2

which does not intimidate from force of numbers or other cause, and is merely to gain information or to effect peaceful persuasion. It was said in a recent case, however, that picketing, "in its mildest form, is a nuisance; and to compel a manufacturer to have the natural flow of labor to his employment sifted by a self-constituted, antagonistic committee, whose very presence upon the highway for such purpose is deterrent, is just as destructive of his property as is a boycott which prevents the sale of his product." In this case a boycott had been previously declared unlawful, and an injunction had been granted against threats, intimidation, or coercion with a view to preventing workmen from accepting employment with the plaintiff company. In the present instance an injunction was allowed restraining the defendant association and its officers from persuading or inducing persons or corporations not to deal with the company because it employed nonunion workmen. This is farther than injunctions usually go, but the court regarded the union as acting with no motive for interfering with the complainant beyond the avowed purpose of destroying it. "The result which they seek to obtain cannot come directly from anything they do within the regular line of their business as workers competing in the labor market. It can only come from action outside of the province of workingmen, intended directly to injure another." 3

1 Karges Furniture Co. v. Woodworkers' Union, supra; St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30; Cumberland Glass Co. v. Glass Bottle Blowers, supra; Pope Motor Car Co. v. Keegan, supra; Iron Molders' Union v. AllisChalmers Co., 166 Fed. 45, 91 C.C.A. 631.

• George Jonas Glass Co. v. Glass Bottle Blowers, 72 N.J. Eq. 653, 66 Atl. 953; affirmed, 77 N.J. Eq. 219, 79 Atl. 262.

Berry v. Donovan, 188 Mass. 353, 74 N.E. 603; and see Hopkins v. Oxley Stave Co., 83 Fed. 912, 28 C.C.A. 99; Shine v. Fox Bros., supra.

The fact that offensive boycotting or picketing followed a strike that was in itself legal in no wise affects the issue of an injunction restraining the offending acts.1

3

SECTION 127. Contempts. The willful violation or disregard of an injunctive order is a contempt of the court issuing it, and is liable to punishment as such. The power to enforce the penalty is inherent in all courts, and is essential to the enforcement of their orders and the due administration of justice. Without it they would be "mere boards of arbitration whose judgments and decrees would be only advisory." The right to punish contempts belongs exclusively to the court against which the offense was committed, since in order to the securing of obedience to its orders, a court must have the right to inquire whether they have been disobeyed, and to submit this question to another tribunal would deprive the proceeding of half its efficiency. This view extends to the trial of contempts by jury, the alleged right to such trial being denied.5 Judgments of contempt may be taken for review to a superior court,' such proceeding, in the absence of special statutes, being governed by the statutes generally applicable to the review of judgments.

Contempts are classed as direct, or those committed in the

1 Sailors' Union v. Hammond Lumber Co., 156 Fed. 450, 85 C.C.A. 16; M. Steinert & Sons v. Tagen, 207 Mass. 394, 93 N.E. 584.

2 Ex parte Robinson, 19 Wall. (86 U.S.) 505; Bessette v. Conkey, 194 U.S. 324, 24 Sup. Ct. 665.

Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 Sup. Ct. 492.

4 In re Debs, 158 U.S. 564, 15 Sup. Ct. 900.

'In re Debs, supra; Eilenbecker v. Plymouth Co., 134 U.S. 31, 10 Sup. Ct. 424; O'Brien v. People, 216 Ill. 354, 75 N.E. 108; Thomas v. Cincinnati, etc., R. Co., 62 Fed. 803.

Gompers v. Bucks Stove & Range Co., 37 Wash. L. R. 706, 33 App. D. C. 516; Same case, 221 U.S. 418, 31 Sup. Ct. 492; ex parte Terry, 128 U.S. 289, 9 Sup. Ct. 77.

presence of the court; and constructive or indirect, by which are meant acts of disobedience or disregard of its orders or writs elsewhere than its immediate presence. Obviously contempts in labor disputes will be mainly of the latter class. Various attempts have been made at legislative restriction of the power of the courts to punish for contempts, and some laws of this intent have been enacted. These laws may provide for jury trial in cases of indirect contempt, or limit the penalty that may be inflicted by the court.2 All the statutes cited were declared unconstitutional by the courts of the respective states as being unwarranted interferences by the legislative branch of the government with the inherent rights and powers of a coördinate branch; and it has been broadly laid down that the power to protect itself from contempt, and also to determine what is a contempt, is inherent in every court of superior jurisdiction, and that it is not within the power of the legislature to prevent the one or abridge the other. It was said in a case involving a statute of the state of Georgia, that a provision of the constitution to the effect that the power of the courts to punish for contempts shall be limited by legislative acts does not confer authority on the legislature to define contempts and restrict the jurisdiction of a superior court, created by the constitution, to those acts only which are specified. Thus a statute

1 Okla., Acts 1895, ch. 13; Va., Acts 1897-8, p. 548. Mo., R.S., sec. 3882; Okla., Acts 1895, ch. 13.

State v. Shepherd, 177 Mo. 234, 76 S.W. 88; Smith v. Speed, 11 Okla. 95, 66 Pac. 511; Carter's Case, 96 Va. 805, 32 S.E. 780; Chicago, etc., R. Co. v. Gildersleeve, 219 Mo. 170, 118 S.W. 86; Burdett v. Commonwealth, 103 Va. 838, 48 S.E. 878.

4 Cheadle v. State, 110 Ind. 301, 11 N.E. 426; and see O'Brien v. People, supra; Ford v. State, 69 Ark. 550, 64 S.W. 879; Anderson v. Drop Forging Co., 34 Ind. App. 100, 72 N.E. 277.

providing that the power of a court to punish for contempt shall not extend to any cases except misbehavior in or so near the court as to obstruct justice, or misbehavior of an officer of the court in official transactions, or disobedience of a lawful writ, order, or process of the court1 is not binding on a constitutional court, and it may, in order to preserve its constitutional powers, treat as contempts acts which clearly invade them, since the power to punish contempts is inherent in every court of record.2 A statute of Kentucky, however, limiting penalties unless a jury trial is granted,3 was referred to in a case before the supreme court of that state as controlling in a possible case; and statutes regulating procedure are doubtless valid.5

4

The violation of an injunction may be passive as well as active, as where the officers of a labor organization fail to use reasonable efforts to secure from members of their unions obedience to the injunctive order, if such failure is apparently colored by bad faith. Nor is an injunction a necessary condition precedent to the commission of acts of contempt, since in cases of receiverships the mere fact that the property is in the hands of the courts makes interference with the receivers in the performance of their duties as officers of the courts contempt of court.' Where em

1 Ga., Civ. Code, sec. 4046.

2 Bradley v. State, 111 Ga. 168, 36 S.E. 630; see also Hale v. State, 55 Ohio St. 210, 45 N.E. 199; ex parte McCown, 139 N.C. 95, 51 S.E. 957.

3 Ky. Stat., sec. 1291. "N.Y., C.L., ch. 30, secs. 750-781; see People v. Dwyer, 90 N.Y. 402; People v. Court, 101 N.Y. 245; Wis., A.S., secs. 3477-3497; see Emerson v. Huss, 127 Wis. 215, 106 N.W. 518; Vilter Mfg. Co. v. Humphrey, 132 Wis. 587, 112 N.W. 1095.

♦ Underhill v. Murphy, 117 Ky. 640, 78 S.W. 482.

In re McCormick, 117 N.Y. Supp. 70; and see Allis-Chalmers Co. v. Iron Molders' Union, 150 Fed. 155.

7 Davis v. Gray, 16 Wall. (83 U.S.) 203; Thomas v. Cincinnati, etc., R. Co., supra; In re Doolittle, 23 Fed. 544.

1

ployees of a company that is in the hands of a receiver appointed by a court are dissatisfied with the wages paid by him, they may abandon the employment, and by argument or persuasion induce others to do the same; but if they resort to threats or violence to induce the others to leave, or accomplish their purpose without violence by overawing the others by preconcerted demonstrations of force, and thus prevent the receiver from carrying on the business, they are guilty of contempt.2 And it has been held that strikers who were employees of a railroad not in the hands of a receiver are guilty of a contempt, even though intending none, if by unlawfully obstructing the operation of the road of their employer, not by merely quitting work, which is lawful, but by preventing the owners of the road from managing their own engines and running their own cars, they thus interfere with the operation of the road which is in the receivers' hands.3

It will be found in the great majority of cases, however, that contempt is held to consist in the known violation of specific orders, issued by the courts at the instance of an aggrieved party, and that proof of the specific act will be necessary to determine guilt; though incitement to violations, if manifestly of that intent, as by speaking slightingly or defiantly of the court and its order, will also be regarded as contempt. What is a contempt will, therefore, be a matter of fact to be determined by the circumstances in each case. An act lawful in itself may by its

1 United States v. Kane, 23 Fed. 748; In re Doolittle, supra; Arthur v. Oakes, 63 Fed. 310, 11 C.C.A. 1209.

2 United States v. Kane, supra; In re Higgins, 27 Fed. 443; United States v. Weber, 114 Fed. 950. In re Doolittle, supra.

'Gompers v. Bucks Stove & Range Co., 37 Wash. L. R. 706, 33 App. D.C. 516; United States v. Haggerty, 116 Fed. 510.