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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.

act, entitled An act containing divers orders for In the last analysis of the findings, therefore, it artificers, laborers, servants of husbandry and apappears that they declare that members of the or- prentices.” It provided, in effect, that all persons ganizations refused to work any longer (as they able to work as laborers or artificers and not poslawfully might); that they threatened to strike sessed of independent means or other employments, (which was also within their lawful right), but with- are bound to work as artificers or laborers on deout any suggestion whatever in the findings that mand. The hours of work are fixed; power is given they threatened an illegal or unlawful act. And to the justices in their next session after Easter to such findings are claimed to be sufficient to uphold fix the wages to be paid to mechanics and laborers; a judgment that absolutely enjoins the defendant elaborate rules are laid down as to apprenticeship, associations and their members from striking. This and it further provides that for the future no one is certainly a long step in advance of any decision is to “set up, occupy, use or exercise any craft, brought to my attention.

mystery or occupation now used” until he has I have refrained from discussing the authorities, served an apprenticeship of seven years (5 Eliz., c. because it seemed necessary for the reason already 4). This statute remained in force practically for stated in this opinion. But it seenis not out of place a long period of time and was not formally repealed to suggest that the decisions of the English courts until the year 1875. upon questions affecting the rights of workmen In the year 1720 an act was passed declaring all ought, at least, to be received with caution, in view agreements between journeymen tailors for adof the fact that the later ones are largely supported vancing their wages, or for lessening their usual by early precedents which were entirely consistent hours of work” to be null and void, and subjecting with the policy of the statute law of Enland, but persons entering into such an agreement to imare hostile not only to the statute law of this coun- prisonment with or without hard labor for two try, but to the spirit of our institutions. In support months (7 Geo. ist, I, c. 13). Similar enactments of this view reference to a few early statutes were passed as to employes in other manufactures of England will be made.

and trades. The Statutes (for there are two) of Labourers,

The act of 1800 (40 Geo. III., c. 60) provided passed in 1349 and 1350 (23 Edw. III, and 25 Edw. for a penalty of three months' imprisonment withIII, st. 1), provided: “ That every man and woman out hard labor or two months with hard labor for of what condition he be, free or bond, able in body,

every journeyman, workman or other person who and within the age of three score years," and not

enters into any combination to obtain an advance having means of his own, “ if he in convenient ser- of wages or lessen or alter the hours of work vice (his estate considered) be required to serve,

or who hinders any employer from emhe shall be bounden to serve him which so shall ploying any person as he thinks proper, or who him require.” And the statutes provide that in being hired refuses without any just or reasonable case of refusal to serve, punishment by imprison

cause to work with any other journeyman or workment might be inflicted, and that the laborer should

man employed or hired to work.” The same pentake the customary rate of wages and no more. alty is inflicted upon persons who attend meetings These statutes not only regulated the wages of for the purpose of collecting money to further such laborers and mechanics, but they confined them to effort, and the act also makes it an offense to assist their existing places of residence and required them in maintaining men who are on strike. This statute, to swear to obey the provisions of the statutes. Sir

as well as the others referred to, have at last been James Fitzjames Stephen in his History of the swept away, but necessarily their influence has been Criminal Law of England (vol. 3, page 204), says: not inconsiderable in shaping the decisions of the " The main object of these statutes was to check the

courts of England. rise in wages consequent upon the great pestilence

The order should be affirmed and judgment abcalled the Black Death."

solute ordered for defendants on the plaintiffs' Nearly 200 years later, and in 1548, a more general stipulation, with costs. statute was passed which forbade all conspiracies and covenants of artificers, workmen or laborers, Gray, J.- I express my concurrence with the

not to make or do their work but at a certain conclusion, which has been reached by the chief price or rate," or for other similar purposes, under judge in his opinion, that the order of the Appellate the penalty, on a third conviction, of the pillory and Division should be affirmed. 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

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object was to secure the employment of the mem- is the same freedom to organize in an association bers of their own association, in preference to and with others of his craft, to further their common to the exclusion of those of the appellant associa- interests as workingmen, with respect to their tion. They infringed upon no law in declaring to wages, to their hours of labor, or to matters affectthe employers of members of the appellant organ- | ing their health and safety. They are free to secure ization that they refused to work with them; or that the furtherance of their common interests in every tiiey would abandon their work unless the others way, which is not within the prohibition of some were discharged; or in preventing the members of statute, or which does not involve the commission tie appellant association from being employed as of illegal acts. The struggle on the part of individsteamfitters. The case is not within the principle uals who prefer themselves, and to prevent the work of Curran v. Galen (152 N. Y., 33). Upon the facts which they are fitted to do from being given to of that case, as they were admitted by the demurrer others, may be keen and may have unhappy results to the complaint, the plaintiff was threatened, if he in individual cases; but the law is not concerned did not join a certain labor organization, and so with such results when not caused by illegal means long as he refused to do so, with such action as or acts. would result in his discharge from employment I concur with the Chief Judge in his analysis of and in an impossibility for him to obtain other the decision of the trial court, and that the facts, employment anywhere, and, in consequence of con- as therein stated, do not compel the legal conclutinuing his refusal to join the organization, his sion which the learned trial judge reached. discharge was procured through false and malicious I vote for the affirmance of the order of the reports, affecting his reputation with members of Appellate Division and for judgment absolute for his trade and with employers. There is no such defendants on the stipulation, with costs. compulsion or motive manifest here. There is no

O'BRIEN, HAIGHT (and GRAY, J., in memoranmalice found. There is no threat of a resort to dum), concur with Parker, Ch. J.; BARTLETT and illegal methods. We may assume (and the evidence Martin, JJ., concur with VANN, J., who reads diswould justify the assumption) that the action of

senting opinion. the respondents was based upon a proper motive,

Ordered accordingly. relating to the employment of mechanics whose competency and efficiency had been examined into and approved. The contest is between rival labor

INSULAR COURTS. organizations, it is true. The respondents have succeeded, through the threat that other workmen IN UNITED STATES DISTRICT COURT would leave their work, if the members of the ap- |

Porto Rico. pellant organization were not discharged, in pro

In Chambers, February 7, 1902. curing the employment of the members of their own association. But no unlawful means

JOSEPH WENAR, Complainant, v. J. J. Pohl, taken; were any illegal acts committed in

Defendant. bringing about that result. It was not an effort to compel the members of the appellant organiza

OPINION. tion to join the respondents' association, as a condition of being allowed to work, There is no This is a motion upon a bill filed for a temporary finding to that effect. On the contrary, it appears injunction to prevent the defendant from taking that the appellant McQueed, having failed to pass possession of certain premises by virtue of the the required examnation to become a qualified action of the Insular District Court in a suit of member of the respondents' association, proceeded Pohl against Wenar, brought in that court, and to organize an association of his own. Regarded which action was had after that cause, by law, stood either as an effort to secure only the employment transferred to this court. Upon the filing of the bill of efficient and approved workmen, or as a mere a temporary restraining order was made in order struggle for exclusive preference of employment, to preserve the then status of the parties until the on their own terms and conditions, from either question of the right to an injunction could be standpoint how can it be said to be within the fully heard. It has been fully and ably argued upon condemnation of the law, or of any statute, when both sides, and the court has given to it much there was no force employed, nor any unlawful thought and very extended examination of act committed? Our laws recognize the absolute authorities. The provision in section 720 of the freedom of the individual to work for whom he United States statutes forbidding a United States chooses, with whom he chooses, and to make any court from enjoining proceedings in a State court contract upon the subject that he chooses. There has no application where a case in fact stands

THE

FOR

were

nor

a

removed to the United States court. The Supreme not limit its jurisdiction. If the case be a removable Court of the United States has so held (22 Wall. one it stands removed ipso facto when the proper 250; French v. Hay).

petition and bond is presented to the Insular Court. In such a case the jurisdiction of the United It cannot defeat it by refusing to act. An order by States court has attached and the parties to the it removing the case is quite proper, but not essensuit are subject to its control.

tial, and if it be not a removable case even its order It is true some cases hold that if a State court removing it will not divest it of jurisdiction or asserts jurisdiction and proceeds after the case confer it upon the United States court, nor will its stands legally removed to the United States court, order refusing it prevent it if it be a proper case. the remedy of a party is by an appeal (undoubtedly In short, its order cannot affect the jurisdiction of he may pursue this course), and that it is not a the United States court. The rule is very clearly proper exercise of the judicial power to enjoin the stated in the case of the Burlington Railroad Comlitigant from doing what the State court, although pany v. Dunn (122 U. S. 513), and this inuch has it no longer has jurisdiction, says he may do. been said that it may be fully understood in this

Upon the other hand, there are cases holding that jurisdiction. the United States court in such a case may enjoin The crucial and troublesome question in this case him and by provisional remedies protect the other is, was the case a removable one? If so, and the party. In my opinion it should have, and has this proper steps to that end were taken, then this court power. If the case be a removable one and stands thereafter alone had jurisdiction, and all subsequent removed by the proper steps, then its jurisdiction proceedings in the Insular Court were coram non over the parties has attached. If it be said the judice. If not, then the injunction asked must be further action of the State or Insular Court is void refused and the Pohl v. Wenar case remanded to by reason of no longer having jurisdiction, yet, if the Insular Court. the party acting under it cannot be enjoined he The petition for removal avers the matter in dismay do irreparable injury. The action to enjoin is pute exceeds one thousand dollars, and that when auxiliary to the other. The power exists to require the suit was begun and then, both the plaintiff and either party to do or not to do any act that may defendant were United States citizens. It is silent defeat the relief this court may finally afford. It as to residence. The bill for an injunction is fuller; may issue any writ necessary to the exercise of its it avers both are citizens of the United States and jurisdiction.

residents of Porto Rico. Upon these averments This view is supported by numerous cases, of of the petition for removal and upon this state of which but few are cited: Coker v. Monaghan Mills, case was the cause a removable one? etc. (107 F. R.); French v. Hay (22 Wallace, 250); The removal of causes from a State to a United Kern v. Hudekeper (14 Otto, 494).

States court, so common in the United States, is When the defendant in any action in the Insular | now and naturally seems novel to the insular courts Court, that is by law removable to the United States in this jurisdiction, but section 34 of the act of concourt, files and presents to that court his petition gress of April 12, 1900, providing for civil governfor removal containing the necessary jurisdictional ment in Porto Rico expressly provides that the averments, and files therewith a proper bond - all laws of the United States relative to the removal of of which he must do in a case like this before or causes as between the United States courts and the when he is required to plead or answer - it is the State courts shall apply as between this court and duty of the Insular Court to accept the petition the courts of Porto Rico. and bond and proceed no further. Any further The practice in the United States of rem

emoving action by it is coram non judice. Its power ceases certain cases from the State to the United States eo instante. The right of removal comes from the court is an old one. It has existed from the formastatute. The Insular Court cannot grant or deny tion of our government. The act of congress of it. It to no extent depends upon its volition. The 1789, commonly known as the “ Judiciary Act" proState courts generally exercise the right to exam- vided for it in certain cases. One of the grounds ine the records and determine if the statutory was that if the suit was by a citizen of the State requirements have been complied with. They have, where it was brought, and the defendant was a however, no right to try an issue of fact made by citizen of another State, the latter could transfer it, the petition, but they are at liberty to determine if and if there were several plaintiffs all the necessary upon the face of the record a removal has been ones had to be citizens of the State in which the affected, and the Insular Court may do so, but even suit was brought, and all the necessary defendants this is reviewable by this court; and the decision of had to be citizens of a different State or States. the State or Insular Court whether the case is In 1866, the law was so amended that one removable is not binding upon this court and can- more of several defendants, aliens, or citizens of

or

States other than where the suit was brought might A defendant can only remove a case upon the remove it as to them if it was a severable contro- ground of citizenship when it is one of which this versy. The act of congress of March 2, 1867, added court has, by section 1, original jurisdiction, and he a new class of removable cases. It gave the right is also a non-resident of the State (here Porto Rico) on account of prejudice or local influence to the in which it has been brought. plaintiff or defendant, if they were citizens of Original jurisdiction by this court is one thing different States. The act of March 3, 1875, gave and jurisdiction by removal is another. To remove the right to either the plaintiff or the defendant in a cause the original jurisdiction required by secall classes or cases where the right existed, and if tion i may exist, it must be an action of the charthe controversy was wholly between citizens of acter named in it, and in addition the ground of different States, one or more of either plaintiffs or removal provided in section 2 must also exist. The defendants might remove the case. The act of first may exist and there be no right of removal. March 3, 1887, amended by that of August, 13, The original jurisdiction is concurrent with the 1888, and which is the law now in force, reversed State or Insular Court, and the first court acquirthe previous tendency of legislation to enlarge the ing it continues to hold it. But, if in addition to right, restricted it in some respects, and, after pro- this addition to this court's having original jurisviding in section i as to the original jurisdiction of diction, the defendant be a non-resident he may the United States Circuit Courts which means remove the cause to this court. Being a non-resiwhen the court may entertain in the first instance - dent he is not likely to have as much local influence the portion of section 2, volume I, page 612, sup- as his adversary; will not have as fair a chance in plement to United States Revised Statutes, applic- the local court as in the United States court which able to this case, says:

is not so local in character. The fact that this “Sec. 2. That any suit of a civil nature, at

court may have original jurisdiction is not alone law or in equity, arising under the Constitution sufficient, however, to authorize it to retain juris

diction or laws of the United States, or treaties made,

removal and it is now the settled

upon or which shall be made, under their authority, construction of these two sections that although the of which the circuit courts of the United States United States court may have original jurisdiction are given original jurisdiction by the preceding

of an action — jurisdiction is first brought therein section, which may now be pending, or which yet to remove it from the State or Insular Court may hereafter be brought in any State court, the facts must bring it within the provisions of the may be removed by the defendant or defendants second section (Smelting Co. v. Cowenhaven, 41 therein to the circuit court of the United Fed. Rep. 450; Mills v. Newell, Item, 529; Long v. States for the proper district. Any other suit Long, 73 Fed. Rep. 369; Martin v. Snyder, 148

U. S.). of a civil nature, at law or in equity, of which the circuit courts of the United States are given

The act of congress of April 12, 1900, creating jurisdiction by the preceding section, and which civil government in Porto Rico, commonly known are now pending, or which may hereafter be as the Foraker Act, gave to this court the jurisbrought, in any State court, may be removed diction of both a United States District and Circuit into the circuit court of the United States for Court, as then provided by law. By it the amount the proper district by the defendant or defend- in dispute had to be as much as two thousand

ants therein, being non-residents of that State.” dollars, exclusive of interest and costs, in civil cases, Section I gives this court original jurisdiction

and they of a certain character. Apart from this it

also applied to this court the provisions of the concurrent with the State or Insular courts, of cer

United States law as to the removal of causes.

On tain classes of causes, one of which is where there is a controversy between citizens of different States. March 2, 1901, the act was amended as follows: Nothing in said in it as to jurisdiction by removal. SEC.. 3. That the jurisdiction of the District It will be seen that by the first clause cited of sec- Court of the United States for Porto Rico in tion 2 the defendant may in certain causes of which civil causes shall, in addition to that conferred the United States court has original jurisdiction by by the act of April twelfth, nineteen hundred, section 1, remove them to it from the State court

extend to and embrace controversies where the without regard to the residence of he parties; but

parties, or either of them, are citizens of the they do not include cases of diversity of citizenship.

United States, or citizens or subjects of a Then the second clause provides that any other foreign State or States, wherein the matter in cause of which the United States court has original dispute exceeds, exclusive of interest or costs, jurisdiction by section I may be removed from the the sum of value of one thousand dollars." State court if the defendant be a non-resident. It is urged that this not only gave this court

original jurisdiction of cases involving but one The petition for removal of the action of J. J. thousand dollars where the parties, or either of Pohl against Joseph Wenar did not aver necessary them, were aliens or citizens of the United States jurisdictional facts, and they are shown by the bill but that it authorizes a removal of all such cases to for an injunction not to exist, and it must, therethe United States courts without regard to resi-fore, be refused, and said action be remanded to dence. Certainly it does not do so in letter. It is the San Juan District Court. All of which will be silent as to the removal of cases. It is said, how done by proper orders of this court at the cost of ever, this was the spirit and purpose of it. If so said Wenar. and section 3 applies to removals, then the jurisdic

WM. H. Holt, tion of this court is, in effect, exclusive as to

Judge. Americans and foreigners. This certainly was not Copy attest: intended. Resident Americans are by section 7,

Ricardo Nadal, Clerk, by H. H. Scoville, act of April 12, 1900, made a part of the body

Deputy. politic known by law as The People of Porto Rico.” As section 1 of the act of 1887 does one

IN THE UNITED STATES DISTRICT COURT FOR thing, to wit, fixes the jurisdiction of the United

Porto Rico. States court, and section 2 does another, to wit,

FEBRUARY 17, 1902. provide when cases of which it has jurisdiction

Present — The Hon WM. H. Holt, Judge. 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

JOSEPH WENAR V. J. J. Pohl. removals, it should be read into section i only and not be held to apply to section 2 relating to the

CONTEMPT PROCEEDINGS, ETC. removal of causes. It enlarged the original jurisdiction of this court but not its jurisdiction by

ORDER. removal. It is said the exigencies of existing con- Now came Thomas D. Mott, Jr., and J. J. Pohl ditions require a different rule. If so the legis- and moved the court to vacate the order entered lative power will doubtless provide it. The court herein on January 27, 1902, in the proceedings for must accept the law as it finds it and hew to the line contempt against them, and said parties being whether the chips fall upon the one side or the heard by their attorney, J. M. Keedy, and the other. If, however, there be any court in the island grounds of said motion, which are filed, being conin which justice is not dispensed to all residents sidered, said motion is overruled and for these alike, whatever their nationality, then the sooner reasons, to wit.: the legislative power dispenses with that court the This court has the undoubted power to either better.

suspend or expel an attorney for conduct unbecomIt is also suggested a different construction was ing such an officer. Section 725 of the Revised intended in order to fairly comply with article 11 Statutes of the United States does not take away of the Paris treaty under which Porto Rico was

this power. 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 is, 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 it's juris- 'out of the custody of the marshal of this court and diction it should leave the matter to be settled hanging him; for which conduct the court would where the jurisdiction is doubted. This is best for undoubtedly have power to either suspend or disbar all, as otherwise the litigation might be long pro- 'him. Such a power is essential to the proper existtracted — the case be tried upon its merits, and ence of the court and the character and standing of after all this go to the Supreme Court of the its bar. Upon the presentation of the bill for United States, and end in naught by a reversal injunction in the Wenar v. Pohl case the court did because this court took jurisdiction erroneously by not grant it. It desired time to consider the quesremoval (Johnson v. Wells, Fargo & Co., 91 Fed. tion, deeming it an important one and having Rep. 1).

doubts as to jurisdiction. It appearing from the

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