case of Goldberg v. Stablemen's Union15 and Pierce v. Stablemen's Union.1 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 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 15149 Cal. 429 (1906). 16 156 Cal. 74 (1909). 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." 21 In the case of Matthews v. People, 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 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 I. 236 (1903). 21202 Ill. 389 (1903). 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). ineffectual by legislative enactment; that it is a power necessarily ter. The Virginia constitution of 1902 provides in Section 63 that "the general assembly may regulate the exercise by courts of the right to punish for contempt". In Burdett's case, 26 which arose. after the constitution of 1902 had come into operation, the court takes the same view as in Carter's case, but apparently the legislature of Virginia had not acted since the constitutional provision of 1902 had come into effect. In the Territory of Oklahoma in 1901, a case came into the court involving the constitutionality of legislation limiting the punishment of indirect contempts and providing for jury trial in such cases. The court in the case of Smith v. Speed27 said that the courts had derived their jurisdiction from act of congress, that their power to punish for contempt was inherent and that the legislative act was bad. In 1907 Oklahoma adopted a constitutional provision expressly directing the legislature to "pass laws defining contempts and regulating the proceedings and punishment in matters of contempt. Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court or a judge sitting as such, any order of injunction or restraint, made or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt until an opportunity to be heard is given." as a the im The supreme court of Missouri in two important cases has limit held invalid legislative acts seeking to limit the conduct which may be punished contempt and also seeking to the amount of punishment for contempt.28 In the latter of involved which limited was these the provision cases or $50 fine ten days' punishment for contempt to prisonment or both, or to thirty days' imprisonment in fine was not paid. The decision holding this provision bad was by a bare majority of the court, three of the judges vigorously dissenting on the ground that a statute regulating the punishment of contempts within reasonable limits was valid and should be sustained. case seven A statute regarding jury trials in contempt cases has been expressly sustained in Kentucky. The Kentucky statute provided. that "a court shall not, for contempt, impose upon the offender a fine exceeding $30, or imprison him exceeding thirty hours, without the intervention of a jury."29 The Missouri statute held un 28 103 Va. 838 (1904). 27 11 Okla. 95 (1901). 28 State v. Shepherd, 177 Mo. 208 (1903); C. B. & Q. Ry. Co. v. Gildersleeve, 219 Mo. 170 (1909). Richards v. Commonwealth, 149 Ky. 497 (1911). constitutional expressly exempted from its terms certain matters with respect to the enforcement of judgments of courts, and the Kentucky court took the view that similar matters were intended to be exempted by the statute upheld in that state. The constitutions of Georgia, and Louisiana, contain provisions that the power of courts to punish for contempts may be limited by law. The supreme court of Georgia, however, has taken a view in the construction of this constitutional provision which seems to read substantially all meaning out of it.30 The Arkansas constitution contains a provision that "the general assembly shall have power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts or in disobedience of process.' Courts are likely to take a narrow view with respect to constitutional provisions limiting their power to punish for contempts. Attention should, however, be called to the fact that cases regarding these matters have more often arisen with respect to newspaper criticisms of the courts than with respect to labor controversies. A rejected constitutional proposal in Ohio in 1912 provided that "laws may be passed prescribing rules and regulations for the conduct of cases and business in the courts of the state, regulating the proceedings in contempt and limiting the power to punish for contempt. No order of injunction shall issue in any controversy involving the employment of labor, except to preserve physical property from injury or destruction; and all persons charged in contempt proceedings with the violation of an injunction issued in said controversy shall, upon demand, be granted a trial by jury as in criminal cases.' The voters of Colorado in 1912 rejected a proposed constitutional amendment allowing jury trial in cases of constructive contempt. Conclusions. As has been suggested, the fact that there is federal legislation, and the further fact that there has been a decision. by the United States supreme court which would seem to support the validity of legislation such as that here under discussion, is not conclusive as to the state, and the weight of authority in other states is probably now against such legislation, in the absence of constitutional provision, although there is a tendency to recognize the legislature as having power to enact such legislation. Even if the legislation had been squarely upheld by the United States supreme court as not depriving of due process of law nor denying the equal protection of the laws, such decision, as has already been suggested, would not be decisive as to the constitutional question in the states. The problem here under discussion relates to two things: (1) the substance of the law with respect to labor controversies, and (2) the machinery for the enforcing of such law. In such legislation as the Clayton Act, the two matters are united, and certainty as to the sub30 Bradley v. State, 111 Ga. 168 (1900). |