days from the time of its entry, that order would expire before the court would be prepared to make its interlocutory order of injunction, leaving an interval there during which no restraining order or injunction would be in effect, during which the strikers would not be restrained at all by any order of the court, during which they might do all the acts sought to be restrained, and by the time the court was ready to issue its interlocutory injunction the damage sought to be avoided might be accomplished.

Now, there is a provision here in line 19, page 2, that this restraining order shall not "exceed seven days," "Unless within the time so fixed the order is extended or renewed for a like period, after notice to those previously served, if any, and for good cause shown, and the reasons for such extension shall be entered of record."

I submit that that provision is absolutely unworkable in the case of a railroad company seeking to enjoin a numerous body of strikers. When a railroad company files its bill it must, under this section, begin to serve upon the parties to be enjoined, notice of the application for interlocutory order of injunction as rapidly as possible. Presumably by the expiration of seven days the notice will have been served on a considerable number, but the court is not permitted to extend its restraining order unless before such extension shall be made there shall be notice of such extension to those who have been previously served with notice of motion for the interlocutory injunction. In other words, the more diligent the railroad company is in promptly serving the parties to be enjoined the more people it has to serve again, before it can get an extension of the restraining order beyond the first seven days. That makes the provision utterly unworkable and leaves the situation where the restraining order will expire by lapse of time before the court is in a position to grant the interlocutory injunction. So that, bearing in mind the proposition I referred to before recess, that the railroad company is engaged in a public service and is seeking to enjoin the strikers for the purpose of enabling the company to continue to perform that public service, we have here a limitation upon the issue of restraining orders which will make it impracticable to secure in the public interest an effective judicial restraint prior to the time when the court is able, after notice, after hearing, after considering, to issue its interlocutory injunction. I submit therefore that as applied to railroad companies this provision will be particularly unjust and oppressive, and this legislation would necessarily react principally upon the public itself, because it is the public which suffers when railroad trains are prevented from moving.

Apparently section 263 places same disability upon the Government itself as upon the railroads.

I wish to call attention to the further fact that apparently this section 263 would operate in all cases of applications for injunctions except those cases covered by section 266 of the judiciary code, and therefore would operate against the Government if the Government seeks to obtain an injunction under the antitrust act or under the interstate commerce act. Even the Government itself could not have a restraining order for more than seven days and before the court would be in position to determine upon issuing an interlocutory order of injunction in a matter of such gravity as would bring the Government into the case, the seven days would have expired, and if this

bill is operative, there would be no way in which the Government could protect itself from a violation of the antitrust act or the interstate commerce act between the lapse of that seven days and the time when the court was prepared to decide upon the issue of an interlocutory injunction.

Section 266a apparently requires the Government itself to give bond to pay damages to defendants wrongfully enjoined.

The next section, 266a, relates to the giving of security. I am not advised that that section itself would be particularly embarrassing to railroad companies. My impression is that generally they are required to and do give security when they apply for injunctions, but I call the committee's attention to what appears to be the situation, that that section would seem to be a limitation upon the Government itself. If the Government seeks an injunction, apparently the issuance of the injunction must depend upon the Government giving security "in such sum as the judge or court may deem proper, conditioned upon the payment of such costs and damages as may be incurred or suffered by any party who may be found to have been wrongfully enjoined or restrained thereby."

Section 266b is ambiguous and is likely to be construed so as to embarrass the obtaining of effective injunctions against wrongful acts seriously injurious to the public interest.

I come now to section 266b and as to this section a great deal depends upon the question of construction. The section is ambiguous and it may be decided in such a way as not to cause many of the difficulties I will refer to. On the other hand, it may be construed. in such a way as to cause those difficulties.

Section 266b apparently confines injunction to prohibition of specified acts and does not allow any general clause. This would facilitate evasion and impair proper effectiveness.

Section 266b says: "That every order of injunction or restraining order shall set forth the reasons for the issuance of the same, shall be specific in terms, and shall describe in reasonable detail, and not by reference to the bill of complaint or other document, the act or acts sought to be restrained."

That says, "the order of injunction shall be specific in terms and shall describe in reasonable detail the act or acts sought to be restrained."

It is a serious question whether that would admit of the courts, after describing certain acts, adding a general clause enjoining the doing of similar acts or acts with a similar purpose. Apparently the section does not contemplate any general clause of that character because it says without qualification that the injunction shall be specific in terms and shall describe in reasonable detail the act or acts sought to be restrained. I wish to point out that it is particularly true in the case of railroad companies that it is impossible to fix the particular acts which may be done to accomplish the purpose of interfering with the running of trains. I will suggest a few instances which have come to my attention which will faintly suggest the unlimited opportunities for the exercise of ingenuity in thinking up new acts of obstruction which may not be specified by the court. In a strike several years ago upon one of the western railroads the locomotive boilers were secretly tampered with so that the damage was not immediately apparent, but when the locomotive got out

on the road it would fail. It would thereby delay the train and obstruct the tracks. Emery was put into the journals, so that when the train got under way there would be a hot box and, as a consequence, delay. In a more recent case of a strike on a railroad either the strikers or persons interested with them would go into the railroad yards and tear off the cards which were tacked on the cars for the purpose of identifying the cars and showing their destination so that the switchmen might know where to take them. Others would take cards from one car and tack them on other cars, with the result that cars would be sent to the wrong place, and so much inconvenience would be caused to the shipping public as well as to the railroad company. Others would intercept boys carrying waybills, switching cards, etc., from one part of the yard to the other and take those records and destroy them, therefore leaving the entire force in ignorance as to what should be done with certain traffic. Others would urge employees to mix up the freight and falsify the records for the similar purpose of obstructing the conduct of the company's business. In other cases the employees were stoned and the passengers terrorized by that conduct. No matter how industrious and ingenious the complainant's counsel may be and the court may be, it would be utterly impossible to specify in the order of injunction all the acts which it would be necessary to restrain in order to protect the operation of the trains.

So, if section 266b should be given that meaning and be regarded as precluding any general clause restraining all other acts similar to those specified and restraining all other acts of similar effect, the result would be that it would simply be an invitation to the strikers to think up some new act in addition to those which the court and counsel for complainant were unable to think of, as those acts could be done with impunity until there might be a further interlocutory injunction issued.

Section 266b is calculated to narrow the injunction so as to invite the deliberate commission of the prohibited acts by numerous persons who ought to be compelled to respect the court's order.

That section further provides that the injunction—

shall be binding only upon the parties to the suit, their agents, servants, employees and attorneys, or those in active concert with them, and who shall by personal service or otherwise have received actual notice of the same.

It is entirely possible that this clause could be construed in a liberal way sufficient to give the courts practically the power which they now exercise in dealing with a situation so as to control it effectively. On the other hand it is possible and perhaps probable that it will be assumed that the intention of Congress was to change the law, or else the provision would not have been adopted, and it will therefore be construed as limiting the doctrines now applied by the courts. Therefore, this language may be the source of considerable difficulty and of itself may seriously embarrass railroad companies in their effort to keep their properties in operation in case of a strike.

We have already found in section 263, at the top of page two, the specific requirement that notice of an interlocutory injunction must be served upon the parties sought to be enjoined. Then section 266b says that the injunction shall be binding only upon the parties to the suit, their agents, servants, employees, and attorneys, or those

in active concert with the parties to the suit. I presume the parties to the suit would be only those persons named as defendants who were actually before the court by service of process and it might well be that the courts would construe this clause in such a way as to mean that nobody could be held bound by the injunction unless the person held for contempt was one of the individuals named as defendant and who had been served with process, or an agent, servant, or employee, or attorney of some one of those individuals so named and served, or a person in active concert with the specific individuals who had been named as defendants and served with process.

Now, if the matter be narrowed in that way, undoubtedly the courts will have less latitude than they now have to give effect to the injunctions which they issue, and it is a very serious question as to how that portion of the section will be construed. There will be a tendency to assume that Congress intended to change the law or it would not have enacted the provision, and if it does change the law so as to narrow it in that way there will be a substantial embarrassment in the effective enforcement of these injunctions.

The CHAIRMAN. I wish you would point out in what particular that would narrow the power of the court?

Mr. HINES. Understand, Mr. Chairman, an injunction of this sort generally issues in a case where there is a vast conspiracy among several hundred or several thousands of laborers to coerce the railroad company into granting their demands. Of course, a thousand people can not be named in the bill and served with process. Perhaps only a few can actually be reached and served with process. It would be easier to satisfy the courts that some person not served with process and not named was connected with this general conspiracy than it would be to satisfy the court that a specific individual alleged to have violated the injunction had a direct individual connection with some of the specific individuals who had been named and served with process.

I point that out as a danger to be apprehended, not necessarily that the courts would construe it in that way, but I think when the committee is called upon to deal with a situation which involves the question of an effective remedy for the railroads of the country in their effort to render the public service which the statute requires them to render, the committee has to be cautious not to adopt any language which can, by any possibility be so construed as to narrow the operation of the injunction and embarrass the courts in their carrying it into effect.

Section 266b by using term "active concert" may permit the injunction to be defied by all whose acts are affirmatively approved by the strikers.

I want to call attention to another particular which I think is of even more importance than the one I have just mentioned. The latter portion of the section says the injunction "shall only be binding upon the parties to the suit, their agents, servants, employees, and attorneys, or those in active concert with them," etc. Now, let us assume this situation: That the injunction is issued, running against the defendants and their associates, who are members of a labor union, and all others in active concert with them. Suppose the union complies with the injunction and does nothing to violate it, but that under cover of the excitement and confusion incident to the

strike, outsiders come along and, with full notice of the injunction, elect on their own motion, so far as any proof can be had, to do the things which the injunction has prohibited. It ought to be construed that these persons, by their action, had constituted themselves the representatives of the strikers, or had associated themselves with the strikers in such sense that their deliberate doing of these acts with knowledge of the injunction was a contempt of court. But I fear this bill is open to construction that the words "active concert mean the active cooperation of the two sides; that is, not only must the outsider of his own motion elect to do the act, but in order to show contempt of the injunction it must be proved that he did it with the approval of the strikers, because it is hard to imagine a concert which has only one side to it. A concert implies cooperation and it may well be that a man's associating himself with the strikers and doing these things on their behalf would be said not to show active concert with the strikers, if the strikers themselves were not encouraging and approving his acts, and the burden of showing that they did encourage and approve his acts would be exceedingly difficult.

The CHAIRMAN. If you know, what is claimed to be the particular evil existing under the present methods of enforcing the law that calls for this provision?

Mr. HINES. Mr. Chairman, I do not know of any. I have heard a vague statement.

The CHAIRMAN. I have heard nothing and I would like to be informed if there is an objection about it.

Mr. HINES. I have heard a vague statement that blanket injunctions which were issued were a great injustice, but my attention has never been called to one which has not been so guarded as to protect the rights of the defendant and to protect any man from being unjustly pursued.

The CHAIRMAN. I am speaking of the latter part of the section to which you refer.

Mr. HINES. I am not able to point out any case where there has been an abuse which calls for this provision, and I assume that the gentlemen who favor it will, if they can, sustain it by pointing out cases of that character.

So that question of active concert is a pretty serious matter. A court of equity dealing with this whole situation can tell whether an outsider, who with notice of the injunction has wilfully done the thing the court had prohibited, has elected to bring himself in as a representative or as an associate of the strikers in such a way that he may be properly punished for contempt. But if in addition the burden must be maintained that he was in active concert with the strikers, which may be held to imply an encouragement on the part of the strikers of his doing that thing, it is a serious question whether the outsider could be held.

There is a still broader aspect of this matter upon which very serious doubt may be thrown by this provision. The courts recognize two sorts of contempt, one where the court's action might be called remedial, where a party to the suit or his representative or someone who has associated himself with the party to the suit, does something in violation of the injunction. There, by way of affording the complainant the remedy to which he is entitled, the court