charge that inferior courts sometimes act purposely against the decisions of the higher state courts in such matters.11

The chief actual difficulty, as may be indicated from the previous discussion, is the unsettled state of the law as to labor controversies, and the point really contended for by labor organizations and their supporters is either a more definite statement of the law or a limitation upon the machinery through which the law is applied by the courts. The law with respect to a number of these matters has been settled in England, largely in the manner desired by labor organizations, by the Trade Disputes Act of 1906, which is regarded as of sufficient importance to be given here:

1. "An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable."

2. Lawful in connection with a trade dispute "to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working."

3. "An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that. it induces some other person to break a contract of employment or that it is an interference with the trade, business or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills."

4. "An action against a trade union, whether of workmen or masters, or against any member or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court."

9912

Proposed legislation in Illinois and legislation in other states. An effort has been made at several sessions of the Illinois general assembly to obtain legislation, exempting labor controversies from the application of an injunction and providing for jury trial in contempt cases. In 1919 the bills proposed in the Illinois general assembly (house bills 26, 27 and 32) sought primarily to enact as applicable to judicial proceedings in Illinois the provisions of Sections 6, 20, 21 and part of Section 22 of the Clayton Act, the full text of which is given below. That is, the effort was being made in this state to apply to the state courts a rule which has already been adopted by statute with reference. to the federal courts.

11 As an instance of this, the case of Schwarcz v. International Ladies' Garment Workers' Union, 124 N. Y. Suppl. 968 (1910) is sometimes cited.

126 Edw. VII, Ch. 47 (1906).

Both before and after the enactment of the Clayton act by Congress, measures to accomplish substantially the same purposes have been enacted by state legislatures. Legislation in California and Massachusetts has been held invalid by the courts of those states, and the decisions are commented upon in a later part of this discussion. The legislature of Montana in 1913 enacted that an injunction should not be granted "in labor disputes under any other or different circumstances or conditions, than if the controversy were of another or different character, or between parties neither or none of whom were laborers or interested in labor questions" (Sec. 6121 as amended in 1913). The Montana court, in a liberal decision upon a labor controversy, took occasion to say that this legislation adds nothing to pre-existing law. (Empire Theatre Co. v. Cloke, 53 Mont. 183, 1917.)

The legislature of Kansas in 1913 enacted a law, the substance of which is similar to sections 17 to 20 of the Clayton act. (Kansas Laws, 1913, Chap. 233.) Apparently the validity of this law has not been involved in any case before the Supreme Court of Kansas.

Minnesota legislation of 1917 declares labor not a commodity or an article of commerce, and forbids the use of injunctions in certain cases. using much the same language as section 20 of the Clayton act. (Minnesota session laws, 1917, Chap. 493.)

Utah in 1917 enacted a law which declares labor not a commodity or an article of commerce, limits the use of injunctions in labor cases, limits the penalties for contempts, and provides for jury trial in contempt cases. This act closely parallels sections 6, 20 and 22 of the Clayton act. (Utah session laws, 1917 p. 210). North Dakota in 1919 enacted a law which embodies the substance of section 20 of the Clayton act. Anti-injunction legislation was also enacted in 1919 by Oregon, Washington and Wisconsin, and Iowa exempted labor organizations from the operation of the anti-trust laws.

In the Massachusetts constitutional convention proposals with respect to this subject were made and discussed, but were rejected. (Debates in the Massachusetts Constitutional Convention, 1917-1918, Vol. I, pp. 1040-1165). A full report on labor injunctions in Massachusetts will be found in the forty-seventh annual report on the Statistics of Labor (Boston, 1917).

United States legislation. After a long controversy, congress enacted in 1914 legislation which seeks to meet the objections urged by labor organizations to the use of injunctions in labor cases. This congressional legislation is so important that it is here given in full. The Clayton Act, of which these provisions form a part, deals with the general subject of combinations in restraint of trade, and only the provisions are here given which are appropriate to the subject now under discussion.

Sec. 6. (Labor organizations, etc., not within provisions of act.) That the labor of a human being is not a commodity or article of commerce. Nothing contained in the anti-trust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticul tural organizations, instituted for the purposes of mutual help, and not

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 temporary 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, conditioned 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

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 from ceasing to perform any work or labor, or from recommending, advising or persuading others by peaceful means SO 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.

Sec. 21. (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: Pro-. vided, 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