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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 thereto."
Judge McFarland, who delivered the opinion of the court, touched on this contention, as well as on the other points of law involved, in the course of his remarks, from which the following is quoted:
We think that the complaint clearly states facts sufficient to constitute the cause of action alleged. It is not necessary here to undertake to define the limits within which a number of persons conspiring for the purpose of injuring the business of another may legally do acts tending to accomplish that result. It is a verred in the complaint that in the case at bar, and for the purpose above stated, and with intent to threaten and intimidate employees and patrons and customers of plaintiff, the said defendants do keep immediately in front of plaintiff's place of business, and threaten to so keep there, representatives and pickets bearing the placards and transparencies above set forth,
said means they have intimidated patrons and customers of plaintiff from entering said place of business, and will, if not restrained, continue to so intimidate the said patrons. It can not be successfully contended that the said acts of defendants committed immediately in front of plaintiff's place of business as aforesaid could not, in the nature of things, have had the effect of intimidating plaintiff's patrons, and, as it is averred that they did have that .effect, the fact of such intimidation must, for the purposes of this case, be considered as established; and such acts, having such effect, undoubtedly interfered with and violated plaintifl's constitutional right to acquire, possess, defend, and enjoy property. (Cases cited.]
Appellants make the bare statement, without argument, tnat "an injunction in this case is also specifically forbidden by Pen. Code, p. 581.". The section of an act of the legislature there referred to (Act March 20, 1903; St. 1903, c. 235, p. 289) is somewhat difficult of construction; but, in the first place, it can not, in our opinion, be construed as undertaking to prohibit a court from enjoining the main wrongful acts charged in the complaint in this action, and, in the second place, if it could be so construed, it would to that extent be void, because violative of plaintiff's constitutional right to acquire, possess, enjoy and protect property.
It is contended by appellants that the judgment rendered in this case is too comprehensive, and enjoins them from doing some acts which are not within the averments of the complaint, or within the principle, even if conceded to be correct, upon which the court below based its conclusion. We think that this contention must be sustained, to the extent, at least, as is hereinafter stated. Some parts of the judgment seem to enjoin the appellant from a mere expression of an opinion at any time or place as to plaintiff and its business, which
ould, at the worst, consist only of slander, which could not be reached in this form of action and seem to restrain them from doing other things Thich do not appear to be connected with or incidental tai lunin wts and threatened acts done at and in front of plainTad plass of business as above stated. The judgment must
Core ber shodified so as to eliminate those objectionable parts. The judgment after the first paragraph thereof, is amended and Milied,
store as follows: "Now, therefore, it is ordered, adjudged, and decreed that the Stablemen's Union, Local No. 8,760, of San Francisco, T. F. Finn, T. J. White, and all and each of the defendants herein, and each of their officers, members, agents, clerks, attorneys, and servants, be, and they are hereby, enjoined and restrained from interfering with, or harrassing, or obstructing plaintiff in the conduct of its business at any of its said places of business No. 432 Pine street, No. 232 Sutter street, and No. 965 Sutter street, in the city and county of San Francisco, State of California, by causing any agent or agents, representative or representatives, or any picket or pickets, or any person or persons, to be stationed in front of or in the immediate vicinity of said places of business with a placard of [or] transparency having on it the words and figures as alleged in the complaint herein, or any placard or transparency (having words or figures) of similar import, and from, at said places of business, or in front thereof, or in the immediate vicinity thereof, by means of pickets or transparencies, or otherwise, threatening or intimidating any person or persons transacting or desiring to transact business with said plaintiff, or being employed at said place or places by the plaintiff.” And as thus amended and modified the judgment will stand affirmed.
CONTRACT LABOR-ALIENS-CONSTRUCTION OF STATUTE- United States v. Aultman Company, United States District Court, Northern District of Ohio, Eastern Division, 143 Federal Reporter, page 922.The Aultman Company was charged with a violation of the contract labor law, chapter 1012, 32 Stat., 1214; U. S. Comp. St. Supp. 1905, p. 277. The claim was made that the defendant, in violation of that law, solicited and procured the importation of one Hermann, an alien, from Canada. It appeared on examination that Ilermann was of German descent, having come to this country at the age of 17 years, and had remained here ever since, with the exception of about two weeks spent in Canada working at his trade. Ile had never been naturalized, and the prosecution charged that to secure his return to take employment again in the United States was a violation of the law named. The court ruled to the contrary, however, and directed a verdict for the defendant. The grounds for the action appear in the opinion as quoted below.
Judge Tayler, speaking for the court, first took up the question as to the kind of persons, measured by employment, to whom the law in its original scope and purpose applied. He cited first the case of Holy Trinity Church v. United States, 143 U. S., 457, 12 Sup. Ct., 511, involving the admission of a clergyman, under contract with a church in New York, and quoted from Judge Brewer, who delivered the opinion in that case, as follows:
“Again, another guide to the meaning of a statute is found in the evil which it is designed to remedy; and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body. The situation which called for this statute was briefly, but fully, stated by Mr. Justice Brown when, as district judge, he decided the case of United States v. Craig (Ć. C.) 28 Fed. 795, 798: “The motives and history of the act are matters of common knowledge. It had become the practice for large capitalists in this country to contract with their agents abroad for the shipment of great numbers of an ignorant and servile class of foreign laborers, under contracts, by which the employer agreed, upon the one hand, to prepay their passage, while, upon the other hand, the laborers agreed to work after their arrival for a certain time at low wages. The effect of this was to break down the labor market, and to reduce other laborers engaged in like occupation to the level of the assisted immigant. The evil finally became so flagrant that an appeal was made to Congress for relief by the passage of the act in question, the design of which was to raise the standard of foreign immigrants, and to discountenance the migration of those who had not sufficient means in their own hands, or those of their friends, to pay their passage.'
“We find, therefore, that the title of this act, the evil which was intended to be remedied, the circumstances surrounding the appeal to Congress, the reports of the committee of each house, all concur in affirming that the intent of Congress was simply to stay the influx of this cheap unskilled labor.”
Judge Tayler then said:
Now I must confess that, having read so much of that opinion, I could not escape the conviction that the Supreme Court of the United States would have greater difficulty in excluding from the language of that act a minister than it would have to exclude a person like Hermann from the act. It seems to me that the reason that was applied by the Supreme Court in that case would apply with double force to the case that we have here; and to that conclusion, subject to further reflection and the argument that might be presented, I had come when my attention was called to what I had not had time to find these cases where the United States courts have held, both in a contract labor case and in other cases where the definition of the persons who were included within this act was made, that a person who had come into this country, who had migrated to this country, had become a part of the wage-earning body of this country, in a sense had assimilated to our society, who, in a word, had become a resident and domiciled here, although not naturalized, could not be said to be a person with whom to make such a contract as here charged would be to violate this contract labor law. But we find that in many instances the courts have so held.
In re Maiola (C. C.) 67 Fed., 114, Judge Lacombe held, as it is stated in the syllabus:
"The statutes of the United States relating to the exclusion of contract laborers, including the act of March 3, 1891, making the decision of the immigration officers final as to the right of such laborers to land, are directed solely against alien immigrants, not against alien residents returning after a temporary absence; and the courts, therefore, have power, upon habeas corpus, to inquire whether one who is refused admission to the country by the immigration officers is or is not an immigrant, and so within the jurisdiction of such officers.
“An unmarried man, who has immigrated to the United States in 1892, with the intention of making his home there, has remained about two years, working at his trade, and then, being taken ill, has returned to his native country, remained about ten months, doing no work, and then in 1895 returns to the United States—is not an immigrant on his return in 1895."
Citations were also made from In re Panzara et al., 51 Fed., 275; In re Martorelli, 63 Fed., 437, and In re Ota, 96 Fed., 487. of the same tenor, and the following conclusions were reached:
I must differ from these several judges who have defined this law and declared that such a person is not within the terms of the law, if I find that Hermann comes within it.
The facts in this case are infinitely stronger than the facts in any of the cases from which I have just quoted. In this case nobody would pretend that Hermann ever intended to go back to Germany to live, or that he was any less absorbed into the body of American workmen than anybody who had always lived here. From the age of 17 to 30 he had worked in this country; and, then, because he had been working as a strike-breaker, he went to Canada to help break a strike there, and there remained, as he said, a short time, two weeks, when he was called upon to assist in breaking a strike down at Canton. Now, was he an immigrant when he came over from Canada? Could the immigrant officers have stopped him? The unbroken current of authority is that he was not an immigrant within the meaning of this statute. I doubt if he would be an immigrant within the meaning of any statute. If he belonged anywhere, he belonged in this country, whatever technical relation he may have sustained to the Emperor of Germany.
Counsel refers to the fact that he was a strike-breaker, and that they are the kind of people that this legislation was intended to keep out. It is not worth while to discuss whether the work of the strike-breaker is virtuous, or the contrary. The legislation was not intended to touch the case of strike-breakers in the sense in which that argument was made. It was intended to reach strike-breakers, in the way of cheaper labor coming here at lower wages, as it would demoralize labor here, and most seriously and grievously affect the well-being of this country. But it was not intended to touch strikebreakers in the sense in which these men were strike-breakers, whatever we may think of such a trade, if there is such a trade.
The last of the four cases defining an alien immigrant was decided December 1, 1899. Since that time the law has been amended, especially by the act of March 3, 1903; and it is a familiar principle that when a certain construction has been given to a statute, especially when its general language has been qualified and subsequent legislation has not undertaken to change the language so as to meet with the judicial definition, added persuasiveness is given to the construction of the law which the courts have put upon it. That is to say, if Congress intended to give a wider application to the law than the courts had given it, it is reasonable to assume that it would have so legislated when it came to amend the law after the decisions were made public.
EMPLOYERS' LIABILITY-EMPLOYMENT CHILDREN-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE- Nairn V. National Biscuit Company, Kansas City (Missouri), Court of Appeals, 96 Southwestern Reporter, page 679.-This case was before the Kansas City court of appeals on appeal from the circuit court of Jackson County, in which Joseph Nairn, a minor, had secured judgment for damages on account of an injury received by him while in the employment of the defendant company. Nairn, who was about fifteen years of age, was engaged, at the time he received his injury, in attending a roller for the reduction of sheets of molasses caramel to the desired thickness. While thus employed his hand was caught and drawn between the rollers, inflicting the injury complained of.
The court of appeals sustained the ruling of the court below, on grounds that appear in the following quotation, taken from the opinion of the court as delivered by Judge Broaddus:
The theory of the defendant is that there was no negligence shown on the part of the defendant company, and that as plaintiff's injury was the result of his own careless act, the court committed error in not sustaining its demurrer to the evidence. But the defendant has assumed too much. The plaintiff's suit was instituted upon the theory that defendant in putting him to work on the machinery in question did an unlawful act, and therefore an act of negligence. Section 6434, Rev. St. 1899, provides that no minor shall be required to“work between the fixed or traversing parts of any machine, while it is in motion by the action of steam, water or other mechanical power.” The act of defendant in requiring plaintiff, a minor, to work at said machinery, it being the kind interdicted by the statute as unsafe to minors and women, was an act of negligence. (Lore v. American Manufacturing Company, 160 Mo. 608, 61 S. W. 678; Bair v. Ileibel, 103 Mo. App. 621,77 S. W. 1017.)
The fact of defendant's negligence being established, the question arises whether there was such contributory negligence on the part of plaintiff as should prevent him from recovering. As we look at the evidence in relation to the character of the machinery, the material manufactured, and the manner in which the machinery was managed by the operator, we have come to the conclusion that its operation was attended with much danger and that consequently great care was required of the workman intrusted with its operation. We conclude that an injury like that of plaintiff is a danger incident to the business, notwithstanding the person engaged in the work may be using the care and caution of a person of ordinary caution. The slightest diversion of the mind from the work in hand may cause the hand of the workman to come in contact with the rollers which will usually result in injury.
The defendant's answer, among other things, alleges that plaintiff's injury occurred as an incident to the business. But it is no defense. When defendant violated the law by requiring plaintiff to work at the machinery in question, it assumed all the risks of danger to the latter. It is not logical nor just to permit the defense to prevail under such circumstances. Its obvious inconsistency needs only to be stated to be controverted and overturned. (Stafford v. Adams, 113 Mo. App.