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now provided by law in criminal cases, and may be affirmed, reversed, or modified as justice may require. Upon the granting of such writ of error, execution of judgment shall be stayed, and the accused, if thereby sentenced to imprisonment, shall be admitted to bail in such reasonable sum as may be required by the court, or by any justice, or any judge of any district court of the United States or any court of the District of Columbia.

Sec. 24. (Certain contempts excluded from operation of Act.) That nothing herein contained shall be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced within section 21 of this Act, may be punished in conformity to the usages at law and in equity now prevailing.

Sec. 25. (One year limitation for contempt proceeding-no bar to criminal prosecution-pending proceedings.) That no proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act or acts; but nothing herein contained shall affect any proceedings in contempt pending at the time of the passing of this Act.

The Sundry Civil Appropriation Act of March 3, 1915, ch. 75, sec. 1, 38 Stat. L. 866, made an appropriation for the enforcement of the anti-trust laws, and contained a proviso, as did similar acts for preceding years, as follows: "That no part of this money shall be spent in the prosecution of any organization or individual for entering into any combination or agreement having in view the increasing of wages, shortening of hours or bettering the conditions of labor, or for any act done in furtherance thereof, not in itself unlawful: Provided further, that no part of this appropriation shall be expended for the prosecution of producers of farm products and associations of farmers who cooperate and organize in an effort to and for the purpose to obtain and maintain a fair and reasonable price for their products."13

This federal legislation, of course, restricts the federal courts in Illinois, but has no effect whatever upon the state courts, and an unsuccessful effort was made in 1917 and 1919 to enact for Illinois, as applicable to the state courts, statutory provisions which embodied a part of the provisions just quoted above.

Constitutionality of proposed legislation. If it were desired to obtain in Illinois legislation similar to that enacted by congress, a question would present itself as to whether such legislation if enacted

13 38 U. S. statutes at Large, 730 (Oct. 15, 1914).

is likely to be upheld by the state supreme court. In this connection, it should be borne in mind that the apparently accepted constitutionality of the federal legislation does not settle the question as to the state constitutionality of similar legislation if it were enacted by the Illinois general assembly. Two issues present themselves here with respect to this matter: (1) All inferior federal courts are established by congressional legislation, and their jurisdiction is fixed by such. legislation. It is commonly held that the power of a legislative body to regulate matters such as those having to do with the issuance of injunctions and the punishment of contempts is larger where the legislation deals with courts not created by a constitution than where it deals with courts established by a constitutional provision. The Illinois trial courts are now provided for by state constitutional provision. (2) The fact that the United States supreme court may hold the provisions of the Clayton Act not violative of "due process of law" and "equal protection of the laws", as guaranteed in the federal constitution, does not necessarily mean that the supreme court of Illinois would take the same view in interpreting substantially identical provisions of the constitution of Illinois. It should here be borne in mind that the state supreme court is the final judicial arbiter as to the meaning of the state constitution, and that it has not been uncommon for state supreme courts to construe state constitutional language more strictly than the identical language in the federal constitution has been construed by the United States supreme court. Further comment upon this matter will be found in the pamphlet dealing with the legislative department.

With respect to the problem of the constitutionality for Illinois. of such legislation as the Clayton Act, several points present themselves which will be discussed under the three succeeding headings.

Giving a preferred status to labor. Several cases have arisen. upon state legislation exempting certain types of cases from general legal rules. California in 1903 enacted a statute in the following

terms:

"No agreement, combination or contract by, or between two or more persons to do or procure to be done, or not to do or procure not to be done, any act in contemplation or furtherance of any trade dispute between employers and employes shall be deemed criminal, nor shall those engaged therein be indictable, or otherwise punishable for the crime of conspiracy, if such an act committed by one person would not be punishable as a crime, nor shall such agreement, combination or contract be considered as in restraint of trade or commerce, nor shall any restraining order or injunction be issued with relation thereo."14

The Act further provided that nothing therein should be construed as authorizing force or violence or threats thereof. In the

14 Cal. Stat. 1903, p. 289.

case of Goldberg v. Stablemen's Union15 and Pierce v. Stablemen's Union. 16 this act was held unconstitutional as denying equal protection of the laws and as interfering with the constitutional right to acquire, possess, enjoy and protect property.

In 1911 the Massachusetts senate asked the opinion of the supreme judicial court of that state as to the constitutionality of a proposed exemption of trade unions and of associations of employers from liability for tortious acts alleged to have been committed by or on behalf of such a union or association. The supreme judicial court said that such proposed legislation would be unconstitutional as depriving of equal protection of the laws, by setting aside a favored few and by discriminating between members and non-members of unions and between members and nonmembers of employers' associations.

However, the Massachusetts general court in 1914 enacted a statute, the substance of which is as follows: The statute declared it not unlawful to enter into agreements or combinations with a view to lessening hours of labor, increasing wages or bettering conditions of labor, and provided that no injunction should be granted in cases growing out of disputes concerning the terms or conditions of employment or acts done in pursuance thereof "unless such order or injunction be necessary to prevent irreparable injury to property or a property right of the party making the application, for which there is no adequate remedy at law". It also declared that the right to enter the relation of employer and employe, to change that relation, to assume new relations, or to labor as an employe shall "be held and construed to be a personal and not a property right"; and that in cases involving the violation of a contract of employment "where no irreparable damage is about to be committed upon the property or property right of either [employer or employe], no injunction shall be granted but the parties shall be left to their remedy at law". The statute further provided that there should be no criminal liability for workmen entering into an agreement or combination with a view to lessening hours, increasing wages or bettering conditions or for any acts done in pursuance thereof "unless such act is in itself unlawful". It will be noted that this legislation in part covers the same ground as the English Trade Dispute Act of 1906 and that it also covers some of the matters dealt with by the terms of the Clayton Act.

The validity of the Massachusetts legislation of 1914 came. before the supreme judicial court of Massachusetts in the case of Bogni v. Perotti." In this case one union sought an injunction to prevent interference by another union with its members obtaining work. The supreme judicial court said that labor is property as well as liberty, and that the legislative body could not remove it from judicial protection by saying that it was not so. It further said that "if a laborer must stand helpless in court while others

1 149 Cal. 429 (1906).

16 156 Cal. 74 (1909).

17 112 N. E. 853 (1916).

there receive protection respecting the same general subject which is denied to him", there is a denial of due process of law. The court agreed that the equitable jurisdiction of courts was largely statutory, but said that it was one thing to affect a general scope of equitable remedies and a different one to admit some citizens to have an equitable remedy while denying that remedy to others. The point here under discussion has not been squarely passed upon by the supreme court of Illinois, but a somewhat similar issue was involved in several cases which have arisen in this state. In the case of Gillespie v. People,18 the supreme court said that it was unconstitutional to make it a criminal offense for an employer to prevent his employes from joining labor unions or to discharge them because of their connection with labor unions.19

In the case of People v. Butler Street Foundry Co.,20 the Illinois supreme court held unconstitutional a provision of law which contained a proviso that "in the mining, manufacture or production of articles of merchandise, the cost of which is mainly made up of wages, it shall not be unlawful for persons, firms or corporations doing business in this state to enter into joint agreements of any sort, the principal object or effect of which is to maintain or increase wages."

In the case of Matthews v. People,21 the supreme court held unconstitutional a statutory provision prohibiting superintendents of free employment agencies from furnishing workmen or lists of workmen to employers whose men were on strike or were locked out.

In view of these cases and of other utterances by the supreme court with respect to the matters here under discussion, it seems unlikely that the court will uphold legislation which on its face. seems to give a preference in legal treatment to labor organizations or their members.22

Upon legislation making a distinction between labor organizations and others, the case of Connolly v. Union Sewer Pipe Company 23 was cited by the court in People v. Butler Street Foundry Company as decisive of the issue there involved. The supreme court of the United States in the Connolly case said that a discrimination by anti-trust legislation in favor of agricultural products or live stock in the hands of the producer or raiser was unconstitutional as a denial of equal protection of the laws. In the later case of International Harvester Company v. Missouri,24 the United States supreme court took the view that "whether the Missouri statute should have stated its condemnation on restraints generally, prohibiting combined action for any purpose to everybody or confined it as the statute does to manufacturers and ven

18 188 Ill. 176 (1900).

19 With respect to this matter the same view has been taken by the United States Supreme Court in the case of Coppage v. Kansas, 239 U. S. 1 (1915). 20 201 II. 236 (1903).

21202 Ill. 389 (1903).

22 See also McChesney v. People, 200 Ill. 146 (1902) and City of Chicago v Hulbert. 205 Ill. 346.

23 184 U. S. 540 (1902)

24 234 U. S. 199 (1914).

to

dors of articles, and permitting it to purchasers of such articles; prohibiting it to sellers of commodities and permitting it sellers of services, was a matter of legislative judgment; and we cannot say that the distinctions made are palpably arbitrary, which we have seen is the condition of judicial review. It is to be remembered that the question presented is of the power of the legislature, not the policy of the exercise of the power." The statute involved in this case had been held by the Missouri supreme court to be "limited to persons and corporations dealing in commodities and not to include combination of persons engaged in labor pursuits." In view of this decision of the United States supreme court, it would seem that the Connolly case is no longer of weight, although the court in the International Harvester case expressly said that it was not overruling the Connolly case.

Limitation of the use of injunctions. The question as to the limitation of the use of injunctions in labor cases has not presented itself very definitely except in the case of Bogni v. Perotti, and the parts of that decision bearing upon this matter have been referred to under the preceding heading. It has already been suggested that the inferior federal courts are creations of congress, and that action by the United States supreme court upholding the provisions of the Clayton Act would not necessarily be decisive as to similar legislation in a state where the inferior courts were created by constitutional provision.

Punishment of contempts. Where a court is created by the constitution, the view has been generally taken that the power to punish for contempts is an inherent judicial power. This does not necessarily mean that the legislature has no authority whatever with respect to the matter of contempts, but it does pretty clearly imply that the presumption will be against any action by the legislature with respect to this matter. In a Virginia case which was decided in 1899,25 an act was involved which divided contempts into two classes, direct and indirect, and permitted the accused to obtain trial by jury in indirect contempts, the jury to fix the punishment by verdict. The contempt involved in the case was indirect and a jury was denied. The highest Virginia court upheld the action denying jury trial and said: "the power to punish for contempts is inherent in courts, and is conferred upon them by the very act of their creation." The court concluded that "in the courts created by the constitution there is inherent power of selfdefense and self-preservation; that this power may be regulated but cannot be destroyed or so far diminished as to be rendered

25 Carter's Case, 96 Va. 791 (1899).

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