Lapas attēli

Opinion of the Court.

the court, as well as in committing some contempts in violation of orders made in equity cases prosecuted by or for the government, the act done may be a crime. Such cases, if not excluded therefrom by some further provision, would by force of sections 21 and 22 be triable by jury. It would assuredly have been unwise to deprive the federal courts of their salutary power to punish forthwith and without a jury all kinds of direct contempts. In fact, it has been frequently laid down that the power of immediate punishment of contempts committed in the presence of the court is essential to the continued usefulness of the courts. With respect to indirect contempts in government cases: When the government, or an official in behalf of the government, exercises the right to have an injunction order issued, violations of such order are likely to cause great public inconvenience. Trials of indirect contempt charges held by a single judge may usually be more quickly obtained than a trial by jury. And the judge, in theory, if not in fact, is less likely to be swayed by possible temporary hostility to the policy being at the time pursued by the government, or by improper sympathy for the defendant, than a jury. The success of the government in quelling the great railroad strike of 1894 (In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; U. S. v. Debs [C. C.] 64 Fed. 724) was most probably considerably aided by the prompt, just, and unsentimental action of Judge Woods in finding the defendants guilty and in sentencing them to spend, respectively, from 3 to 6 months in jail. It is beyond question wise, politic, salutary, that the government's ancient rights as a litigant be not impaired, even in behalf of organized labor. Private employers constitute a small fraction of our population in comparison with those represented by the government; and for this as well as for other reasons the lawmakers may have been quite willing to experiment with juries in certain kinds of contempt cases growing out of private disputes between employer and employees and wholly unwilling to [223] make a similar experiment in cases involving the rights of the government.

Opinion of the Court.

But, whatever may have been the reason or reasons for the language used in section 24, it is utterly impossible to read sections 21, 22, and 24 together, and find therein a direction to permit a jury trial, if the act done in violation of an injunction be not a crime against the common or statute law of the state or against some federal criminal statute. Sections 21 and 22 lay down a general rule, and section 24 at the most merely supplies two classes of exceptions to the general rule.

[7] 7. I think it cannot be successfully contended that section 20 of the Clayton Act prohibits an injunction which forbids strikers from insulting the working employees. It is true that that section prohibits enjoining the doing of any act or thing which might lawfully be done in the absence of the dispute which led to the issue of the injunction. To put a concrete case: Was it the intention of Congress to authorize strikers to call the workers scabs? There are a few epithets more likely to bring about an immediate breach of the peace, and section 20 was emphatically and distinctly intended to authorize only peaceful methods of conducting a strike or a boycott. However, the topic need not be pursued. It is inconceivable that Congress intended to legalize, especially during periods of intense and bitter feeling, the use of insulting epithets. And to publicly display a printed placard applying a highly offensive word to a considerable number of people is only another form of using insulting epithets.

8. I see no sufficient reason for not holding the defendant guilty. At least after August 29th, he is conclusively presumed to have known that the injunction orders forbade him from maintaining the placard on public display. If it be thought that the repeated warnings by the deputy marshals were insufficient to put the defendant on notice, certainly the formal, official service of one of the injunction orders on the defendant did put him on notice.

A fine of $200 will be imposed.

Statement of the Case.


(Circuit Court of Appeals, Fourth Circuit. May 21, 1923.)

[290 Fed. Rep. 906.]

1. INJUNCTION 223(2)-OWNER OF PROPERTY MAY NOT USE IT IN VIOLATION OF INJUNCTION.-That the window, facing a street, in which a placard containing matter in violation of an injunction was displayed, was on property owned by respondent, held to constitute no defense to a charge of contempt of court.

2. INJUNCTION 223(2)—VIOLATION OF STRIKE INJUNCTION.-Respondent, who during a railroad strike, at the request of strikers, displayed in the window of his barber shop, facing a street along which employees of the railroad company passed, going to and from their work, a placard bearing in large letters the words "No Scabs Wanted in Here,” held in contempt for violation of an order enjoining the strikers and "all persons conspiring or associated with them" from interfering with, annoying, or insulting employees of the company about the premises or on their way to or from their work.

3. JURY 13(21)-RIGHT TO JURY TRIAL UNDER CLAYTON ACT.-The provision of Clayton Act, § 20 (Comp. St. § 1243d), that no injunction shall be granted in suits arising out of labor disputes, prohibiting any person from doing any act or thing which might lawfully be done in the absence of such dispute, does not limit acts which may be restrained to those which constitute crimes, and thus entitle any person charged with contempt for violation of an injunction granted in such a case to a jury trial under section 22 (Comp St. § 1245b).

4. INJUNCTION 216-CHARGE OF CONTEMPT FOR VIOLATION OF STRIKE INJUNCTION IS NOT CHARGE OF CONSPIRACY.-Though a bill for an injunction against strikers may, and usually does, charge a conspiracy, and such conspiracy may constitute a crime, a charge of contempt for violation of an injunction granted in the case is not a charge of conspiracy, but of doing certain acts specifically forbidden by the injunction, which may or may not constitute crimes. In Error to the District Court of the United States for the Western District of Virginia, at Lynchburg; Henry Clay McDowell, Judge.

a For opinion of the District Court (290 Fed. 214) see ante, page 976. Syllabus copyrighted, 1923, by West Publishing Co.

Opinion of the Court.

Proceeding for contempt by the United States against L. A. Taliaferro. From the judgment, defendant brings error. Affirmed.

For opinion below, see 290 Fed. 214.

0. B. Harvey, of Clifton Forge, Va., for plaintiff in error.

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

Before WOODS, WADDILL, and ROSE, Circuit Judges.

ROSE, Circuit Judge.

In July, 1922, the Chesapeake & Ohio Railroad Company filed two bills in the court below. The defendants, some to one bill and the remainder to the other, were about a dozen trade unions of railway shopmen and clerks and a number of persons described as officers or as members of one or another of such unions. The latter were sued as such and also as representatives of the many thousands of their fellow members, who were too numerous to be individually joined. The bills alleged that the controversies arose under the laws of the United States. They charged that the defendants had [907] struck rather than accept certain rulings of the Federal Railway Labor Board as to wages and working conditions. They said that the law required the plaintiff to continue its service to the public, so that it had no choice other than to fill, if it could, the places of the strikers. They asserted that not only would not the latter work, but they had conspired to prevent the plaintiff from keeping or getting any others to do what had to be done, and that they had planned to accomplish this end by the use of violence, intimidation, threats, and insults directed at those who remained in plaintiff's employ or who might seek to enter it. Various things said to have been already done in furtherance of the common purpose were set forth in considerable detail. Upon these bills were issued restraining orders, which, on the 5th of August, 1922, were replaced by temporary injunctions prohibiting, among many other things, the unions and each and every officer, agent, and member thereof, and the indi

Opinion of the Court.

vidual defendants, named, and any and all persons conspiring or associating with the defendant unions, or any officer, agent, or member thereof, or with the individually named defendants, from annoying, insulting, or interfering with those in plaintiff's employ or with any seeking to enter it.

The plaintiff in error will be herein referred to as the defendant. He was not a member of any of the unions named, and as he was a barber operating a shop of his own he had no direct material interest in the controversy. Many of his patrons were, however, out on the strike, and he was a warm sympathizer with it, as it goes without saying he had a perfect right to be. His shop in Clifton Forge was not far from one of the entrances to plaintiff's yards or shops and on a street habitually traversed by those working for it. Subsequent to the issue of the injunctions, a couple of the unionists brought to him a placard and asked him to display it. It had the words "No Scabs Wanted in Here,” printed in letters sufficiently large to be readable at a distance of from 50 to 100 feet. He hung it up in his window facing the street, so that those using the highway could not avoid seeing it. Some of the United States deputy marshals who were stationed in the town for the purpose of looking after the enforcement of the injunctions came to him and told him that in their judgment a public exhibition of this sign was a breach of the order of the court. They asked him to take it down. He refused to do so. A day or so later he was formally served with a copy of the injunctions. He still insisted that he had a right to display the placard, and he continued to do so, and these proceedings were instituted against him. His demand for a jury trial was refused, and after a hearing before the court, in which the only controverted questions of fact were as to some legally immaterial details not herein referred to, he was found guilty and sentenced to pay a fine. To reverse such judgment he sued out this writ of error.

[1] Some of the contentions, although made by his able counsel with much force and vigor, may be readily disposed of. Among them is the assertion that every one has the absolute right to have within the boundaries of his own

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