Opinion of the Court. [219] "It is admitted by the defendant that employees of the railway company who work in the freight service do pass the Ideal Barber Shop coming to and from their work, and have since the date of the injunction up to the present." Mr. Harvey then made the following statement: "The statement by counsel for the defendant is made from considerably greater knowledge of local conditions than is possessed by the defendant, who is himself a resident of Staunton. The admission is not, therefore, to be considered contradictory of anything said by the defendant, and is made simply because it is a fact, and could be proved by delaying the case and sending for witnesses familiar with the situation." In no case does the law require absolute certainty, nor does it require proof beyond all possibility of mistake. The supposition that a number of freight clerks could every day for about 60 days, during an intense and bitter strike, pass by the front window of a barber shop in which the placard in question was conspicuously displayed, without some of them seeing it, is not a reasonable hypothesis. The possibility that none of the employees saw the placard is so highly improbable, so contrary to human experience, that I cannot and do not entertain any reasonable doubt about the matter. To be denied access to a public barber shop maintained for white men is of itself highly insulting to any white man. If even a single individual among the employees in the freight service saw the placard, it is almost inconceivable that he did not quickly spread the news among his fellows. I find it impossible to doubt, reasonably, that some of the employees saw and were annoyed and insulted by the presence of the placard in the shop window. And if any of them even heard of it they would have been necessarily annoyed by it. It has not been, but may be, argued that there is no evidence that any of the employees in the freight service were insulted or annoyed by the presence of the placard in the shop window on August 30th and 31st, the dates particularly mentioned in the charge. As has been said, some (probably all) of the employees who passed the defendant's shop daily must in reason have learned of the presence of the placard, have seen it, and have been annoyed and in Opinion of the Court. sulted by it, during the nearly two months of its public exhibition prior to August 30th. If so, the mere continuance of the public display of the placard violated both the letter and the spirit of the injunction orders. 4. The defendant, admitting that his sympathies were with the strikers, said that he had maintained the placard in his window in order to prevent strikers and strikebreakers from meeting in his shop. I assume that there is no power in this court to compel a barber of union sympathies to work for strikebreakers. And if the defendant had posted a sign reading that he desired to serve strikers only, or that he did not desire to serve nonunion men, the case would have been very different. But the defendant (being sane and adult) necessarily knew, when he first saw the placard, that its words would deeply wound the feelings of the nonunion employees. I cannot perceive that the purpose to prevent meetings of members of the rival factions could properly be so carried out as to unnecessarily insult and [220] annoy those who were intended to be protected by the injunction orders, at least after knowledge of the terms of the orders. [3] 5. It is contended that this court had authority to enjoin only acts which restrained interstate commerce. Admitting that the court could restrain only those acts which tend, and not too remotely tend, to restrict interstate transportation (or to retard the passage of the mails), it seems to me that the act of molesting, annoying, and insulting numbers of those who are working for, or are desirous of working for, an interstate carrier, during a widespread strike, has an all-sufficient tendency to restrict interstate transportation (and to retard the mails) to fully justify an injunction. The propriety of enjoining the maintenance of pickets composed of more than one person has been settled. American Steel Foundries v. Tri-City, etc., Council (Dec. 5, 1921), 257 U. S. 184, 42 Sup. Ct. 72, 66 L. Ed. 189. The difference in principle between enjoining strikers from maintaining pickets composed of several persons, and enjoining them from molesting, annoying, and insulting working employees, is rather too fine for practical use. Opinion of the Court. In this connection it may be advisable to say that the authority for the issue of the injunctions here in question is found in sections 1 and 4 of the Sherman Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209 (Comp. St. §§ 8820, 8823), section 291, Judicial Code (Comp. St. § 1268), and section 16 of the Clayton Act of October 15, 1914, c. 323, 38 Stat. 730, 737 (Comp. St. § 88350). Section 20 of the Clayton Act (38 Stat. 738 [Comp. St. § 1243d]) does not forbid injunctions in strike cases when "necessary to prevent irreparable injury to property, or to a property right.” That the right to carry on interstate transportation, and the right to transport the mails, are property rights, need not be argued. [4, 5] 6. The contention that the defendant was entitled to a jury trial next calls for consideration. Sections 21 and 22 of the Clayton Act, supra (38 Stat. 738 [Comp. St. §§ 1425a, 1245b]), require a jury trial on the demand of the defendant, if the act charged to be a contempt is “a criminal offense under any statute of the United States, or under the laws of any state in which the act was committed." It goes without saying that the intent of this statutory provision is that the right to a jury trial on a charge of contempt shall be determined from the charge made, and not from the evidence introduced on the trial. The method of trial must, of course, be determined before the trial is commenced and before evidence is heard. It follows that, if the charge is not that of the commission of a crime, the court cannot properly evade its own duty and grant a demand for a jury trial. The charge set out in the order for the issue of the attachment, and served on the defendant, is that he violated the injunction orders on August 30th and 31st, in that he continued to publicly display on those days the insulting placard. It is not a crime, state or federal, to molest or annoy, or (in the way here charged) to insult or intimidate, a class of persons. There is a state statute (section 4536, Code 1919) against using abusive language; but it in terms applies only to spoken abuse, and, being a criminal statute, must be [221] strictly construed. To wound the sensibilities of an Opinion of the Court. other person, as was done by the defendant, is a moral offense (and a violation of the injunction), but not a crime. I can think of no reason why the court, in the injunction orders here, could not have validly in express terms forbidden that any member of any of the named organizations and any person associated with them should publicly display any written or printed placard which refers to the working employees as "scabs." Violating such clause of an injunction order certainly would not be a criminal offense, in the sense in which the words are used in section 21 of the Clayton Act. It may be contended that the defendant is charged with conspiring to violate the injunction. I do not think he is so charged; but, if so, he is charged with conspiring with others to leave on public display the insulting placard in question, and "conspiring "—that is, agreeing to do this act is not a crime. It goes without saying that there is no crime against the state of Virginia in agreeing to violate a federal injunction; and it is not a crime against the United States to so agree, simply because there is no federal statute which makes such an agreement a crime, and to authorize a jury trial of a charge of contempt it is necessary that the act charged be a criminal offense under some federal statute or under the laws of this state. It follows that, even if the evidence had shown the defendant guilty of a crime (which is not the fact), the defendant's right to demand a jury trial must have been determined with reference only to the charge made, and hence the question was correctly determined. It may be contended that the evidence justifies an inference from the facts that the defendant conspired with the strikers to restrain interstate commerce, or to violate some other federal statute. If such fact be assumed, it does not give the defendant a right to a jury trial. He is not charged with having conspired to restrain commerce, or with having conspired to violate any federal statute. But if the recital in the charge as to those who are within the inhibitions of the injunction orders could be treated as charging that the defendant conspired with some member or members Opinion of the Court. of some labor organization named in one or the other of the injunction orders, the object of the conspiracy as charged was to wound the sensibilities of the working employees, and to thus "conspire" is not a crime. It is true that the defendant is charged in the conjunctive, with insulting and intimidating the working employees; but, if it be considered that he is charged with conspiring to intimidate, he is still not charged with a crime. I so say because it is not a crime to agree with another person to intimidate a class of persons by displaying a placard which insults such class. [6] It is argued that the intent of the Clayton Act is that all contempt charges in strike cases shall be tried by jury. Reliance is placed on section 24 of the act (38 Stat. 739 [Comp. St. §1245d]) to sustain this contention. I can find no support for this theory in the statute anywhere. In sections 21 and 22 certain kinds of contempt charges are made triable by jury. In section 24 direct contempts and violations of orders made in cases prosecuted by or in behalf of the [222] government are excluded from the operation of sections 21 and 22, and section 24 concludes with these words: And all other cases of contempt not specifically embraced within section twenty-one of this act may be punished in conformity to the usages at law and in equity now prevailing." A reading of the entire statute, and especially of sections 21-25, satisfies me that we have here merely a carelessly written sentence, the meaning of which is nevertheless quite apparent. The thought was that all other cases of contempt should be tried and punished according to the old practice. However, this last clause of section 24 need not be considered. The right to a jury trial is given (section 22) only in the cases mentioned in section 21. Hence, unless the act charged be a crime, there is no possible ground for a contention that a jury trial is provided for by the Clayton Act. A statute which expressly and clearly changes the common law only in certain distinctly specified cases cannot properly be construed as applying to other cases. The reason for the enactment of section 24 is, I think, as follows: In committing some contempts in the presence of |