engaged in interstate commerce is penalized; that I have no power to limit this broad language to employees not engaged on intrastate trains; and that therefore the whole section must fall. The cases of United States v. Steffens (The Trade-Mark cases), 100 U. S. 82; U.S. v. Harris, 106 U. S. 629; and Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 763, are cited in support of the next to the last of these several propositions. To the same effect are the following cases, to wit: Allen v. Pullman Co., 191 U. S. 171, 24 Sup. Ct. 39; Illinois Central R. Co. v. McKendree, 27 Sup. Ct. 153, 203 U. S. 514.

In

Of course the doctrine of those cases must be accepted as sound; but they have no application here. It is not likely that the employees of a railway common carrier engaged in interstate commerce, employed solely upon intrastate trains, do not have anything to do in the course of their employment with interstate commerce, i. e., that such employees, though exclusively so engaged, are not in reality also adjuncts of interstate commerce. It is so unlikely that I would not be disposed to overthrow the section in question, if such fact would render it unconstitutional, without further information that such was the case. Said section was enacted in view of existing conditions, and its validity would not be affected by an imaginary, as distinguished from a real, state of things. Take, for instance, the intrastate trains of the Louisville and Nashville Railroad Company, operating between Louisville and Lexington and between Lexington and Maysville. That company operates no interstate trains over said portions of its railroad. consequence said intrastate trains do an interstate commerce business, and, no doubt, a very large business of that character. Frequently, if not always, the intrastate freight trains operated thereon have on them interstate cars passing between points thereon and points on its Memphis, Nashville, and Knoxville branches to the south of Kentucky. The same is true as to the intrastate passenger trains operated thereon. Beyond question they do a large interstate passenger and express business between said points. Undoubtedly there is a breakage in the passage at Louisville and Paris, but the passage is under one contract and for continuous service. The employees on such trains, therefore, though adjuncts of intrastate commerce, are at the very same time adjuncts of interstate commerce. If, then, Congress, under its commercial power, has no right to penalize a common carrier of interstate commerce for such discriminating action, save only as to interstate employees, the fact that said section applies to such employees who are also intrastate employees can not invalidate it.

In the case of The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999, Mr. Justice Field said:

"The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State and some acting through two or more States, does in no respect affect the character of the transaction. To the extent in which each agency acts, in that transportation, it is subject to the regulation of Congress."

The only likelihood of an intrastate train of an interstate carrier not doing any interstate business under any circumstances would be where such train was operated over that portion of the road over which interstate trains ran also. But, again, if it be conceded that there is such a thing in this country as employees of a common carrier engaged in interstate commerce, who are adjuncts solely of intrastate

commerce, and that to invalidate an act of Congress penalizing such discriminating action toward such employees would be unconstitutional, there is room to hold that the section in question admits of a construction limiting its application to employees who are wholly, or partially, adjuncts of interstate commerce, notwithstanding the sweeping language in the first section, providing that "the term employees as used in this act, shall include all persons actually engaged in any capacity in train operation or train service of any description.' It is a cardinal rule of construction that where legislation admits of two constructions, one of which would uphold and the other invalidate it, the former will be adopted. Such a construction may be justified by the evident intent of Congress to be drawn from its title and all its provisions to keep within its commercial power.

There is nothing in any of said decisions relied on here against such a position. I understand the indictment to charge that Coppage, the employee, who it is alleged was discriminated against was an employee engaged in interstate commerce. But it is not entirely clear that an act of Congress, penalizing such action toward such employees, would be unconstitutional. It would not be the action of a common carrier engaged in intrastate commerce, that would be so penalized, but the action of a common carrier engaged in interstate commerce, who also did an intrastate business. Such action toward an employee engaged in the intrastate department of its business would be as likely to cause an interruption in or embarrassment of its interstate department as like action toward an employee engaged in the latter.

In the case of Gibbons v. Ogden, Mr. Chief Justice Marshall said: "The genius and character of the whole Government seems to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are compliedly within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of execution, of some of the general powers of the Government. The completely internal commerce of a State, then, may be considered as reserved to the State itself." And, again:

"It is obvious that the Government of the Union, in the exercise of its express powers (that, for example, of regulating commerce with foreign nations and among the States), may use means that may also be employed by a State, in the exercise of its acknowledged power (that, for example, of regulating commerce within the State). Congress license vessels to sail from one port to another, in the same State, the act is supposed to be necessarily incidental to the power expressly granted to Congress, and implies no claim of a direct power to regulate the purely internal commerce of a State, or to act directly on its system of police."

It seems to me, therefore, that the section in question herein is not unconstitutional for this reason: A final reason urged in support of the contention that it is unconstitutional is that it is class legislation, in that it confers privileges upon union labor that are not conferred upon nonunion labor. In other words, the claim is that it denies to nonunion labor the equal protection of the laws. But I find no provision in the Federal Constitution prohibiting class legislation, i. e., prohibiting Congress from denying one the equal protection of the

laws. The provision in the fourteenth amendment applies only to State action amounting to such denial.

I would not, however, commit myself to the proposition that Congress can deny one the equal protection of the laws. It is too serious a matter to dispose of upon the very slight consideration which I have given the matter. The necessities of this case do not require that I should dispose of this question herein. The section in question does not come within such a prohibition, even if there was one affecting Congressional action. Such a prohibition would not prevent all discrimination, but only such as was arbitrary and not reasonable; that is, not based on some reason of public policy. The discrimination here, so far as it exists, is based on a reason of public policy. The purpose of the legislation, as we have seen, was to prevent an interruption of interstate commerce. The discriminating action on the part of a common carrier engaged in interstate commerce toward an employee prohibited by the section is liable to bring about such an interruption. Like discriminating action toward an employee who is not a member of a labor organization is not liable to produce any such result. There is nobody to back him up in his complaints and demands, or means by which he can bring about such interruption.

It will not do to overlook the fact that Congress in enacting the legislation in question viewed it, not from the standpoint of the labor organization, but from its own. That standpoint was the interest of interstate commerce committed to its charge by the Federal Constitution. This reason, then, does not meet my approval. I am constrained to hold, therefore, that said section is constitutional. In disposing of the question I have borne along with me two general considerations: One is that I am not concerned with the policy of said legislation-only with its constitutionality. The other is that I have no right to hold an act of Congress unconstitutional, unless it is clearly so. It seems to me that these two considerations, in connection with those handled in detail, are sufficient to demand of me that I uphold said law.

DECISIONS UNDER COMMON LAW.

INJUNCTION-BOYCOTTING-PICKETING COMPETITION IN EMPLOYMENT OF LABOR-George Jonas Glass Company v. Glass Bottle Blowers' Association, Court of Chancery of New Jersey, 66 Atlantic Reporter, page 953. The glass company prayed for an injunction against the association named and its officers, who were engaged in an attempt to compel the company to unionize its plant. This effort had been maintained for a number of years, and a boycott (which had been declared unlawful by the court) had largely interfered with the business of the company. A number of the employees joined the union and went out on a strike in 1899. New workmen were obtained, about 300 of whom were induced to go on strike in April, 1902, which strike has been maintained since that time under the direction and management of some of the principal officers of the association. At the beginning of this strike a lot of land was leased at Minotola, near the factory of the complaining company, on which

a tent was erected. This was afterwards replaced, at the expense of the association, by a substantial wooden structure, in which the strikers congregated, as they had previously done in the tent. Other facts appear in the opinion.

Vice-Chancellor Bergen, who delivered the opinion of the court, allowed the injunction prayed for, on grounds which appear in the portion of his remarks reproduced herewith. Having first stated the facts set forth above, he said:

The present proceeding was instituted by the complainant to have the defendants among whom are numerous of its former workmen, enjoined from boycotting its business; inducing its employees by threats, intimidation, force, violence, or the payment of money to refuse to perform their duties or leave its service, or, by like methods, preventing those who desire to do so from entering its employment, and also from using indecent and opprobrious epithets to its officers and employees; from collecting singly or in combination with others with the intention of picketing the public highways leading to its factory for the purpose of inducing laborers not to take employment with it; from gathering at railroad stations at or near complainant's works, and inducing or attempting to induce persons arriving at such stations seeking employment at complainant's factory from so doing, and generally from bribing or intimidating workmen to refrain from entering complainant's employment, or inducing those who are employed to leave.

The principal officers of the defendant association have been called, and they all deny that they instigated the strike; but such denials have little weight when considered in connection with their previous and subsequent conduct, for it is quite clear from the evidence that months before the strike occurred they had been engaged in an effort to bend complainant to the will of their association, and employed all the resources of a rich, powerful, and well-organized society to deprive the complainant of a market for its goods, and to accomplish the destruction of its business in default of its submission to their will, when failing in such efforts, this strike was declared a strike which the officers of this association are immediately found to be directing and controlling, and in furtherance of which the association for a long period, if not to the present time, has paid the wages not only of the men who left the factory, but of strangers brought from other places to lead and direct the strikers. The first demonstration after the strike was declared was a parade led by the defendant Doughty, the vice-president of the association, preceded by a band of music, and Mr. Hayes, the president of the association, was so promptly on the ground that the suspicion is justified that he had knowledge of what was coming. The testimony of the witness Edward C. Rush shows that some time prior to this strike meetings of the workmen were held at Vineland, which he attended, and that the defendants Doughty and Launer, another officer of the association, were present at different times and addressed the meetings, advising the men to organize and keep still about it, and that "they would take care of them and pay them good wages if they went out." I am satisfied from the evidence that this strike was promoted by the officers of this association in pursuance of their con

ceived scheme to compel the complainant to unionize its factory. I believe that Mr. Hayes told the truth when he testified that he had no interest in the workmen before the strike, because they had taken the places of other strikers, and am satisfied that he used these men as a means to accomplish his long-cherished purpose; that it was a war of conquest, not for the relief of the downtrodden, as he now seeks to convince us; and that the officers of this association are as directly responsible for the acts of violence and unlawful conduct of these men as if they had actually participated in each of them. I give little credit to, and have no respect for, men who inaugurate a movement which they know they can not control, and then seek to excuse themselves because they have advised, as they say, a body of men, many of them ignorant Italians, against the doing of unlawful acts, when common sense and ordinary experience teaches that a body of idle workmen, called together at a common rendezvous, such as this association provided, pay no attention to moral precepts communicated for the purpose of being used as a defense when called upon to respond for the acts of a disorderly mob. If these men had been advised to return to their homes and act as orderly law-abiding citizens, simply exercising their right to quit work, a different situation would have been presented, but, on the contrary, they were gathered at a place provided by the officers of the defendant association for no possible reason except to make a show of force, the known effect of which would be to arouse the fears of others desiring to remain at work, or to take the places of those who had left, and whose continued employment would endanger the success of the result sought to be accomplished. The parties who start a conflagration are, and should be, responsible for its consequences.

The testimony in this case is too voluminous to permit of a particular analysis. It is enough to say that I find that acts of violence were committed; that terror reigned in this village for several days; that peaceable citizens seeking to obtain work were met on the public highways by large bodies of these strikers and turned back; that persons seeking to move into the town were stopped on the public highway, and only permitted to proceed through the interference of a peace officer; that private dwellings were visited by bands of men for the purpose of deterring persons desiring to continue work from doing so; that one of the employees who returned to work was assassinated, all attempts to discover the perpetrator being futile, because of the conditions existing, and all of this done, it is claimed, in the interest of organized labor, a claim which, in my judgment, no class of men will be more swift to repudiate than the fair-minded members of the labor organizations of the country.

A part of the argument submitted by counsel relates to the question whether the laborers were justified in striking. With that question I conceive the court has nothing to do. Men have a right to cease work whenever they choose, with or without a reason. If they violate a contract, the master has his legal remedy in damages; and so long as workmen abandoning work disperse and behave as quiet orderly citizens, they are only exercising their rights, but when by force, or intimidation they undertake to deter those who are willing to work from so doing, they violate the law of the land. On the argument counsel for the defendants admitted that violence, intimidation, and all unlawful interference with persons seeking employ