23 F. 748 (D.Colo. 1885), United States v. Kane

Citation:23 F. 748
Party Name:UNITED STATES v. KANE and others.
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 748

23 F. 748 (D.Colo. 1885)



KANE and others.

United States Circuit Court, D. Colorado.


H. H. Hobson, U.S. Dist. Atty., and E. O. Wolcott, for receiver.

Ralph Talbot, for defendants.

BREWER, J., (orally.)

Now, coming to these contempt cases, the stenographer very kindly copied out all his notes last night and furnished the transcript to me; so I have had an opportunity to read over the testimony, and I have done it very carefully.

I think a few preliminary considerations, in reference to the common rights which we all have as free men in this country, may not be amiss. Every man has a right to work for whom he pleases, and to go where he pleases, and to do what he pleases, providing, in so doing, he does not trespass on the rights of others. And every man who seeks another to work for him has a right to contract with that man, to make such an agreement with him as will be mutually satisfactory; and unless he has made a contract binding him to a stipulated time, he may rightfully say to such employe at any time, 'I have no further need of your services.'

Now, it is well to come down to simple things. Supposing Mr. Wheeler has a little farm of 20 acres. He comes to Mr. Orr and says to him, 'Here, work for me, will you?' and Mr. Orr goes to work for him under some contract.; ow, every one of us realizes the fact that if Mr. Orr is tired of working there, if he does not think the pay is satisfactory, or if it is a mere whim of his, he has a right to say, 'Mr. Wheeler, I don't work for you any more,' and Mr. Wheeler would have no right to do anything. Mr. Orr is a free man, and can work for whom he pleases, and as long as he pleases, and quit when he pleases; and that right which Mr. Orr has Mr. Wheeler has also. The fact that Mr. Wheeler happens to be an employer does not abridge his freedom. If he is tired of Mr. Orr's work, or if he dislikes the man, or if he does not want any more of his assistance on his

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place, he can say to Mr. Orr, and say very properly, 'I have paid you for all the time you have worked; now you can leave, and seek work elsewhere. ' Those are common, every-day, simple rules of right and wrong we all recognize. Nobody doubts that. Nobody would think for a moment, in a simple case of that kind, of questioning the right, either of Mr. Orr to quit or of Mr. Wheeler to say, 'You may leave.' And that which is true in these simple matters where there is a little piece of property, and a single owner and a single laborer, is just as true when there is a large property, a large number of employes, and a corporation is the owner. Rules of right and wrong, obligations of employer and obligations of employe, do not change because the property is in the one instance a little bit of real estate, and in the other a large railroad property; and if we apply these simple, commonplace rules of right and wrong, we avoid, oftentimes, a great many of the troubles into which we come.

Moving on a little further to another matter. Supposing Mr. Wheeler had two men employed, and that he finds that in the management of his little farm he is not making enough so that he can afford to employ two laborers, and he says to one of them: 'I will have to get along without your services, and I will do with the services of the other,' and the one leaves. That is all right. Supposing the one that leaves goes to the one who has not left and says to him: 'Now, look here; leave with me,'-- giving whatever reasons he sees fit, whatever reasons he can adduce,-- and the other one says: 'Well, I will leave,' and he leaves because his co-laborer has persuaded him to leave,-- has urged him to leave; that is all right. Mr. Wheeler has nothing to say; he may think that the reasons which the one that is leaving has given to the one that he would like to have stay are frivolous, not such as ought to induce him to leave, but that is those gentlemen's business. If the one whom he would like to have stay is inclined to go because his friend has urged him, has persuaded him, has induced him to leave, Mr. Wheeler cannot say anything. That is the right of both these men,-- the one to make suggestions, give reasons, and the other to listen to them, and act upon them.

But supposing-- and I will take the illustration that I partially suggested yesterday-- supposing one is discharged and the other wants to stay, is satisfied with the employment; and the one that leaves goes around to a number of friends and gathers them, and they come around, a large party of them,-- as I suggested yesterday, a party with revolvers and muskets,-- and the one that leaves comes to the one that wants to stay and says to him: 'Now, my friends are here; you had better leave; I request you to leave;' the man looks at the party that is standing there; there is nothing but a simple request,-- that is, so far as the language which is used; there is no threat; but it is a request backed by a demonstration of force, a demonstration intended to intimidate, calculated to intimidate, and the man says: 'Well, I would like to stay, I am willing to work here, yet there are too many

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men here, there is too much of a demonstration; I am afraid to stay. ' Now, the common sense of every man tells him that this is not a mere request,-- tells him that while the language used may be very polite and be merely in the form of a request, yet it is accompanied with that backing of force intended as a demonstration and calculated to make an impression; and that the man leaves, really because he is intimidated.

If I take another illustration I will make it even more plain. Supposing half a dozen men stop a coach, with revolvers in their hands, and one man asks the passengers politely to step out and pass over their valuables; and they step out and pass over their valuables; and supposing those men should be put on trial before any court for robbery, would not you despise a judge that would say, 'Why, there was no violence; there were no threats; there was simply a request to these passengers to hand over their valuables, and they handed them over; it was simply a request and a loan of their valuables? ' Would not the common sense of every man say that that request, no matter how politely it was expressed, was a request backed by a demonstration of force that was really intimidation, and made the offense robbery? Would not you expect any judge to say that? Would not you despise any one that would say otherwise? And so, as I suggested yesterday to my brother TALBOT,-- AND he has argued his case with very great clearness,-- that is really the question here: whether these parties went there simply, as persons have a right to do, to request engineers and train-men to desist from further labor, or whether they went there, under the circumstances, with such a demonstration of force, with such an attitude and an air, that although nothing but a request was expressed, it was a request which men did not dare decline to comply with. The fact that half a dozen men went there and asked an engineer, or a brakeman, or a train-man to quit,-- that is all right, if it was simply a mere matter of request, a mere matter of giving views and reasons. That is a part of the common right of us all. We all can express our opinions. We can go to any friend and urge him to do this or do that; that it is a part of the common liberties of every man in this country; and the question is not, whether these gentlemen went there in a pleasant way and stated reasons, or urged their friends to quit work, but, did they go with such an intended demonstration of power, and in such an attitude, that though, as they have stated here, they simply requested these engineers and employes to quit, they did it under circumstance that the engineers and the train-men were intimidated, and quit because they felt compelled to. I do not suppose that the court would be concluded by the mere statement of an engineer that he was afraid; because that might have been simply an excuse for his conduct, or it might have been because he was a timid man, and there was really no such demonstration that a sensible man, an ordinary man, a prudent and fair-minded man, had any reason to expect any further trouble.

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So, before the government can properly ask the court to treat these defendants as in contempt, it must satisfy the court that these requests were, in fact, something more than mere requests; that whatever language may have been used, it was used under such circumstances and with such demonstrations that the employes, the engineers, and the train-men felt...

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