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guilty of such contempt, the court or judge thereof, or any judge, therein sitting, may issue a rule requiring the said person so charged to show cause upon a certain day why he should not be punished therefor, which rule, together with a copy of the affidavit or information, shall be served upon the person charged, with sufficient promptness to enable him to prepare for and make return to the order at the time fixed therein. If upon or by such return, in the judgment of the court, the alleged contempt be not sufficiently purged, a trial shall be directed at a time and place fixed by the court: Provided, however, that if the accused, being a natural person, fail or refuse to make return to the rule to show cause, an attachment may issue against his person to compel an answer, and in case of his continued failure or refusal, or if for any reason it be impracticable to dispose of the matter on the return day, he may be required to give reasonable bail for his attendance at the trial and his submission to the final judgment of the court. Where the accused is a body corporate, an attachment for the sequestration of its property may be issued upon like refusal or failure to answer.

In all cases within the purview of this Act 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.

If the accused be found guilty, judgment shall be entered accordingly, prescribing the punishment, either by fine or imprisonment, or both, in the discretion of the court. Such fine shall be paid to the United States or to the complainant or other party injured by the act constituting the contempt, or may, where more than one is so damaged, be divided or apportioned among them as the court may direct, but in no case shall the fine to be paid to the United States exceed, in case the accused is a natural person, the sum of $1,000, nor shall such imprisonment exceed the term of six months: Pro-. vided, that in any case the court or a judge thereof may, for good cause shown, by affidavit or proof taken in open court or before such judge and filed with the papers in the case, dispense with the rule to show cause, and may issue an attachment for the arrest of the person charged with contempt; in which event such person, when arrested, shall be brought before such a court or a judge thereof without unnecessary delay and shall be admitted to bail in a reasonable penalty for his appearance to answer to the charge or for trial for the contempt; and thereafter the proceedings shall be the same as provided herein in case the rule had issued in the first instance.

Sec. 23. (Conviction of contempt reviewed on writ of errorstay and bail.) That the evidence taken upon the trial of any persons so accused may be preserved by bill of exceptions, and any judgment of conviction may be reviewed upon writ of error in all respects as nów provided by law in criminal cases, and may be affirmed, reversed, or modified as justice may require. Upon the granting of such writ of error, execution of judgment shall be stayed, and the accused, if thereby sentenced to imprisonment, shall be admitted to bail in such reasonable sum as may be required by the court, or by any justice, or any judge of any district court of the United States or any court of the District of Columbia.

Sec. 24. (Certain contempts excluded from operation of Act.) That nothing herein contained shall be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced within section 21 of this Act, may be punished in conformity to the usages at law and in equity now prevailing

Sec. 25. (One year limitation for contempt proceeding—no bar to criminal prosecution-pending proceedings.) That no proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act or acts; but nothing herein contained shall affect any proceedings in contempt pending at the time of the passing of this Act.

The Sundry Civil Appropriation Act of March 3, 1915, ch. 75, sec. 1, 38 Stat. L. 866, made an appropriation for the enforcement of the anti-trust laws, and contained a proviso, as did similar acts for preceding years, as follows: “That no part of this money shall be spent in the prosecution of any organization or individual for entering into any combination or agreement having in view the increasing of wages, shortening of hours or bettering the conditions of labor, or for any act done in furtherance thereof, not in itself unlawful: Provided further, that no part of this appropriation shall be expended for the prosecution of producers of farm products and associations of farmers who cooperate and organize in an effort to and for the purpose to obtain and maintain a fair and reasonable price for their products."

This federal legislation, of course, restricts the federal courts in Illinois, but has no effect whatever upon the state courts, and an unsuccessful effort was made in 1917 and 1919 to enact for Illinois, as applicable to the state courts, statutory provisions which embodied a part of the provisions just quoted above.

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Constitutionality of proposed legislation. If it were desired to obtain in Illinois legislation similar to that enacted by congress, 1 question would present itself as to whether such legislation if enacted

13 38 U. S. statutes at Large, 730 (Oct. 15, 1914).

is likely to be upheld by the state supreme court. In this connection, it should be borne in mind that the apparently accepted constitutionality of the federal legislation does not settle the question as to the state constitutionality of similar legislation if it were enacted by the Illinois general assembly. Two issues present themselves here with respect to this matter: (1) All inferior federal courts are established by congressional legislation, and their jurisdiction is fixed by such legislation. It is commonly held that the power of a legislative body to regulate matters such as those having to do with the issuance of injunctions and the punishment of contempts is larger where the legislation deals with courts not created by a constitution than where it deals with courts established by a constitutional provision. The Illinois trial courts are now provided for by state constitutional provision. (2) The fact that the United States supreme court may hold the provisions of the Clayton Act not violative of "due process of law” and “equal protection of the laws", as guaranteed in the federal constitution, does not necessarily mean that the supreme court of Illinois would take the same view in interpreting substantially identical provisions of the constitution of Illinois. It should here be borne in mind that the state supreme court is the final judicial arbiter as to the meaning of the state constitution, and that it has not been uncommon for state supreme courts to construe state constitutional language more strictly than the identical language in the federal constitution has been construed by the United States supreme court. Further comment upon this matter will be found in the pamphlet dealing with the legislative department.

With respect to the problem of the constitutionality for Illinois of such legislation as the Clayton Act, several points present themselves which will be discussed under the three succeeding headings.

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Giving a preferred status to labor. Several cases have arisen upon state legislation exempting certain types of cases from general legal rules. California in 1903 enacted a statute in the following terms:

“No agreement, combination or contract by or between two or more persons to do or procure to be done, or not to do or procure not to be done, any act in contemplation or furtherance of any trade dispute between employers and employes

shall be deemed criminal, nor shall those engaged therein be indictable, or otherwise punishable for the crime of conspiracy, if such an act committed by one person would not be punishable as a crime, nor shall such agreement, combination or contract be considered as in restraint of trade or commerce, nor shall any restraining order or injunction be issued with relation thereo."14

The Act further provided that nothing therein should be construed as authorizing force or violence or threats thereof. In the

14 Cal. Stat. 1903, p. 289.

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case of Goldberg v. Stablemen's Unions and Pierce v. Stablemen's Union.10 this act was held unconstitutional as denying equal protection of the laws and as interfering with the constitutional right to acquire, possess, enjoy and protect property.

In 1911 the Massachusetts senate asked the opinion of the supreme judicial court of that state as to the constitutionality of a proposed exemption of trade unions and of associations of employers from liability for tortious acts alleged to have been committed by or on behalf of such a union or association. The supreme judicial court said that such proposed legislation would be unconstitutional as depriving of equal protection of the laws, by setting aside a favored few and by discriminating between members and non-members of unions and between members and nonmembers of employers' associations.

However, the Massachusetts general court in 1914 enacted a statute, the substance of which is as follows: The statute declared it not unlawful to enter into agreements or combinations with a view to lessening hours of labor, increasing wages or bettering conditions of labor, and provided that no injunction should be granted in cases growing out of disputes concerning the terms or conditions of employment or acts done in pursuance thereof "unless such order or injunction be necessary to prevent irreparable injury to property or a property right of the party making the application, for which there is no adequate remedy at law". It also declared that the right to enter the relation of employer and employe, to change that relation, to assume new relations, or to labor as an employe shall "be held and construed to be a personal and not a property right”; and that in cases involving the violation of a contract of employment "where no irreparable damage is about to be committed upon the property or property right of either [employer or employe), no injunction shall be granted but the parties shall be left to their remedy at law". The statute further provided that there should be no criminal liability for workmen entering into an agreement or combination with a view to lessening hours, increasing wages or bettering conditions or for any acts done in pursuance thereof "unless such act is in itself unlawful". It will be noted that this legislation in part covers the same ground as the English Trade Dispute Act of 1906 and that it also covers some of the matters dealt with by the terms of the Clayton Act.

The validity of the Massachusetts legislation of 1914 came before the supreme judicial court of Massachusetts in the case of Bogni v. Perotti.17 In this case one union sought an injunction to prevent interference by another union with its members obtaining work. The supreme judicial court said that labor is property as well as liberty, and that the legislative body could not remove it from judicial protection by saying that it was not so. It further said that "if a laborer must stand helpless in court while others

15 149 Cal. 429 (1906). 16 156 Cal. 74 (1909). 17 112 N. E. 853 (1916).

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there receive protection respecting the same general subject which is denied to him”, there is a denial of due process of law. The court agreed that the equitable jurisdiction of courts was largely statutory, but said that it was one thing to affect a general scope of equitable remedies and a different one to admit some citizens to have an equitable remedy while denying that remedy to others.

The point here under discussion has not been squarely passed upon by the supreme court of Illinois, but a somewhat similar issue was involved in several cases which have arisen in this state. In the case of Gillespie v. People,18 the supreme court said that it was unconstitutional to make it a criminal offense for an ployer to prevent his employes from joining labor unions or to discharge them because of their connection with labor unions.19

In the case of People v. Butler Street Foundry Co.,20 the Illinois supreme court held unconstitutional a provision of law which contained a proviso that "in the mining, manufacture or production of articles of merchandise, the cost of which is mainly made up of wages, it shall not be unlawful for persons, firms or corporations doing business in this state to enter into joint agreements of any sort, the principal object or effect of which is to maintain or increase wages.”

In the case of Matthews v. People,21 the supreme court held unconstitutional a statutory provision prohibiting superintendents of free employment agencies from furnishing workmen or lists of workmen to employers whose men were on strike or were locked out.

In view of these cases and of other utterances by the supreme court with respect to the matters here under discussion, it seems unlikely that the court will uphold legislation which on its face seems to give a preference in legal treatment to labor organizations or their members.?

Upon legislation making a distinction between labor organizations and others, the case of Connolly v. Union Sewer Pipe Company23 was cited by the court in People v. Butler Street Foundry Company as decisive of the issue there involved. The supreme court of the United States in the Connolly case said that a discrimination by anti-trust legislation in favor of agricultural products or live stock in the hands of the producer or raiser was unconstitutional as a denial of equal protection of the laws. In the later case of International Harvester Company v. Missouri,24 the United States supreme court took the view that “whether the Missouri statute should have stated its condemnation on restraints generally, prohibiting combined action for any purpose to everybody or confined it as the statute does to manufacturers and ven

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18 188 111. 176 (1900).

19 With respect to this matter the same view has been taken by the United States Supreme Court in the case of Coppage v. Kansas, 239 U. S. 1 (1915).

20 201 Ill. 236 (1903).
21 202 Ill. 389 (1903).

22 See also McChesney v. People, 200 Ill. 146 (1902) and City of Chicago v. Hulbert, 205 Ill. 346.

23 184 U. S. 540 (1902)
24 234 U, S. 199 (1914).

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