Central Law Journal.

ST. LOUIS, MO., OCTOBER 18, 1901.

Government by injunction has been most severely condemned, not altogether justly, but at the same time not altogether without reason. The application of this extraordinary and most arbitrary of all legal remedies by courts of equity has been with most marked frequency of late years, especially in the settlement of disputes between labor and capital, and has given rise to much discussion as to its probable abuse. A recent decision by Judge Hammond of the United States District Court at Memphis, handed down a few weeks ago, enters largely into the ethics of the question and arrives at the conclusion that the jurisdiction of equity is practically supreme and unlimited in the protection by injunction not only of property, but of personal rights as well, and irrespective of the fact whether the act complained of is punishable as a crime or not. The case which has been responsible more than any other for this clear extension of equity jurisdiction is that of In re Debs, 158 U. S. 564. The exact holding of this case was that a court of equity has jurisdiction to enjoin the obstruction of the mails and highways used in interstate commerce, though such obstruction amounts to a public nuisance, for which a criminal prosecution would lie, and that the punishment imposed by such court for violation of its injunction is not an exercise of criminal jurisdiction. The point, however, which distinguished this case from others and made it the stepping stone, whether so intended or not, to a wider exercise of equitable powers of injunction was the strong disclaimer by the court of any desire to rest its decision on any rights of property which the United States might or might not have in the carriage of the mails as a prerequisite to the jurisdiction of the court to restrain or remove by injunction any obstruction to the exercise of any of the powers of government where no other equally satisfactory or adequate remedy is at hand. This absolutely dismisses the question whether the act enjoined might be punished as a crime or not,

and its effect is clearly observed in the decision of Judge Hammond in the case of Southern Railway Co. v. Machinists' Union, just referred to. This case was a suit for injunction prohibiting members of a certain labor union from the commission of acts of violence and intimidation against nonunion employees of the complainant. The court concerned itself principally with what it termed the personal liberty of the non-union workmen, and based its right to grant relief on the ground that no police or other protection was afforded them, "which is really," says the court, "the chief reason why resort must be had to courts of equity; ordinary police protection being ineffective in fact whatever cause may produce that insufficiency; the condition of non-protection, in fact, being all with which equity is concerned." Then follows this sweeping statement of the extent of the court's jurisdiction to grant injunctions in such cases, which we believe evidences the most advanced position which has yet been taken on this important question:

"The suggestion that the same constitution which safeguards the personal liberty of the 'scab' and his employer guarantees to its violators trial by jury for their crimes or offenses arising out of the violation is not an answer to the fact that prosecutions and consequent convictions are either wholly wanting or ineffectual for the protection of the 'scabs' and their employers. The Debs case settles that the same constitution also guarantees the equitable remedy. It is not, indeed, as the able counsel of defendants argued, a concurrent remedy with that afforded by criminal prosecution, and it is one dependent, as he says, upon conditions in which mere police failure is not included, but that failure is none the less the occasion of the resort to equity-the paramount necessity for it. The equitable remedy is a wholly independent one arising out of conditions of inadequacy of that other likewise wholly independent remedy of an action at law for damages, and upon neither of these does the remedy of criminal prosecution have the least bearing. Except that if the criminal law be so thoroughly executed that there could be no violation of or offenses against the personal liberty of the 'scabs' and their employers, there would then be no occasion for actions

We have quoted this case in advance of its appearance in the Reporters, because of its unique importance in this day of labor troubles and disputes. Undoubtedly this extension of equity jurisdiction, although not abrogating the general rule that equity never interferes by injunction to prevent the commission of a crime, nevertheless undermines it with another exception so far reaching as to eventually make the rule itself a very precarious foundation to build upon. Whether this will be a calamity is not altogether certain, depending more upon the oharacter of the men into whose hands this extraordinary power is committed than upon any inherent injustice in the rule itself.

NOTES OF IMPORTANT DECISIONS.

UNFAIR TRADE MALICIOUSLY INDUCING ONE'S CUSTOMERS TO QUIT TRADING WITH HIM. The unanimous judgment of the House of Lords in Quinn v. Leatham is particularly important, because it clearly shows that an action can still be maintained against persons who maliciously induces a man's customers not to deal with him, or his servants not to continue in his employment. The contrary has, no doubt, been inferred by many people from the decision of the same tribunal in Allen v. Flood. In that celebrated case, however, said the lords who decided Quinn v. Leatham, the facts on which the majority based their decisions were that the appellant merely informed the respondents' employer that, unless he dismissed the respondents, his other workmen would refuse to work for him, and to give such information truthfully, however maliciouly, cannot infringe any right. Yet the right of every man to earn his living in his own way, to deal with persons who are willing to deal with him, is recognized by law. An interference with this right, it is now laid down, by threats of serious damage or annoyance is prima facie actionable, even when the coercion is applied, not to the man himself, but to others for the purpose of injuring him. Whether in a particular case the interference with a man's business or employment is wrongful must be to a large extent a question of fact. In Quinn v. Leatham the jury found that the appellant had acted wrongfully and maliciously, and this verdict was abundantly justified by the facts of the case.-Solicitors' Journal.

CARRIERS OF PASSENGERS-REASONABLENESS OF TIME LIMIT REGULATIONS.-It is almost an axiom of law that carriers will be permitted to

make any regulations for the conduct of its business which is reasonable. An American, however, feels any limitation on his personal rights so sensitively that he will instinctively protest against it. This fact probably accounts for the continuous litigation over this question, and especially that phase of it regarding the right of a carrier to place a time limit on its contract of transportation by merely printing same on the ticket, but not bringing it expressly to the attention of the passenger. This was the question discussed in the case of Coburn v. Railroad, 29 South Rep. 882, where the Supreme Court of Louisiana held that a purchaser of a railroad passenger ticket must take notice of the time limitation printed or stamped on the face of the ticket, and that a limit of one day on such a ticket was not unreasonably short.

Subject to the qualification of reasonableness, time limits in railroad tickets are valid, and the holder of such a ticket must start upon his passage within the time prescribed or forfeit bis right to passage. Elmore v. Sands, 54 N. Y. 512; Shedd v. Railroad, 40 Vt. 88; Lillis v. Railroad, 64 Mo. 464; Heffron v. Railroad, 92 Mich. 406; McRae v. Bailroad, 88 N. Car. 526; Pennington v. Railroad, 62 Md. 95; Howard v. Railroad, 61 Miss. 194: Powell v. Railroad, 25 Ohio St. 70. The conditions generally reads that "this ticket will not be good unless used on or before a certain date. This, however, does not require him to commence his passage until midnight of the last day, although he cannot reach his destination until after the expiration of the time limited. Auerbach v. Railroad, 89 N. Y. 281; Georgia, etc. R. R. v. Bigelow, 68 Ga. 219; Evans v. Railroad, 11 Mo. App. 463; Lundy v. Railroad, 66 Cal. 191, 56 Am. Rep. 100.

LANDLORD AND TENANT-CROPPERS"-FAILURE OF TENANT TO COMPLY WITH CONTRACT.A "cropper" is a term applied to a person hired by the land owner to cultivate the land, receiving for his compensation a portion of the crops raised. In a number of states, statutes have been passed defining the rights and liabilities attaching to this peculiar tenancy. These statutes are little more than declaratory of the common law. Thus, in the recent case of Wood v. Garrison, 62 S. W. Rep. 728, the Supreme Court of Kentucky held that § 2327 of statutes, providing that "when a tenant enters or holds premises by virtue of a contract, in which it is stipulated that he is to labor for his landlord, and he fails to begin such labor, or if, having begun, without good cause fails to comply with his contract, his right to the premises shall at once cease, and he shall abandon them without demand or notice," applies where the tenant is to furnish labor and the landlord everything else, and the tenant is to receive as compensation either money or a given proportion of the crop; and therefore where such a tenant, after beginning to work, failed to continue, the landlord was entitled to maintain forcible detainer. The court said in part:

"It is everywhere admitted (see cases previously cited) that under a pure or unqualified cropping contract the entire legal ownership of the crop is in the owner of the land until division. As was said by Rodman, J., in Harrison v. Ricks, 71 N. Car. 11: A cropper has no estate in the land. That remains in the landlord. Consequently, although he has in some sense the possession of the crop, it is only the possession of a servant, and is in law that of the landlord. The landlord must divide to the cropper his share. In short, he is a laborer receiving pay in a share of the crop.' Under the facts of this case as stated above, appellee appears to come within the definition of the term 'cropper,' which is a tenancy contemplated and included in section 2327. If such a tenant fails to begin the labor contracted to be done by him, or, having begun, without good cause fails to continue it, the landlord may maintain forcible detainer, and dispossess him; and he might also be entitled to such of the remedies provided in section 2325 as were applicable to the state of the саве."

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CONSTRUC

STATUTES CONTEMPORANEOUS TION.-One of the most insidious temptations of courts or judges in arriving at the meaning of a statute is to resort to extrinsic or contemporaneous construction, whenever the words taken in their ordinary meaning do not appeal to their preconceived opinion as to what the law ought to be, or what they think the legislature had in mind when they passed the law, and the mistake is not unfrequently made that to find out and effectuate the intention of the legislature in passing a certain act is perfectly legitimate, whether there is any ambiguity in the meaning of the words or not. The intention of the legislature or the evils they intended to remedy, are absolutely immaterial, where the words they have used, when taken in their ordinary usage, admit only of one interpretation. This rule was well stated by the court in the case of Southern Railway Company v. Local Union, decided October 5, 1901, by Judge E. S. Hammond of the U. S. District Court at Memphis. The statute which was the subject of construction provided that it should not be lawful for any person knowingly to hire, decoy or entice away, any one, male or female, who is at the time under contract or employ of another; and any person so under contract or in the employ of another leaving their employ without good and sufficient cause, before the expiration of the time for which they were employed, shall be liable for the damages the employer may reasonably sustain by such violation of the contract. The court said: "It may be conceded that it is not at all likely that the Tennessee legislature intended to make by this statute a law against strikes and strikers and the labor unions. But this consideration can not control the courts in the construction of statutes, if they be broad enough in the language used to cover the case of strikes and the labor unions. If the legislature intends to limit its enactment they must do so by the terms of the

act itself, and no other limitation is authoritative where the language is unambiguous and construes itself. It is not permissible to go outside the statute, plain in its words, as covering all labor contracts and laborers, and to say, on any consideration whatever, that there was an intention to limit it to a particular class of laborers, white or black, or however else such classification may be made, as of agricultural or industrial workmen : not when the subject-matter and the language used comprehend these and all other classes." The following authorities are directly in point and sustain the position of the court: Lake County v. Rollins, 130 U. S. 662; St. Paul, etc. Railroad v. Phelps, 137 U. S. 528; Hamilton v. Rathbone, 175 U. S. 414, 419; Dewey v. United States, 178 U. S. 510, 521.

OF

FIRE INSURANCE-CONSTITUTIONALITY ANTI-COMPACT LAWS.-Anti-trust legislation under the spur of popular prejudice sometimes oversteps the bounds of reason by attacking legitimate enterprise and infringing the right and freedom of contract. This is especially so in statutes attempting to control the right of insuranee companies to enter into agreements fixing the rates of insurance. This is a very important question at the present time, and one on which the authorities are not altogether clear or harmonious. In the recent case of Niagara Fire Insurance Co. v. Cornell. decided by the United States Circuit Court for the district of Nebraska, the question of the constitutionality of a law which prohibited insurance companies organized and existing under the laws of other States from entering into any agreement with respect to the question of rates. was decided in favor of the insurance companies. The Nebraska legislature in 1897 passed a bill in reference to trusts, defining the same, providing means for their suppression, and for the punishment of the violator of the statutes. It specifically referred to fire insurance companies, and in the definition of a trust recites that "a combination of capital, skill, or acts by persons with intent to prevent competition in fire insurance, or by which they shall in any manner establish or settle the price of fire insurance, with the intent to prevent free competition, is in violation of the statute." It will be well to note in this connection that this language is much stronger than has usually been employed by legislatures in arriving at the same end. The complainants insisted that the statutes were in conflict with both the state and federal constitutions for various reasons, and prayed for an injunction to restrain the state through its officials from enforcing the statutes. The case of Paul v. Virginia was cited by the attorney-general as a strong argument in favor of any law which the State of Nebraska might make permitting foreign insurance corporations to do busiin that state; and the court held that questions of the license fees, and fees for local agents, as well as respecting suits to be brought against insurance companies, and many other

ness

subjects of a similar character might be legislated into the statute books, and that the foreign insurance companies would be required to consent thereto, and that the state had a right to exclude foreign corporations from doing business therein. The court didn't hold the statute to be unconstitutional because it provided a fee to the prosecuting attorney in each case brought against insurance companies, although the Supreme Court of the United States in Texas and Kansas cases had held similar laws to be unconstitutional, but it did hold that the statute in question was unconstitutional because under the terms of the statute "an agreement to lower the rates becomes unlawful if that statute is valid." The court, intimates that such a provision is not the exercise of a police power on which so much stress was laid by the attorney-general in his application of the case of Paul v. Virginia.

The statute under consideration was intended to prevent any combination of capital or skill, or acts whereby the price of any article, commodity, use or merchandise may be fixed, and is intended to prevent restrictions in trade, the limiting of the production, or the increase or decrease of the price of any commodity, and to prevent competition in insurance, or in making, transporting, selling or purchasing any article, or to fix any standard whereby its price to the public shall in any manner be established, or to enter into any contract whereby any party is not to deal in any article below a certain price, or by which the parties agree to keep the price at any sum. The statute also declares that any persons violating the same shall be conspirators, and. punished accordingly, that any corporation of the state violating the same shall have its corporate existence declared forfeited by suit, and any foreign corporation violating the same is to be driven from the state, that all contracts in violation of the statute are absolutely void, that any purchaser of a commodity in violation of the statute can plead the violation as a complete defense, and any person injured in his business, property or employment by any violation of the statute can recover damages, any person or corporation accused of violating the statute can be compelled to furnish all books and papers on the question, and finally the statute exempts any assembly or association of laboring men from the provisions of the statutes. The court in its decision says:

"It cannot be said of this statute that any one material provision may be held void and allow the balance of the statute to stand and be enforced. Of some statutes that rule can be invoked. If this statute is valid two men in the same line of business cannot form a partnership if he tends to maintain prices. Nor can a corporation be formed by two or more, if by so doing the price is maintained. The statute is not a step, but it is a long stride, hundreds of years backward, when monarchs, cabinet officers and every parliament decreed the price to be paid

for a day's labor, and the cost of all necessaries of life, even to the loaf of bread." The court further says on this same subject: "Jurists and statesmen, practically without conflict, have repeatedly said 'the right of contract is the greatest of all blessings enjoyed by a free people, and guaranteed us by a constitution so long as that instrument may last." And the court quoting from the constitution that "no man shall be deprived of the equal protection of the laws," calls attention to the fact that "the statute expressly excepts from its provisions assemblies or associations of laboring men." The court holds that the case of Waters-Pierce Oil Co. against the state of Texas, 177 U. S. 28, does not cover this case because that in the Texas case the corporation entered the state and was licensed at a time when there was a valid statute prohibiting certain corporations from doing certain things, and that the complainants in the present case were rightfully in Nebraska when these illegal or unconstitutional statutes were passed. The court distinctly holds that the legislature of Nebraska can place onerous burdens on foreign insurance companies, and they can discriminate in favor of Nebraska insurance companies, but says that "the statutes with which I am dealing apply to all insurance companies, resident and foreign, and the statutes are equally void, in my judgment, as to all."

TERMINATION OF EXTRAORDINARY LIABILITY OF CARRIER OF FREIGHT.

It is the policy of the law to secure from common carriers the highest degree of care and diligence with reference to the goods intrusted to them. Before the introduction of railroads the carrier by land was liable for loss of or damage to goods intrusted to him for transportation till they reached the hands of the consignee, unless the loss or damage was occasioned by the act of God or of the public enemy.' The rule that the liability of the carrier is that of an insurer against loss or damage2 has been long held to be subject to exception in cases where the loss or damage is occasioned by,

1. The act of God;

1 Merchants' Disp. T. Co. v. Hallock, 64 Ill. 286. 2 Willock v. Pa. R. Co., 166 Pa. St. 184, 45 Am. St. Rep. 674; McCarthy v. L. & N. R. Co., 102 Ala. 193.

3 In this term are included accidents which are the result of natural causes, and which are beyond human power to prevent; as earthquake, lightning, death, etc. Long v. Pa. R. Co., 147 Pa. St. 343; Merchants' Disp. T. Co. v. Smith, 76 Ill. 542; Maybin v. S. C. R. Co., 8 Rich. (L.) 240, 64 Am. Dec. 753.

2. The act of the public enemy;1 3. The act of the public authority;5 4. The act of the shipper;"

5. The inherent nature of the goods.?

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The basis of the carrier's libility is the trust reposed in him; and the liability can arise on a complete delivery to him of the goods for transportation, and the delivery must be for immediate transportation; otherwise, the liability of the carrier will be that of warehouseman merely. However, to constitute delivery and acceptance no receipt or other writing is necessary. Thus, to illustrate, if goods are delivered at a railway company's storehouse to be kept till further orders and directions as to shipping, destination, etc., the company is liable, not as carrier, but as warehouseman.10 And so, after the goods are delivered to the carrier, if anything remains to be done by the shipper to conform to the law or the contract, the relation of shipper and carrier has not begun." Where a railway company allows wool to be stored in its warehouse without any arrangement as to shipment, it will be held liable in case of destruction by fire only on proof of gross

4 Coggs v. Bernard, 2 Ld. Raym. 909; Liv. L. C. Liverpool S. S. Co. v. Phoenix Ins. Co., 129 U. S. 397. Mobs, robbers, and strikers cannot be classed as public enemies, as the term is used in this exception; otherwise with pirates who are the Ishmaelites of commerce. R. Co. v. Nevill, 60 Ark. 375, 46 Am. St. Rep. 208. While a mere refusal of his employees to work does not relieve the carriers from liability (Pittsburgh, Ft. Wayne & C. R. Co. v. Hazen, 84 Ill. 36, 25 Am. Rep. 422; Haas v. K. C., Ft. S. & G. R. Co., 81 Ga. 742), the rule is otherwise where there is an accompanying feature of intimidation and mob violence which the carrier cannot overcome. Empire Transp. Co. v. P. & R. Coal, etc. Co., 35 L. R. A. 623, and cases cited in note.

5 As where goods are seized in transit, and condemned to destruction because they are infected by disease, or where intoxicating liquors are destined to a use contrary to the laws of the states. R. Co. v. O'Donnell, 49 Ohio St. 489, 34 Am. St. Rep. 579.

As where he conceals from the carrier the character of the goods shipped, and such concealment is the cause of the loss. McCarthy v. Louisville R. Co., 102 Ala. 193, 48 Am. St. Rep. 29.

7 As perishable fruits or vicious animals. Cent. R. Co. v. Haselkus, 91 Ga. 382, 44 Am. St. Rep. 37; Maynard v. S. B. & N. Y. R. Co., 71 N. Y. 100; Betts v. C., R. I. & P. R. Co., 92 Iowa, 343.

$ Iron Mt. R. Co. v. Knight, 122 U. S. 79; Barron v. Eldredge, 100 Mass. 455.

9 L. & N. R. Co. v. Fulghan, 91 Ala. 555; The Caledonia, 43 Fed. Rep. 681.

10 Schmidt v. C. & N. W. R. Co. (Wis.), 63 N. W. Rep. 1057.

11 Dixon v. Cent, R. Co. of Georgia, 35 S. E. Rep. 369.

negligence.12 The liability of the carrier when acting in that capacity has been explained as the liability of an insurer; and the exceptions to the rule have been set out. As contradistinguished from the high degree of liability attaching to the carrier as a carrier, a warehouseman is responsible for ordinary care merely, and is not liable for the destruction of the property by fire or by inevitable casualty, or for its loss by theft.18 It will be clearly seen that by reason of the different duties and the varying nature of the liability it is frequently of the utmost importance to determine when the carrier's duties as a carrier cease, and when his duties and consequent liability as a warehouseman begin. As to this there are two widely divergent views. But fortunately the courts of the various states have, as a general thing, taken their stand squarely on the one side or on the other. One set of courts follows the rule laid down in 1854 by the Supreme Court of Massachusetts, and which is known as

The Massachusetts Rule.-This is, that the liability of carrier as carrier is ended when he has carried the goods to their destination and has placed them in his warehouse to await delivery to the consignee. From that moment he is responsible as warehouseman only.

This rule has been adopted in Illinois, Indiana, Iowa, Georgia, Missouri, North Carolina, Tennessee and South Carolina. The other view was adopted by the New Hampshire court in 1856, and is commonly referred to as

The New Hampshire Rule.-Under this view the liability of the carrier, as such, is perpetuated until the consignee has had a reasonable time after the arrival of the goods to inspect them and take them away in the usual course of business. This is the rule more generally adopted, as will be seen by reference to the decisions hereafter cited from the courts of Alabama, Arkansas, Connecticut, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, New York, New Jersey, Pennsylvania, Ohio, Texas, Vermont, Wisconsin and West Virginia.

1. The Massachusetts Rule.-The leading

12 Tex. Cent. R. Co. v. Flanary, 50 S. W. Rep. 726; Hopsgood Plow Co. v. Wabash R. Co., 61 Mo. App.

372.

18 Am. Brewg. Asso. v. Talbot, 141 Mo. 674; Francis v. Dubuque, etc. R. Co., 25 Iowa, 60.