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 Argument on the 
 
 Anti-Injunction Bill 
 
 BEFORE HON, WM. D, STEPHENS 
 
 GOVERNOR OF CALIFORNIA 
 
 BY 
 
 MAX J. KUHL, ESQ, 
 
 ATTORNEY FOR 
 SAN FI^ANCISCO CHAMBER OF COMMERCE 
 
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ARGUMENT 
 
 ON THE 
 
 Anti- Injunction Bill 
 
 (S. B. 1035) 
 BEFORE 
 
 HON. WM. D. STEPHENS 
 
 Gooernor of California 
 
 Monday, May 21, 1917 
 
 BY 
 
 MAX J. KUHL, ESQ. 
 
 Attorney for 
 
 SAN FRANCISCO CHAMBER OF COMMERCE 
 
Foreword 
 
 rriHE San Francisco Chamber of Commerce 
 X believes that you will be interested in 
 reading this argument in opposition to the 
 Anti-Injunction Bill, which passed both houses 
 of the California Legislature this Spring, but 
 was finally vetoed by the Governor, This bill is 
 in general similar to the so-called ^^ Model Anti- 
 Injunction BilV^ introduced by the American 
 Federation of Labor into the legislatures of 
 eighteen states during the past year. 
 
 The subject matter of this bill is attracting 
 wide attention from thoughtful business men. 
 
 The argument herewith presented was the 
 final argument made by the attorney for the 
 San Francisco Chamber of Commerce at the 
 public hearing before Governor William D, 
 Stephens, In sending this argument to you 
 this Chamber of Commerce is following a 
 fixed policy of disseminating information on 
 subjects of importance to the industrial com- 
 munity. 
 
 San Francisco Chamber of Commerce, 
 
 Frederick J. Koster, 
 
 President, 
 
 381265 
 
The Argument 
 
 AT the outset I deem it proper for your in- 
 L formation to state that in appearing before you 
 I do so not merely in my personal capacity, but 
 as the authorized representative of a number of 
 important business organizations throughout this 
 State who are vitally interested in opposing your 
 final approval of this bill. I hold written authori- 
 zations from the following organizations and 
 others : 
 
 San Francisco Chamber of Commerce, 
 Merchants' & Manufacturers' Association, 
 
 Los Angeles. 
 Salinas Chamber of Commerce. 
 Marysville Chamber of Commerce. 
 Napa Chamber of Commerce. 
 Associated Jobbers of Los Angeles. 
 Chamber of Mines and Oil, Los Angeles. 
 San Diego Chamber of Commerce. 
 Watsonville Merchants' Association. 
 Manufacturers' Association of San Diego. 
 Pasadena Board of Trade. 
 Redding Chamber of Commerce. 
 Los Angeles Chamber of Commerce. ■ 
 Employers' Association of Alameda and Contra 
 
 Costa Counties, Oakland. 
 Merchants', Manufacturers' & Employers' 
 
 Association, Stockton. 
 Chamber of Commerce, Fresno, 
 
 Page I 
 
Yo,ur Kxecmency bo-s heard h great deal of gen- 
 eral talk to-day cOiicerning* the wrongs suffered 
 by organized labor, the abuses of courts in dealing 
 with strike cases, and the industrial injustice 
 which it is claimed has been for so long inflicted 
 upon the laboring man. You have heard a rather 
 interesting academic discussion concerning the 
 edicts of the Roman tribunes, and how our Ameri- 
 can courts, without the sanction of authority or 
 precedent have superimposed upon these Roman 
 edicts a power which nowhere else has ever existed. 
 It may be pertinent to suggest to you that at this 
 time we are considering a concrete bit of legisla- 
 tion, namely: Senate Bill 1035, known as the 
 Anti-Injunction bill. It is of far greater impor- 
 tance that we deal with this particular bill, with 
 its peculiar elements of viciousness and unconsti- 
 tutionahty, rather than enter upon a wide dis- 
 cussion of generalities. With your permission, 
 therefore, I shall take the present bill and by an 
 analysis of its provisions attempt to call your 
 attention to its objectionable and unconstitu- 
 tional features. 
 
 The title briefly describes the bill as "An Act 
 to make lawful certain agreements between em- 
 ployees of laborers, to define the cases in which 
 injunctions may and may not issue, to prescribe 
 the procedure in trials for contempt, to secure the 
 right of jury trial in all such cases'^ etc. 
 
 In Section 1, is a general declaration that it shall 
 not be unlawful for working men and women to 
 organize themselves into or carry on labor unions 
 for the purpose of lessening the hours of labor, or 
 increasing the wages, or bettering the conditions 
 
 Page 2 
 
of the members of such organizations; or carrying 
 out their legitimate purposes as freely as they 
 could do if acting singly. With the provisions of 
 this section we have no quarrel. 
 
 Our ^eo^Je in accord with lahor unions 
 
 when those organizations are 
 
 legitimately conducted 
 
 IN order to focus your attention upon the objec- 
 tionable features of the bill, let me say right 
 here that in so far as possible, I shall pass by all 
 the provisions of this statute which in our opinion 
 are neither objectionable nor unconstitutional. 
 Not only have we no quarrel with the provisions 
 of the first section of this act, but I am pleased to 
 advise you that the people whom I represent are 
 heartily in accord with the principles of lahor union 
 organizations when those organizations are legiti- 
 mately conducted. We recognize the right of all 
 human beings to organize, and by a lawful exer- 
 cise of the powers of their organization to better 
 the conditions of their members. We recognize 
 the fact that labor through its organizations has 
 greatly improved the condition of the individual 
 members of labor unions. With their legitimate 
 functions, or the lawful exercise of their great 
 power we have no quarrel. It is only when organ- 
 ized lahor J feeling too keenly its own strength, exerts 
 its power for an illegitimate purpose and hrutally 
 hrandishes the weapons of violence and coercion over 
 the heads of legitimate business industry and enter- 
 prise that we call halt. In a government like ours, 
 in which all men are presumed to be free and equal 
 and to stand upon a common footing, it is just as 
 
 Pages 
 
dangerous for organized labor to set up within the 
 government another government composed solely 
 of its own membership as it would be for capital, 
 through the tremendous power of its ag^egate 
 wealth, to exploit those whose bread is dependent 
 upon their labor. No free government, whether 
 republican or democratic in form, can long continue 
 to exist, if within its confines is permitted to grow 
 up another extra-official government wiekjing a 
 power almost as tremendous as that exerted by- 
 government itself, and not subject to normal or 
 legal limitations. So I say, with the provisions of 
 Section 1 of this Act we have no quarrel, and I 
 shall, therefore, pass the section without further 
 comment. 
 
 Coming now to the second section of the Act, 
 we find this provision: 
 
 '^No restraining order or injunction shall be granted 
 by any court of this state, or any judge or judges there- 
 of, in any case between an employer and employees, 
 or between employers and employees, or between 
 employees, or between persons employed and persons 
 seeking employment, involving, or growing out of, a 
 dispute concerning terms or conditions of employ- 
 ment, unless necessary to prevent irreparable injury 
 to property, or to a property right of the party mak- 
 ing the application, for which injury there is no ade- 
 quate remedy at law, and such property or property 
 rights must be described with particularity in the 
 application, which must be in writing and sworn to 
 by the applicant or by his agent or attorney." 
 
 On its face this language apparently is of no 
 serious moment. It seems merely declaratory of 
 the law as it now exists and has existed in this 
 State for many years. The principle that injunc- 
 tions shall not issue except to restrain irreparable 
 
 Page 4 
 
injury to property is as old as courts of equity 
 themselves. Indeed the reason for the establish- 
 ment of the legal principle upon which injunctions 
 are issued arose in the chancery practice of Eng- 
 land's equity courts mainly out of the necessity 
 of stopping irreparable injury to property pend- 
 ing the outcome of litigation. 
 
 While upon its face this section appears harm- 
 less, in another portion of this bill is neatly con- 
 cealed a declaration of legal principles, which read 
 with Section 2 makes the act not so harmless as 
 its first appearance would indicate. It changes 
 the provision of Section 2 from a mere declaratory 
 rule of law to a legal principle that in my judg- 
 ment is not only unconstitutional but vicious and 
 dangerous from every viewpoint, — indeed, to the 
 very men who are urging your approval of this 
 bill. I allude to a short sentence that appears as 
 the introductory part of Section 8 of the bill, 
 reading: ^^The labor of a human being is not a 
 commodity or article of commerce.^' Retain for the 
 moment this sentence in your mind, while I turn 
 back to Section 2 and read again those lines in the 
 section containing the words "unless necessary to 
 prevent irreparable injury to property or to a 
 property right." At a glance you will observe 
 that while the old equity rule is retained in its 
 full force so far as most of the elements of property 
 are concerned, there is at once excluded from its 
 protecting shelter the labor of a human being. In 
 other words, if the labor of a human being is not 
 property, then under no theory of equity practice 
 as it is recognized in our courts or in the courts 
 of England, can a Chancellor issue an injunction 
 to protect a man's very right to work. 
 
 Pages 
 
Labor is property; the right to ?alor is a 
 ^ro^erty right 
 
 IET me pause here in my analysis of the bill to 
 ^ urge upon you the economic fallacy of the 
 proposition that labor is not property. What, 
 after all, is property, from an economic stand- 
 point? Property is anything which a man owns 
 or controls or of which he may dispose. It con- 
 sisted originally of lands and cattle. It consists 
 now of buildings, stocks and bonds, personal 
 property of many kinds and all the various things 
 which modern society in its complex development 
 has evolved. Lands and buildings, and cattle, the 
 stocks and bonds of corporations, copyrights and 
 patents, are usually the property of wealthy men. 
 It is unfortunate that in our modern world all men 
 have not the same store of goods. It may be un- 
 fortunate that we must have with us the poor. 
 But these are social faults which the lawmaker 
 cannot cure. What then is the principal property 
 of the poor man, whether he be a member of a 
 labor organization or not? What other property 
 has the poor man except his labor? What other 
 property can he dispose of to provide himself and 
 his family with food, clothing and shelter? To 
 say to a laboring man that his ability to earn $3 
 or $4 or $5 a day with which to support his family 
 is not property is to strip him at once of all the 
 protection which our constitutional guarantees 
 give him. In my own case, unfortunately the 
 only property I possess is the little knowledge 
 which I have acquired, and the ability to make 
 that knowledge of service to my clients. Shall it 
 be said that my ability to serve a client for com- 
 pensation, indeed my very ability to stand before 
 
 ?age h 
 
Your Excellency today and present this case for 
 the organizations which are so vitally interested, is 
 not a property right? Shall it be said that inas- 
 much as this right is not property, that therefore 
 I can have no protection from a court of equity, 
 no protection granted me by the laws or the con- 
 stitution of this land? Can it be economically 
 true that the workman has no property in his 
 labor? That the years of patient apprenticeship 
 which he served before he acquired the standing of 
 a journeyman shall be instantly taken from him 
 by such a provision as this? It needs no citation 
 to Adam Smith or John Stuart Mill to point out 
 the very apparent sophistry of such a preposterous 
 contention. 
 
 It is not necessary, however, to accept my 
 statement of the economic principle involved. 
 Fortunately, the highest courts of this land have 
 finally fixed by their decisions the principle for 
 which we contend that all labor is property and 
 a property right coming within the meaning of 
 our constitutional guarantees; that no power rests 
 in any legislative organization under the guise of 
 definition to take that property from a man with- 
 out first compensating him for it. 
 
 Not so very many years ago, the Supreme Court 
 of the United States, speaking through the very 
 eloquent voice of Mr. Justice Harlan, in the fa- 
 mous case of Adair v. U. S., reported in 208 U. S. 
 at page 161, used this language in speaking of labor 
 and its qualities as a property right: 
 
 Pager 
 
**Such liberty and right embraces the right to make 
 contracts for the purchase of the labor of others and 
 equally the right to make contracts for the sale of one's 
 own labor; each right, however, being subject to the 
 fundamental condition that no contract, whatever 
 its subject matter, can be sustained which the law, 
 upon reasonable grounds, forbids as inconsistent with 
 the public interests or as hurtful to the public order 
 or as detrimental to the common good." 
 
 And then again: 
 
 *'It is sufficient in this case to say that as agent of 
 the railroad company and as such responsible for the 
 conduct of the business of one of its departments, it 
 was the defendant Adair's right — and that right in- 
 hered in his personalHberty, and was also a right of 
 property — to serve his employer as best he could, so 
 long as he did nothing that was reasonably forbidden 
 by law as injurious to the public interests." 
 
 The opinion then quotes from Cooley's famous 
 work on Torts: 
 
 " 'It is a part of every man's civil rights that he be 
 left at liberty to refuse business relations with any 
 person whomsoever, whether the refusal rests upon 
 reason, or is the result of whim, caprice, prejudice or 
 malice. With his reasons neither the public nor third 
 persons have any legal concern. It is also his right 
 to have business relations with anyone with whom he 
 can make contracts, and if he is wrongfully deprived 
 of this right by others, he is entitled to redress.' " 
 
 "That the right to work is j^ro^erty cannot 
 he regarded longer as an 
 o^en question 
 
 IT may be pertinent at this time to call attention 
 to the fact that this opinion was written by a 
 Justice of our Federal Supreme Bench whose 
 friendly leaning towards labor no man can deny. 
 
 Page 8 
 
Indeed, my good opponent a short while ago 
 pronounced a well deserved eulogy upon his talents 
 and probity. 
 
 While on this subject, I want to read to you 
 from a very recent decision of one of the most 
 eminent State courts in this country, in a case in 
 which no employer was directly or indirectly in- 
 volved, — the case of Bogni v. Perottij decided in 
 Massachusetts last May. The report which I am 
 about to read from may be found in Volume 224 
 of Massachusetts Reports, at page 152. This 
 case, as I have said, had nothing to do with any 
 dispute between union men and their employers. 
 It was a quarrel between two different labor 
 organizations as to which labor organization had 
 the right to do a certain class of work. Disputes 
 of this kind, I understand, are usually termed 
 jurisdictional disputes among labor union men. 
 In this jurisdictional dispute, one of the unions 
 sought to restrain the other from interfering with 
 its members in the doing of a particular class of 
 work. The members of the defendant union in- 
 voked the provisions of a Massachusetts statute 
 which is very similar to ours. I may say, paren- 
 thetically, that for the last year or two there has 
 been an organized effort by the American Federa- 
 tion of Labor to have enacted into legislation in 
 all the states an anti-injunction bill which is 
 termed the "Model Anti-Injunction Bill.'' This 
 so-called model anti-injunction bill was enacted 
 in Massachusetts. The bill in full you will find 
 in the footnote of the opinion from which I am 
 reading. It starts, like our act, with the declara- 
 tion that it shall not be unlawful for workingmen 
 and women to organize, etc. The language, I 
 
 Page 9 
 
believe, is identical. Section 2 of the so-called 
 model anti-injunction bill is also practically 
 identical. Section 3 of the model law is also almost 
 identical with Section 3 of the bill before you now. 
 The Massachusetts law contained no provision 
 for a trial by jury of contempt cases, but Section 
 4 of the Massachusetts law had the identical lan- 
 guage which I have criticized, and which appears 
 in Section 8 of the bill before you — "that the labor 
 of a human being is not a commodity or article of 
 commerce." 
 
 With this brief outline of the Massachusetts 
 law, which I have made for the purpose of em- 
 phasizing the application of the decision to this 
 bill, let me turn again to the Massachusetts court 
 case. The defendant union claimed that the courts 
 could not issue an injunction on account of this 
 model anti-injunction bill. There were, therefore, 
 two points for the Massachusetts Supreme Court 
 to decide. First, was the provision declaring that 
 the labor of a human being is not a commodity 
 constitutional? Secondly, could courts of equity, 
 notwithstanding the inhibition of the statute, 
 grant writs of injunction in labor cases? Turning 
 to the opinion, and omitting the introductory 
 paragraph, which contains merely a recital of the 
 facts which have already been set before you, I 
 beg to read the following language of the Supreme 
 Court of the State of Massachusetts. 
 
 "That the right to work is property cannot be re- 
 garded longer an open question. It was held in Cor- 
 nellier v. Haverhill Shoe Manufacturers Association , 
 221 Mass. 554, at page 560, that 'The right to labor 
 and to its protection from unlawful interference is a 
 constitutional as well as a common law right.' It was 
 
 Page 10 
 
said in Slate v. Stewart, 59 Vt. 273^ 289, 'The labor 
 and skill of the workman, be it of high or low degree, 
 the plant of the manufacturer, the equipment of the 
 fanner, the investments of commerce, are all in equal 
 sense property.' In the Slaughter-House cases, 16 
 Wall. 36, 127, in the dissenting opinion of Mr. Justice 
 Swajrne, but respecting a subject as to which there 
 was no controversy, occur these words: 'Labor is 
 property, and as such merits protection. The right 
 to make it available is next in importance to the rights 
 of life and Hberty.' It was settled that the right to 
 labor and to make contracts to work is a property 
 right by Adair v. United States, 208 U. S. 161, ITS- 
 ITS, and Coppage v. Kansas, 236 U. S. 1, 10. Con- 
 troversy on that subject before this court must be 
 regarded as put at rest by these decisions. The right 
 to work therefore, is property. One cannot be de- 
 
 ?>rived of it by simple mandate of the Legislature, 
 t is protected by the Fourteenth Amendment to the 
 Constitution of the United States and by numerous 
 guarantees of our Constitution. It is as much prop- 
 erty as the more obvious forms of goods and mer- 
 chandise, stocks and bonds. That it may be also a 
 part of the liberty of the citizen does not affect its 
 character as property. It was said in Coppage v. Kan- 
 sas, 236 U. S. 1, page 14, 'Included in the right of 
 personal liberty and the right of private property — 
 partaking of the nature of each — is the right to make 
 contracts for the acquisition of property. Chief 
 among such contracts is that of personal employment, 
 by which labor and other services are exchanged for 
 money or other forms of property. If this right be 
 struck down or arbitrarily interfered with, there is a 
 substantial impairment of liberty in the long-estab- 
 lished constitutional sense.* 
 
 "Property cannot he confiscated ' 
 
 "No discussion is required to show that it is beyond 
 the power of the Legislature, under constitutions 
 which guard the individual against being deprived of 
 property without due process of law, to declare without 
 any process at all that a well recognized kind of prop- 
 erty shall no longer be property. 'Lawful property 
 
 Page J I 
 
cannot be confiscated' under the guise of a statute. 
 Durgin v. Minot, 203 Mass. 26, 28. When legislative 
 attempts to compel the deprivation of certain com- 
 paratively small sums of money without due process 
 of law invariably fail (see for example, Northern 
 Pacific Railway v. North Dakota, 236 U. S. 585; Great 
 Northern Railway v. Minnesota, 238 U. S. 340; Chi- 
 cago, Milwaukee & St. Paul Railroad v. Wisconsin, 
 238 U. S. 491; Louisville & Nashville Railroad v. Cen- 
 tral Stockyards Co. 212 U.S. 132), it is manifest that 
 something recognized as property by the law of the 
 land cannot be extinguished utterly. 
 
 "A further effect of the present statute is to deprive 
 the plaintiffs of the equal protection of the laws. The 
 statute provides in substance that the property right to 
 labor of any individual or number of individuals asso- 
 ciated together shall not be recognized in equity as 
 property when assailed by a labor combination, unless 
 irreparable damage is about to be committed upon 
 property or a property right as there defined and that 
 no rehef by injunction shall be granted save in like 
 cases for which there is no relief at law. That a man 
 cannot resort to equity respecting his property right 
 to work in the ordinary case simply because he is a 
 laboring man, and that he cannot have the benefit of 
 an injunction when such remedies are open freely to 
 owners of other kinds of property, needs scarcely more 
 than a statement to demonstrate that such man is not 
 guarded in his property rights under the law to the 
 same extent as others. 
 
 "The courts must le o^en to all w^on 
 tlie same terms * 
 
 "If a laborer must stand helpless in a court while 
 others there receive protection respecting the same 
 general subject which is denied to him, it cannot be 
 said with a due regard to the meaning of constitu- 
 tional guarantees that he is afforded 'the equal pro- 
 tection of the laws' within the Fourteenth Amend- 
 ment to the Constitution of the United States and 
 similar provisions of our own Constitution. The right 
 
 Page 12 
 
to make contracts to earn money by labor is at least 
 as essential to the laborer as is any property right to 
 other members of society. If as much protection is not 
 given by the laws to this property, which often may 
 be the owner's only substantial asset, as is given other 
 kinds of property, the laborer stands on a plane infe- 
 rior to that of other property owners. Absolute equal- 
 ity before the law is a fundamental principle of our 
 own Constitution . To the extent that the laborer is not 
 given the same security to his property by the law 
 that is granted to the landowner or capitalist, to that 
 extent discrimination is exercised against him. It is 
 an essential element of equal protection of the laws 
 that each person shall possess the unhampered right 
 to assert in the courts his rights, without discrimina- 
 tion, by the same processes against those who wrong 
 him as are open to every other person. The courts 
 must be open to all upon the same terms. No obsta- 
 cles can be thrown in the way of some which are not 
 interposed in the path of others. Recourse to the law 
 by all alike without partiality or favor, for the vindi- 
 cation of rights and the redress of wrongs, is essential 
 to equality before the law. The constitutional prin- 
 ciples are discussed in Opinions of the Justices, 211 
 Mass. 618; 220 Mass. 627; 207 Mass. 601; 207 Mass. 
 606, 611; Smith v. Texas, 233 U. S. 630; Atchison, 
 Topeka & Santa Fe Railway v. Voshurg, 238 U. S. 56; 
 Gulf California, Colorado & Santa Fe Railway v. Ellis, 
 165 U. S. 150; Chicago, Milwaukee & St. Paul Rail- 
 way V. Polt, 232 U. S. 165; St. Louis, Iron Mountain 
 & Southern Railway v. Wynne, 224 U. S. 354. 
 
 "Doubtless the Legislature may make many classi- 
 fications in laws which regulate conduct and to some 
 extent restrict freedom. So long as these have some 
 rational connection with what may be thought to be 
 the public health, safety or morals, or in a restricted 
 sense, 'so as not to include everything that might be 
 enacted on grounds of mere expediency,' the public 
 welfare, they offend no constitutional provision. 
 Commonwealth v. Strauss, 191 Mass. 545, 550. 
 Weekly payment laws, employers' liability acts, work- 
 men's compensation acts, inspection laws based on 
 the number of employees, and numerous statutes 
 similar in principle have been upheld. See Common- 
 Page 13 
 
wealth V. Lihhey, 216 Mass, 356; Young v. Duncan, 
 218 Mass. 346, 353; Booth v. Indiana, 237 U. S. 391, 
 and Tannery. Little, 240 U. S. 369, where many cases are 
 collected. But all these and like statutes are quite 
 different from one declaring that the laboring man 
 either alone or in association with his fellows shall, 
 as to his property right to work, be put on a foot- 
 ing of inferiority as compared with owners of other 
 kinds of property when he appears in Court respecting 
 that property right. It is primary and fundamental 
 in any correct conception of justice that the laboring 
 man stands on a level equal with all others before the 
 courts. Whatever may be his social or economic con- 
 dition outside, when he enters the court the law can 
 permit no rule to fetter him in the prosecution of his 
 claims or the preservation of his rights, which does 
 not apply equally to all others respecting the same 
 kinds of claims and rights." 
 
 "The objects of just criticism sitting u^on 
 the hench are feiv^ 
 
 1 PAUSE at this point in the decision, because 
 only so much of it deals with the question we 
 are discussing. Later on, however, when I come 
 to argue that the legislature has no constitutional 
 right to strip from courts of equity their inherent 
 powers, I shall revert to it and read the remainder 
 of the opinion. I have with me also the famous 
 case of Cop'page v. Kansas which has been cited 
 in the Massachusetts case. My time being lim- 
 ited, however, I shall not at this time attempt to 
 read from it; but I ask the Assistant Attorney 
 General who sits by your side to make a note of 
 this case so that when you consult him as to these 
 constitutional questions he may have had the 
 benefit of reading these decisions and thus verify 
 the statements that I make concerning them. 
 
While I am citing from the decisions of the 
 Supreme Courts of various States of the United 
 States itself, I desire to state that I was a little 
 impatient at hearing from the lips of my antagon- 
 ists such severe and unjust denunciation of our 
 courts. 
 
 It is not impossible in any country to find now 
 and then officials who do not measure up to the 
 full requirements of their office. This is just as 
 true of those discharging executive and legislative 
 functions as of those discharging judicial functions. 
 Indeed, I believe that on account of the high 
 training our judges usually attain, the objects of 
 just criticism sitting upon the bench are few. We 
 cannot lose sight of the fact that all our affairs 
 must be regulated by human instrumentalities, 
 and wherever we find work for human kind to do 
 we must content ourselves with the occasional 
 short-comings due to purely human frailty and 
 imperfection. 
 
 That reverence for our institutions which was 
 implanted in me from very earliest days, I still 
 retain, I am thankful to say. I still revere the 
 foimders of this nation, the great men whose 
 courage gave it birth and whose constructive 
 statesmanship gave it form. 
 
 We all hold in cherished memory the great grasp 
 of government fundamentals in the minds of Alex- 
 ander Hamilton, Thomas Jefferson, John Jay and 
 John Marshall. 
 
 Page IS 
 
I cannot believe that what the revolutionary 
 patriots wrested from an arrogant power and con- 
 structively formulated into organized society can 
 be all bad. They believed that the wisest, safest 
 and most beneficent form of government is the 
 one containing within it three independent, 
 though co-ordinating, departments — the legisla- 
 tive, executive and judicial. These men fashioned 
 for the future. These men had visions of differ- 
 ences, disputes and clashes that might arise in the 
 remote future when antagonistic interests, class 
 selfishness or class passion might become an acute 
 phase of the life of the nation. They therefore 
 gave us our legislative department, which was 
 made responsive to the immediate opinion of the 
 people. They gave us an independent executive 
 whose tenure was of different duration, and to him 
 they entrusted the power of final approval or veto 
 in legislative affairs. Then over and above all 
 they created a court and immured it, if you will, 
 in the seclusion almost of abstraction. To this 
 court, far removed from political strife, they gave 
 the final power of determining whether legislative 
 enactments, often obtained as the result of heat, 
 or passion, or fury, responded to the tests of the 
 organic law of the land. 
 
 TJnlridled and unjust attacks uj^on the 
 judiciary resented 
 
 UNDER this form of government we have 
 thrived and grown from a small group of 
 colonies on the Atlantic shore to a big wide nation 
 whose domain embraces the width of^the continent 
 itself. Under such institutions our people have 
 
 Page i6 
 
developed as rapidly as — if not more rapidly 
 than — the peoples of other nations. We boast of a 
 freer, healthier and more cheerful population in this 
 country than is to' be found anywhere else. Can 
 it he that suddenly ^ from the mouths of malcontentSy 
 has come a truth of which we never dreamed before? 
 Can it be that the prosperity and happiness of 
 this nation has developed and spread not because 
 of, but despite, its government institutions? I 
 feel, sir, you join with me in the opinion that 
 guided by the light of liberty and democracy 
 which our liberal governmental forms have shed 
 upon the individual we have made our step-by- 
 step progress and shall continue to do so as long 
 as the human being strives for self improvement. 
 With this feeling of true patriotism, with this rever- 
 ence for the institutions under which we have been 
 born and reared, I will not listen to this unbridled 
 and unjust attack upon our judiciary without re- 
 senting it as best lies within my power. Pardon 
 me for this diversion from the subject matter 
 before you, but I feel so keenly these sentiments 
 that I could not without sacrifice of self respect 
 refrain from giving them utterance at this time. 
 Turning again to the bill, I call your attention 
 to Section 3. Many of the provisions of this sec- 
 tion make no innovation in our existing laws. 
 They are principles already sanctioned in the final 
 decision of our courts. But deftly placed here 
 and there are sentences and phrases that carry 
 a portent of danger. Let me read this section. 
 
 "No such restraining order or injunction shall pro- 
 hibit any person or persons, whether singly or in con- 
 cert, from terminating any relation of employment, 
 or from ceasing to perform any work or labor, or from 
 recommending, advising, or persuading others by 
 
 Page 17 
 
peaceful means so to do; or from attending at any place 
 where such person or persons may lawfully be, for the 
 purpose of peacefully obtaining or communicating in- 
 formation or from peacefully persuading any person to 
 work or to abstain from working; or from ceasing to 
 patronize, or to employ any party to such dispute, or 
 from recommending, advising, or persuading others 
 by peaceful and la\^^ul means so to do; or from paying 
 or giving to or withholding from, any person engaged 
 in such dispute, any strike benefits or other moneys or 
 things of value; or from peaceably assembling in a 
 lawful manner, and for lawful purposes; or from doing 
 any act or thing which might lawfully be done in the 
 absence of such dispute by any party thereto." 
 
 It provides generally that no restraining order 
 shall prohibit any person from ceasing to perform 
 any labor or from recommending, advising or 
 persuading others by "peaceful" means so to do. 
 I call your attention to the word "peaceful" and 
 its discriminating use throughout the section. 
 
 The use of this word "peaceful" would make 
 the statute in large part nullify certain provisions 
 of ordinances enacted in the State. I refer to the 
 anti-picketing ordinances of Los Angeles, San 
 Francisco and Oakland. When I speak of their 
 enactment, I do not allude to the ordinary enact- 
 ment of legislation by the legislative bodies of 
 these communities. I refer to the fact that in all 
 of these cities these ordinances were enacted by 
 the sovereign power of the people themselves 
 exerted through that initiative for which you, sir, 
 and I fought six or seven years ago. 
 
 Page i8 
 
Significance of Anti -Picketing Ordinances 
 
 of San Francisco, Los Angeles 
 
 and Oakland 
 
 TT is significant that in many of the communities of 
 -* this State where organized labor is supposed to he 
 all powerful politically as well as industrially y these 
 anti'picketing ordinances have been adopted by the 
 vote of the citizens — in Los Angeles in the first in- 
 stance, then in San Francisco; and finally in Oak- 
 land. Let me turn here to these men who repre- 
 sent labor, and who have represented it well, and 
 remind them of the fact that their boast is that 
 San Francisco is a labor union city; that San 
 Francisco is controlled poHtically, as well as eco- 
 nomically, by the power of organized labor. Let 
 me remind them that in San Francisco where labor 
 is claimed to be all powerful, the people by a very 
 decisive vote only last year adopted an anti-picket- 
 ing ordinance prohibiting picketing in labor strikes 
 in that city. So likewise did Oakland, supposed 
 to be another stronghold of organized labor. The 
 people themselves through the exercise of their 
 initiative power have placed upon the books these 
 local laws. 
 
 We have boasted in California these last few 
 years that as a result of a political revolution the 
 people have again taken unto themselves full 
 sovereignty. We boast that today we, the sov- 
 ereign people, enact or reject legislation as suits 
 our sovereign whim, caprice or judgment. We 
 boast of the fact that the only response which our 
 chosen officials now heed is the will of the people 
 lawfully expressed. You and I, sir, were partici- 
 pants in that campaign that resulted in the first 
 
 Page iQ 
 
enactment into the laws of California of the prin- 
 ciple of the initiative and referendum. We have 
 now in most of our municipalities the same initia- 
 tive and referendum provisions. This is because 
 we believe democracy is to be trusted. We fought 
 for this direct allotment of legislative power. 
 
 To return to my subject, in all the cities to which 
 I have referred the people themselves, in that 
 seclusion and secrecy of the ballot which is the 
 American citizen's most cherished privilege, have 
 expressed their denunciation of the methods and 
 principles of what is termed the **picket." 
 
 With this in mind, let me call your attention to 
 the fact that in these anti-picketing ordinances it 
 is provided that it shall be unlawful for any person 
 on any public street, among other things to speak 
 in a loud or unusual tone or to cry out or proclaim 
 for the purpose of inducing or influencing or 
 attempting to induce or influence any person from 
 doing certain things, or attempting to intimidate, 
 threaten or force people to do certain things which 
 they do not want to do. These things are de- 
 clared to be unlawful. Many of our crimes, in 
 fact most of our crimes, are not crimes of violence, 
 but crimes of wrong without violence. Fifty men 
 armed with axes or pick handles may walk up and 
 down in front of a man's twenty-five foot store 
 front and never utter a word or make a sign, yet 
 no intelligent, fair man will contend that such 
 conduct is not wrongful, and if such conduct is 
 made criminal, can any man contend that the 
 criminal element does not justly exist? A man 
 need not shoot me to take from me my purse; he 
 need but draw a revolver and point it in my direc- 
 tion. In a physical sense, no violence will have 
 
 Page 20 
 
been committed, but in every sense save a physical 
 sense my purse will have been yielded under 
 the duress of that pointed revolver. So, too, if I 
 approach a man's store and see in front of it 
 twenty big, powerful men parading up and down 
 with banners, it would tax a child's credulity to 
 believe that there was no coercion, intimidation 
 or threat intended in such a maneuver. 
 
 These things are claimed by the representatives 
 of organized labor to be peaceful things: and if so, 
 under the bill which is before you for considera- 
 tion, so long as they remain peaceful no court of 
 equity shall issue an injunction to prevent them. 
 Under the ordinances which have been adopted 
 by the people themselves, however, such conduct 
 is made criminal. Can anyone honestly contend 
 that such conduct is not criminal and should not 
 be deemed so by the criminal laws of the State? 
 Yet notwithstanding this, inasmuch as the 
 Flaherty anti-injunction bill No. 1035 forbids in- 
 junctions being issued to restrain peaceful threats, 
 if such there can be, if this bill becomes a law and 
 is constitutional, no court in the state would be 
 permitted to issue injunctions restraining fifty 
 men with loaded revolvers or with pick handles 
 from marching up and down in front of a man's 
 place of business. To argue that such should be 
 the law is to argue that chaos is the right form of 
 government. Anarchy and syndicalism have not 
 yet become enshrined in the hearts of our Ameri- 
 can citizens nor become a part of their conception 
 of free institutions. So I submit that this provis- 
 ion has been deftly inserted in this statute for the 
 purpose of evading the further application of the 
 local anti-picketing ordinances; and I submit fur- 
 
 Page 21 
 
therthat to tolerate such acts as I have described to 
 you, to sanction them, to throw about them the pro- 
 tection of the law, would be unjust, would be vicious 
 and would be destructive of the very safety of our 
 society. 
 
 *lo ^yramii trial upon trial would he to 
 
 initiate anarchy into our 
 
 social system 
 
 PASSING this point, I come to the section that 
 I beheve is the most vicious in this Act. I go 
 further — I believe it contains more evil than any 
 bit of legislation that will pass across your desk 
 from this session of the legislature. Let me read 
 it to you: 
 
 **That any person who shall wilfully disobey any 
 lawful writ, process, order, citation, decree or com- 
 mand of any court of the State of California, by doing 
 any act or thing therein or thereby forbidden to be 
 done by him, if the act or thing so done by him be of 
 such character as to constitute also a criminal offense, 
 shall be proceeded against for his said contempt as 
 hereinafter provided. ' ' 
 
 A very superficial thought concerning this sec- 
 tion would not disclose the ramifications to which 
 its evils extend. Our first instinct is heartfelt ap- 
 proval of the principle of jury trial. We revert 
 again to the English Bill of Rights and the Habeas 
 Corpus act, to the American Declaration of Inde- 
 pendence and our Constitution. Dear to the 
 heart of every one of us is the belief that no man 
 shall be tried or condenmed except upon the judg- 
 ment of his peers. 
 
 Page 22 
 
The right is granted every man to a trial. When 
 that trial has been accorded him and the contro- 
 versy determined, then the punitive or remedial 
 arm of the law should be stretched out without 
 further halt. Orderly government requires an 
 efficient disposition of all litigable questions, 
 whether penal or civil. Orderly government re- 
 quires that the condemned criminal shall be 
 speedily punished, and that in civil cases the liti- 
 gant shall have promptly his full judgement and 
 relief and the controversy be finally terminated. 
 To pyramid trial upon trial would be to initiate 
 anarchy into our social system and bring about a 
 silent political revolution. The principle of a 
 jury trial in contempt cases had its birth in a polit- 
 ical campaign. You will recall that the distin- 
 guished son of Nebraska, Mr. W. J. Bryan, first 
 became a candidate for President in 1896. He 
 made his campaign upon three destructive prin- 
 ciples which he submitted to the American con- 
 stituency — first, free silver; second, populism in 
 general, and third, that other ^^ism'' of his, a de- 
 nunciation of government by injunction. I am 
 almost bold enough to state that you, sir, rejoice 
 with me in the fact that the eloquent Nebraskan 
 was not successful in his candidacy. Free silver 
 has gone into the discard, where it properly be- 
 longs. Populism had its mushroom growth; but, 
 fortunately, also its mushroom death. A denun- 
 ciation of government by injunction was thrown 
 from every political platform in the United States 
 in the campaigns of 1896, 1900 and 1904. Since 
 the American commonwealth has silenced the 
 candidate Bryan, a few feeble mutterings of his 
 have been taken up by people who are seeking to 
 promulgate his fads and fancies in legislation. 
 
This bill is one such effort. Before I point out the 
 direct effect of this principle upon our jurispru- 
 dence, I want to invite your attention again to 
 certain fundamentals upon which our government 
 is based, and ask your further attention to certain 
 decisions on this class of legislation. 
 
 The Anti 'Injunction hill would trench 
 
 uj^on the judicial ^ower 
 
 of the Courts 
 
 THE Governor's powers are derived from the 
 Constitution, and from no other source. The 
 legislature of this State derives its powers from 
 our Constitution, and from no other source. The 
 judiciary finds its powers laid down in the Consti- 
 tution and nowhere else. You cannot, if you 
 would, trench one tittle upon the powers of the 
 legislature nor upon those of the judiciary. In 
 turn, the legislature cannot interfere with the 
 least of your powers nor those of our courts. 
 Finally, the courts are limited in their powers by 
 the Constitution. The courts of our State are 
 given certain powers by our Constitution. In 
 Section 5 of Article VI of our Constitution we find 
 it very clearly stated: 'The superior court shall 
 have original jurisdiction in all cases in equity," 
 etc. In Section 1 of the same article we find 
 "the judicial power of the State shall be vested in 
 the Senate sitting as a court of impeachment, in 
 a Supreme Court, District Courts of Appeal, 
 Superior Courts, and such inferior courts as the 
 legislature may establish," etc. In other words, 
 the entire power of judging is vested in the courts. 
 This power cannot be taken away by a co-ordinate 
 
 Page 24 
 
department, the legislature. Neither can it be 
 abridged or qualified. Needless to say, the bill 
 before you is an act of the legislature. Your 
 approval would make it a law. If that law 
 trenches upon the judicial power of the courts as 
 it is given to them by the Constitution, the law is 
 a nullity. To illustrate: Your Excellency is 
 given the full right to pardon. This right you 
 derive from the Constitution itself. This right 
 cannot be taken from you or abridged by the 
 legislature or by the courts. Would you approve 
 of a bill which should provide that you should not 
 grant pardons to certain kinds of offenders? If a 
 bill were presented to you which provided that 
 any man who is convicted of an act of violence 
 upon a labor union member could not be pardoned 
 by the Governor, would you consider that bill 
 constitutional? No, and properly not. It would 
 not be constitutional and the legislature would 
 have no power to pass such a law for the very rea- 
 son that your powers of pardon come direct from 
 the source, — the Constitution, — ^just as the powers 
 of the courts come from the same source. 
 
 I am fortified in my position by the decisions of 
 courts of last resort from all over the land, includ- 
 ing the Supreme Court of the United States. I 
 have explained how this theory of trial by jury in 
 contempt cases found its birth in the political 
 travail of W. J. Bryan. While Mr. Bryan was 
 unsuccessful, still a part of his propaganda per- 
 meated some of the rock-ribbed democratic states 
 of the country. These states barkened in some 
 instances to his siren voice, and enacted legisla- 
 tion which provided jury trials in contempt cases 
 Singularly enough in all of these democratic 
 
 Page 25 
 
states, as rapidly as such legislation was enacted, 
 just as rapidly was it declared unconstitutional. 
 
 The first case I want to read from is Carter v. 
 Virginia, reported in 96 Virginia Reports at page 
 791. In that State, the legislature provided for 
 jury trial in contempt cases. The court promptly 
 determined that the province of courts of chancery 
 could not thus be invaded by the legislature. In 
 the course of the opinion the court said: 
 
 ''Our conception of courts, and of their powers and 
 functions, comes to us through that great system of 
 English jurisprudence known as the common law, 
 which we have adopted and incorporated into the 
 body of our laws. 
 
 "That the English courts have exercised the power 
 in question from the remotest period does not admit 
 of doubt. Said Chief Justice Wilmot; The power 
 which the courts in Westminster Hall have of vindi- 
 cating their own authority is coeval with their first 
 foundation and institution; it is a necessary incident 
 to every court of justice, whether of record or not, to 
 fine and imprison for a contempt acted in the face of 
 the court; and the issuing of attachments by the 
 Supreme Court of Justice in Westminster Hall for 
 contempts out of court, stands on the same immemor- 
 ial usage which supports the whole fabric of the com- 
 mon law; it is as much the lex terrae, and within the 
 exception of Magna Charta, as the issuing of any 
 other legal process whatsoever. I have examined 
 very carefully to see if I could find out any vestiges of 
 its mtroduction, but can find none. It is as ancient as 
 any other part of the common law.' " 
 
 The opinion then quotes from a famous Federal 
 case, [/. >S. V. Hudson, 7 Cranch, 32, the following 
 statement: 
 
 Page 26 
 
** 'Certain implied powers must necessarily result 
 to our courts of justice from the nature of their insti- 
 tution. But jurisdiction of crimes against the State 
 is not among those powers. To fine for contempt, 
 imprison for contumacy, enforce the observance of 
 order, etc., are powers which cannot be dispensed with 
 in a court, because they are necessary to the exercise 
 of all others; and so far our courts, no doubt, possess 
 powers not immediately derived from statute.'" 
 
 The Court then speaks of the defendant claim- 
 ing the right of trial by jury, and that this right of 
 trial is not an interference with the power of the 
 court. To this the Court repHed: 
 
 "To this view we cannot assent. It is not a ques- 
 tion of the degree or extent of the punishment in- 
 flicted. It may be that juries would punish a given 
 offense with more severity than the court; but yet * 
 the jury is a tribunal separate and distinct from the 
 court. The power to punish for contempts is inherent 
 in the courts, and is conferred upon thena by the con- 
 stitution by the very act of their creation. It is a 
 trust confided and a duty imposed upon us by the 
 sovereign people which we cannot surrender or suffer 
 to be impaired without being recreant to our duty." 
 
 Further along in the opinion the Court used this 
 language: 
 
 "Thus we see that offences of a nature personal to 
 the court are to be punished by the court, while those 
 which interest suitors are punishable only by a jury. 
 So that suitors having obtained a judgment or decree, 
 after long and expensive litigation find the court, pow- 
 erless to secure to them its fruition and enjoyment 
 and, unless their antagonist chance to be a law abiding 
 citizen, discover that their success has only begotten 
 another controversy. Ours is a law abiding com- 
 munity, and good citizens will, without compulsion, 
 respect the lawful orders of their courts; but in every 
 society there are those who obey the laws only because 
 there is behind them a force they dare not resist. Is 
 
 Page 27 
 
it wise or beneficent legislation which accepts the 
 obedience of the good citizen, but is powerless to en- 
 force the law against the recalcitrant? Under this 
 law the authority of the courts would be reduced to 
 a mere 'power of contention.' " 
 
 I commend you to a careful reading of this 
 opinion, from which in my limited time, I have 
 been confined to these few brief excerpts. The 
 opinion contains an exhaustive analysis of the phil- 
 osophy as well as the history of chancery powers. 
 
 OklanoTna declarea unconstitutional law 
 
 requiring contempt cases to 
 
 he tried hy jury 
 
 IT is with much pleasure that I read from an Okla- 
 homa decision. I speak of this pleasure because 
 you must recall that Oklahoma was considered the 
 most radical and most socialistic State. Indeed, 
 as a condition to its admission into the Union, 
 Oklahoma was compelled to amend its first pro- 
 posed constitution. Oklahoma is commonly 
 called the home of populism, of the bank guaran- 
 tees, of poverty guarantees, and of all the panaceas 
 for all the ills that ever afflicted a social or political 
 community. Naturally, Oklahoma was exquis- 
 itely sensitive to the creed of Bryan, and passed 
 such a law as he advocated requiring contempt 
 cases to be tried by jury. The statute was tested 
 in the Supreme Court in the case of Smith v. 
 Speed reported in Volume 55, Lawyers' Reports 
 Annotated, at page 402, and the Court, in declar- 
 ing the statute unconstitutional, said: 
 
 Page 28 
 
''If the contention now sought for by the plaintiff 
 in error could be sustained, it would go to the extent 
 that the court, in equitable proceedings, after a full 
 hearing and a final determination and judgment upon 
 the merits, is without the power to enforce its judg- 
 ment by the imposition of a pecuniary penalty or im- 
 prisonment, and that, in the endeavor to enforce its 
 judgment by proceedings in contempt, it would be 
 subject to have its final judgment brought into re- 
 view in the contempt proceedings upon a change of 
 judge or of venue, to a completely new jurisdiction, 
 and to a trial by jury, in which the merits of the final 
 order which has been made by the court in the pro- 
 ceedings should again be reviewed, including the 
 question whether there was any merit or right or 
 authority of the court in the equitable proceeding in 
 which the judgment had been rendered or the order 
 made; and the equitable jurisdiction of the district 
 court upon matters finally determined would thus be 
 subject to be again brought in question by another 
 judge in another venue, and hj a jury — a thing un- 
 heard of in the chancery jurisdiction. If such a state 
 of things could be, it could but result in the degrada- 
 tion of courts, and to make them truly the subjects of 
 contempt. If, in the progress of steps tending to 
 demolish the equitable jurisdiction of the district 
 courts and judges, the point should now in this case 
 be reached, and it now be held, that neither the 
 courts nor the judges have authority or jurisdiction to 
 enforce the orders which it is their duty to make, but 
 that the proceedings in contempt requisite to enforce 
 such orders are to be subjected to trial by jury, re- 
 moved to another county, and tried before another 
 judge, there is no reason why an act of the legislature 
 may not also be passed, and held to be just as effective, 
 which would undertake to submit the contempt pro- 
 ceedings to the jurisdiction of a justice of the peace, 
 either in the county where the violation of the court's 
 order occurred, or in some other county; and in that 
 event the immense and beneficent jurisdiction in 
 chancery, the result of the labors of Nottingham, 
 Hardwicke, Thurlow, and Eldon, and others of the 
 great English Chancellors who have so largely enun- 
 ciated this jurisdiction, and of the equally eminent 
 judges of our own Supreme Court, from Chief Justice 
 
 Page 2Q 
 
Marshall to our own day; who have joined in its con- 
 firmation, would be subjected to the supremacy of 
 justices of the peace, with their juries. 
 
 "No reputable lawyer would consent to occupy the 
 bench in such a condition of things, and this court 
 would, if it could abide such a contention and pros- 
 pect, be instrumental in destroying the chancery jur- 
 isdiction which they were appointed to uphold. But 
 such is not the law. The equitable jurisdiction of the 
 courts and judges is not, perhaps, as generally appre- 
 hended at large, but is well understood by the en- 
 lightened knowledge of the bar, and is capable of as 
 succinct and definite ascertainment as is the right of 
 trial by jury at the common law." 
 
 Later in the same opinion, the Court uses this 
 significant language: 
 
 "It can not be conceded that the right to punish a 
 contempt may be turned over by the legislature to a 
 separate tribunal. It was said by the Supreme Court 
 of the United States in Eilenbecker v. PlymoiUh 
 County Dist. Ct. 134 U. S. 36, 33 L. Ed. 803, 10 Sup. 
 Ct. Rep. 426, that 'if it has ever been understood that 
 proceedings according to the common law for con- 
 tempt of court have been subject to the right of trial 
 by jury, we have been unable to find any instance of 
 it.' And in Interstate Commerce Commission v. Breim- 
 son, 154 U. S. 447, 448, 38 L. Ed., 1047, 14 Sup Ct. 
 Rep. 1125, it was again said that 'surely it can not be 
 supposed that the question of contempt of the au- 
 thority of a court of the United States, committed 
 by a disobedience of its orders, is triable, of right, by 
 a jury.'" (55 L. R. A. 406, 407). 
 
 It should be borne in mind, that populism, fad- 
 ism, and all the ^ 'isms' ^ known to political cru- 
 saders started from Oklahoma and ran their fu- 
 rious course over the Middle West as did the 
 prairie fires of a generation ago. 
 
 Page 30 
 
Let us step a bit further south of the Mason and 
 Dixon line, into North Carolina. The legislature 
 had limited the authority of courts in contempt 
 cases. The Supreme Court of that State in the 
 matter of McCown, reported in volume 139 of the 
 North Carolina Reports, at page 95, in a very- 
 exhaustive review of the powers of courts as dis- 
 tinguished from the other departments of govern- 
 ment said : 
 
 "The constitution provides for a distinct separa- 
 tion of the three co-ordinate branches of the govern- 
 ment and vests the judicial power in the several 
 courts mentioned in Article IV, Section 2. It further 
 provides that the general Assembly shall not deprive 
 the judicial department of any power of jurisdiction 
 which rightfully pertains to it. Article IV, Section 
 12. If the power to attach for a direct contempt is 
 inherent in the courts and necessary to their vitality 
 and usefulness, any interference with its exercise 
 which prevents the courts from proceeding against 
 contumacious or disorderly persons must needs be a 
 deprivation of the power. But argument is not re- 
 quired to establish so plain a proposition. Rapalje, 
 at page 13, Section 11, says: 'In the absence of a con- 
 stitutional provision on the subject, the better opinion 
 seems to be that legislative bodies have not power to 
 limit or regulate the inherent power of courts to 
 punish for contempt. This power being necessary to 
 the very existence of the court, as such, the Legisla- 
 ture has no right to take it away or hamper its free 
 exercise. This is undoubtedly true in the case of a 
 court created by the Constitution. Such a court can 
 go beyond the provisions of the statute, in order to 
 preserve and enforce its constitutional powers, by 
 treating as contempts acts which may clearly invade 
 them.' " 
 
 Page 31 
 
Georgia likewise declined to limit ^ower of 
 judiciary to punish for contempt 
 
 PROCEEDING further south, to the State of 
 Georgia, where the legislature had likewise at- 
 tempted to limit the powers of the judiciary to 
 punish for contempt, the Supreme Court, in the 
 ease of Bradley v. Georgia^ reported in 111 
 Georgia, at page 168, used the following language: 
 
 "The power to punish for contempt is inherent in 
 every court of justice. It is absolutely necessary that 
 a court should possess this power in order that it may 
 carry on the administration of justice and preserve 
 order and decorum in the court. As far as we can as- 
 certain, this power has existed since courts were first 
 established. Judge Wilmot, in 1795, in a treatise up- 
 on the subject, said he had been unable to find where 
 it was first exercised, but in his opinion it was as old 
 as the courts themselves. All the courts, in their de- 
 cisions, and all the text writers lay down the same 
 doctrine — that this power is necessary to all courts, 
 and is inherent in them. It is so well established that 
 we deem it unnecessary to cite authorities upon the 
 subject. This power being inherent and necessary, 
 can the legislature by defining what are contempts, 
 y limit the courts to treating as contempts such acts 
 only as are embraced in the legislative definition? In 
 the formation of our Government, Federal and State, 
 the three departments of government were in each 
 constitution ordained to be separate, distinct and 
 independent of each other. No one of them had any 
 right or power to infringe upon the power or jurisdic- 
 tion of the other, without an express constitutional 
 provision granting this right or power. The legisla- 
 ture cannot take away, restrict, or modify any of the 
 powers conferred by the constitution upon the execu- 
 tive. Nor can the executive infringe upon the powers 
 of the legislature. Nor can either the legislative or 
 executive abridge the powers conferred by the consti- 
 tution upon the courts, unless express authority is 
 given. Each of these departments represents the 
 sovereignty of the people. Indeed, the executive, the 
 
 Page 32 
 
legislature and the judiciary are but the servants and 
 agents of the people. To each department the people 
 have given certain powers, and have declared that 
 neither of the other departments shall interfere there- 
 with. The people have entrusted these servants or 
 agents with the duty of carrying out their will, and for 
 that purpose, in one of these departments, they have 
 by their organic law estabhshed certain courts. 
 Among these are the superior courts. • When these 
 courts were established by the constitution, they were 
 estabhshed with all the rights and powers possessed 
 by all courts of record prior to that time. Among 
 these powers were that of defining and punishing con- 
 tempts of court, whether such contempts were direct, 
 that is, committed in the presence of the court, or con- 
 structive, interfering indirectly with the administra- 
 tion of justice. This power was incident to the court 
 itself, and belonged, not to the judges as individuals, 
 but to the court. The courts established by the con- 
 stitution were established by the people, and repre- 
 sented the majesty of the people. Whoever disobeyed 
 an order of such a court, or was in contempt of its 
 proceedings, or did anything which tended to impede 
 or corrupt the administration of justice committed a 
 contempt against the majesty of the people. Without 
 power and ability to preserve order and decorum, to 
 preserve the purity of jury trial and to enforce their 
 own orders, and the like, courts could not carry out the 
 wishes of the people. The courts established by the 
 constitution were therefore vested with all these 
 necessary powers — powers which were, at common 
 law, possessed by the courts of record. Whatever a 
 court of record could, under the common law, punish 
 as a contempt, these courts had power to deal with as 
 a contempt. This power came to them as much as 
 did the common law. Indeed, it is a part of the com- 
 mon law. — 1 Bailey on Jur., No. 297. When the 
 constitutional convention established our courts, it 
 vested in them all the power necessary to carry out 
 the purposes for which they were designed. Such a 
 court, established with such powers, is not in the 
 exercise of these powers subject to legislative control. 
 The superior court is a constitutional court, estab- 
 lished with these powers, and the legislature has no 
 right, without express constitutional authority, to 
 
 Page 33 
 
abridge, restrict, or modify either its jurisdiction or 
 its powers."— (50 L. R. A. 692). 
 
 The decision in tJie Dehs case 
 
 IT will not be seriously denied that Mr. Bryan's 
 appeal of 1896 was fed largely upon the indus- 
 trial discontent that came after the great railroad 
 strikes of the early 90's. The famous case of Debs 
 had created discussion all over the union. It will 
 likewise be recalled that Debs, in attacking the 
 jurisdiction of the Federal judiciary, had brought 
 up the very point in question here. The United 
 States Supreme Court, however, in the Debs case 
 reported in volume 158, of the United States 
 Supreme Court Reports, at page 564, answered 
 this contention as follows: 
 
 "But the power of a court to make an order carries 
 with it the equal power to punish for a disobedience 
 of that order, and the inquiry as to the question of 
 disobedience has been, from time immemorial, the 
 special function of the court — and this is no technical 
 rule. In order that a court may compel obedience to 
 its orders it must have the right to inquire whether 
 there has been any disobedience thereof. To submit 
 the question of disobedience to another tribunal, be 
 it a jury or another court, would operate to deprive 
 the proceeding of half its efficiency." 
 
 Since then, in defining what is meant by the 
 judicial power of the United States, the same 
 court in the case of Kansas v. ColoradOj 206 U. S. 
 46, made this declaration: 
 
 "Speaking generally, it may be observed that the 
 judicial power of a nation extends to all controversies 
 justiciable in their nature, the parties to which or the 
 property involved in which may be reached by judicial 
 
 Page 34 
 
process, and when the judicial power of the United 
 States was vested in the Supreme and other courts, 
 all the judicial power which the nation was capable 
 of exercising was vested in those tribunals, and 
 unless there be some limitations expressed in the 
 Constitution it must be held to embrace all controver- 
 sies of a justiciable nature arising within the terri- 
 torial limits of the Nation, no matter who may be the 
 parties thereto. This general truth is not inconsistent 
 with the decisions that no suit or action can be main- 
 tained against the Nation in any of its courts without 
 its consent, for they only recognize the obvious truth 
 that a Nation is not without its consent subject to the 
 controlling action of any of its instrumentalities or 
 agencies. The creature cannot rule the creator.'' 
 
 Again, and most recently, in the memorable 
 case of Gompers vs. Buck Stove & Range Co,, re- 
 ported in volume 221 of the Reports of the Su- 
 preme Court of the United States, at page 418, 
 that august tribunal said: 
 
 **If a party can make hiniself a judge of the validity 
 of orders which have been issued, and by his own act 
 of disobedience set them aside, then are the courts 
 impotent, and what the Constitution now fittingly 
 calls the 'judicial power of the United States' would 
 be a mere mockery. 
 
 "This power 'has been uniformly held to be neces- 
 sary to the protection of the court from insults and 
 oppressions while in the ordinary exercise of its duties, 
 and to enable it to enforce its judgments and orders 
 necessary to the due administration of law and the 
 protection of the rights of suitors.' (Vessette v. Conkeijj 
 194 U. S. 324, 333.) 
 
 "There has been general recognition of the fact 
 that the courts are clothed with this power and must 
 be authorized to exercise it without referring the is- 
 sues of fact or law to another tribunal or to a jury in 
 the same tribunal. For if there was no such authority 
 in the first instance there would be no power to enforce 
 
 Page 35 
 
its orders if they were disregarded in such independent 
 investigation. Without authority to act promptly 
 and independently the courts could not administer 
 pubHc justice or enforce the rights of private litigants." 
 
 Let me revert now to the Massachusetts case 
 from which I read in the early part of my argu- 
 ment: 
 
 "It has been argued that since the equitable juris- 
 diction of the court is largely statutory, Parker v. 
 Simpson, 180 Mass. 334, 350, it may be curtailed by 
 the legislature in respect of the power to grant in- 
 junctions. It is one thing to affect the scope of 
 equity by extending or restricting the branches of 
 that jurisprudence which courts may administer; 
 it is a quite different matter to enact that some citi- 
 zens may resort to it, while others may not. 
 
 "Without discussing other aspects of this proposi- 
 tion, it is enough to say that the power of courts to 
 afford injunctive relief cannot be impaired by the 
 legislature in such a way as to prevent its use in favor 
 of one property owner, when it is preserved for the 
 benefit of other property owners. It is an elementary 
 principle of equity that an injunction never is issued 
 except to prevent irreparable injury. If the statute 
 means anything more than this, there would be other 
 diflSculties about its construction which need not now 
 be elaborated." 
 
 I could weary you with a repetition of authori- 
 ties from the highest courts in all the states of this 
 land in support of the proposition that I urge; 
 but with the decisions already quoted of some of 
 the most respected of our State courts, fortified 
 as they are by the decisions of the highest court 
 of our Federal government, I feel it unnecessary to 
 go further. 
 
 Page 36 
 
The Clayton Act not to be compared 
 with this bill 
 
 PASSING the question of the constitutionality 
 of this statute, which I assume you will take 
 up in serious conference with the Assistant Attor- 
 ney General, I want a moment of your time in 
 presenting my views of its practical operation. 
 You have been told that the enactment of the 
 Flaherty bill now before you would give the State 
 of California in effect the provisions of the Clayton 
 anti-injunction act. Superficially this is true, but 
 substantially it is untrue, and, I must now be- 
 lieve, knowingly false. In California we have a 
 large body of substantive law, which is to be 
 found in several thousand different sections of our 
 Civil Code, as well as in an almost equal number 
 of sections of our Criminal Code and in many 
 statutes in addition. The Federal government 
 has no such body of substantive laws. Its powers, 
 being delegated powers, are, therefore, limited 
 powers. The Federal law has little to do with 
 aught but interstate commerce, foreign commerce, 
 patents, copyrights and the like. Therefore, 
 when the Clayton act provides that all contempts 
 which are of themselves criminal offenses shall be 
 triable by a jury it has a very limited application. 
 I have in my hand here a list of eighty odd sec- 
 tions of our California Criminal Code alone which 
 make certain acts criminal offenses, acts which of 
 themselves involve no moral turpitude nor any 
 immoral conduct, but acts which have been de- 
 clared to be criminal merely to safeguard and pro- 
 tect pubhc and property rights. It is unlawful, 
 for instance, for the directors of a corporation to 
 declare dividends from aught save surplus profits 
 
 Page 37 
 
of the corporation, and when the directors of a cor- 
 poration do so they are guilty of a misdemeanor. 
 
 All misdemeanors are criminal offenses. There- 
 fore if a court of our State should issue its injunc- 
 tion restraining the directors of a corporation 
 from illegally declaring and paying out dividends, 
 and the directors of a corporation should wantonly 
 defy the order of the court, the court would be 
 without power to punish the directors. These 
 directors would have the right to a trial by jury, 
 because what they did was a criminal offense. 
 It is likewise a misdemeanor and therefore a 
 criminal offense to divert water from a ditch, 
 flume or aqueduct that does not belong to the 
 party causing the diversion. It is a misdemeanor 
 to pollute streams, or pollute air. It is a misde- 
 meanor to trespass upon lands belonging to an- 
 other. It is a misdemeanor to conduct a bawdy 
 house or house of prostitution, and so on. As I 
 said at the outset, I have here for your use a list 
 of at least eighty such offenses, none having any- 
 thing to do with the differences occurring between 
 capital and labor. Let us take any one of these 
 cases and see what the effect of this statute would 
 be if it should become a law. San Francisco today 
 is doing what Los Angeles did five or six years 
 ago in the Owens River — acquiring certain rights 
 to water in the Tuolumne River. Some of those 
 rights have been acquired after litigation. In those 
 suits in which the City has prevailed, the City has 
 been adjudged to be the owner of certain waters and 
 the judgment has contained within its terms an 
 injunction restraining the farmers along the Tu- 
 olumne river from diverting or taking this water. 
 
 Page 38 
 
That judgment is now pending on appeal in our 
 Supreme Court. Let us assume that the Supreme 
 Court affirms that judgment. Let us assume that 
 thereafter the farmers along the Tuolumne river, 
 despite the injunction, continue to divert the waters 
 which have been determined to be the property 
 of the City of San Francisco. Under this Act 
 would the Supreme Court have power summarily 
 to punish the offenders and enforce respect for its 
 decree? Not at all. Under the provisions of this 
 bill, the offender would have to be cited ; he would 
 be entitled to a jury trial according to the prac- 
 tices and forms prevailing in ordinary misde- 
 meanors. This man then would be tried in his 
 own township among his own farmer neighbors, 
 all of whom are directly interested in taking the 
 water which has been determined to be the prop- 
 erty of the people of San Francisco. In such a 
 trial before a jury of twelve men the law would 
 require a unanimous verdict. If, therefore, but 
 one man upon that local jury of twelve men along 
 the Tuolumne river should vote not guilty, 
 whether that man be interested or disinterested, 
 whether he be the leader of the community or a 
 humble workman in a little town, it would lie 
 within his power to nullify the solemn adjudica- 
 tion of the highest court of our State, and there- 
 by make property determinations valueless. 
 
 Page 39 
 
Under this hiJJ the courts could not enforce 
 their own mandates 
 
 TAKE another case: The smelters in Kennet 
 have been restrained by final injunction from 
 using their smelters because of the destruction 
 wrought to vegetation and forests for 40, 50 and 
 60 miles south — into Shasta County. Suppose 
 this law goes into effect, and suppose the manager 
 of the smelters orders the fires started, and the 
 fumes again burst from the chimney, spreading 
 their poisonous deposits upon the orchards and 
 farm lands to the south. Such an act would be in 
 flagrant disobedience of the existing judgment in 
 the litigation that has been finally determined. 
 Would the Court have power to compel him to 
 stop? Would the Court have power to punish him? 
 Would the Court have power to uphold its own 
 dignity and insist upon respect for its own man- 
 dates? Not at all. This man, guilty of deliberate 
 disobedience of the final order of the Court, under 
 the provisions of this bill would have the right 
 to a trial by jury, and in the township of Kennet. 
 Kennet, as we all know, is a little town dependent 
 entirely upon the operation and the prosperity of 
 the smelters. Is it reasonable to believe that a 
 jury of twelve men living in Kennet, depending 
 for their livelihood upon the prosperity of the 
 smelters of Kennet would hold the defendant 
 guilty on such a trial? Credulity hardly war- 
 rants the belief. 
 
 Page 40 
 
The Anti -Injunction hill would revolutionize 
 our judicial procedure 
 
 TAKE still another case: the people of this 
 State recently passed a Redlight Abatement 
 bill. Under the terms of this statute, when a court 
 finds and determines that property is used for pur- 
 poses of prostitution, a judgment is issued deter- 
 mining that this property shall be condemned, and 
 enjoining the use of it for a fixed period of time. 
 What becomes of the RedHght Abatement law? 
 If the Court issues its injunction under the pro- 
 visions of that law, it cannot enforce it. In San 
 Francisco, I understand, the experience of our 
 police courts is that they cannot secure convic- 
 tions of women guilty of prostitution, even where 
 their guilt is practically confessed. If the present 
 measure becomes a law, you might just as well 
 wipe from the statute book the Redlight Abate- 
 ment law. 
 
 Nor must I forget to call your attention to the 
 fact that in California all contempts are them- 
 selves made misdemeanors, and therefore criminal 
 offenses. Section 166 of our Penal Code expressly 
 says that every person guilty of any contempt of 
 court of the kinds enumerated in the section is 
 guilty of a misdemeanor. Then the section con- 
 tinues with a definition that embraces almost 
 every known form of contempt. It has been very 
 seriously urged that inasmuch as all these con- 
 tempts are themselves misdemeanors, therefore, 
 under the language of the statute before you, all 
 contempt cases would have to be tried by a jury. 
 My own opinion is that the bill would probably 
 receive such a construction. If so, the bill will 
 accomplish a revolution in our judicial procedure. 
 
 Page 41 
 
I could go on right down the list of which I 
 have spoken and which I hold in my hand; tres- 
 pass cases; suits to quiet title. I could give in- 
 numerable cases and consume the rest of the day. 
 I have given these few illustrations merely to 
 bring to your mind the force of the practical ob- 
 jections. Of what value will courts be? What 
 will become of law and order and the regulations 
 of organized society? What of the dignity and 
 effectiveness of constituted authority, if finality 
 is stricken from our judicial calendar, if it be given 
 to a single individual, ignorant or educated, hon- 
 est or dishonest, to override and nullify the final 
 determination of the highest courts in the state, 
 reached after painstaking investigation and hear- 
 ing. Law and order will be converted into a hol- 
 low mockery, and chaos would reign in this State 
 heretofore governed by rational law. 
 
 I have taken this much of your time with an 
 analysis of the act itself. Let me turn now to an- 
 other matter that should not be overlooked. It is 
 axiomatic that the fewer laws there are, the better 
 it is for organized society and for the individual. 
 This is a political truism that we have inherited 
 from Jefferson himself. Of course, every wrong 
 should have a remedy, every right should be pro- 
 tected, and legislation should be enacted where 
 it is required to safeguard property, life or the 
 enjoyment of life and property. Where none of 
 these needs exist, legislation is vicious, because all 
 needless legislation carries its inherent vices with it. 
 
 Page 42 
 
It has been urged that organized labor has been 
 the victim of many abuses and that it has been 
 cruelly wronged by the courts of our State. I 
 challenge contradiction of the statement which I 
 now most earnestly and advisedly make: that in 
 no state in this union have the legal rights of labor 
 been more fully protected than in California; and 
 that in no state in the Union has labor less cause 
 for complaint in this respect than in California. 
 
 It has been intimated that this bill is confined 
 in its operation to labor union disputes, and has 
 not the wide scope its language imports. Let me 
 assume for the moment what these gentlemen 
 claim is true. Then, being bound by the ruling 
 of the highest court of this State, you cannot turn 
 a deaf ear to a decision handed down by our 
 Supreme Court not so many years ago — the case 
 of Pierce v. Stahlemens* Uniorij reported in volume 
 156 of California Reports at page 70. The Union 
 there claimed that under the provisions of the 
 statute of 1903, which forbade the issuance of in- 
 jimctions in labor disputes, the court had no 
 power to restrain the members of the Stablemens' 
 Union from applying opprobrious epithets and 
 threatening to beat up and otherwise injure men 
 who would not obey them. In dismissing this 
 point, our Supreme Court held that such legisla- 
 tion was trespassing upon the exclusive province 
 of the judiciary. In the course of its opinion, the 
 court used the following language: 
 
 Page 43 
 
'*As to the first of these contentions, this court had 
 occasion in Goldberg, etc. Co. v. Stablemen's Union, 
 149 Cal. 429 (117 Am. St. Rep. 145, 86 Pac. 806), to 
 consider the statute above referred to and relied upon 
 by appellants, and declared that if the construction 
 there contended for (and here contended for) was the 
 proper construction, this provision of the act was 
 void. Not only would it be void as violative of one's 
 constitutional right to acquire, possess, enjoy, and 
 protect property but as well would it be obnoxious to 
 the constitution in creating arbitrarily and without 
 reason a class above and beyond a law which is 
 applicable to all other individuals and classes. It 
 would legalize a combination in restraint of trade or 
 commerce, entered into by a trades union, which 
 would be illegal if entered into by any other persons 
 or associations. It would exempt trade unions from 
 the operation of the general laws of the land, under 
 circumstances where the same laws would operate 
 against all other individuals, combinations, or asso- 
 ciations. It is thus not only special legislation, ob- 
 noxious to the constitution (Art. IV, Sec. 25, subds. 
 3, 33), but it still further violates the constitution in 
 attempting to grant privileges and immunities to cer- 
 tain citizens or classes of citizens which, upon the same 
 terms, have not been granted to all citizens." (Art. 1, 
 Sec. 21.) 
 
 This decision cannot be ignored. If the claim 
 made at this eleventh houi' by the proponents of 
 this bill that it is limited to labor controversies 
 be correct, then the bill is unconstitutional for 
 the reasons indicated by Justice Henshaw. If it 
 is not limited in its effect to labor unions, the bill 
 is open to all the objections I have hitherto urged 
 in my argument. 
 
 Page 44 
 
The hill a product of ** those newly distilled 
 
 liquors of syndicalism and 
 
 anarchy * 
 
 DURING the last three or four months I have 
 carefully weighed and re-weighed this bill to 
 jSnd some point of merit that might justify its 
 introduction and its final passage, without meet- 
 ing with any success whatever. The more I read 
 it the more indignant I became that such legisla- 
 tion should be offered in this day and generation. 
 Whether it was run through in the rush of the 
 closing days of a busy legislative session or whether 
 it was cooly and designedly introduced for the 
 purpose of wilfully bringing about the deplorable 
 conditions which I have indicated would ensue, 
 I have no means of knowing. But having carefully 
 called to the attention of the legislative Commit- 
 tees the very plain imperfections of the bill as well 
 ajS the strong judicial decisions of these many 
 courts, with my reverence for the existing institu- 
 tions of my country and having seen the most 
 unequivocal court decisions utterly disregarded, I 
 cannot help but believe that in p,assing this bill 
 our legislature has truculently offered an insult to 
 our judiciary, has needlessly cast an aspersion 
 upon the courts of this State, and has unjusti- 
 fiably condemned an attitude towards labor which 
 our courts have never entertained. If any criti- 
 cism is merited upon this subject, it might possibly 
 be that our courts have stepped ahead of all other 
 courts in sanctioning practices which everywhere 
 else but in California are deemed oppressive, cruel 
 and illegal. 
 
 Page 45 
 
I realize that I am somewhat overstepping my 
 time. My justification for imposing thus upon 
 your patience is the gravity of this question to the 
 entire business community and to the State itself, 
 which will be confronted by anarchy at a time 
 when all its strength and all its resources should be 
 conserved for the great struggle which this nation 
 is now entering upon. As well do I feel the bill 
 destructive of the very principles of government 
 under which this nation has thus far prospered. 
 I cannot speak too strongly upon this subject, for 
 what endangers the fundamentals of our govern- 
 ment, must arouse in us a desire to fly to its pro- 
 tection. 
 
 I cannot say that I have as yet yielded to the 
 intoxication of those newly distilled liquors of 
 syndicalism and anarchy which now and then 
 are quaffed and spilt about our country. Some 
 men, mentally frenzied by the belief that life has 
 not yielded to them all of material return which 
 they feel they deserve, have sought an outlet for 
 their resentment in attempting to shatter the en- 
 tire structure of our social system. Others, per- 
 haps with less pardonable motives, are exploiting 
 men who all too little realize how far at times they 
 are being led. To one and all I say the time has 
 come for the sober, intelligent and patriotic people 
 of this State to call a halt. We appeal to you, sir, 
 the chief executive of our State, to stay the 
 threatening hand ere it wreak its full destruction. 
 
 Page 46 
 
Conch 
 
 one fusion 
 
 LET me again repeat: We have naught but 
 -^ sympathy with all the legitimate aspirations of 
 labor. We have none but kindly sentiments for a 
 union striving for a better material as well as 
 spiritual plane. To everything that may be con- 
 ducive to a better scale of living, to a happier and 
 more contented people, we are willing to devote 
 ourselves and all which we possess, but inflexibly 
 do we interpose the barriers of our solemn objec- 
 tion to anything that spells destruction or ruin. 
 With all the earnestness I can find in me, sir, I beg 
 you most seriously to weigh these objections 
 which I have been compelled in hurried fashion 
 to offer before you, to weigh them, with a mind 
 ever open to the remotest as well as the immediate 
 consequences of such legislation to yourself, to 
 ourselves and the people of the State as a whole. 
 I have spoken to you as a lawyer representing 
 some of the largest commercial interests in this 
 big State of ours, but I appeal to you over and 
 above all, as a citizen having a true love and a sin- 
 cere feeling of patriotism for this State in which 
 I was born and in which I hope to leave my ashes. 
 
 
 Page 47 
 
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