tion on the liberty or burden upon the prop erty of individuals. Sanitary regulations are common, including the abolition of slaughter houses and other noxious places, and restrictions upon burial. Protection against fire and danger from explosions, the us of highways and speed of vehicles, the regulation of occupations, buildings, etc., are among the many instances where municipal action is upheld. An ordinance which on its face shows that such end was in contemplation will ordinarily be presumed to be valid. See 21 Am. & Eng. Enc. Law, p. 978, and cases cited; Booth, Street Railways, § 224; Cooley, Const. Lim. 6th ed. p. 241, note; Nellis, Street Surface Roads, 215. Not only will the burden of proof be upon one who attacks its validity, but the discretion of the council will not be interfered with upon light grounds, or where the regulation can fairly be said to tend toward a better and safer condition.

being solved daily in the realm of mechanics. Moreover, there is proof that one or more small cars have been equipped and successfully run with them. The validity of an ordinance cannot be made to depend upon what a trial judge, a justice of the peace, or a jury may conclude from the testimony and opinions of such witnesses as may happen to be brought into court in the first case that arises, where, as in this case, its provisions, when viewed in the light of facts, of which the courts may take judicial notice, are reasonable, and clearly within the discretion of the council, either by virtue of a reserved power resting in contract, or the police power.

We do not feel called upon to say much about the claim that this ordinance should be held invalid upon the ground that it will require a large outlay, or that it takes property without due process of law. It is too well settled that the state or city may enforce regulations clearly looking to the safety of the public, and reasonably adapted to such end to make it necessary. All property is held subject to the exercise of the police power. See Carthage v. Frederick, 122 N. Y. 268, 10 L. R. A. 178, 19 Am. St. Rep. 490, 25 N. E. 480; Atty. Gen. ex rel. Rich v. Jochim, 99 Mich. 371, 23 L. R. A. 699, 41 Am. St. Rep. 606, 58 N. E. 611. In Cooley, Const. Lim. p. 708, it is said: "All contracts and all rights, it is declared, are subject to this [police] power, and not only may regulations which affect them be established by the state, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity." See cases cited in note to last authority. It has been urged that the proof shows that a light car can be as effectively handled and controlled by hand as by power brakes, and there is proof to that effect, and also that electric or air brakes are less reliable than hand brakes on such cars. This point is covered by what has been said. If the air brake or electric brake is more liable to get out of repair, and there is difficulty in stopping the car at a given point, it is not shown that proper su

The ordinance in question punishes the operation of a car not equipped with air or electric brakes. This ordinance is in harmony with the statute (Comp. Laws, § 6280), which for many years has required the equipment of steam passenger cars with air brakes. Before we should say that a similar requirement as to street cars is unreasonable, and therefore invalid, it should be made to appear clearly, either that there is no necessity for a more efficient brake than a hand brake upon street cars, or that neither an air nor an electric brake would be such; and if, as is contended, and apparently conceded, the hand brake is not to be dispensed with, it would be necessary to show that a car equipped with both would not be safer than with the hand brake alone. Counsel urge that the uncontradicted evidence shows that this ordinance is unreasonable. We think not, and, if it might be said that a preponderance of the oral testimony supports that view, we think that would be insufficient to justify us in nullifying the ordinance. We may take judicial notice that atmospheric or vacuum brakes are in general use on passenger trains, that they are common upon freight cars and trains, and that they are rarely ineffective. The record shows that they are in use on electric cars of the larger type, both on sub-pervision would not assure effective brakes urban lines and on city roads. If they at all times, and that the employment of were not, it is patent that they could be; skilled or experienced motormen would not and, while counsel contend that they could overcome the latter difficulty. But, if not, not be applied to small cars, it has not been the evidence as well as common experience satisfactorily proved. It is not improbable shows that a power brake is quicker in its that the exact device used on large cars action, and in emergencies where human life might not be adapted to use on a small one is involved in delay expeditious stopping of (especially where but one set of trucks is a car should not yield to possible inconused) without some modification; but that venience in the matter of stopping places. is not shown to be mechanically difficult, It is also said that the ordinance is inand everyone knows that such problems are valid even if air brakes can be said to be

effective, because it does not designate be- consideration the validity of the ordinance, tween air and electric brakes, which last the question is in no case a question for the are said to be clearly shown to be ineffec-jury; in other words, that it is to be detertive. We think there is no force in this point. It is not to be presumed that any one will use the latter under such circumstances. Defendant certainly is not required

to.

The conviction is affirmed.

mined as a question of law, and not as a question of fact. One of the strongest cases supporting this view is that of Illinois C. R. Co. v. Whittemore, 43 Ill. 420, 92 Am. Dec. 138. In that case it was said: "It was proper to admit testimony, as was done; but either with or without this testimony it

Moore, Carpenter, and Grant, JJ., was for the court to say whether the regulaconcurred.

Montgomery, J., concurring:

It is the contention of defendant that the ordinance in question is unreasonable, and that for this reason it should not be cnforced. That there is a limitation upon the power of a municipal legislative body, which the courts have the right to enforce, and that an ordinance which is unreasonable in its terms is beyond the power of such legislative body to enact, is well settled. There can be no doubt, either, that where, upon the face of the ordinance, it is shown to be unreasonable, the question which the courts have to determine becomes purely a question of law. But that is not this case. In the present case the contention is that the ordinance is unreasonable, as shown by the testimony of the facts and circumstances; in other words, that, although the court would not be able to say on the face of the ordinance that it is unreasonable, yet, because of the existence of certain facts, which it is claimed the testimony establishes in the case, the court should hold that the ordinance is unreasonable. These facts are not facts of which the court can take judicial notice, but are facts claimed to be proved in the case, and the question is, Who is to determine these facts? It may be conceded that the authorities are not agreed upon the question, and it becomes necessary to look somewhat to the reason of the rule.

tion was reasonable, and therefore obligatory upon the passengers. The necessity of holding this to be a question of law, and therefore within the province of the court to settle, is apparent from the consideration that it is only by so holding that fixed and permanent regulations can be established. If this question is to be left to juries, one rule would be applied by them to-day and another to-morrow. In one trial a railway would be held liable, and in another, presenting the same question, not liable. Neither the companies nor passengers would know their rights or their obligations." The reason assigned in this opinion appears to be the one upon which the rule rests so far as it has been adopted, viz., the idea that when, in a particular case, an ordinance is determined to be unreasonable, that determination will control in all future cases that may arise under the ordinance, whether the question arises between the same parties or not. If the reason of the rule fails, the rule should fail. It is certainly anomalous to hold that A may be concluded in a proceeding between B and C., to which A is not a party, when that judgment rests upon a determination by some one of a question of fact. The whole realm of adjudicated cases may be searched in vain for another instance of this character. The very reason upon which the rule rests refutes the rule. So far from its being true that in a proceeding depending upon a question of fact fuThe rule is stated in Dill. Mun. Corp. § ture litigants should be finally concluded, 327, as follows: "Whether an ordinance be the exact reverse is true, and an ordinance reasonable and consistent with the law or which may be declared upon a certain state not is a question for the court, and not the of facts proved to the court or jury to be jury, and evidence to the latter on this sub- invalid in a proceeding dependent between ject is inadmissible. But in determining A and B in which there may be involved a this question the court will have to regard trifling amount, cannot be held to conclude all the circumstances of the particular city C who may have vested rights to the amount or corporation, the objects sought to be at- of thousands or millions of dollars. To il tained, and the necessity which exists for the lustrate: Suppose in an action between ordinance." This statement of the law is third parties it had been determined that strictly accurate if it be limited to cases the original franchise granted to this defendin which the question depends upon facts ant was invalid as wholly unreasonable, can of which the court may take judicial cog- the vested rights of this corporation be said nizance. But there are cases which go fur- to have been devested in a proceeding to ther, and hold that, where the question of which it was not a party? Such a proposi reasonableness depends upon facts, while it tion shocks the sense of justice, and fortumay be competent for the court to take tes-nately we are not without authorities which timony as to these facts, and to take into 'have a direct bearing upon this question.

In the case of State, Pennsylvania R. Co., | judgment depending upon a question of fact Prosecutor, v. Jersey City, 47 N. J. L. 286, has not concluded them? In the case of

a proceeding was commenced for the purpose Brooklyn Crosstown R. Co. v. Brooklyn, 37 of having an ordinance of the city declared Hun. 416, it was said: "The validity of invalid as unreasonable, and it was said: every ordinance or by-law of a corporation "This proceeding in error seeks the abolition which is not passed in strict compliance of this ordinance in toto, and, as a whole, it with statutory delegation of power depends is plainly not open to the imputation of un- upon its reasonableness, and hence reasonableness. Its scope is to put upon a that point [the reasonableness of the ordiproper footing the use of railroad trains nance] was a proper subject for judicial exwithin the municipal bounds, and there is no amination as a question of fact." If, then, pretense that it presses unduly upon any of there is involved in the case a question of such companies, except that it harasses the fact, how shall that question be determined? plaintiff in error in passing its numerous As I have endeavored to show, the reason astrains across three certain streets near its signed by some of the authorities why it terminal depot. But, conceding this allega- should not be a question for the jury is a tion to be true, that the business of the wholly insufficient one. Worse than that, it plaintiff in error at this particular locality is a false reason, which leads to erroneous is by that ordinance unreasonably embar- and unjust results. We are not wanting, rassed and burdened, such a vice in the by- however, in authority which sustains the law would not render it generally, but only | rule which I have foreshadowed. In Clason specially, inefficacious, that is, the court v. Milwaukee, 30 Wis. 316, it was said: "It would not vacate the entire ordinance, but is impossible for the court to determine merely refuse to put it in effect in that part whether or not the ordinance is reasonable of it that was thus unreasonable." And a and proper, in view of the object sought to somewhat analogous question has arisen in be accomplished, without some evidence upthe Federal courts. As is well understood, on the subject. And we cannot see that it the Federal courts have held that, under is a violation of any principle to submit the 14th Amendment, a statute of a state these questions of fact to a jury as in other regulating freight or passenger charges may, cases." This case was followed by the case if it be unreasorable in its terms, be held of Austin v. Austin City Cemetery Asso. 87 unconstitutional and void in its application Tex. 330, 47 Am. St. Rep. 114, 28 S. W. 528, to a particular case. But the Federal Su- in which it was held that it is incumbent uppreme Court has held, as we shall see, that on a party who alleges the invalidity of an the determination of this question in a par- ordinance as unreasonable to aver and prove ticular case does not conclude the question the facts which make it so; that, if the for all time as between parties standing in facts be controverted, they must be detera different relation to the public authorities. mined by the jury; but that whether the This is well illustrated in the case of facts relied upon show the ordinance to be Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, unreasonable or not is a question for the 18 Sup. Ct. Rep. 418. That was a case in court. So, in State v. Boardman, 93 Me. chancery, and the question of the reasonable- 73, 46 L. R. A. 750, 44 Atl. 118, it was said: ness of the statute as applied to the com- "It is true that the question of the reasonplainant was determined upon a full review ableness of a by-law is for the determination of all the facts of the case. It was held of the court, and this conclusion does not that the statute as applied to then condi- take away from the court the determination tions was unreasonable. But it is signifi- of the question. Certain facts will have to cant that in the very case the court fully be passed upon by the jury. But the standapproved of the provision in the decree of ard upon the question of the reasonableness the circuit court that the defendants, mem- or otherwise of the by-law is established by bers of the board of transportation, might, the court." In Chicago & G. T. R. Co. v. "when the circumstances have changed so Wellman, 143 U. S. 339, 36 L. ed. 176, 12 that the rates fixed in said act of 1893 [Neb. Sup. Ct. Rep. 400, the question of the reaActs 1893, p. 164, chap. 24] shall yield to the sonableness of a statute fixing the maximum said companies reasonable compensation for rate at 2 cents per mile was involved. the services aforesaid," apply to the court was said: "If the validity of such a law by bill or otherwise, as they may be ad- in its application to a particular company vised, for a further order in that behalf. If, depends upon a question of fact as to its then, it is possible that, as between the same effect upon the earnings, may not the court parties who have litigated the reasonable properly leave that question to the jury, and ness of a statute (or ordinance), the ques- decline to assume that the effect is as tion may again be opened as a question of claimed? There can be but one answer to fact, how much more may it be said that, these questions." The invalidity of the ordias between strangers to that litigation, the nance in the present case depended upon the

It

ability of the defendant to establish certain | show the invalidity of the ordinance. But facts. This it undertook to do. The case the record is not so made up. In my view, was tried without a jury. The trial judge, unless we are able to say that the testihowever, stood in the position of a jury. mony all tends in one direction, and that is He found as a fact that the ordinance was to show the unreasonableness of the ordinot unreasonable. It was, then, within the nance, the plaintiff in certiorari has not put province of the defendant's counsel to call for itself in position to review the decision of more specific finding of facts. This they the trial judge. As I do not find the testifailed to do. Doubtless better practice would mony all one way, I think the judgment have been to have had a specific finding upon should be affirmed. the particular facts which are claimed to

MINNESOTA SUPREME COURT.

their beneficial business intercourse, through APPEAL by defendants from an order of

The clear preponderance of the evidence on the affidavits is in favor of the defendants, and therefore it was error to grant an injunction.

Rosenberg v. Burnstein, 60 Minn. 18, 61 N. W. 684; First Nat. Bank v. Randall, 38 Minn. 382, 37 N. W. 799; Blandy v. Raguet, 14 Minn. 243, Gil. 179.

v. Miami S. S. Co. 30 C. C. A. 142, 52 U. S. | 388; Davis v. United Portable Hoisting EnApp. 732, 86 Fed. 407; Southern Indiana gineers, 28 App. Div. 396, 51 N. Y. Supp. Exp. Co. v. United States Exp. Co. 88 Fed. 180; Payne v. Western & A. R. Co. 13 Lea, 659, Affirmed in 35 C. C. A. 172, 92 Fed. 507, 49 Am. Rep. 666; Cote v. Murphy, 159 1022. Pa. 421, 23 L. R. A. 135, 39 Am. St. Rep. 686, 28 Atl. 190; Clemmitt v. Watson, 14 Ind. App. 38, 42 N. E. 367; Delz v. Winfree, 80 Tex. 400, 26 Am. St. Rep. 755, 16 S. W. 111; Robison v. Texas Pine Land Asso. (Tex. Civ. App.) 40 S. W. 843; Graham v. St. Charles Street R. Co. 47 La. Ann. 214, 27 L. R. A. 416, 49 Am. St. Rep. 366, 16 So. 806; Arthur v. Oakes, 25 L. R. A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 317; Continental Ins. Co. v. Board of Fire Underwriters, 67 Fed. 310; Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 613; Allen v. Flood, 67 L. J. Q. B. N. S. 119 [1898] A. C. 1; Huttly v. Simmons, 67 L. J. Q. B. N. S. 213; Glamorgan Coal Co. v. South Wales Miners' Federation, 71 L. J. K. B. N. S. 1001; Perrault v. Gauthier, 28 Can. S. C. 241; Brewster v. C. Miller's Sons Co. 101 Ky. 368, 38 L. R. A. 505, 41 S. W. 301; Baker v. Metropolitan L. Ins. Co. 23 Ky. L. Rep. 1174, 55 L. R. A. 271, 64 S. W. 913; Baker v. Sun L. Ins. Co. 23 Ky. L. Rep. 1178, 64 S. W. 967.

Where the equities of the complaint are fully and positively denied in the answer or the affidavits opposing the motion for an injunction, it is, in all but a few exceptional cases, error to grant the injunction.

Pineo v. Heffelfinger, 29 Minn. 183, 12 N. W. 522; Armstrong v. Sanford, 7 Minn. 49, Gil. 34; Moss v. Pettingill, 3 Minn. 217, Gil. 145; Montgomery v. McEwen, 9 Minn. 103, Gil. 93; Knoblauch v. Minneapolis, 56 Minn. 321, 57 N. W. 928; 10 Enc. Pl. & Pr. 993, | 1000, 1001, 1048; Arthur v. Oakes, 25 L. R. A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 328.

The men had a right to quit. They have a right to organize and act in concert, through their organization and its officers, in quitting, or threatening to quit, for the purpose of furthering their own interest as an organization.

Bohn Mfg. Co. v. Hollis, 54 Minn. 223, sub nom. Bohn Mfg. Co. v. Northwestern Lumbermen's Asso. 21 L. R. A. 337, 40 Am. St. Rep. 319, 55 N. W. 1119; Ertz v. Produce Exchange, 79 Minn. 140, 48 L. R. A. 90, 79 Am. St. Rep. 433, 81 N. W. 737.

Parties confederated together may, in furtherance of their own interests, and in managing their own affairs, injure others in many ways.

18 Am. & Eng. Enc. Law, 2d ed. pp. 80, 81, 84, 86-90; 6 Am. & Eng. Enc. Law, 2d ed. pp. 872, 873; Longshore Printing Co. v. Howell, 26 Or. 527, 28 L. R. A. 464, 46 Am. St. Rep. 640, 38 Pac. 547; Macauley Bros. v. Tierney, 19 R. I. 255, 37 L. R. A. 455, 61 Am. St. Rep. 770, 33 Atl. 1; Heywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373; Com. v. Hunt, 4 Met. 134, 38 Am. Dec. 346; Bowen v. Matheson, 14 Allen, 499; Walker v. Cronin, 107 Mass. 555; Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287; Snow v. Wheeler, 113 Mass. 179; National Protective Asso. v. Cumming, 170 N. Y. 315, 58 L. R. A. 135, 88 Am. St. Rep. 648, 63 N. E. 369; Rogers v. Evarts, 17 N. Y. Supp. 264; Wunch v. Shankland, 59 App. Div. 482, 69 N. Y. Supp. 349; Tallman v. Gaillard, 27 Misc. 114, 57 N. Y. Supp. 419; Reform Club of Masons & Plasterers v. Laborers' Union Protective Soc. 29 Misc. 247, 60 N. Y. Supp.

It is error to compel the men to work by enjoining them from quitting.

22 Am. & Eng. Enc. Law, p. 1002. The men have a constitutional right to quit.

State ex rel. Erickson v. West, 42 Minn. 152, 43 N. W. 845; Civil Rights Cases, 109 U. S. 36, 27 L. ed. 848, 3 Sup. Ct. Rep. 18; Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676; Arthur v. Oakes, 25 L. R. A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 317.

An injunction will not issue against strikers to restrain them from leaving the service of an employer, for equity cannot extend by mandatory injunction its jurisdiction to compel the performance of personal service as against either the employer or the employed.

Re Clark, 1 Blackf. 122, 12 Am. Dec. 213. Mr. W. E. Hale, with Messrs. Harlan P. Roberts, W. W. Bardwell, and Hale & Montgomery, for respondents:

Granting an injunction pendente lite is a matter in the sound discretion of the trial

court.

Southern P. Co. v. Earl, 27 C. C. A. 185, 48 U. S. App. 716, 82 Fed. 692; Sanitary Reduction Works v. California Reduction Co. 94 Fed. 693; Casey v. Cincinnati Typographical Union No. 3, 12 L. R. A. 193, 45 Fed. 135; Myers v. Duluth Transfer R. Co. 53 Minn. 337, 55 N. W. 140; Gorton v. Forest City, 67 Minn. 36, 69 N. W. 478; McGregor v. Case, 80 Minn. 215, 83 N. W. 140; Jersey