Carter v. Fortney

• Decision Date: 25 May 1909
• Citation: 170 F. 463
• Parties: CARTER et al. v. FORTNEY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

170 F. 463

CARTER et al. v. FORTNEY et al.

United States Circuit Court, N.D. West Virginia.

May 25, 1909

Melville H. Carter and three other citizens of Maryland have filed their bill against Osburn Fortney and 33 other individual citizens of West Virginia, in which they charge the Merchants' Coal Company to be a West Virginia corporation, the owner of valuable coal lands in Preston county, said state, and operating a coal mining plant at Tunnelton in said county, having mine openings, tipples miners' houses, electric mining machinery, and a capacity for over 200 mine workers; that it has valuable existing contracts to furnish coal to contractors therefor, which it is bound to fill or lose and be held liable in damages for the breach, besides loss of profits, one of which is with the Baltimore & Ohio Railroad Company to furnish large quantities of coal necessary to supply its locomotives in continuing operation over its road; that about the last of March, 1908 the coal market becoming depressed and the price of coal being low, the coal company notified its miners of a 10 per cent. reduction in wages, which reduction its miners refused to accept, and the company closed down its mines until August, 1908, when it decided to again commence operation offering its miners employment at the reduced wage, which they again refused to accept; that when the company attempted to start work the former employes and miners interfered with the operation and with those employes and miners who went to work, and thereupon the company again closed its mines until the last week in December, 1908, when it again started operation; that many former miners and employes went back to work, but a great number refused to do so, creating the necessity on the part of the company of bringing in from other localities other miners desirous of working for the wage offered; that immediately after this last commencement of operation in December, 1908, a large number of former employes, with others who had not been employed, colluded conspired, and combined together for the express purposes of preventing the company from securing the services of other miners, of securing those at work to quit such service, to prevent the company from operating its mines, and to prevent it from fulfilling its contracts of sale of coal; that these conspirators included the defendants named and others unknown, and that, in pursuance of their purposes and conspiracy, they, by threats, menaces, insulting language jeers, and hootings, caused many to quit work and intimidated others desiring to work from doing so; that such threats and menaces were being carried on to an extent necessarily requiring the company to keep guards and officers upon its property to prevent injury to its managers, superintendents, employes, and its property; that the miners at work are met on the streets by defendants and their co-conspirators, driven from the sidewalks to the streets, are threatened, menaced, jeered, hooted at, called 'blacklegs,' 'yellow dogs,' 'blacksheep,' 'scabs,' other names too vile to be written, are stoned on the streets, assaulted as they go to and from work, their houses have been fired into with guns, stones thrown through their windows and at members of their families in broad daylight on the public streets of the town; that deputy sheriffs employed to watch over the company's property and to keep the peace are jeered, hooted at, threatened, and no assistance is rendered by the authorities of the town in preservation of order; that these conspirators rush to every passenger train stopping in the town in great numbers and endeavor, forcibly and otherwise, to prevent persons alighting from such trains who seem to be seeking employment with the company, and by threats and menaces seek to prevent those alighting from engaging in the employment of the company; that they display large banners, at the arrival of trains, warning all persons not to engage in the employment of the coal company, have gone masked at night to the engine room of the company and delivered to its firemen a letter notifying them that they would be killed if they did not cease working for the company; that in consequence of all these acts the company has been prevented from employing more than one-half of the miners and employes to whom it could give work and who are willing and anxious to work if properly protected. Specific threats are set forth, and it is charged that the existing conditions have become unbearable, and 'that, by reason of the conduct of defendants and their co-conspirators, the property of said coal company is in jeopardy and liable to be destroyed and greatly damaged, and great loss incurred by its being unable to operate its mines, or to operate them fully, and that the lives of persons now employed by said coal company, and those who come seeking employment, are in danger at the hands of said defendants and their co-conspirators, and that the town officers as aforesaid will render practically no assistance, and the county officers are unable to cope with the situation.'

It is then alleged that the company's property is worth from $250,000 to $500,000, the sole value of which consists in its being able to mine, ship, and sell coal at a profit, which it cannot do so long as such conspiracy is effectual, as it now is, and great loss and damage will be incurred if mining operation has to be discontinued; that the company under such conditions will not be able to meet its obligations and the interest thereon; that plaintiffs are large creditors of the coal company, holding bonds against it secured by a mortgage, interest upon which is payable semiannually and the principal after a period of years. It is charged that the defendants are wholly insolvent; that the coal company has taken no sufficient legal steps to restrain the unlawful conspiracy; that its property is being damaged and the value thereof largely destroyed, and great danger and loss threatened plaintiffs as such bondholding lien creditors. An injunction is prayed against defendants and all others conspiring with them to restrain them from interfering with the company's mining operation, its officers and employes, and from engaging in the various acts of threatening, menacing, intimidating, and assaulting the company's officers and employes and miners on account of their service with the company; from picketing the property of the company, or from by unlawful means preventing others from entering the service of the company. A hearing upon the motion for injunction and a temporary restraining order was granted. Certain of the defendants have appeared and entered their demurrer to the bill, in which are assigned as grounds:

First. That the said plaintiffs have not shown by their said bill that they have any such right or interest in the contract of employment existing between the Merchants' Coal Company of West Virginia, a corporation, and the men engaged by said Merchants' Coal Company to work in and about its mine and coal plant, as entitles them to the relief by said bill prayed.

Second. That it appears from said bill that there is no privity of contract between said plaintiffs and the men in the employ of the said Merchants' Coal Company, whereby said employes are working for the said Merchants' Coal Company, as enables the said plaintiffs to invoke the aid of a court of equity in the protection of the contractual rights of said Merchants' Coal Company, existing between it and its employes, or such persons as it seeks to bring into its employment.

Third. That it does not appear from said bill that any sufficient effort has been made on the part of the said plaintiffs or any of them to induce the said Merchants' Coal Company to institute a suit to invoke the aid of a court of equity to protect it in its contractual rights and relations existing between it and its employes or other persons whom it is seeking to bring into its employment.

Fourth. That there are not proper parties to said bill, in this: That the said Merchants' Coal Company, a corporation, named in said bill, is directly interested in the contract existing between it and its employes, and that this court can pronounce no proper decree affecting the rights of the parties under such contract in the absence of the said Merchants' Coal Company, the only party to such contract directly interested in its enforcement except the employes engaged to work for said company under and by virtue of said contract.

Fifth. That it does not appear from said bill that the said defendants or any of them are seeking to injure or destroy the property, or any part thereof, mentioned in the said bill upon which the plaintiffs claim a lien by virtue of a deed of trust or mortgage existing thereon given to secure certain bonds, a part of which bonds, as shown by said bill, is held by the plaintiffs.

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