Michaelson v. United States

Decision Date11 July 1923
Docket Number3221.
Citation291 F. 940
PartiesMICHAELSON et al. v. UNITED STATES ex rel. CHICAGO, ST. P., M. & O. RY. CO.
CourtU.S. Court of Appeals — Seventh Circuit

Petition for Rehearing Overruled September 21, 1923.

John A Cadigan and Peter B. Cadigan, both of Superior, Wis., for plaintiffs in error.

John S Sprowls, of Superior, Wis., and Richard L. Kennedy, of St Paul, Minn., for defendant in error.

Before BAKER, EVANS, and PAGE, Circuit Judges.

BAKER Circuit Judge.

This writ of error brings up for review judgments against plaintiffs in error for criminal contempt.

On July 1, 1922, these men went out on the so-called strike of the shop crafts unions. Shortly thereafter the trial court, on the bill and motion of the railroad company, relator herein, entered a temporary restraining order which was found in this proceeding to have been violated.

I. As the case is here on writ of error, the challenge of the sufficiency of the evidence goes only to the question whether a prima facie case of violation was made. Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 Sup.Ct. 665, 48 L.Ed. 997. We have examined the evidence, and find an abundant showing against plaintiffs in error to support the finding of intimidation of shop workmen and of picketing by groups in a manner condemned in recent cases. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 Sup.Ct. 72, 66 L.Ed. 189; Truax v. Corrigan, 257 U.S. 312, 42 Sup.Ct. 124, 66 L.Ed. 254.

II. After this contempt case had been brought here, the railroad company dismissed its bill for injunction. This did not have the effect of canceling these judgments, which had already been entered.

III. Did the court err in overruling the demand of plaintiffs in error for a jury trial?

Section 20 of the Clayton Act (Comp. St. Sec. 1243d) speaks of the respective rights of 'employers and employees' in any injunction case 'involving or growing out of a dispute concerning terms or conditions of employment.'

Under section 21 (Comp. St. Sec. 1245a), if an injunctive order is violated by the doing of an act which would be 'also a criminal offense under any statute of the United States or under the laws of any state in which the act was committed,' the offender shall be proceeded against for contempt as provided in section 22 (Comp. St. Sec. 1245b), namely:

'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.' Counsel seem to be agreed, and we think properly so, that plaintiffs in error, in order to have the benefit of the Clayton Act, must have been 'employees,' within the meaning of the act, from the time of the so-called strike down till after the violations.

They also do not question that the violations would constitute criminal offenses under statutes of the United States and of Wisconsin.

But they do not agree upon the construction of section 22. Counsel for defendant in error point to the permissive word 'may' in the phrases 'the trial may be by a jury' and 'the court may impanel a jury. ' For plaintiffs in error it is argued that the permissive word 'may' is to be construed as mandatory, wherever that course is necessary in order to preserve the clear meaning of other words and phrases in the context (36 Cyc.p. 1160), and that the word 'demand' (to claim as a matter of right) and the phrases 'a jury shall be impaneled' and 'such trial shall conform to the practice in criminal cases' require that permission be taken as duty. Obviously there is an ambiguity, an inconsistency, an opposition of words. We think the ambiguity can be cleared by a reference to the history of the times preceding the Clayton Act and a consideration of the asserted evil to be cured by the proposed legislation. For many years political and social writers and speakers had been denouncing the interference of judges in the combats between labor and capital and had been insisting that the question of unlawful conduct in such combats should not be decided except by jury trial. A political party gave a pledge to abolish 'government by injunction,' meaning by that quoted phrase the chancellor's use of punitive and coercive means to enforce the chancellor's decree which, after full hearing and subject to the right of appeal for the correction of errors, adjudged that proven trespasses upon property should cease. And the bill, introduced by Representative Clayton, was drafted by the labor unions. As drafted the bill did not contain the ambiguity we now find. In the course of the bill's progress to enactment a word was inserted which may be given a permissive or a mandatory sense. Rather than attribute to Congress an intent to issue a 'brutum fulmen,' it should be agreed that the intent was to give to the special class in special cases the absolute right to trial by jury.

Nevertheless plaintiffs in error were not entitled to a trial by jury.

(1) If their going out on the so-called shop crafts strike ended the relation of employer and employee between them and the railroad company, they would not be within the special class selected by the Clayton Act.

In the case of a controversy over wages and conditions of work in a private and local industry, we agree with counsel for plaintiffs in error that a 'strike' does not of itself terminate the relation of employer and employee. A controversy arises, and the employees, then at work, say to their employer:

'We shall stop work until you are in what we may consider a more reasonable state of mind. We shall deprive you of our labor as a legitimate means of exerting economic pressure to induce you to yield. If we do go out, we shall remain at hand, ready to negotiate with you concerning fair wages and working rules, and ready to return to work the moment we can agree.' If, by reason of a failure to agree, the employees stop their work, a 'strike' is on. They are no longer working and receiving wages; but, in the absence of any action other than above indicated looking to a termination of the relationship, they are entitled to rank as 'employees,' with the adjective 'striking' defining their immediate status. And a 'lockout' by the employer is the exact counterpart of the 'strike' by the employees. In the industrial combat the two sides must have equal and reciprocal rights in exerting economic pressure. 5 Illinois Law Review, 453; 31 Yale Journal, 321; Iron Moulders' Union v. Allis-Chalmers Co., 166 F. 45, 91 C.C.A. 631, 20 L.R.A. (N.S.) 315; Gasaway v. Borderland Coal Corporation (C.C.A.) 278 F. 56; Uden v. Schaeffer, 110 Wash. 391, 188 P. 395, 11 A.L.R. 1001.

Among the cases in the Supreme Court dealing with the respective rights of capital and labor in economic controversies, those arising in private and local industries predominate. Loewe v. Lawlor, 208 U.S. 274, 28 Sup.Ct. 301, 52 L.Ed. 488, 13 Ann.Cas. 815; Paine Lumber Co. v. Neal, 244 U.S. 459, 37 Sup.Ct. 718, 61 L.Ed. 1256; Hitchman Coke & Coal Co. v. Mitchell, 245 U.S. 229, 38 Sup.Ct. 65, 62 L.Ed. 260, L.R.A. 1918C, 497, Ann. Cas. 1918B, 461; Duplex Co. v. Deering, 254 U.S. 443, 41 Sup.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 Sup.Ct. 72, 66 L.Ed. 189; Truax v. Corrigan, 257 U.S. 312, 42 Sup.Ct. 124, 66 L.Ed. 254. In the American Foundries Case, the strike involved a steel plant in Granite City, Ill. In the Truax Case, the center of the industrial storm was a restaurant on 'Main street' in Bisbee, Ariz. In no case of which we have cognizance has the point been made that the rules for economic combats in private and local industries, which society tolerates, have no just application to our present-day system of railroad transportation. When common carriers were few and small and relatively local, when the interference with the noncombatants was no greater than in a private industry, and when the common carrier was unfettered as a combatant, there could be no greater objection to a strike against a common carrier than to one against a restaurant. In all such cases the noncombatants will have to wait until advancing civilization shall have put the strike in limbo with the duel. At the time of the Pullman strike (In re Debs, 158 U.S. 564, 15 Sup.Ct. 900, 39 L.Ed. 1092), though the disturbance in and about Chicago was very considerable, the railroad unions did not have their hands at the throat of the nation, and the railroads as combatants had not become completely fettered. To-day the concerted action of railroad unions in stopping transportation might destroy our industries and imperil the lives of our people. But it is not upon a consideration of public distress or public necessity that we base a legal distinction exempting interstate railroads from the 'strikes' that are permissible in private industry. To be a legal distinction (and not a mere suggestion of further congressional action) it must be based on the interpretation and application of the law as it stands today.

(a) Interstate railroads are under control of the Interstate Commerce Commission with respect to the nature, quality, and amount of service to be given to passengers, to shippers, and to other carriers. Comp. St. 1918, Secs. 8563-8583; Comp. St Supp. 1923, Sec. 8563, subds. 10-21. This service is the only commodity that the railroads have, from the...

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