and that the contractors had a right to complete its performance and enjoined the defendants from "prevent ing or hindering the plaintiffs in the performance of the contract for the reason that they do not employ members of the labor unions."1

There have, of course, been many other unreported cases during the past few years where the power of injunction

1 Boston Daily Advertiser, Jan. 25, 1898.

and punishment for contempt, has been exercised in a similar manner. Indeed one of the greatest objections to the exercise of the power is that there is in most cases practicably no appeal from the summary action of a single judge. The mischief is done when the injunction issues for it must be obeyed until modified, and as few defendants in this class of cases have the money to carry on expensive litigation, the order of one judge often made ex parte, is in most cases practically a final order.

The obiter dicta discussion of this matter by the United States Supreme Court in the Debs case has doubtless tended to cause the courts to unduly extend their equity powers in restraint of threatened crime, and in cases of strikes and boycotts.

In that case the court did not stop with the decision of the question before them, which was, as I have before shown, only whether the circuit court had jurisdiction to enjoin obstructions to interstate commerce.

Whether the proof in the circuit court showed the existence of such obstructions, whether it was expedient to issue the injunction against their continuance, or whether the injunction issued had the effect to remove the obstructions, were considerations wholly outside of the question before the supreme court, and upon which there was not and could not be any evidence before it. But the court evidently impressed, as all persons must be, with the extraordinary condition of affairs out of which the litigation arose, went beyond the decision of the question before it. The opinion discusses the condition of affairs in Chicago at the time the bill was filed, and finally quotes from the testimony of Debs, one of the defendants, not in the record, not even given in the case in the court below, but given before a commission appointed by the president to investigate the Chicago strike, and only stated in the argument of the attorney-general, to the effect that the strike was broken up, not by the army, but simply and solely by the action of the United States

courts in restraining the officers of the labor organizations from discharging their duties. The opinion then assumes from this testimony alone that the injunction which was issued did have the effect to restrain the obstruction to interstate commerce and the transmission of the mails, which was set forth in the bill.

In this the opinion not only went beyond the decision of the case, and outside of anything in the record before the court, but beyond and contrary to the facts.

The trouble in Chicago began June 26, by the declaration by the American Railway Union of a boycott of all railroad companies which hauled Pullman or Wagner cars. At midnight the switchmen on the Central Illinois railroad left, and stopped the operation of the railroads from Chicago to New Orleans.

On the 28th of June two thirds of the railroads leading to Chicago stopped operation.

On the 1st of July ten of the twenty-two railroads entering Chicago stopped all attempts to run freight trains, and seven made no attempt to run any trains at all.

Of the 152 passenger trains entering and leaving the Dearborn Street station daily, only twelve came in and ten went out on June 30th. By that time the suburban traffic in Chicago was practically abandoned, and traffic was interfered with on two thirds of the railroads of the United States.

On July 2nd, the city was suffering acute inconvenience from want of ice, food, and coal. At that time, to quote the language of the attorney-general before the supreme court,

"The interference with interstate commerce was on an immense scale. It included all the twenty-one or two railroads centering in Chicago with their 120,000 miles of track, all whose operations were practically paralyzed. The interference was not sentimental, or brought about by persuasion or cajolery, nor even by threats only. It was

accompanied with the burning of cars, with the derailment of trains, with the destruction of signal towers, and other appliances for the safe operation of trains, with assaults upon passengers and employés by which many were killed and many more wounded, with howling and excited mobs in full occupation of entire districts and terrorizing entire communities. The metropolis of the West, the great centre for the reception of food products and for their distribution North and South and East, was not simply deprived of its trade and subjected to the immense pecuniary loss arising from such deprivation; it was not simply cut off from social and commercial intercourse with the outer world, except through the imperfect media of the telegraph and telephone; but its men, women, and children, numbering more than a million and a quarter of souls, were fast being deprived of the very necessaries of lifeof ice and of milk and of coal, and of the thousand and one other articles so essential in these days to comfort if not to existence itself. Except, indeed, that her beseigers were from within, Chicago was very much in the position of a beleaguered city about to be reduced to submission by the slow but sure processes of starvation and famine."1 It was the duty of the mayor of Chicago to check the riot long before that time, and as soon as it threatened the good order of the city. This he had neglected to do.

It was the duty of the governor of Illinois to check the riot and suppress this disorder as soon as it threatened the good order and peace of the state, and this he had neglected and refused to do.

It was the duty of the president of the United States to check and suppress the riot when it threatened the peace of the United States, and obstructed interstate commerce and the mails, as it then did. It is little to his credit that he was unwilling to do it except as a marshal enforcing an injunction of a federal court. Imagine Lincoln waiting for an injunction before he used the army of the nation to

1 Argument attorney-general, Debs case, pp. 6, 7.

remove the obstruction of the mails and of the operation of the laws by the rebellion.

66

It was under these circumstances, when the riot had reached this extended and most dangerous condition, and Chicago was, as the attorney-general said, practically a beleaguered city," that the government applied to the federal court to restrain certain defendants and all who held a subordinate relation to them and "all persons whomsoever," from continuing to disturb the peace and obstruct the mails and interstate commerce by their riotous proceedings, i. e., to enjoin the riot.

It was obvious that such an injunction could not be enforced by the officers of the court. It was manifest that nothing could suppress the riot but the exercise of executive power by use of armed troops of the United States. There was no question and there could have been no question in the mind of any one, that to enforce the process of the court would require the same exercise of executive military power which would be required if there were no order of the court.

It is plain that the court issued this omnibus injunction against "all persons whomsoever," only that it might be made the basis of a request, for the use of federal troops to put down the riot. Under these circumstances it seems almost grotesque to say, as the supreme court did, that "it is to the credit of the government that it submitted the questions arising upon this suit to the peaceful determination of judicial tribunals, and invoked their consideration and judgment as to the measure of its rights and powers and the correlative obligations of those against whom it made complaint," rather than to remove the obstructions to interstate commerce and the mails by the exercise of the executive power.

There was no real judicial determination by the court. It issued its injunction ex parte, not only to the defendants named, but to "all persons whomsoever," and no amount of legal sophistry can satisfy the mind that the injunction was