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quire this court to hold that the defendants acted some extent amended and consolidated into a longer within their legal rights.

In the last analysis of the findings, therefore, it appears that they declare that members of the organizations refused to work any longer (as they lawfully might); that they threatened to strike (which was also within their lawful right), but without any suggestion whatever in the findings that they threatened an illegal or unlawful act. And such findings are claimed to be sufficient to uphold a judgment that absolutely enjoins the defendant associations and their members from striking. This is certainly a long step in advance of any decision brought to my attention.

I have refrained from discussing the authorities, because it seemed necessary for the reason already stated in this opinion. But it seems not out of place to suggest that the decisions of the English courts upon questions affecting the rights of workmen ought, at least, to be received with caution, in view of the fact that the later ones are largely supported by early precedents which were entirely consistent with the policy of the statute law of Enland, but are hostile not only to the statute law of this country, but to the spirit of our institutions. In support of this view reference to a few early statutes of England will be made.

The Statutes (for there are two) of Labourers, passed in 1349 and 1350 (23 Edw. III, and 25 Edw. III, st. 1), provided: "That every man and woman of what condition he be, free or bond, able in body, and within the age of three score years," and not having means of his own, "if he in convenient service (his estate considered) be required to serve, he shall be bounden to serve him which so shall him require." And the statutes provide that in case of refusal to serve, punishment by imprisonment might be inflicted, and that the laborer should take the customary rate of wages and no more. These statutes not only regulated the wages of laborers and mechanics, but they confined them to their existing places of residence and required them to swear to obey the provisions of the statutes. Sir James Fitzjames Stephen in his History of the Criminal Law of England (vol. 3, page 204), says: "The main object of these statutes was to check the rise in wages consequent upon the great pestilence called the Black Death."

act, entitled "An act containing divers orders for artificers, laborers, servants of husbandry and apprentices." It provided, in effect, that all persons able to work as laborers or artificers and not possessed of independent means or other employments, are bound to work as artificers or laborers on demand. The hours of work are fixed; power is given to the justices in their next session after Easter to fix the wages to be paid to mechanics and laborers; elaborate rules are laid down as to apprenticeship, and it further provides that for the future no one is to "set up, occupy, use or exercise any craft, mystery or occupation now used" until he has served an apprenticeship of seven years (5 Eliz., c. 4). This statute remained in force practically for a long period of time and was not formally repealed until the year 1875.

In the year 1720 an act was passed declaring all agreements between journeymen tailors "for advancing their wages, or for lessening their usual hours of work" to be null and void, and subjecting persons entering into such an agreement to imprisonment with or without hard labor for two months (7 Geo. Ist, I, c. 13). Similar enactments were passed as to employes in other manufactures and trades.

The act of 1800 (40 Geo. III., c. 60) provided for a penalty of three months' imprisonment with

out hard labor or two months with hard labor for

every journeyman, workman or other person who

enters into any combination to obtain an advance of wages or lessen or alter the hours of work * * * or who hinders any employer from employing any person as he thinks proper, or who being hired refuses without any just or reasonable cause to work with any other journeyman or workman employed or hired to work." The same penalty is inflicted upon persons who attend meetings for the purpose of collecting money to further such effort, and the act also makes it an offense to assist in maintaining men who are on strike. This statute, as well as the others referred to, have at last been

swept away, but necessarily their influence has been not inconsiderable in shaping the decisions of the courts of England.

The order should be affirmed and judgment absolute ordered for defendants on the plaintiffs' stipulation, with costs.

GRAY, J.-I express my concurrence with the conclusion, which has been reached by the chief judge in his opinion, that the order of the Appellate Division should be affirmed.

Nearly 200 years later, and in 1548, a more general statute was passed which forbade all conspiracies and covenants of artificers, workmen or laborers, "not to make or do their work but at a certain price or rate," or for other similar purposes, under the penalty, on a third conviction, of the pillory and loss of an ear, and to "be taken as a man 'in- Briefly stated, my view is that the respondents famous" (2 and 3 Edw. VI, chap. 15). had the legal right to accomplish their object by Fourteen years later the prior statutes were to all methods not condemned by the law. That

is the same freedom to organize in an association with others of his craft, to further their common interests as workingmen, with respect to their wages, to their hours of labor, or to matters affecting their health and safety. They are free to secure the furtherance of their common interests in every way, which is not within the prohibition of some statute, or which does not involve the commission of illegal acts. The struggle on the part of individuals who prefer themselves, and to prevent the work which they are fitted to do from being given to others, may be keen and may have unhappy results in individual cases; but the law is not concerned with such results when not caused by illegal means

or acts.

I concur with the Chief Judge in his analysis of the decision of the trial court, and that the facts, as therein stated, do not compel the legal conclusion which the learned trial judge reached.

I vote for the affirmance of the order of the Appellate Division and for judgment absolute for defendants on the stipulation, with costs.

O'BRIEN, HAIGHT (and GRAY, J., in memorandum), concur with PARKER, Ch. J.; Bartlett and MARTIN, JJ., concur with VANN, J., who reads dissenting opinion.

Ordered accordingly.

object was to secure the employment of the mem-
bers of their own association, in preference to and
to the exclusion of those of the appellant associa-
tion. They infringed upon no law in declaring to
the employers of members of the appellant organ-
ization that they refused to work with them; or that
they would abandon their work unless the others
were discharged; or in preventing the members of
the appellant association from being employed as
steamfitters. The case is not within the principle
of Curran v. Galen (152 N. Y., 33). Upon the facts
of that case, as they were admitted by the demurrer
to the complaint, the plaintiff was threatened, if he
did not join a certain labor organization, and so
long as he refused to do so, with such action as
would result in his discharge from employment
and in an impossibility for him to obtain other
employment anywhere, and, in consequence of con-
tinuing his refusal to join the organization, his
discharge was procured through false and malicious
reports, affecting his reputation with members of
his trade and with employers. There is no such
compulsion or motive manifest here. There is no
malice found. There is no threat of a resort to
illegal methods. We may assume (and the evidence
would justify the assumption) that the action of
the respondents was based upon a proper motive,
relating to the employment of mechanics whose
competency and efficiency had been examined into
and approved. The contest is between rival labor
organizations, it is true. The respondents have
succeeded, through the threat that other workmen IN THE
would leave their work, if the members of the ap-
pellant organization were not discharged, in pro-
curing the employment of the members of their
own association. But no unlawful means were
taken; nor were any illegal acts committed in
bringing about that result. It was not an effort
to compel the members of the appellant organiza-
tion to join the respondents' association, as a con-
dition of being allowed to work. There is no
finding to that effect. On the contrary, it appears
that the appellant McQueed, having failed to pass
the required examnation to become a qualified
member of the respondents' association, proceeded
to organize an association of his own. Regarded
either as an effort to secure only the employment
of efficient and approved workmen, or as a mere
struggle for exclusive preference of employment,
on their own terms and conditions, from either
standpoint how can it be said to be within the
condemnation of the law, or of any statute, when
there was no force employed, nor any unlawful
act committed? Our laws recognize the absolute
freedom of the individual to work for whom he
chooses, with whom he chooses, and to make any
contract upon the subject that he chooses. There

INSULAR COURTS.

UNITED STATES DISTRICT COURT FOR
PORTO RICO.

In Chambers, February 7, 1902.

JOSEPH WENAR, Complainant, v. J. J. POHL,
Defendant.

OPINION.

This is a motion upon a bill filed for a temporary injunction to prevent the defendant from taking possession of certain premises by virtue of the action of the Insular District Court in a suit of Pohl against Wenar, brought in that court, and which action was had after that cause, by law, stood transferred to this court. Upon the filing of the bill a temporary restraining order was made in order to preserve the then status of the parties until the question of the right to an injunction could be fully heard. It has been fully and ably argued upon both sides, and the court has given to it much thought and a very extended examination of authorities. The provision in section 720 of the United States statutes forbidding a United States court from enjoining proceedings in a State court has no application where a case in fact stands

removed to the United States court. The Supreme Court of the United States has so held (22 Wall. 250; French v. Hay).

In such a case the jurisdiction of the United States court has attached and the parties to the suit are subject to its control.

It is true some cases hold that if a State court asserts jurisdiction and proceeds after the case stands legally removed to the United States court, the remedy of a party is by an appeal (undoubtedly he may pursue this course), and that it is not a proper exercise of the judicial power to enjoin the litigant from doing what the State court, although it no longer has jurisdiction, says he may do.

Upon the other hand, there are cases holding that the United States court in such a case may enjoin him and by provisional remedies protect the other party. In my opinion it should have, and has this power. If the case be a removable one and stands removed by the proper steps, then its jurisdiction over the parties has attached. If it be said the further action of the State or Insular Court is void by reason of no longer having jurisdiction, yet, if the party acting under it cannot be enjoined he may do irreparable injury. The action to enjoin is auxiliary to the other. The power exists to require either party to do or not to do any act that may defeat the relief this court may finally afford. It may issue any writ necessary to the exercise of its jurisdiction.

This view is supported by numerous cases, of which but few are cited: Coker v. Monaghan Mills, etc. (107 F. R.); French v. Hay (22 Wallace, 250); Kern v. Hudekeper (14 Otto, 494).

When the defendant in any action in the Insular Court, that is by law removable to the United States court, files and presents to that court his petition for removal containing the necessary jurisdictional averments, and files therewith a proper bond all of which he must do in a case like this before or when he is required to plead or answer it is the duty of the Insular Court to accept the petition and bond and proceed no further. Any further action by it is coram non judice. Its power ceases eo instante. The right of removal comes from the statute. The Insular Court cannot grant or deny it. It to no extent depends upon its volition. The State courts generally exercise the right to examine the records and determine if the statutory requirements have been complied with. They have, however, no right to try an issue of fact made by the petition, but they are at liberty to determine if upon the face of the record a removal has been affected, and the Insular Court may do so, but even this is reviewable by this court; and the decision of the State or Insular Court whether the case is removable is not binding upon this court and can

not limit its jurisdiction. If the case be a removable one it stands removed ipso facto when the proper petition and bond is presented to the Insular Court. It cannot defeat it by refusing to act. An order by it removing the case is quite proper, but not essential, and if it be not a removable case even its order removing it will not divest it of jurisdiction or confer it upon the United States court, nor will its order refusing it prevent it if it be a proper case. In short, its order cannot affect the jurisdiction of the United States court. The rule is very clearly stated in the case of the Burlington Railroad Company v. Dunn (122 U. S. 513), and this much has been said that it may be fully understood in this jurisdiction.

The crucial and troublesome question in this case is, was the case a removable one? If so, and the proper steps to that end were taken, then this court thereafter alone had jurisdiction, and all subsequent proceedings in the Insular Court were coram non judice. If not, then the injunction asked must be refused and the Pohl v. Wenar case remanded to the Insular Court.

The petition for removal avers the matter in dispute exceeds one thousand dollars, and that when the suit was begun and then, both the plaintiff and defendant were United States citizens. It is silent as to residence. The bill for an injunction is fuller; it avers both are citizens of the United States and residents of Porto Rico. Upon these averments of the petition for removal and upon this state of case was the cause a removable one?

The removal of causes from a State to a United States court, so common in the United States, is now and naturally seems novel to the insular courts in this jurisdiction, but section 34 of the act of congress of April 12, 1900, providing for civil government in Porto Rico expressly provides that the laws of the United States relative to the removal of causes as between the United States courts and the State courts shall apply as between this court and the courts of Porto Rico.

The practice in the United States of removing certain cases from the State to the United States court is an old one. It has existed from the formation of our government. The act of congress of 1789, commonly known as the "Judiciary Act" provided for it in certain cases. One of the grounds was that if the suit was by a citizen of the State where it was brought, and the defendant was a citizen of another State, the latter could transfer it, and if there were several plaintiffs all the necessary ones had to be citizens of the State in which the suit was brought, and all the necessary defendants had to be citizens of a different State or States. In 1866, the law was so amended that one or more of several defendants, aliens, or citizens of

States other than where the suit was brought might remove it as to them if it was a severable controversy. The act of congress of March 2, 1867, added a new class of removable cases. It gave the right on account of prejudice or local influence to the plaintiff or defendant, if they were citizens of different States. The act of March 3, 1875, gave the right to either the plaintiff or the defendant in all classes or cases where the right existed, and if the controversy was wholly between citizens of different States, one or more of either plaintiffs or defendants might remove the case. The act of March 3, 1887, amended by that of August, 13, 1888, and which is the law now in force, reversed the previous tendency of legislation to enlarge the right, restricted it in some respects, and, after providing in section I as to the original jurisdiction of the United States Circuit Courts which means when the court may entertain in the first instance the portion of section 2, volume 1, page 612, supplement to United States Revised Statutes, applicable to this case, says:

"SEC. 2. That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought in any State court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any State court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that State." Section I gives this court original jurisdiction concurrent with the State or Insular courts, of certain classes of causes, one of which is where there is a controversy between citizens of different States. Nothing in said in it as to jurisdiction by removal. It will be seen that by the first clause cited of section 2 the defendant may in certain causes of which the United States court has original jurisdiction by section 1, remove them to it from the State court without regard to the residence of he parties; but they do not include cases of diversity of citizenship. Then the second clause provides that any other cause of which the United States court has original jurisdiction by section I may be removed from the State court if the defendant be a non-resident.

A defendant can only remove a case upon the ground of citizenship when it is one of which this court has, by section I, original jurisdiction, and he is also a non-resident of the State (here Porto Rico) in which it has been brought.

Original jurisdiction by this court is one thing and jurisdiction by removal is another. To remove a cause the original jurisdiction required by section I may exist, it must be an action of the character named in it, and in addition the ground of removal provided in section 2 must also exist. The first may exist and there be no right of removal. The original jurisdiction is concurrent with the State or Insular Court, and the first court acquiring it continues to hold it. But, if in addition to this addition to this court's having original jurisdiction, the defendant be a non-resident he may remove the cause to this court. Being a non-resident he is not likely to have as much local influence as his adversary; will not have as fair a chance in the local court as in the United States court which is not so local in character. The fact that this court may have original jurisdiction is not alone sufficient, however, to authorize it to retain jurisdiction upon removal and it is now the settled construction of these two sections that although the United States court may have original jurisdiction of an action — jurisdiction is first brought therein — yet to remove it from the State or Insular Court the facts must bring it within the provisions of the second section (Smelting Co. v. Cowenhaven, 41 Fed. Rep. 450; Mills v. Newell, Item, 529; Long v. Long, 73 Fed. Rep. 369; Martin v. Snyder, 148 U. S.).

The act of congress of April 12, 1900, creating civil government in Porto Rico, commonly known as the Foraker Act, gave to this court the jurisdiction of both a United States District and Circuit Court, as then provided by law. By it the amount in dispute had to be as much as two thousand dollars, exclusive of interest and costs, in civil cases, and they of a certain character. Apart from this it also applied to this court the provisions of the United States law as to the removal of causes. March 2, 1901, the act was amended as follows:

On

"SEC.. 3. That the jurisdiction of the District Court of the United States for Porto Rico in civil causes shall, in addition to that conferred by the act of April twelfth, nineteen hundred, extend to and embrace controversies where the parties, or either of them, are citizens of the United States, or citizens or subjects of a foreign State or States, wherein the matter in dispute exceeds, exclusive of interest or costs, the sum of value of one thousand dollars." It is urged that this not only gave this court

original jurisdiction of cases involving but one thousand dollars where the parties, or either of them, were aliens or citizens of the United States but that it authorizes a removal of all such cases to the United States courts without regard to residence. Certainly it does not do so in letter. It is silent as to the removal of cases. It is said, however, this was the spirit and purpose of it. If so and section 3 applies to removals, then the jurisdiction of this court is, in effect, exclusive as to Americans and foreigners. This certainly was not intended. Resident Americans are by section 7, act of April 12, 1900, made a part of the body politic known by law as "The People of Porto Rico." As section I of the act of 1887 does one thing, to wit, fixes the jurisdiction of the United States court, and section 2 does another, to wit, provide when cases of which it has jurisdiction may be removed from the State courts, and as section 3 of the act of March 2, 1901, by its terms relates only to jurisdiction and says nothing of removals, it should be read into section 1 only and not be held to apply to section 2 relating to the removal of causes. It enlarged the original jurisdiction of this court but not its jurisdiction by removal. It is said the exigencies of existing conditions require a different rule. If so the legislative power will doubtless provide it. The court must accept the law as it finds it and hew to the line whether the chips fall upon the one side or the other. If, however, there be any court in the island in which justice is not dispensed to all residents alike, whatever their nationality, then the sooner the legislative power dispenses with that court the better.

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Now came Thomas D. Mott, Jr., and J. J. Pohl and moved the court to vacate the order entered herein on January 27, 1902, in the proceedings for contempt against them, and said parties being heard by their attorney, J. M. Keedy, and the grounds of said motion, which are filed, being considered, said motion is overruled and for these reasons, to wit.:

This court has the undoubted power to either suspend or expel an attorney for conduct unbecoming such an officer. Section 725 of the Revised Statutes of the United States does not take away this power.

It is also suggested a different construction was intended in order to fairly comply with article 11 of the Paris treaty under which Porto Rico was acquired; but that article only provides that the It was admitted upon the hearing of the proceedSpaniards here shall have the same rights in the ings against the defendants that defendant Mott not courts as the citizens of the country have to which only as an attorney advised the non-observance of the courts belong, and the construction now put the order of the court, but actually accompanied upon the law is in no way counter to such right. the defendant Pohl and helped to take possession The right of removal is altogether statutory. If of the property in contest in violation of the court's the jurisdiction by removal be doubtful it should order. This was conduct unbecoming in an attornot be exercised. The great majority of rights ney but not so aggravated as it would have been if, are to be settled in the State or Insular courts, and for instance, he had assisted in taking a prisoner when the United States court is doubtful of its juris-out of the custody of the marshal of this court and diction it should leave the matter to be settled where the jurisdiction is doubted. This is best for all, as otherwise the litigation might be long protracted the case be tried upon its merits, and after all this go to the Supreme Court of the United States, and end in naught by a reversal because this court took jurisdiction erroneously by removal (Johnson v. Wells, Fargo & Co., 91 Fed. Rep. 1).

hanging him; for which conduct the court would undoubtedly have power to either suspend or disbar him. Such a power is essential to the proper existence of the court and the character and standing of its bar. Upon the presentation of the bill for injunction in the Wenar v. Pohl case the court did not grant it. It desired time to consider the question, deeming it an important one and having doubts as to jurisdiction. It appearing from the

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