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Opinion of the Court.

L. P. Summers, U. S. Atty., of Abingdon, Va., and C. E. Gentry, Asst. U. S. Atty., of Charlottesville, Va.

Oliver B. Harvey, of Clifton Forge, Va., for defendant. MCDOWELL, District Judge.

At the time shown therein the following order was made: "In the United States District Court for the Western District of Virginia, Continued and Held at Lynchburg, on September 2, 1922. Order for Attachment.

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Whereas, in the equity cause pending in this court at Lynchburg, entitled 'Chesapeake & Ohio Ry. Co. v. Brotherhood of Railway & Steamship Clerks, etc., et al., No. 256,' an injunction order was issued on the 5th day of August, 1922, which has been in effect ever since; "And whereas, in the equity cause pending in this court at Lynchburg, entitled 'Chesapeake & Ohio Ry. Co. v. International Association of Machinists [216] et al.,' an injunction order was issued on the 5th day of August, 1922, which has been in effect ever since;

"And whereas, in both of said injunction orders certain named organizations, and the officers, agents, and members thereof, and also certain named individuals, and all persons conspiring or associated with them, are, in substantially the same terms, enjoined from abusing, intimidating, molesting, annoying, or insulting any person in or desiring to enter the employ of the aforesaid railway company on their way to or from their work or while engaged in any service of or for said railway company;

"And whereas, it has been by the affidavits of Deputy Marshals Chas. C. Willoughby, W. W. Rangeley, and W. B. Slusser, laid before this court and now filed in the clerk's office at Lynchburg, made to appear that one L. A. Taliaferro, of Clifton Forge, Virginia, did on August 29, 1922, permit to be publicly and conspicuously displayed, in his barber shop, on Main street in Clifton Forge, Virginia, known as the Ideal Barber Shop,' a placard printed in conspicuous type, reading: No Scabs Wanted in Here'; that on said day the said Taliaferro was clearly given to understand by Deputy Marshal W. B. Slusser, as well as by others, that allowing said placard to be publicly displayed in said shop was a violation of said injunctions, and was served with a copy of the above-mentioned injunction order in case No. 256 above mentioned:

"And whereas, it is further made to appear by certain additional affidavits by W. B. Slusser and W. W. Rangeley and C. C. Willoughby, also filed, that, notwithstanding the service of said order and the information given him on August 29, 1922, the said Taliaferro con

Opinion of the Court.

tinued to leave publicly and conspicuously displayed said placard in his aforesaid barber shop, on August 30 and August 31, 1922:

"It is therefore ordered that a writ of attachment be forthwith issued, commanding the marshal of this district and his deputies to attach the said L. A. Taliaferro, if he be found in this district, and to have his body before this court at Lynchburg, Virginia, at 10:30 a. m. of September 8, 1922, to stand trial upon the charge of contempt set out in this order, and to show cause, if any he has, why the said Taliaferro should not be punished therefor, and further commanding that a copy of this order be served on the said Taliaferro at the time he is arrested.

"And in the body of said attachment the clerk will insert a direction to the officer executing said writ to take the defendant (if the defendant so desires) before the nearest United States commissioner of this district, in order that said defendant may, if able, give security for his appearance before this court at the time and place in this order set for the aforesaid trial.

"The said clerk will also transmit to the marshal, with an original and an attested copy of said attachment, two attested copies of this order."

The attachment issued under the above order was as follows:

"United States of America v. L. A. Taliaferro. Attachment.

"UNITED STATES OF AMERICA, Western District of Virginia. "The President of the United States of America to the Marshal of the Western District of Virginia-Greeting:

"Pursuant to an order of court of this date, entitled as above, these are to command you and your deputies to attach the body of L. A. Taliaferro, if he be found in your bailiwick, and him safely keep, so that you have him before the judge of the United States District Court for the Western District of Virginia at Lynchburg, at 10:30 a. m. on September 8, 1922, to stand trial for the alleged contempt set out in the aforesaid order, and further to do and receive what the said court shall in that behalf consider.

"You will further deliver to the said L. A. Taliaferro, as soon as may be after arresting him hereunder, a duly attested copy of the above-mentioned order of court, to the end that he may seasonably learn the charge made against him.

"You will also, upon arresting the said defendant, if he so desires, carry him before the nearest United States commissioner in this district, in order that [217] the said defendant may be bailed for his appearance before the said judge of the said court at the time and place for trial above set out.

Opinion of the Court.

"And how you have executed this writ you will make return on or before the day and hour herein last above mentioned."

The defendant was promptly arrested, and at the same time was served with a copy of the foregoing order. He gave bond before the nearest United States commissioner and appeared at Lynchburg at the time set for the trial. The defendant demurred, and, when his demurrer was overruled, answered. The following opinion sufficiently shows the nature of the evidence introduced and the contentions made in behalf of the defendant:

The order directing the issue of the attachment sets out the charge made against the defendant.

1. It is first argued that the defendant was not associated with any of the members of any of the labor unions mentioned in either of the injunction orders. In case 256, Chesapeake & Ohio R. Co. v. Brotherhood, etc., the injunction order (dated August 5, 1922) reads in part as follows:

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That the defendants above named [a dozen individuals, and the Brotherhood of Railway and Steamship Clerks, Freight Handlers and Express and Station Employees] and the officers, agents, and members of said organization defendant, and all persons conspiring or associated with them, be and they are hereby enjoined * from following in parties of more than two persons and importuning * * those in or desiring to enter the employ of the complainant about the premises, or about the streets and places aforesaid, and on their way to or from their work for the complainant, or engaged in any service of or for the complainant, abusing, intimidating, molesting, annoying, insulting, or interfering with such persons or any of them. *

**

* from *

In case 257 (Chesapeake & Ohio Ry. Co. v. International Association of Machinists et al.) the numerous labor unions and individuals named and "all persons conspiring or associated with them" are enjoined from "hindering or obstructing individuals desiring to enter the service of the complainant at or about said shops, roundhouses, plants, stations or premises, or going to or from their work, or while at work in the service of the complainant, from abusing, intimidating, molesting, annoying, in

Opinion of the Court.

sulting, or interfering with such persons or any of them.

*

[1] The evidence has not yet been transcribed, but as I recall it (with the aid of my notes) the testimony was that the placard was brought to the defendant's barber shop by "a couple of strikers" and placed in the front window of the shop early in July. It remained thus displayed until about September 4, 1922. This placard, 83⁄44x61⁄2 inches in size, contains the following:

NO SCABS

WANTED IN HERE.

The words "no scabs" are printed in letters 1% inches in height and proportionately broad; the balance of the legend being in letters 3/4 of an inch in height. By actual demonstration I find that I can easily read the larger letters at a distance of 75 feet and the smaller ones at 50 feet. The clerk of the court reads the larger let- [218] ters at 100 feet and the smaller ones at 90 feet. The defendant's barber shop was on East Main street, in Clifton Forge, Va., about 125 feet from one of the entrances to the railway company's freight house, and many of the clerks who were working at the freight house passed by the barber shop daily on the way to and from their work.

It seems to me that the defendant "associated" himself with the members of the labor unions on strike when he maintained in his front window the placard brought there by some of the strikers, and especially when (on August 29th) he refused to take the placard down, and maintained it on August 30th and 31st after having been told by three different deputy marshals that in so doing he was in contempt of court. In so doing the defendant allied himself with-became associated with the strikers. There is, I think, a rather fine distinction between conspiring with and associating oneself with. The evidence at least clearly shows that the defendant associated himself with the strikers in doing the act charged.

2. The charge that the defendant intimidated any of the working employees has not been proved. But the defendant

Opinion of the Court.

is also charged with molesting, annoying, and insulting. It is matter of common knowledge that the word "scab," as a designation of a human being, is one of the most opprobrious and insulting in the English language. One of the common literal meanings is (Webster's Internat'l Dict., Ed. 1922):

"An incrustation over a sore or pustule formed by the drying up of the discharge from the diseased part."

Other and less literal, but (in times of strike) extremely common, meanings are:

"A dirty, paltry fellow."

"A workman who works for lower wages than, or under conditions contrary to, those prescribed by the trade union; also, one who takes the place of a workman on a strike; a rat; used opprobriously by trade unionists."

Webster's Dict. 1922.

No man can be called a scab without thought of the putrescent and loathsome object which the term applied to himself suggests. Testimony from any one or more of the employees that being publicly excluded from a public place by a most highly offensive designation was annoying and insulting would have been supererogatory. Even judges are not justified in refusing to act on knowledge which is common to practically all sane and adult inhabitants of the United States.

[2] 3. Counsel for defendant relies strongly on a supposed want of evidence that any employee was insulted or annoyed by the placard, or that any such person even ever saw the placard. Contempt can, of course, be proved by circumstantial evidence; and the circumstances proved and admitted in this case have convinced me beyond all reasonable doubt that those of the employees who worked at the freight house, and who went by the defendant's shop daily on the way to and from their work, must have seen the placård frequently, and, being human, if they saw it, they were insulted, molested, and annoyed by it. The admission on this subject, as sent to me by the stenographer in advance of the transcript, is:

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