First, in the form of a bill which divided contempts of court into two different classes-direct and indirect. In the indirect class was included what might be called an injunction or order of the court. Those accused of contempt who came in the indirect class were to be permitted to have a trial by jury. The second form in which it has been before Congress was in a bill known as the Hoar-Grosvenor bill, which made certain acts innocent; took certain acts which were lawful for one to do out of conspiracies when done by more than one. In other words, it made legal those things which are legal for one to do at the present time if done by several in a trade dispute. Then that was followed by the provision that those acts which are declared innocent should not be restrained or enjoined.

The third form of legislation was providing that the adverse party should have an opportunity to be heard before an order could be granted, which is the bill of which I speak.

I believe that the causes which led up to the introduction of these various measures are too well known to the members of this committee to require at this time a general discussion of the main question. Therefore I will endeavor to confine myself wholly to the bill which I have read. I think it is sufficient to say at this time that some of our Federal judges have abused the injunctive power to the extent of calling forth condemnation of their actions by committees of Congress. The Senate Committee on the Judiciary in the Fifty-fourth Congress, a short time after the labor injunctions began to be used, was instructed by the Senate to investigate the whole question of contempts of court and to see whether or not the citizens needed further protection. The Senate committee took that question up, and they reported the bill which I first spoke of, which divided contempts into two different classes and permitted jury trials in cases of indirect contempt. That bill passed the Senate. It came to the House and was referred to the Judiciary Committee. It was amended materially, so much so that the friends of the bill did not think it proper to further advocate it, and nothing was done with it. The next measure, the Hoar-Grosvenor bill, was introduced in the Fifty-sixth Congress. It was first introduced by Mr. Ridgely, of Kansas. It was reported from this committee with several amendments, amendments which the friends of the bill thought were sufficient to destroy its efficiency, and they did not press the matter. It was then introduced in the House by General_Grosvenor and in the Senate by Senator Hoar, of Massachusetts. It was reported from the Senate committee favorably without amendment. It was reported from this committee without amendment and passed the House. After the Senate bill had been reported the committee reconsidered it and reported a substitute for it, which we were not satisfied with. Then when the House bill came over to the Senate an amendment was put upon it, much less objectionable than the substitute, but, anyhow, we felt that we did not care about the bill with that amendment on it, and nothing further was done in that Congress. The same bill was introduced again in the last Congress, and it remained in this committee.

Now, with regard to the Gilbert bill, which I have just read, we do not think that this is a complete remedy for the abuse of the injunctive power by some of our judges, but we do believe it is a step

in the right direction, and we feel that so long as we can get legislation, if it is along the right lines, we should accept it. It has been said by some of the critics of this bill that it is unconstitutional because it interferes with the judicial powers of the courts; that the powers of the courts can not be interfered with by Congress. Lawyers have come before this committee and made that argument with regard to the other bills that have been before it in past Congresses.

Mr. Chairman, I can not see how any lawyer who has looked into the decisions of the Supreme Court of the United States can say that Congress can not legislate as to this question and restrict the power of the courts as to contempts or injunctions. Congress has already exercised this control in section 5 of the judiciary act of March 3, 1793. That section reads:

Nor shall a writ of injunction be granted in any case without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving the same.

That law stood until 1872-for seventy-nine years. The Federal courts of this country could not issue an order of any kind without due notice to the adverse party. We are told in the decision in Yuengling v. Johnson (30 Fed. Cas., p. 896) that—

While the clause of the act of 1793 in question was in force there were many decisions of the Supreme and circuit courts of the United States enforcing it, and these rulings of the courts have gone into the digests and text-books in use by bar.

In the case of The State of New York v. The State of Connecticut (4 Dallas, 1) the Supreme Court of the United States, through Chief Justice Ellsworth, held that

The prohibition contained in the statute that writs of injunction shall not be granted without reasonable notice to the adverse party, or his attorney, extends to the Supreme Court or the circuit court as well as to those that may be granted by a single judge.

In The Assessors . Osbornes (9 Wallace, pp. 567-575), Justice Clifford said:

Circuit courts are courts of special jurisdiction, and therefore they can not take jurisdiction of any case, either civil or criminal, where they are not authorized to do so by an act of Congress.

Jurisdiction in such cases was conferred by an act of Congress, and when that act of Congress was repealed the power to exercise such jurisdiction was withdrawn, and inasmuch as the repealing act contained no saving clause, all pending actions fell, as the jurisdiction depended entirely upon the act of Congress.

In Turner etc., v. The President, etc., of the Bank of North America, defendants (volume 4, Dallas), Justice Chase said (p. 10):

The motion has frequently been entertained that the Federal courts derive their judicial power immediately from the Constitution; but the political truth is that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this court, we possess it, not otherwise; and if Congress has not given the power to us, or to any other court, it still remains at the legislative disposal. Besides, Congress is not bound and it would, perhaps, be inexpedient to enlarge the jurisdiction of the Federal courts to every subject, in every form, which the Constitution might warrant.

In Cary. Curtis (Vol. III, Howard, p. 245) Justice Daniel said: Secondly, in the doctrine so often ruled in this court that the judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances applicable exclusively to this court) dependent for its

distribution and organization and for the modes of its exercise entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent. or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. To deny ths position would be to elevate the judicial over the legislative branch of the Government, and to give to the former powers limited by its own discretion merely.

By act (1 Stat., 83) Congress declared that the courts of the United States "shall have power * * to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any case or hearing before the same." But this power was later limited by the act of March 2, 1831 (4 Stat., 447, Rev. Stat., sec. 725), as follows:

That such power to punish for contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of said courts.

In ex parte Robinson (19 Wall., 510) the United States Supreme Court, through Justice Field, held:

The power to punish for contempt is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings and to the enforcement of the judgments, orders, and writs of the courts, and, consequently, to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject they became possessed of this power. But the power has been limited and defined by the act of Congress of March 2, 1831. The act in terms applies to all courts. Whether it can be held to limit the authority of the Supreme Court, which derives its existence and power from the Constitution, may perhaps be a matter of doubt. But that it applies to the circuit and district courts there can be no question. These courts were created by act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be inflicted.

In a later decision of the Supreme Court, in Bassettee v. W. B. Conkey Company (U. S., 194, p. 324), delivered by Justice Brewer, this was reaffirmed, and in this decision the court further said:

It is true Congress, by statute (1 Stat., 83), declared that the courts of the United States "shall have power ** * to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any case or hearing before the same," and this general power was limited by the act of March 2, 1831 (4 Stat.. 487; Rev. Stat.. sec. 725), the limitation being: "That such power to punish for contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of said courts.

It is also claimed by critics of this bill, as well as the critics of the Hoar bill, that it was unconstitutional because it was class legislation. They say that it was class legislation because it applied only to cases growing out of labor disputes, and therefore it is unconstitutional. Our answer to that is that this legislation is no more class legislation than is that legislation which now authorizes the Federal courts to issue injunctions and restraining orders in cases growing out of patent rights in any manner in which they see fit, and that law exists to-day.

It has been on the statute books since 1870. Patent cases to-day occupy a separate class by themselves with regard to injunctions, and I have been unable to find wherein the point has ever been raised as to the constitutionality of that statute.

Mr. TIRRELL. I would like to have you show the analogy of patent cases with the matter of general application.

Mr. FULLER. I will. With regard to this law, the court, in Yuengling v. Johnson (30 Fed. Cas., p. 896), said:

Before the passage of the judiciary act of June 1, 1872, an act of Congress revising, digesting, and consolidating all the laws relating to patent rights was passed July 8, 1870 (see 16 Stat., 206), and a section enacted in it authorizing the courts of the United States to deal with injunctions in patent cases in a special manner. This section placed injunctions in patent cases on a different footing from other injunctions. In this particular class of cases the courts were released from the requirement to adhere strictly to the rules of practice prescribed by law or rule of court in general for the Federal courts sitting in equity, and the circuit courts were "vested with power upon bill in equity, filed by any party aggrieved, to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable."

Thus was authority given to grant injunctions in patent cases, not upon such limited terms as were at the time required by law or rules in equity to be observed in other cases by the circuit courts of the United States sitting in equity, either as to notice, security, or other requirement; but authority was given to grant them in patent cases on such terms as accorded with the course and principles of courts of equity in general and as the particular court in which the motion was made "might deem reasonable." This law made injunctions in patent cases exceptional and conferred on United States circuit courts an unrestricted discretion as to the terms of granting injunctions in them. This provision of the law of 1870 has been carried into the Revised Statutes, with slight literal modification, and stands now the law of the land in the form of section 4921. Thus, in patent cases, where the emergency was urgent, the court might grant injunctions without reasonable previous notice, before the law of 1872.

I cite that because it seems to me as a layman that if our bill is class legislation then that must necessarily be. But I will say this to the committee: If in your judgment you think this bill is unconstitutional because it is limited to labor disputes, then on behalf of the men I represent we will have no objection whatever if you amend that bill so as to make it apply to labor disputes affecting interstate commerce, and I do not think it will be seriously questioned by lawyers, at least, that Congress has the authority to regulate interstate commerce. The injunctions which have been issued against the men I represent by Federal courts have been granted on the ground that they were engaged in interstate commerce and on the strength of the grant of the Constitution to regulate interstate commerce.

Now, then, I say that if injunctions can be issued on those grounds, why can they not be regulated upon those grounds? The act to protect trade and commerce from unlawful restraints and monopolies has in it a provision which gives the courts of the United States the authority to restrain and enjoin acts which in themselves, by that very act. are declared criminal; certain acts are made criminal, and that is followed by a provision in the same law authorizing the courts to restrain the commission of those acts. Has anybody seriously contended that the Sherman antitrust law is unconstitutional because it authorized courts to restrain acts which are in themselves crimes and that authority is not given in general as to all crimes and all acts

which are in themselves crimes? I have not heard of it. The act to regulate commerce, approved February 4, 1887, under this same authority of the Constitution, says that the courts can restrain the roads from disobeying certain orders of the Interstate Commerce Commission, with regard to what? With regard to interstate rates, things which Congress has absolute control over.

Now, then, I say that if Congress can specifically legislate in regard to injunctions as between common carriers engaged in interstate commerce and the shippers, why in all fairness, why in all reason has it not the same right to legislate with regard to injunctions as between those same carriers and their employees, especially when the carriers get their injunctions on the ground that they are engaged in interstate commerce, and the Federal courts have jurisdiction as the result of the grant in the Constitution? I take it that the grant of the Constitution to Congress to regulate interstate commerce is unlimited. It can apply rules and laws as to that particular thing, which it does not necessarily have to make uniform throughout the country. It is a special grant, and Congress is not limited, according to the decisions of the Supreme Court, in exercising that authority. It is only limited as to the things that the Constitution says it shall not do. Article I, section 8, of the Constitution provides thatThe Congress shall have the power * to regulate commerce with foreign nations and among the several States.

*

In Gibbons v. Ogden (9 Wheat., 1) Chief Justice Marshall said: It is the power to regulate-that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.

They call this" class legislation." Many a thing is injured by the name given it rather than by the demerits of the thing itself.

The fourteenth amendment to the Constitution provides that "No State shall deny to any person within its jurisdiction the equal protection of the laws." And this is the ground upon which the opponents of this legislation base their constitutional objections, yet it has no reference whatever as to what Congress can do.

We have submitted this bill to our attorneys, and we submitted it to them with instructions that we wanted an opinion not with the view of pleasing or displeasing. We asked them several questions. One of them was, Could this bill be declared unconstitutional because it applied only to labor disputes? I will be glad to submit the opinion of the attorneys to the committee for its information. Our attorneys say that while the Supreme Court has passed upon the question of class legislation, all of those cases have grown out of State statutes, and in view of the special legislation which has already been passed in regard to injunctions in interstate commerce and in regard to patents, we think that we can reasonably contend that this bill is not unconstitutional.

The railroad rate bill which recently passed the House and is now pending in the Senate has in it several provisions which permit the courts to restrain certain acts of the carriers as between them and the shippers, and I fail to see how anyone can successfully differentiate, and in view of what has happened, in view of the action taken by