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having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws.

Sec. 17. (Preliminary injunctions and temporary restraining orders—notice.) That no preliminary injunction shall be issued without notice to the opposite party.

No ternporary restraining order shall be granted without notice to the opposite party unless it shall clearly appear from specific facts shown by affidavit or by the verified bill that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon. Every such temporary restraining order shall be indorsed with the date and hour of issuance, shall be forthwith filed in the clerk's office and entered of record, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall by its terms expire within such time after entry, not to exceed ten days, as the court or judge may fix, unless within the time so fixed the order is extended for a like period for good cause shown, and the reasons for such extension shall be entered of record. In case a temporary restraining order shall be granted without notice in the contingency specified, the matter of the issuance of a preliminary injunction shall be set down for a hearing at the earliest possible time and shall take precedence of all matters except older matters of the same character; and when the same comes up for hearing the party obtaining the temporary restraining order shall proceed with the application for a preliminary injunction, and if he does not do so the court shall dissolve the temporary restraining order. Upon two days' notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require.

Section 263 of an act entitled "An Act to codify, revise, and amend the laws relating to the judiciary," approved March 3d, 1911, is hereby repealed.

Nothing in this section contained shall be deemed to alter, repeal, or amend Section 266 of an act entitled “An Act to codify, revise, and amend the laws relating to the judiciary,” approved March 3d, 1911.

Sec. 18. (Restraining orders etc., security as condition precedent.) That except as otherwise provided in Section 16 of this Act, no restraining order or interlocutory order of injunction shall issue, except the giving of security by the applicant in such sum as the court or judge may deem proper, conditionesl upon the payment of such costs and damages as may be incurred or suffered by any party who may be found to have been wrongfully enjoined or restrained thereby.

Sec. 19. (Restraining orders, etc.--contents--bonding only upon whom.) That every order of injunction or restraining order shall set forth the reasons for the issuance of the same, shall be specific in terms, and shall describe in reasonable detail, and not by reference to the bill

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of complaint or other document, the act or acts sought to be restrained, and shall be binding only upon the parties to the suit, their officers, agents, servants, employes and attorneys, or those in active concert or participating with them; and who shall, by personal service or otherwise, have received actual notice of the same.

Sec. 20. (Restraining orders, etc.—when not to issue—what acts not to be prohibited.) That no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employee, or between employers and employes, or between employes, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney. And no

such restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any

relation of employment, or froin ceasing to perform any

work labor, or from recommending, advising or persuading others by peaceful means to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things, of value, or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.

(Contempt constituting criminal offense under federal or state law.) That any person who shall willfully disobey any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia by doing any act or thing therein, or thereby forbidden to be done by him, if the act or thing so done by him be of such character as to constitute also a criminal offense under any statute of the United States, or under the laws of any state in which the act was committed, shall be proceeded against for his said contempt as hereinafter provided.

Sec. 22. (Procedure for contempt-rule to show cause-trial and judgment—bail.) That whenever it shall be made to appear to any district court or judge thereof, or to any judge therein sitting, by the return of a proper officer on lawful process, or upon the affidavit of some credible person, or by information filed by any district attorney, that there is reasonable ground to believe that any person has been

guilty of such contempt, the court or judge thereof, or any judge, therein sitting, may issue a rule requiring the said person so charged to show cause upon a certain day why he should not be punished therefor, which rule, together with a copy of the affidavit or information, shall be served upon the person charged, with sufficient promptness to enable him to prepare for and make return to the order at the time fixed therein. If upon or by such return, in the judgment of the court, the alleged contempt be not sufficiently purged, a trial shall be directed at a time and place fixed by the court: Provided, however, that if the accused, being a natural person, fail or refuse to make return to the rule to show cause, an attachment may issue against his person to compel an answer, and in case of his continued failure or refusal, or if for any reason it be impracticable to dispose of the matter on the return day, he may be required to give reasonable bail for his attendance at the trial and his submission to the final judgment of the court. Where the accused is a body corporate, an attachment for the sequestration of its property may be issued upon like refusal or failure to answer.

In all cases within the purview of this Act such trial may be by the court, or, upon demand of the accused, by a jury; in which latter event the court may impanel a jury from the jurors then in attendance, or the court or the judge thereof in chambers may cause a sufficient number of jurors to be selected and summoned, as provided by law, to attend at the time and place of trial, at which time a jury shall be selected and impaneled as upon a trial for misdemeanor; and such trial shall conform, as near as may be, to the practice in criminal cases prosecuted by indictment or upon information.

If the accused be found guilty, judgment shall be entered accordingly, prescribing the punishment, either by fine or imprisonment, or both, in the discretion of the court. Such fine shall be paid to the United States or to the complainant or other party injured by the act constituting the contempt, or may, where more than one is so damaged, be divided or apportioned among them as the court may direct, but in no case shall the fine to be paid to the United States exceed, in case the accused is a natural person, the sum of $1,000, nor shall such imprisonment exceed the term of six' months: Provided, that in any case the court or a judge thereof may, for good cause shown, by affidavit or proof taken in open court or before such judge and filed with the papers in the case, dispense with the rule to show cause, and may issue an attachment for the arrest of the person charged with contempt; in which event such person, when arrested, shall be brought before such a court or a judge thereof without unnecessary delay and shall be admitted to bail in a reasonable penalty for his appearance to answer to the charge or for trial for the contempt; and thereafter the proceedings shall be the same as provided herein in case the rule had issued in the first instance.

Sec. 23. (Conviction of contempt reviewed on writ of errorstay and bail.) That the evidence taken upon the trial of any persons so accused may be preserved by bill of exceptions, and any judgment of conviction may be reviewed upon writ of error in all respects as

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.

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