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8); Ford v. United States, 260 F. 657, 171 amended by Act Cong. Feb. 26, 1919 (Comp. St. § 1246), and Rev. St. § 1025 (Comp. St. C. C. A. 421 (C. C. A. 8). 1691).

[5] Upon this state of the record the question of the sufficiency of the evidence is not open to review by this court. The only questions open for review upon such a record are whether the complaint is sufficient to support the judgment, and whether the special findings support the judgment Bond v. Dustin, supra; Roberts v. Benjamin, 124 U. S. 64, 71, 8 S. Ct. 393, 31 L. Ed. 334; Shipman v. Straitsville Mining Co., 158 U. S. 356, 361, 15 S. Ct. 886, 39 L. Ed. 1015; Cudahy Packing Co. v. Sioux Nat. Bank, 75 F. 473, 21 C. C. A. 428 (C. C. A. 8); City of Cleveland v. Walsh Construction Co. (C. C. A.) 279 F. 57.

The allegations of the complaint heretofore given, and the findings of the referee adopted by the court, above set out, in our opinion, clearly show that both the complaint and the findings support the judgment. On the record submitted, we think there could not properly be, and we understand there is not, any contention to the contrary.

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In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.

Chester O. Hill was convicted of a crime, and he brings error. Affirmed.

June P. Wooten, of Little Rock, Ark. (J. E. Chambers and Wilson & Majors, all of Danville, Ark., and Hays, Priddy & Rorex, of Russellville, Ark., on the brief), for plaintiff in error.

Charles F. Cole, U. S. Atty., of Batesville, Ark., for the United States.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and 'JOHN B. SANBORN, District Judge.

JOHN B. SANBORN, District Judge. The plaintiff in error-defendant in the court below, and who will be so referred to in this opinion-was indicted by a grand jury sitting in the Eastern division of the Eastern district of Arkansas, for a crime committed in the Western division. The case was transferred for trial to the Western division, the court denied a motion to quash the indictment, and thereafter the defendant was tried, convicted, and sentenced by the court sitting in that division.

Only one assignment of error is relied upon, and that is that the court erred in overruling the defendant's motion to quash the indictment. The defendant contends that the grand jury was impaneled and sworn "as the grand inquest of the United States for the Eastern division of the Eastern district of Arkansas"; that its members were drawn exclusively from the Eastern division, and that therefore its jurisdiction was limited to crimes committed in that division alone. [1] The first matter to be considered is whether the question presented is properly before this court for review. No exception was taken by the defendant to the ruling of the court denying the motion to quash. [2] A motion to quash an indictment is addressed to the discretion of the court, and will ordinarily not be reviewed in an appellate court. In the case of United States v. Rosenburgh, 74 U. S. (7 Wall.) 580, 19 L. Ed. 263, the court said:

"The motion to quash, upon which the question now before us arose, was clearly determinable as a matter of discretion. It was

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preliminary in its character, and the denial of the motion could not finally decide any right of the defendant. The rule laid down by the elementary writers is, that 'a motion to quash is addressed to the sound discretion of the court, and if refused, is not a proper subject of exception.' When made in behalf of defendants, it is usually refused, unless in the clearest cases, and the grounds of it are left to be availed of, if available, upon demurrer or motion in arrest of judgment." The same view is expressed in United States v. Avery, 13 Wall. 251, 20 L. Ed. 610; United States v. Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. Ed. 857; Logan v. United States, 144 U. S. 263, 282, 12 S. Ct. 617, 36 L. Ed. 429; Durland v. United States, 161 U. S. 306, 314, 16 S. Ct. 508, 40 L. Ed. 709; McGregor v. United States, 134 F. 187, 69 C. C. A. 477; Goodfriend v. United States (C. C. A.) 294 F. 148; Lewis v. United States (C. C. A.) 295 F. 441; Carlisle v. United States, 194 F. 827, 114 C. C. A. 531. In the last case, which was decided by the Circuit Court of Appeals of the Fourth Circuit, the following language appears in the opinion:

"A motion to quash an indictment is addressed to the discretion of the court, and will not be reviewed in an appellate court, save only in cases where there has been such failure to properly exercise the judicial discretion as to cause real injustice."

To the same effect is the case of Stewart v. United States, 300 F. 769, an opinion of this court.

Even though it were held that the denial of the motion to quash the indictment in this case was such an abuse of discretion by the trial court that the question would be reviewed here, nevertheless it would not be properly before us, because no exception was taken to the ruling. Carlisle v. United States, supra; Edwards v. United States, 7 F.(2d) 357, a decision by this court, in which the following language appeared:

"None of the assignments of error raise questions based on rulings of the trial court duly excepted to. This court has repeatedly held that such assignments are unavailing. Short v. United States, 221 F. 248, 137 C. C. A. 104; Hoskins v. United States (C. C. A.) 4 F.(2d) 804; Feinberg v. United States (C. C. A.) 2 F.(2d) 955.”

[3,4] However, it may as well be said that, while the question is not free from doubt, and while the method used in drawing and impaneling the grand jury which returned this indictment is not to be commended and ought not to be followed, we see no reason to

depart from the conclusion reached by this court in the case of Shaw v. United States, 1 F. (2d) 199. It is and must be conceded that, under section 53 of the Judicial Code (Comp. St. § 1035), an indictment may be found in one division of a district for a crime committed in another division of the same district, provided the grand jury is impaneled for the entire district. Rosencrans v. United States, 165 U. S. 257, 17 S. Ct. 302, 41 L. Ed. 708; Salinger v. Loisel, 265 U. S. 224, 44 S. Ct. 519, 68 L. Ed. 989; Biggerstaff v. United States (C. C. A.) 260 F. 926; Shaw v. United States, supra.

The record in this case shows that the venire for this grand jury required that the members be summoned to come before "our District Court of the United States for the Eastern Division of the Eastern District of Arkansas, at the March term, A. D. 1925, thereof on Tuesday, the 10th day of March, 1925, at 11 o'clock in the forenoon of said day, at the United States District Court room in the city of Helena, Arkansas, as the grand inquest of the United States for the Eastern district of Arkansas." It was sworn and impaneled as "the grand inquest of the United States for the Eastern division of the Eastern district of Arkansas for the March term, 1925." The indictment in question, after reciting the venue as "United States of America, Eastern district of Arkansas," is entitled, "In the District Court of the United States, in and for the Eastern district aforesaid." This grand jury was not limited, in any way, to the consideration of crimes committed within the Eastern division alone, unless that limitation can be spelled from those portions of the record just referred to. We think it is apparent that this grand jury was summoned and impaneled in the manner usual in the Eastern district of Arkansas, and was regarded as the inquest for the investigation of crimes and offenses in that district as a whole. In one sense, it was the grand inquest for the division, because court was sitting in that division and the grand jurors were in attendance upon that term of court. To construe the statement in the order impaneling the jury that it was sworn as an inquest for the Eastern division, as limiting its powers to consideration of crimes committed in that division, would not be justified. The fact that the grand jurors themselves were drawn from counties in the Eastern division alone cannot affect the validity of the indictment. They were all competent to serve upon a grand jury for the entire district.

The defendant cites the cases of United

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States v. Beaugh (D. C.) 2 F. (2d) 378, and United States v. Tait (D. C.) 6 F.(2d) 942, in support of his contentions. In the first of those cases, it appears that the grand jury was selected and sworn to inquire for the division in which it was sitting alone. In the second case, the court said: "Here the indictment shows on its face that the grand jury was limited in its investigation to the Southern division." In this case it does not appear that the grand jury was limited to the consideration of crimes committed in the Eastern division.

That portion of the opinion of Judge Faris in the case of Shaw v. United States, supra, which states that some reliance may be placed upon the amended statute of jeofails, section 1025, Revised Statutes (Comp. St. § 1691), which provides that: "No indictment found and presented by a grand jury in any district (or circuit) or other court of the United States shall be deemed insufficient, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant" is criticised because of the decision of the Supreme Court of the United States in Crowley v. United States, 194 U. S. 461, 24 S. Ct. 731, 48 L. Ed. 1075, which held that the disqualification of a grand jury prescribed by

statute is a matter of substance which can not be regarded as a mere defect or imperfection within the meaning of section 1025, Revised Statutes.

[5] Attention may well be called to section 269 of the Judicial Code, as amended (40 Stat. p. 1181, c. 48 [Comp. St. § 1246]), which is much broader than section 1025, Revised Statutes. It provides: "On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before

the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." [6] The defendant could not have been prej udiced by the manner in which the grand jury was impaneled and sworn. The members would have less acquaintance with the case and less room for bias or prejudice than those who might have been drawn from the vicinity in which the crime was claimed to have been committed. The indictment was not evidence. It was a mere formal charge upon which the defendant was brought to trial, and had no bearing whatever upon the merits of the controversy.

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For the foregoing reasons, the judgment state commerce. and sentence is affirmed.

It will not be necessary to describe the

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relation of the many respondents (appellees) not reported. Opinions in these unreported beyond saying that the Brotherhood of cases were before us. Painters, Decorators, and Paperhangers extends throughout the United States. It is divided into district councils in various regions, composed of delegates from local unions, and these in turn have their own subdivisions. We shall, for convenience, refer to the group as "the union."

The rules here in question (articles 132 and 133 of the Union constitution) require that an employer of union labor, residing in one locality and doing work in another locality, shall select not less than fifty per cent. of his men from members of the union where the work is being done. They then require that his union employees, whether coming from a distant locality or residing in the locality of the work, shall demand the shorter work day and the higher wage scale prevailing in either locality.

These rules, as interpreted and enforced by the union, may be illustrated by the facts in this case, as follows: The Barker Painting Company (complainant below and appellant here), a New York corporation with headquarters in New York City, is engaged throughout the United States in the business of contracting painter. When it secures a contract, its practice is to send a foreman superintendent to the locality where the work is to be done. There he employs local painters-always members of the union-and proceeds with the work. On this occasion the complainant secured a contract for painting a building in Philadelphia, intending to meet the Union rules as to wages and hours of work in that district. The Philadelphia scale is $1.00 per hour, an 8-hour day and a 52-day week. The New York scale is $1.31 per hour, an 8-hour day and a 5-day week. The complainant's employees resident in Philadelphia, acting under pressure from their union, refused to work in Philadelphia at the Philadelphia scale of wages and hours and demanded the New York scale as to both. Hence this suit.

The learned trial court refused an injunction restraining enforcement of these rules, basing its judgment on several decisions of state courts, notably the Court of Errors and Appeals of New Jersey in New Jersey Paint ing Company v. Local No. 26 Brotherhood of Painters, 96 N. J. Eq. 632, 126 A. 399; the Superior Court of Rhode Island in George A. Douglas & Bro., Inc., v. Clarence Mallette et al., not reported; and the Court of Common Pleas No. 1, Philadelphia County, Pennsylvania, in H. Newton Marshal Company v. Brotherhood of Painters, etc., 15 F. (2d)-2

Opposed to these three decisions by state courts are decisions of three courts of the United States-Hass v. Local Union No. 17 Brotherhood of Painters (D. C.) 300 F. 894; Barker Painting Company v. Brotherhood of Painters (Supreme Court of the District of Columbia), not reported; and Barker Painting Co. v. Local No. 734 (District Court for the District of New Jersey) not reported.

All the cited state decisions are against injunctions; all the federal decisions favor injunctions. The learned trial court was inclined to the reasoning of the state decisions; and so are we, not because the respondents have shown that the rules are lawful, but, rather, because the complainant has failed to show that they are unlawful. [1] The theory on which the federal decisions were rendered is that the rules impose on the outside contractor an unjust discrimination and, in consequence, inflict an injury on the public in that they operate unfairly to restrain trade. The theory on which the state cases were decided initially, and necessarily, includes an admission that the rules work discrimination in some degree against the outside contractor, but it recognizes that it is not every discrimination that is unlawful. The courts in the latter cases restate what is now settled law, that employers have no vested interest in the labor of workers and that their workers have a right, individually and collectively, to lay down terms on which they will sell their labor for the highest return they can obtain, and when not satisfied, they have a right to strike. So long as they do this in their own interest, not with the purpose of assailing others, and do it in a manner not in itself unlawful, the courts will not interfere. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Mayer v. Journeymen Stonecutters Ass'n, 47 N. J. Eq. 531, 20 A. 492; My Maryland Lodge v. Adt, 100 Md. 238, 249, 59 A. 721, 68 L. R. A. 752; Bessert v. Dhuy, 221 N. Y. 342, 117 N. E. 582, Ann. Cas. 1918D, 661; National Protective Ass'n v. Cummings, 170 N. Y. 315, 321, 63 N. E. 369, 58 L. R. A. 135, 88 Am. St. Rep. 648; Toledo, etc., R. R. Co. v. Pennsylvania Co. (C. C.) 54 F. 730, 19 L. R. A. 387.

[2] Insistently urging that the rules in question and the manner of their enforcement by the Union are unjustly discriminatory against the complainant and all other employers similarly situated and operate to the injury of the public (United States v. Addystone

Pipe Co., 85 F. 271, 282, 29 C. C. A. 141, 46 L. R. A. 122; Oregon Steam Navigation Co. v. Winsor, 20 Wall. 64, 66, 22 L. Ed. 315), the complainant further urges that the rules are not made for any justifiable or, indeed, for any visible benefit to the laborers themselves except that thereby they may arbitrarily obtain higher wages in the given circumstances and that no ground or reason has even been intimated by the Union or its counsel justifying them. In this proceeding the burden of justifying the rules does not rest on the respondents; it is for the complainant, who pressed for a preliminary injunction before the answer was filed, to establish that the rules are unlawful by evidence sufficient to invoke that extraordinary remedy. While it is true the defendant union has not pointed out specific reasons for the rules, there is, perhaps, enough in the case to warrant these observations:

The Union is national in scope and operates through its local bodies. The general trend of its constitution and governing rules, obviously, is to coerce the employment of union labor everywhere. Other purposes, equally obvious, are to broaden employment and conform wages to economic conditions prevailing in different sections of the country.

[3-5] Under the rules in question the outside employer is free to take fifty per cent. of the laborers he may need from his home locality and put them at work in the distant locality. Then he is required to pay them the home rate, if higher. No one has complained of this. When he has taken some of his employees with him, he must employ the remainder at the place of the work. There the wage rate may be lower and the time of. labor longer. If he pay a higher rate to the home laborers and a lower rate to the local laborers, trouble will inevitably follow. May not the Union legislate against this occurrence? But, as here, the outside employer may, if he choose, take with him no home laborers and employ all of his men at the distant point where the work is to be done and where wages are lower and hours longer than in his home locality. May not the Union, national in scope, make laws for the protection of its members everywhere, that is, may it not prescribe that when an employer leaves his locality of higher wages and shorter hours and thereby conceivably leaves at home laborers unemployed, he must pay the home wage rate in the distant locality? In other words, may not the Union legislate for the continued employment of laborers in varied

localities at varied wage rates by providing rules that will measurably insure employment everywhere? Moreover, in large communities there is a more or less fixed labor supply. That labor supply, considered in respect to the local demand for labor and in respect to the local cost of living, determines the local wage rate and hours of labor. Obviously these factors vary in different communities. When thrown out of their relation one with another, that is, when thrown out of balance by influx of laborers and increase of work at one place, or a decrease of laborers and a decrease of work at another place, or transposing these factors, by an increase in one and a corresponding decrease in the other, might not confusion arise to the prejudice of workmen against which the Union may provide by rules? We advert to these possibilities, certainly not to express our views, nor to intimate sympathy with the rules-for assuredly we have none-nor to suggest arguments in their support or reasons justifying their promulgation, but merely to show that many variable and intangible factors inevitably enter into the situation, making the injunctive process of doubtful propriety and legality. It is a principle long recognized that the power to grant the extraordinary remedy of injunction should be exercised by courts with great caution and applied only in very clear cases. Truly v. Wanzer, 5 How. 141, 12 L. Ed. 88; Irwin v. Dixion, 9 How. 11, 13 L. Ed. 25; 14 R. C. L. 308, 341. Because of many unknown factors and the uncertainty of what would be the consequences to both employers and employees of a ruling of the nature sought by the complainant, the case is far from clear. Without doubt a distant employer may be confronted by a practical difficulty when, away from home, he comes against the respondent's rules, and, concededly, the difficulty, when occurring, amounts to discrimination against him in some degree. Yet the complainant has not convinced us that such discrimination, in kind and degree, is so unreasonable that it is unlawful and that, in consequence, it calls for relief by injunction. United States v. Addystone Pipe Co., 85 F. 271, 282, 29 C. C. A. 141, 46 L. R. A. 122; Oregon Steam Navigation Co. v. Winsor, 20 Wall. 64, 66, 22 L. Ed. 315; The Standard Oil Company of New Jersey et al. v. The United States, 221 U. S. 1, 31 S. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734; United States of America v. American Tobacco Co., 221 U. S. 106, 31 S. Ct. 632, 55 L. Ed. 663; American Tobacco

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