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mate interests of labor. The Kemp case in 255 Ill., is cited as one in which the court went far to sustain the legality of acts of organized labor.

Those who urge the need for a restriction of the use of injunctions in labor cases allege that labor is not asking for a special privilege or a preferred position, but for relief from a situation which operates unequally with respect to labor. Their position is based largely upon the fact that the law with respect to labor controversies is in an unsettled condition, as the law always is in any rapidly growing field of the law. Their arguments may be substantially summarized as follows:

(1) The purpose of an injunction is primarily that of maintaining existing rights, but they assert that the injunction in labor cases normally settles the matter in controversy as the result of an informal hearing, or as the result of action without notice to the laborers. In their view, an injunction is issued by the judge of a lower court (the judge often selected by the applicant for the injunction) and the injunction when issued operates to defeat the laborers in their controversy, and has this effect before the injunction can be dissolved as the result of an appeal to a higher court. Their point is that, inasmuch as the laborers must bring pressure to bear upon their employer promptly or fail, an injunction issued by the lower court, if it is improper, will actually defeat the laborers before the injunction can be removed. In the Lyon & Healy case, which has been referred to above, the majority of the court did not say that the injunction was improper, although two specially concurring judges said this, and two judges dissented. Whether the dissenting judges were of the opinion that the injunction was improper, is, of course, a matter of conjecture. However, if it were true that the four judges were of opinion that the injunction issued by the lower court was improper, the labor leaders urge that the effect of the improper injunction would have been accomplished as against the laborers before it could have been dissolved.

(2) It is also urged by those favoring a restriction of the use of injunctions in labor cases that, even if the injunction be proper on its face, a judge may punish acts which he regards as violating the injunction, but which on appeal may not be so regarded. That is, it is urged that even though the injunction were fair upon its face, the judge of the trial court may actually coerce people into doing things which they had a right to do, even though these things are not properly within the scope of the matters prohibited by the injunction. The case of Illinois Malleable Iron Company v. Michaleko is cited on this point.

(3) On the basis of the points made above, those advocating the restriction of the use of the injunction in labor controversies urge that the present situation places a really final decision in the inferior court acting often in an ex parte proceeding. They also

10 279 Ill. 221 (1917).

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charge that inferior courts sometimes act purposely against the decisions of the higher state courts in such matters."

The chief actual difficulty, as may be indicated from the previous discussion, is the unsettled state of the law as to labor controversies, and the point really contended for by labor organizations and their supporters is either a more definite statement of the law or a limitation upon the machinery through which the law is applied by the courts. The law with respect to a number of these matters has been settled in England, largely in the manner desired by labor organizations, by the Trade Disputes Act of 1906, which is regarded as of sufficient importance to be given here:

1. “An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable.”

2. Lawful in connection with a trade dispute "to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working."

3. "An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.”

4. "An action against a trade union, whether of workmen or masters, or against any member or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court."'12

Proposed legislation in Illinois and legislation in other states. An effort has been made at several sessions of the Illinois general assembly to obtain legislation, exempting labor controversies from the application of an injunction and providing for jury trial in contempt cases. In 1919 the bills proposed in the Illinois general assembly (house bills 26, 27 and 32) sought primarily to enact as applicable to judicial proceedings in Illinois the provisions of Sections 6, 20, 21 and part of Section 22 of the Clayton Act, the full text of which is given below. That is, the effort was being made in this state to apply to the state courts a rule which has already been adopted by statute with reference to the federal courts.

11 As an instance of this, the case of Schwarcz v. International Ladies' Garment Workers' Union, 124 N. Y. Suppl. 968 (1910) is sometimes cited.

12 6 Edw. VII, Ch. 47 (1906).

Both before and after the enactment of the Clayton act by Congress, measures to accomplish substantially the same purposes have been enacted by state legislatures. Legislation in California and Massachusetts has been held invalid by the courts of those states, and the decisions are commented upon in a later part of this discussion. The legislature of Montana in 1913 enacted that an injunction should not be granted "in labor disputes under any other or different circumstances or conditions, than if the controversy were of another or different character, or between parties neither or none of whom were laborers or interested in labor questions" (Sec. 6121 as amended in 1913). The Montana court, in a liberal decision upon a labor controversy, took occasion to say that this legislation adds nothing to pre-existing law. (Empire Theatre Co. v. Cloke, 53 Mont. 183, 1917.)

The legislature of Kansas in 1913 enacted a law, the substance of which is similar to sections 17 to 20 of the Clayton act. (Kansas Laws, 1913, Chap. 233.) Apparently the validity of this law has not been involved in any case before the Supreme Court of Kansas.

Minnesota legislation of 1917 declares labor not a commodity or an article of commerce, and forbids the use of injunctions in certain cases, using much the same language as section 20 of the Clayton act. (Minnesota session laws, 1917, Chap. 493.).

Utah in 1917 enacted a law which declares labor not a commodity or an article of commerce, limits the use of injunctions in labor cases, limits the penalties for contempts, and provides for jury trial in contempt cases. This act closely parallels sections 6, 20 and 22 of the Clayton act. (Utah session laws, 1917 p. 210). North Dakota in 1919 enacted a law which embodies the substance of section 20 of the Clay

Anti-injunction legislation was also enacted in 1919 by Oregon, Washington and Wisconsin, and Iowa exempted labor organizations from the operation of the anti-trust laws.

In the Massachusetts constitutional convention proposals with respect to this subject were made and discussed, but were rejected. (Debates in the Massachusetts Constitutional Convention, 1917-1918, Vol. I, pp. 1040-1165). A full report on labor injunctions in Massachusetts will be found in the forty-seventh annual report on the Statistics of Labor (Boston, 1917).

United States legislation. After a long controversy, congress enacted in 1914 legislation which seeks to meet the objections urged by labor organizations to the use of injunctions in labor cases. This congressional legislation is so important that it is here given in full. The Clayton Act, of which these provisions form a part, deals with the general subject of combinations in restraint of trade, and only the provisions are here given which are appropriate to the subject now under discussion.

Sec. 6. (Labor organizations, etc., not within provisions of act.) That the labor of a human being is not a commodity or article of commerce. Nothing contained in the anti-trust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not

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having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws. .

Sec. 17. (Preliminary injunctions and temporary restraining orders-notice.) That no preliminary injunction shall be issued without notice to the opposite party.

No temporary restraining order shall be granted without notice to the opposite party unless it shall clearly appear from specific facts shown by affidavit or by the verified bill that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon. Every such temporary restraining order shall be indorsed with the date and hour of issuance, shall be forthwith filed in the clerk's office and entered of record, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall by its terms expire within such time after entry, not to exceed ten days, as the court or judge may fix, unless within the time so fixed the order is extended for a like period for good cause shown, and the reasons for such extension shall be entered of record. In case a temporary restraining order shall be granted without notice in the contingency specified, the matter of the issuance of a preliminary injunction shall be set down for a hearing at the earliest possible time and shall take precedence of all matters except older matters of the same character; and when the same comes up for hearing the party obtaining the temporary restraining order shall proceed with the application for a preliminary injunction, and if he does not do so the court shall dissolve the temporary restraining order. Upon two days' notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require.

Section 263 of an act entitled “An Act to codify, revise, and amend the laws relating to the judiciary," approved March 3d, 1911, is hereby repealed.

Nothing in this section contained shall be deemed to alter, repeal, or amend Section 266 of an act entitled “An Act to codify, revise, and amend the laws relating to the judiciary," approved March 3d, 1911.

Sec. 18. (Restraining orders etc., security as condition precedent.) That except as otherwise provided in Section 16 of this Act, no restraining order or interlocutory order of injunction shall issue, except the giving of security by the applicant in such sum as the court or judge may deem proper, conditioned upon the payment of such costs and damages as may be incurred or suffered by any party who may be found to have been wrongfully enjoined or restrained thereby.

Sec. 19. (Restraining orders, etc.-contents-bonding only upon whom.) That every order of injunction or restraining order shall set forth the reasons for the issuance of the same, shall be specific in terms, and shall describe in reasonable detail, and not by reference to the bill

or

or

so

to

do;

of complaint or other document, the act or acts sought to be restrained, and shall be binding only upon the parties to the suit, their officers, agents, servants, employes and attorneys, or those in active concert or participating with them; and who shall, by personal service or otherwise, have received actual notice of the same.

Sec. 20. (Restraining orders, etc.--when not to issue what acts not to be prohibited.) That no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employee, or between employers and employes, or between employes, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney. And no

such restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any

relation of employment, or from ceasing to perform any work labor, from recommending,

advising or

or persuading others by peaceful means or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things, of value, or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.

Sec. 21. (Contempt constituting criminal offense under federal or state law.) That any person who shall willfully disobey any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia by doing any act or thing therein, or thereby forbidden to be done by him, if the act or thing so done by him be of such character as to constitute also a criminal offense under any statute of the United States, or under the laws of any state in which the act was committed, shall be proceeded against for his said contempt as hereinafter provided.

Sec. 22. (Procedure for contempt-rule to show cause-trial and judgment-bail.) That whenever it shall be made to appear to any district court or judge thereof, or to any judge therein sitting, by the return of a proper officer on lawful process, or upon the affidavit of some credible person, or by information filed by any district attorney, that there is reasonable ground to believe that any person has been

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