54 F. 730 (N.D.Ohio 1893), Toledo, A. A. & N.M. Ry. Co. v. Pennsylvania Co.

Citation:54 F. 730
Party Name:TOLEDO, A.A. & N.M. RY. CO. v. PENNSYLVANIA CO. et al.
Case Date:April 03, 1893
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 730

54 F. 730 (N.D.Ohio 1893)




United States Circuit Court, N.D. Ohio, Western Division.

April 3, 1893

Alex L. Smith and E. W. Tolerton, for complainant.

Frank H. Hurd, Jas. H. Southard, and Judge Babber, for defendant Arthur.

J. W. Harper, for defendant Sargent.

Before TAFT, Circuit Judge, and RICKS, District Judge.

TAFT, Circuit Judge.

This is a motion by the complainant, the Toledo, Ann Arbor & North Michigan Railway Company, for a temporary

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injunction, to remain in force pending this action, against P. M. Arthur, the chief executive of the Brotherhood of Locomotive Engineers, and a defendant herein, to restrain him from issuing, promulgating, or continuing in force any rule or order of said brotherhood, which shall require or command any employes of any of defendant railway companies herein to refuse to handle and deliver any cars of freight in course of transportation from one state to another to the complainant, or from refusing to receive and handle cars of such freight which have been hauled over complainant's road; and also from in any way, directly or indirectly, endeavoring to persuade any of the employes of the defendant railway companies whose lines connect with the railroad of complaint not to extend to said company the same facilities for interchange of interstate traffic as are extended by said companies to other railway companies. A temporary restraining order to this effect was issued by me against Arthur ex parte. A hearing has since been had, and the question now is whether, on the evidence produced, the order shall be continued in force until the final decision of the case.

The original bill was filed against eight railway companies and the superintendents of two of them, and averred that the defendants, who were operating lines of railway connecting with that of the complainant company at Toledo, had threatened to refuse to receive from and to deliver to the complainant company interstate freight on the ground that their locomotive engineers, who were members of the brotherhood, would refuse to haul or handle the same, because complainant employed on its line engineers who were not members of the brotherhood; and the bill further averred that if the threat was carried out it would work an irreparable injury to the complainant, for which damages could not be estimated, and the law afforded no adequate remedy. The prayer of the bill was for an order enjoining the defendant companies, their employes and servants, from refusing to receive and deliver complainant's interstate freight. A temporary order as prayed for was issued by Judge Ricks. An amendment to the bill was afterwards filed making two new defendants, P. M. Arthur and F. P. Sargent. Sargent, it subsequently appeared, was a nonresident of the district, and the bill as against him was dismissed for want of jurisdiction. As to Arthur, the amendment charges that he, as chief of the brotherhood, exercises a controlling influence upon its members in all matters treated by its rules and regulations; that one of its rules requires all of its members in the employ of any railway company, whenever an order to that effect shall be given by its said chief officer, to refuse to receive, handle, or carry cars of freight from any other railroad company whose employes, members of said association, have engaged in a strike; that such a strike has been declared against the complainant by the members of the brotherhood, with Arthur's consent and approval; that Arthur now publicly announces that, unless complainant shall submit to the demands of its striking employes, he will order the rule above stated enforced; that the rule is in direct contravention of the interstate commerce law, and is intended to induce the employes of the defendant companies to violate that law and the previous

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order of this court; and that Arthur, with others, is conspiring to that end.

The jurisdiction of this court to hear and decide the case made by the bill cannot be maintained on the ground of the diverse citizenship of the parties, for the complainant and at least one of the defendants are citizens of the same state. If it exists, it must arise from the subject-matter of the suit. The bill invokes the chancery powers of this court to protect the complainant in rights which it claims under the act of congress passed February 4, 1887, (24 Stat.at Large, p. 379,) known as the 'Interstate Commerce Act,' and an act amending it passed March 2, 1889, (25 St.at Large, p. 855.) These acts were passed by congress in the exercise of the power conferred on it by the federal constitution (article 1, Sec. 8, par. 3) 'to regulate commerce with foreign nations, among the several states, and with the Indian tribes. ' Counsel for defendant Arthur contend that the interstate commerce law and its amendments are only declaratory of the common law, which gave the same rights to complainant, and that, therefore, this is not a case of federal jurisdiction. The original jurisdiction of this court extends by act of congress passed August 13, 1888, (25 St.at Large, p. 433,) to 'all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds. exclusive of interest and costs, the sum or value of $2,000, and arising under the constitution or laws of the United States. ' The bill makes the necessary averment as to the amount in dispute. It is immaterial what rights the complainant would have had before the passage of the interstate commerce law. It is sufficient that congress, in the constitutional exercise of power, has given the positive sanction of federal law to the rights secured in the statute, and any case involving the enforcement of those rights is a case arising under the laws of the United States.

The Brotherhood of Locomotive Engineers is an association, organized in 1863, whose members are locomotive engineers in active service in the United States, Mexico, and the dominion of Canada. Their number is 35,000. The engineers engaged with the defendant companies are most of them members of the brotherhood. The purpose of the brotherhood is declared in its constitution to be 'more effectually to combine the interests of locomotive engineers, to elevate their standing as such, and their character as men. ' These ends are sought to be obtained by requiring that every member shall be a man of good moral character, of temperate habits, and a locomotive engineer in actual service with a year's experience, and by imposing the penalty of expulsion upon any member guilty of disgraceful conduct or drunkenness, of neglect of duty, of injury to the property of the employer, or of endangering the lives of persons. A mutual insurance association is supported in connection with the brotherhood, in which every member is required to carry a policy, and there is an efficient employment bureau for the members. A strong and complete organization is maintained for the systematic government of the brotherhood, and its rules are well adapted to establishing and carrying out general and local plans with respect to the terms of employment of its members. Submission to these

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plans, when once adopted by requisite vote, is required of every member on penalty of expulsion. The management of controversies with employer companies is immediately with a chairman of a standing general adjustment committee for the particular railroad system involved and afterwards with the grand chief. The grand chief has large judicial and executive powers. He is the ultimate authority always called in to adjust differences between members and their employer, and he is the one to whom appeals are made to settle disputes arising between members and subdivisions. He is also the head of the insurance company.

Early last month the superintendent of complainant company refused to grant a demand by its engineers for higher wages. After some unsuccessful attempts at negotiation, Arthur, who had been called in, consented to the strike, which had previously been voted by two thirds of the brotherhood men in complainant's employ. As soon as the men went out on March 7th, Arthur sent to eleven chairmen of the general adjustment committees on as many different railroad systems in Ohio and the neighboring states the following dispatch:

'There is a legal strike in force upon the Toledo, Ann Arbor & North Michigan Railroad. See that the men on your road comply with the laws of the brotherhood. Notify your general manager.'

A 'legal' strike, in brotherhood parlance, means one consented to by the grand chief. His consent is necessary, under the rules of the order to entitle the men thus out of employment to the three months' pay allowed to striking members. Arthur admits that the particular law to which he referred in this dispatch was one adopted by the brotherhood at Denver three years ago, but which is not published in the printed copy of the constitution and by-laws. It is as follows:

'Twelfth. That hereafter, when an issue has been sustained by the grand chief, and carried into effect by the B. of L. E., it shall be recognized as a violation of obligation for a member of the Brotherhood of Locomotive Engineers Association who may be employed on a railroad running in connection with or adjacent to said road, to handle the property belonging to said railroad or system in any way that may benefit said company in which the B. of L. E. is at issue until the grievance or issue of whatever nature or kind has been amicably settled.'

It is quite clear from the evidence that 'a violation of obligation' is the highest offense of which a member can be guilty, and merits expulsion. In obedience to Arthur's direction, it appears that several general managers were notified of...

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