1. Where the issue is whether a state statute, in its
application to facts specifically alleged and admitted by demurrer,
violates the plaintiff's rights under the Constitution, this Court
must analyze the facts as averred and draw its own inferences as to
their ultimate effect; it is not bound by the state court's
conclusion in this regard, nor by that court's declaration that the
statute is merely a rule of evidence. P.
257 U. S.
324.
2. The bill showed in substance that the defendants, for the
purpose of winning a strike called by the defendant labor union
over terms and conditions of employment in plaintiffs' restaurant,
conspired to injure or destroy the business by inducing actual and
prospective customers to withhold their patronage, and to that end
caused the restaurant to be picketed by men who, throughout
business hours, were stationed at the entrance proclaiming in a
loud voice its "unfairness" to union labor, and who patrolled the
sidewalk before it and, by word of mouth and through banners and
handbills, made and circulated abusive and libelous attacks upon
the plaintiffs, their business, their employees and customers, with
threats of like consequences to future customers, and that much
injury to the business resulted.
Held that the bill stated
a plain case of conspiracy and actionable wrong. P.
257 U. S.
327.
3. If, as it seems to have been interpreted by the Supreme Court
of Arizona, the law of that state (Rev.Stats., 1913, par. 1464)
regulating injunctions in labor controversies grants the defendants
in this case immunity from any civil or criminal action for the
wrongs above stated, or leaves them merely subject to criminal
prosecution for libel, it violates the Fourteenth Amendment by
depriving the plaintiffs of their property without due process of
law. P.
257 U. S.
328.
4. The legislative power of a state can only be exerted in
subordination to the fundamental principles of right and justice
which
Page 257 U. S. 313
the guaranty of due process in the Fourteenth Amendment is
intended to preserve, and a purely arbitrary or capricious exercise
of that power, whereby a wrongful and highly injurious invasion of
property rights is practically sanctioned and the owner stripped of
all real remedy, is wholly at variance with those principles. P.
257 U. S. 329.
New York Central R. Co. v. White, 243 U.
S. 188, distinguished.
5. The distinction between peaceful secondary boycotts and the
present case considered. P.
257 U. S.
330.
6. The relations of the due process and equal protection clauses
of the Fourteenth Amendment considered. P.
257 U. S.
331.
7. The equal protection clause was aimed at undue favor and
individual or class privilege, on the one hand, and at hostile
discrimination or the oppression of inequality, on the other; it
secures equality of protection not only for all, but against all,
similarly situated; it is a pledge of the protection of equal laws.
P.
257 U. S.
332.
8. Assuming that a state legislature may vary equitable relief
in the state courts at its discretion, and even take away their
equity jurisdiction altogether, the equality clause forbids that it
deny such relief to one man while granting it to another under like
circumstances and in the same territorial jurisdiction. P.
257 U. S.
334.
9. A state law which specially exempts ex-employees, when
committing tortious and irreparable injury to the business of their
former employer, from restraint by injunction, while leaving
subject to such restraint all other tortfeasors engaged in like
wrongdoing, is unreasonable and without any just relation to the
acts in respect of which it is proposed. P.
257 U. S.
337.
10. Such a classification cannot be upheld as a legalized
experiment in sociology; the very purpose of the Constitution was
to prevent experimentation with the fundamental rights of the
individual. P.
257 U. S. 338.
Second Employers' Liability Cases, 223 U. S.
1;
New York Central R. Co. v. White, supra, and
similar cases distinguished.
11. In view of the construction placed by the state court upon
Ariz.Rev.Stats., 1913, par. 1464, in this case, and because the
equal protection clause applies only to state action, the
conclusion that the statute is in part unconstitutional does not
mean that § 20 of the Clayton Act, an act of Congress similarly
worded but very differently construed, is also invalid. P.
257 U. S. 340.
Cf. American Steel Foundries v. Tri-City Central Trades
Council, ante, 257 U. S. 184.
12. Paragraph 1456, Ariz.Rev.Stats., 1913, making general
provision for issuance of injunctions, is separable from par. 1464,
supra, having been adopted by the Territory and continued
by
Page 257 U. S. 314
the state constitution as a state law before par. 1464 was
enacted as an amendment, and the unconstitutionality of the latter
does not affect the continued operation of the former. P.
257 U. S. 341.
Connolly v. Union Sewer Pipe Co., 184 U.
S. 540, distinguished.
20 Ariz. 7 reversed.
Error to review a decree of the Supreme Court of Arizona which
affirmed a decree of the Superior Court of Cochise County
dismissing upon demurrer the complaint of the present plaintiffs in
error in their suit to restrain the defendants from committing the
acts described in the opinion.
Page 257 U. S. 320
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The plaintiffs in error, who were plaintiffs below, and will be
so called, own, maintain, and operate, on Main Street, in the City
of Bisbee, Arizona, a restaurant known as the "English Kitchen."
The defendants are cooks and waiters formerly in the employ of the
plaintiffs, together with the labor union and the trades assembly
of which
Page 257 U. S. 321
they were members. All parties are residents of the State of
Arizona.
The complaint set out the following case:
In April, 1916, a dispute arose between the plaintiffs and the
defendants' union concerning the terms and conditions of employment
of the members of the union. The plaintiffs refused to yield to the
terms of the union, which thereupon ordered a strike of those of
its members who were in plaintiffs' employ. To win the strike and
to coerce and compel the plaintiffs to comply with the demands of
the union, the defendants and others unknown to the plaintiffs
entered into a conspiracy and boycott to injure plaintiffs in their
restaurant and restaurant business by inducing plaintiffs'
customers and others theretofore well and favorably disposed, to
cease to patronize or trade with the plaintiffs. The method of
inducing was set out at length, and included picketing, displaying
banners, advertising the strike, denouncing plaintiffs as "unfair"
to the union, and appealing to customers to stay away from the
"English Kitchen," and the circulation of handbills containing
abusive and libelous charges against plaintiffs, their employees,
and their patrons, and intimations of injury to future patrons.
Copies of the handbills were set forth in exhibits made part of the
complaint.
In consequence of defendants' acts, many customers were induced
to cease from patronizing plaintiffs, and their daily receipts,
which had been in excess of the sum of $156 were reduced to $75.
The complaint averred that, if the acts were continued, the
business would be entirely destroyed, and that the plaintiffs would
suffer great and irreparable injury; that for the plaintiffs to
seek to recover damages would involve a multiplicity of suits; that
all the defendants were insolvent, and would be unable to respond
in damages for any injury resulting from their acts, and the
plaintiffs were therefore without any adequate remedy at law.
Page 257 U. S. 322
The complaint further averred that the defendants were relying
for immunity on Paragraph 1464 of the Revised Statutes of Arizona
of 1913, which is in part as follows:
"No restraining order or injunction shall be granted by any
court of this state, or a judge or the judges thereof, 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 employment, unless necessary to
prevent irreparable injury to property or to a property right of
the party making the application, for which injury there is no
adequate remedy at law, and such property or property right 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."
"And no such restraining order or injunction shall prohibit any
person or persons from terminating any relation of employment, or
from ceasing to perform any work or labor, or from recommending,
advising, or persuading others by peaceful means so to do; or from
attending at or near a house or place where any person resides or
works, or carries on business, or happens to be for the purpose of
peacefully obtaining or communicating information, or of 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 means
so to do. . . ."
The plaintiffs alleged that this paragraph, if it made lawful
defendants' acts, contravened the Fourteenth Amendment to the
Constitution of the United States by depriving plaintiffs of their
property without due process of law, and by denying to plaintiffs
the equal protection of the laws, and was therefore void and of no
effect. Upon the case thus stated, the plaintiffs asked a temporary
and a permanent injunction.
Page 257 U. S. 323
The defendants filed a demurrer, on two grounds: first, that the
complaint did not state facts sufficient to constitute a cause of
action, in that the property rights asserted therein were not,
under Paragraph 1464, Revised Statutes of Arizona of 1913, of such
character that their irreparable injury might be enjoined, and,
secondly, that, upon its face, the complaint showed a want of
equity.
The Superior Court for Cochise county sustained the demurrer and
dismissed the complaint, and this judgment was affirmed by the
Supreme Court of Arizona.
The ruling of the supreme court proceeded first on the
assumption that the gravamen of the complaint was that the
defendants were merely inducing patrons to cease their patronage by
making public the fact of the dispute and the attitude of
plaintiffs in it, and secondly on the proposition that, while
goodwill is a valuable factor in business success, "no man has a
vested right in the esteem of the public" -- that, while the
plaintiff had a clear right to refuse the demand of the union, the
union had a right to advertise the cause of the strike. The court
held that the purpose of Paragraph 1464 was to recognize the right
of workmen on a strike to use peaceable means to accomplish the
lawful ends for which the strike was called; that picketing, if
peaceably carried on for a lawful purpose, was no violation of the
rights of the person whose place of business was picketed; that,
prior to the enactment of Paragraph 1464, picketing was unlawful in
Arizona, because it was presumed to induce breaches of the peace,
but that plaintiffs had no vested right to have such a rule of law
continue in that state; that, under Paragraph 1464, picketing was
no longer conclusively presumed to be unlawful; that the paragraph
simply dealt with a rule of evidence requiring the courts to
substitute evidence of the nature of the act for the presumption
otherwise arising; that the plaintiffs' property rights were not
invaded by picketing unless the
Page 257 U. S. 324
picketing interfered with the free conduct of the business; that
plaintiffs did not claim that defendants had by violent means
invaded their rights, and that, if that kind of picketing were
charged and established by proof, plaintiffs would be entitled to
relief to the extent of prohibiting violence in any from.
The effect of this ruling is that, under the statute, loss may
be inflicted upon the plaintiffs' property and business by
"picketing" in any form if violence be not used, and that, because
no violence was shown or claimed, the campaign carried on, as
described in the complaint and exhibits, did not unlawfully invade
complainants' rights.
The facts alleged are admitted by the demurrer, and, in
determining their legal effect as a deprivation of plaintiffs'
legal rights under the Fourteenth Amendment, we are at as full
liberty to consider them, as was the state supreme court.
McKay v.
Dillon, 4 How. 431;
Dower v. Richards,
151 U. S. 658,
151 U. S. 667.
Nor does the court's declaration that the statute is a rule of
evidence bind us in such an investigation.
Bailey v.
Alabama, 219 U. S. 219,
219 U. S. 238;
Chicago Railway Co. v. Minnesota, 134 U.
S. 418;
Mugler v. Kansas, 123 U.
S. 623,
123 U. S. 661;
Corn Products Refining Co. v. Eddy, 249 U.
S. 427,
249 U. S. 432.
In cases brought to this Court from state courts for review, on the
ground that a federal right set up in the state court has been
wrongly denied, and in which the state court has put its decision
on a finding that the asserted federal right has no basis in point
of fact, or has been waived or lost, this Court, as an incident of
its power to determine whether a federal right has been wrongly
denied, may go behind the finding to see whether it is without
substantial support. If the rule were otherwise, it almost always
would be within the power of a state court practically to prevent a
review here.
Kansas City Southern Ry. Co. v. Albers Commission
Co., 223 U. S. 573,
223 U. S.
591-593;
Cedar Rapids Gas Co. v. Cedar Rapids,
223 U. S. 655,
223 U. S.
668-669;
Page 257 U. S. 325
Southern Pacific Co. v. Schuyler, 227 U.
S. 601,
227 U. S. 611.
Another class of cases in which this Court will review the finding
of the court as to the facts is when the conclusion of law and
findings of fact are so intermingled as to make it necessary, in
order to pass upon the question to analyze the facts.
Northern
Pacific Ry. Co. v. North Dakota, 236 U.
S. 585,
236 U. S. 593;
Jones National Bank v. Yates, 240 U.
S. 541,
240 U. S.
552-553. In view of these decisions and the grounds upon
which they proceed, it is clear that, in a case like the present,
where the issue is whether a state statute in its application to
facts which are set out in detail in the pleadings and are admitted
by demurrer violates the federal Constitution, this Court must
analyze the facts as averred and draw its own inferences as to
their ultimate effect, and is not bound by the conclusion of the
state supreme court in this regard. The only respect in such a case
in which this Court is bound by the judgment of the state supreme
court is in the construction which that court puts upon the
statute.
The complaint and its exhibits make this case:
The defendants conspired to injure and destroy plaintiffs'
business by inducing their theretofore willing patrons and would-be
patrons not to patronize them, and they influenced these to
withdraw or withhold their patronage:
(1) By having the agents of the union walk forward and back
constantly during all the business hours in front of plaintiffs'
restaurant, and within five feet thereof, displaying a banner
announcing in large letters that the restaurant was unfair to cooks
and waiters and their union.
(2) By having agents attend at or near the entrance of the
restaurant during all business hours and continuously announce in a
loud voice, audible for a great distance, that the restaurant was
unfair to the labor union.
(3) By characterizing the employees of the plaintiff as scab
Mexican labor, and using opprobrious epithets concerning
Page 257 U. S. 326
them in handbills continuously distributed in front of the
restaurant to would-be customers.
(4) By applying in such handbills abusive epithets to Truax, the
senior member of plaintiffs' firm, and making libelous charges
against him, to the effect that he was tyrannical with his help,
and chased them down the street with a butcher knife; that he broke
his contract and repudiated his pledged word; that he had made
attempts to force cooks and waiters to return to work by attacks on
men and women; that a friend of Truax assaulted a woman and pleaded
guilty; that plaintiff was known by his friends, and that Truax's
treatment of his employees was explained by his friend's assault;
that he was a "bad actor."
(5) By seeking to disparage plaintiffs' restaurant, charging
that the prices were higher and the food worse than in any other
restaurant, and that assaults and slugging were a regular part of
the bill of fare, with police indifferent.
(6) By attacking the character of those who did patronize,
saying that their mental caliber and moral fiber fell far below the
American average, and inquiring of the would-be patrons: can you
patronize such a place and look the world in the face?
(7) By threats of similar injury to the would-be patrons by such
expressions as "all ye who enter here leave all hope behind;"
"don't be a traitor to humanity;" by offering a reward for any of
the ex-members of the union caught eating in the restaurant; by
saying in the handbills:
"We are also aware that handbills and banners in front of a
business house on the Main Street give the town a bad name, but
they are permanent institutions until William Truax agrees to the
eight-hour day."
(8) By warning any person wishing to purchase the business from
the Truax firm that a donation would be necessary, amount to be
fixed by the District Trades Assembly,
Page 257 U. S. 327
before the picketing and boycotting would be given up.
The result of this campaign was to reduce the business of the
plaintiffs from more than $55,000 a year to one of $12,000.
Plaintiffs' business is a property right (
Duplex Printing
Press. Co. v. Deering, 254 U. S. 443,
254 U. S.
465), and free access for employees, owner, and
customers to his place of business is incident to such right.
Intentional injury caused to either right or both by a conspiracy
is a tort. Concert of action is a conspiracy if its object is
unlawful or if the means used are unlawful.
Pettibone v. United
States, 148 U. S. 197,
148 U. S. 203;
Duplex Printing Press Co. v. Deering, supra. Intention to
inflict the loss and the actual loss caused are clear. The real
question here is: were the means used illegal? The above recital of
what the defendants did can leave no doubt of that. The libelous
attacks upon the plaintiffs, their business, their employees, and
their customers, and the abusive epithets applied to them, were
palpable wrongs. They were uttered in aid of the plan to induce
plaintiffs' customers and would-be customers to refrain from
patronizing the plaintiffs. The patrolling of defendants
immediately in front of the restaurant on the main street and
within five feet of plaintiffs' premises continuously during
business hours, with the banners announcing plaintiffs' unfairness;
the attendance by the picketers at the entrance to the restaurant
and their insistent and loud appeals all day long, the constant
circulation by them of the libels and epithets applied to
employees, plaintiffs, and customers, and the threats of injurious
consequences to future customers, all linked together in a campaign
were an unlawful annoyance and a hurtful nuisance in respect of the
free access to the plaintiffs' place of business. It was not lawful
persuasion or inducing. It was not a mere appeal to the sympathetic
aid of would-be customers by a simple statement of the
Page 257 U. S. 328
fact of the strike and a request to withhold patronage. It was
compelling every customer or would-be customer to run the gauntlet
of most uncomfortable publicity, aggressive and annoying
importunity, libelous attacks, and fear of injurious consequences,
illegally inflicted, to his reputation and standing in the
community. No wonder that a business of $50,000 was reduced to only
one-fourth of its former extent. Violence could not have been more
effective. It was moral coercion by illegal annoyance and
obstruction, and it thus was plainly a conspiracy.
It would consume too great space to refer to the mass of
authority which sustains this conclusion. It is sufficient to cite
the general discussion of the subject in
Gompers v. Buck's
Stove & Range Co., 221 U. S. 418,
221 U. S. 439.
Well known decisions on similar facts are
Sherry v.
Perkins, 147 Mass. 212;
Barr v. Essex Trades Council,
53 N.J.Eq. 101;
Purvis v. Local No. 500, 214 Pa. 348;
Wilson v. Hey, 232 Ill. 389;
Casey v. Cincinnati
Typographical Union, 45 F. 135;
Pierce v. Stablemen's
Union, 156 Cal. 70.
A law which operates to make lawful such a wrong as is described
in plaintiffs' complaint deprives the owner of the business and the
premises of his property without due process, and cannot be held
valid under the Fourteenth Amendment.
The opinion of the state supreme court in this case, if taken
alone, seems to show that the statute grants complete immunity from
any civil or criminal action to the defendants, for it pronounces
their acts lawful. If, however, we are to assume that the criminal
laws of Arizona do provide prosecution for such libels against the
plaintiffs, though committed by this particular class of
tortfeasors (
Truax v. Bisbee Local, 19 Ariz. 379), still
the tort here committed was not a mere libel of plaintiffs. That
would not have had any such serious consequences. The libel of the
plaintiffs here was not the cause of the
Page 257 U. S. 329
injury; it was only one step or link in a conspiracy unlawfully
to influence customers.
It is argued that, while the right to conduct a lawful business
is property, the conditions surrounding that business, such as
regulations of the state for maintaining peace, good order,
protection against disorder, are matters in which no person has a
vested right. The conclusion to which this inevitably leads in this
case is that the state may withdraw all protection to a property
right by civil or criminal action for its wrongful injury if the
injury is not caused by violence. This doctrine is supposed to find
support in the case of
New York Central Co. v. White,
243 U. S. 188,
243 U. S. 198,
and cases there cited. These cases, all of them, relate to the
liabilities of employers to employees growing out of the relation
of employment for injuries received in the course of employment.
They concern legislation as to the incidents of that relation. They
affirm the power of the state to vary the rules of the common law
as to the fellow servant doctrine, assumption of risk, and
negligence in that relation. They hold that employers have no
vested right in those rules of the common law. The broad
distinction between one's right to protection against a direct
injury to one's fundamental property right by another who has no
special relation to him, and one's liability to another with whom
he establishes a voluntary relation under a statute is manifest
upon its statement. It is true that no one has a vested right in
any particular rule of the common law, but it is also true that the
legislative power of a state can only be exerted in subordination
to the fundamental principles of right and justice which the
guaranty of due process in the Fourteenth Amendment is intended to
preserve, and that a purely arbitrary or capricious exercise of
that power whereby a wrongful and highly injurious invasion of
property rights, as here, is practically sanctioned and the
Page 257 U. S. 330
owner stripped of all real remedy is wholly at variance with
those principles.
It is to be observed that this is not the mere case of a
peaceful secondary boycott, as to the illegality of which courts
have differed and states have adopted different statutory
provisions. A secondary boycott of this kind is where many combine
to injure one in his business by coercing third persons, against
their will, to cease patronizing him by threats of similar injury.
In such a case, the many have a legal right to withdraw their trade
from the one, they have the legal right to withdraw their trade
from third persons, and they have the right to advise third persons
of their intention to do so when each act is considered singly. The
question in such cases is whether the moral coercion exercised over
a stranger to the original controversy by steps in themselves legal
becomes a legal wrong. But here, the illegality of the means used
is without doubt and fundamental. The means used are the libelous
and abusive attacks on the plaintiffs' reputation, like attacks on
their employees and customers, threats of such attacks on would-be
customers, picketing and patrolling of the entrance to their place
of business, and the consequent obstruction of free access thereto
-- all with the purpose of depriving the plaintiffs of their
business. To give operation to a statute whereby serious losses
inflicted by such unlawful means are in effect made remediless is,
we think, to disregard fundamental rights of liberty and property
and to deprive the person suffering the loss of due process of
law.
If, however, contrary to the construction which we put on the
opinion of the Supreme Court of Arizona, it does not withhold from
the plaintiffs all remedy for the wrongs they suffered, but only
the equitable relief of injunction, there still remains the
question whether they are thus denied the equal protection of the
laws.
Page 257 U. S. 331
The Arizona Constitution provides that the superior court shall
have jurisdiction in all cases of equity and, in pursuance of this
provision, paragraph 1456 of the Revised Statutes of Arizona, 1913,
declares:
"Judges of the superior courts may grant writs of injunction,
returnable to said courts, in the following cases:"
"1. Where it shall appear that the party applying for such writ
is entitled to the relief demanded, and such relief or any part
thereof requires the restraint of some act prejudicial to the
applicant."
"2. Where, pending litigation, it shall be made to appear that a
party is doing some acts respecting the subject of litigation, or
threatens, or is about to do some act, or is procuring or suffering
the same to be done, in violation of the rights of the applicant,
which act would tend to render the judgment ineffectual."
"3. In all other cases where the applicant for such writ may
show himself entitled thereto under the principles of equity."
The necessary effect of these provisions and of Paragraph 1464
is that the plaintiffs in error would have had the right to an
injunction against such a campaign as that conducted by the
defendants in error if it had been directed against the plaintiffs'
business and property in any kind of a controversy which was not a
dispute between employer and former employees. If the competing
restaurant keepers in Bisbee had inaugurated such a campaign
against the plaintiffs in error and conducted it with banners and
handbills of a similar character, an injunction would necessarily
have issued to protect the plaintiffs in the enjoyment of their
property and business.
This brings us to consider the effect in this case of that
provision of the Fourteenth Amendment which forbids any state to
deny to any person the equal protection of the laws. The clause is
associated in the amendment
Page 257 U. S. 332
with the due process clause and it is customary to consider them
together. It may be that they overlap, that a violation of one may
involve at times the violation of the other, but the spheres of the
protection they offer are not coterminous. The due process clause
brought down from Magna Charta was found in the early state
constitutions and later in the Fifth Amendment to the federal
Constitution as a limitation upon the executive, legislative, and
judicial powers of the federal government, while the equality
clause does not appear in the Fifth Amendment, and so does not
apply to congressional legislation. The due process clause requires
that every man shall have the protection of his day in court, and
the benefit of the general law -- a law which hears before it
condemns, which proceeds not arbitrarily or capriciously, but upon
inquiry, and renders judgment only after trial, so that every
citizen shall hold his life, liberty, property, and immunities
under the protection of the general rules which govern society.
Hurtado v. California, 110 U. S. 516,
110 U. S. 535.
It, of course, tends to secure equality of law in the sense that it
makes a required minimum of protection for every one's right of
life, liberty, and property which the Congress or the legislature
may not withhold. Our whole system of law is predicated on the
general fundamental principle of equality of application of the
law. "All men are equal before the law," "This is a government of
laws and not of men," "No man is above the law," are all maxims
showing the spirit in which legislatures, executives, and courts
are expected to make, execute, and apply laws. But the framers and
adopters of this amendment were not content to depend on a mere
minimum secured by the due process clause, or upon the spirit of
equality which might not be insisted on by local public opinion.
They therefore embodied that spirit in a specific guaranty.
The guaranty was aimed at undue favor and individual or class
privilege, on the one hand, and at hostile discrimination
Page 257 U. S. 333
or the oppression of inequality, on the other. It sought an
equality of treatment of all persons, even though all enjoyed the
protection of due process.
Mr. Justice Field, delivering the opinion of this Court in
Barbier v. Connolly, 113 U. S. 27,
113 U. S. 32, of
the equality clause, said:
"Class legislation, discriminating against some and favoring
others, is prohibited, but legislation which, in carrying out a
public purpose, is limited in its application if, within the sphere
of its operation, it affects alike all persons similarly situated
is not within the amendment."
In
Hayes v. Missouri, 120 U. S. 68, the
Court, speaking through the same Justice, said the Fourteenth
Amendment
"does not prohibit legislation which is limited either in the
objects to which it is directed or by the territory within which it
is to operate. It merely requires that all persons subject to such
legislation shall be treated alike under like circumstances and
conditions both in privileges conferred and in liabilities
imposed."
Thus, the guaranty was intended to secure equality of protection
not only for all, but against all similarly situated. Indeed,
protection is not protection unless it does so. Immunity granted to
a class, however limited, having the effect to deprive another
class, however limited, of a personal or property right is just as
clearly a denial of equal protection of the laws to the latter
class as if the immunity were in favor of, or the deprivation of
right permitted worked against, a larger class.
Mr. Justice Matthews, in
Yick Wo v. Hopkins,
118 U. S. 356,
118 U. S. 369,
speaking for the Court of both the due process and equality clause
of the Fourteenth Amendment, said:
"These provisions are universal in their application to all
persons within the territorial jurisdiction, without regard to any
differences of race, of color or of nationality,
and the equal
protection of the laws is a pledge of the protection of equal
laws. "
Page 257 U. S. 334
The accuracy and comprehensive felicity of this description of
the effect of the equality clause are shown by the frequency with
which it has been quoted in the decisions of this Court. It
emphasizes the additional guaranty of a right which the clause has
conferred beyond the requirement of due process.
With these views of the meaning of the equality clause, it does
not seem possible to escape the conclusion that, by the clauses of
Paragraph 1464 of the Revised Statutes of Arizona here relied on by
the defendants, as construed by its supreme court, the plaintiffs
have been deprived of the equal protection of the law.
It is beside the point to say that plaintiffs had no vested
right in equity relief, and that taking it away does not deprive
them of due process of law. If, as is asserted, the granting of
equitable remedies falls within the police power, and is a matter
which the legislature may vary as its judgment and discretion shall
dictate, this does not meet the objection under the equality
clause, which forbids the granting of equitable relief to one man
and the denying of it to another under like circumstances and in
the same territorial jurisdiction. The Fourteenth Amendment, as
this Court said in
Barbier v. Connolly, already ready
cited, intended
"not only that there should be no arbitrary deprivation of life
or liberty, or arbitrary spoliation of property, but that equal
protection and security should be given to all under like
circumstances in the enjoyment of their personal and civil rights;
that all persons should be equally entitled to pursue their
happiness and acquire and enjoy property;
that they should have
like access to the courts of the country for the protection of
their persons and property, the prevention and redress of wrongs,
and the enforcement of contracts; that no impediment should be
interposed to the pursuits of anyone except as applied to the same
pursuits by others under like circumstances; that no greater
burdens should be laid upon one
Page 257 U. S. 335
than are laid on others in the same calling and condition, and
that, in the administration of criminal practice, no different or
higher punishment should be imposed upon one than such as is
prescribed for all for like offenses."
If, as claimed, the legislature has full discretion to grant or
withhold equitable relief in any class of cases, indeed, to take
away from its courts all equity jurisdiction and leave those who
are wronged to suits at law or to protection by the criminal law,
the legislature has the same power in respect to the declaration of
crimes. Suppose the legislature of the state were to provide that
such acts as were here committed by defendants, to-wit, the
picketing or patrolling of the sidewalk and street in front of the
store or business house of any person and the use of handbills of
an abusive and libelous character against the owner and present and
future customers, with intent to injure the business of the owner,
should be a public nuisance and be punishable by fine and
imprisonment, and were to except ex-employees from its penal
provisions. Is it not clear that any defendant could escape
punishment under it on the ground that the statute violated the
equality clause of the Fourteenth Amendment? That is the necessary
effect of
Connolly v. Union Sewer Pipe Co., 184 U.
S. 540, where an antitrust act was held invalid under
this same clause because it contained the excepting provision that
it should "not apply to agricultural products or livestock while in
the hands of the producer or raiser." That was a stronger case than
this, because there, the whole statute was one dealing with
economic policy, and was a declaration of
mala prohibita
that had theretofore been lawful, from which it was strongly argued
that the exception was justified in the interest of agriculture,
and was a proper exception by permissible classification. Here, is
a direct invasion of the ordinary business and property rights of a
person, unlawful when committed by any one, and remediable
because
Page 257 U. S. 336
of its otherwise irreparable character by equitable process,
except when committed by ex-employees of the injured person. If
this is not a denial of the equal protection of the laws, then it
is hard to conceive what would be. To hold it not to be would be,
to use the expression of Mr. Justice Brewer in
Gulf Ry. Co. v.
Ellis, 165 U. S. 150,
165 U. S. 154,
to make the guaranty of the equality clause "a rope of sand."
In
Missouri v. Lewis, 101 U. S. 22, we
find one of the earlier and one of the most helpful discussions of
the application of the equality clause to judicial procedure by Mr.
Justice Bradley, speaking for this Court. In that case, one who had
been disbarred by the Court of Appeals of St. Louis sought to avoid
the effect of this action by the contention that he was denied the
equal protection of the laws because he was not given the right of
appeal to the supreme court of the state, granted to litigants in
the state, except in St. Louis and three other counties. It was
held that the equality clause did not apply, because the state
legislature had the right to vary the system of courts and
procedure in various parts of the state. Mr. Justice Bradley said
(p.
101 U. S.
30):
"The last restriction, as to the equal protection of the laws,
is not violated by any diversity in the jurisdiction of the several
courts as to subject matter, amount, or finality of decision if all
persons within the territorial limits of their respective
jurisdictions have an equal right, in like eases and under like
circumstances, to resort to them for redress."
Again (p.
101 U. S.
31):
"For as before said, it [
i.e., the equality clause] had
respect to persons and classes of persons. It means that no person
or class of persons shall be denied the same protection of the laws
which is enjoyed by other persons or other classes in the same
place and under like circumstances."
To sustain the distinction here between the ex-employees and
other tortfeasors in the matter of remedies
Page 257 U. S. 337
against them, it is contended that the legislature may establish
a class of such ex-employees for special legislative treatment. In
adjusting legislation to the need of the people of a state, the
legislature has a wide discretion, and it may be fully conceded
that perfect uniformity of treatment of all persons is neither
practical nor desirable, that classification of persons is
constantly necessary, and that questions of proper classification
are not free from difficulty. But we venture to think that not in
any of the cases in this Court has classification of persons of
sound mind and full responsibility, having no special relation to
each other, in respect of remedial procedure for an admitted tort
been sustained. Classification must be reasonable. As was said in
Gulf, Colorado & Santa Fe Ry. Co. v. Ellis,
165 U. S. 155,
classification
"must always rest upon some difference which bears a reasonable
and just relation to the act in respect to which the classification
is proposed, and can never be made arbitrarily and without any such
basis."
As was said in
Magoun v. Illinois Trust Bank,
170 U. S. 283,
170 U. S.
293:
"The rule [
i.e., of the equality clause] is not a
substitute for municipal law; it only prescribes that that law have
the attribute of equality of operation, and equality . . . does not
mean indiscriminate operation on persons merely as such, but on
persons according to their relations."
The same principle is repeated and enforced in
Southern Ry.
Co. v. Greene, 216 U. S. 400,
216 U. S.
417:
"While reasonable classification is permitted without doing
violence to the equal protection of the laws, such classification
must be based upon some real and substantial distinction, bearing a
reasonable and just relation to the things in respect to which such
classification is imposed, and classification cannot be arbitrarily
made without any substantial basis."
Classification is the most inveterate of our reasoning
processes. We can scarcely think or speak without consciously or
unconsciously exercising it. It must therefore obtain in
Page 257 U. S. 338
and determine legislation, but it must regard real resemblances
and real differences between things and persons, and class them in
accordance with their pertinence to the purpose in hand.
Classification like the one with which we are here dealing is said
to be the development of the philosophic thought of the world, and
is opening the door to legalized experiment. When fundamental
rights are thus attempted to be taken away, however, we may well
subject such experiment to attentive judgment. The Constitution was
intended -- its very purpose was -- to prevent experimentation with
the fundamental rights of the individual. We said through Mr.
Justice Brewer, in
Muller v. Oregon, 208 U.
S. 412, that
"it is the peculiar value of a written constitution that it
places in unchanging form limitations upon legislative action, and
thus gives a permanence and stability to popular government which
otherwise would be lacking."
It is urged that this Court has frequently recognized the
special classification of the relations of employees and employers
as proper and necessary for the welfare of the community and
requiring special treatment. This is undoubtedly true, but those
cases -- the
Second Employer's Liability Cases,
223 U. S. 1;
New
York Central R. Co. v. White, 243 U.
S. 188;
Hawkins v. Bleakly, 243 U.
S. 210;
Mountain Timber Co. v. Washington,
243 U. S. 219;
Middleton v. Texas Power & Light Co., 249 U.
S. 152;
Arizona Employers' Liability Cases,
250 U. S. 400 --
as we have already pointed out in discussing the due process
clause, were cases of the responsibility of the employer for
injuries sustained by employees in the course of their employment.
The general end of such legislation is that the employer shall
become the insurer of the employee against injuries from the
employment without regard to the negligence, if any, through which
it occurred, leaving to the employer to protect himself by
insurance and to compensate himself for the additional cost of
production
Page 257 U. S. 339
by adding to the prices he charges for his products. It seems a
far cry from classification on the basis of the relation of
employer and employee in respect of injuries received in course of
employment to classification based on the relation of an employer,
not to an employee, but to one who has ceased to be so, in respect
of torts thereafter committed by such ex-employee on the business
and property right of the employer. It is really a little difficult
to say, if such classification can be sustained, why special
legislative treatment of assaults upon an employer or his employees
by ex-employees may not be sustained with equal reason. It is said
the state may deal separately with such disputes because such
controversies are a frequent and characteristic outgrowth of
disputes over terms and conditions of employment. Violence of
ex-employees toward present employees is also a characteristic of
such disputes. Would this justify a legislature in excepting
ex-employees from criminal prosecution for such assaults, and
leaving the assaulted persons to suits for damages at common
law?
Our conclusion, that plaintiffs are denied the equal protection
of the laws, is sustained by the decisions in this Court in
Truax v. Raich, 239 U. S. 33;
Atchison & Santa Fe Ry. v. Vosburg, 238 U. S.
56;
Southern Railway Co. v. Greene,
216 U. S. 400;
Connolly v. Union Sewer Pipe Co., 184 U.
S. 540;
Cotting v. Kansas City Stock Yards Co.,
183 U. S. 79;
Gulf Ry. Co. v. Ellis, 165 U. S. 150. In
the state courts, we find equal support for it.
Bogni v.
Perotti, 224 Mass. 152;
Pearson v. Portland, 60 Me.
278;
Goldberg, Bowen & Co. v. Stablemen's Union, 149
Cal. 429, 434;
Pierce v. Stablemen's Union, 156 Cal. 70,
74;
Funkhouser v. Randolph, 287 Ill. 94;
Houston v.
Pulitzer Pub. Co., 249 Mo. 332;
Phipps v. Wisconsin Ry.
Co., 133 Wis. 153;
Park v. Detroit Free Press Co., 72
Mich. 560;
C. N. O. & T. P. Ry. v. Clark, 11 Ky.Law
Rep. 286.
Page 257 U. S. 340
It is urged that, in holding Paragraph 1464 invalid, we are in
effect holding invalid § 20 of the Clayton Act. Of course, we are
not doing so. In the first place, the equality clause of the
Fourteenth Amendment does not apply to congressional, but only to
state, action. In the second place, § 20 of the Clayton Act never
has been construed or applied as the Supreme Court of Arizona has
construed and applied Paragraph 1464 in this case.
We have but recently considered the clauses of § 20 of the
Clayton Act, sometimes erroneously called the "picketing" clauses.
American Steel Foundries v. Tri-City Trades Council, ante,
257 U. S. 184.
They forbid an injunction in labor controversies prohibiting
"any person . . . from attending at any place where any such
person . . . may lawfully be for the purpose of peacefully
obtaining or communicating information, 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
lawful means so to do."
We held that, under these clauses, picketing was unlawful, and
that it might be enjoined as such, and that peaceful picketing was
a contradiction in terms which the statute sedulously avoided, but
that, subject to the primary right of the employer and his
employees and would-be employees to free access to his premises
without obstruction by violence, intimidation, annoyance,
importunity, or dogging, it was lawful for ex-employees on a strike
and their fellows in a labor union to have a single representative
at each entrance to the plant of the employer to announce the
strike and peaceably to persuade the employees and would-be
employees to join them in it. We held that these clauses were
merely declaratory of what had always been the law and the best
practice in equity, and we thus applied them. The construction
put
Page 257 U. S. 341
upon the same words by the Arizona Supreme Court makes these
clauses of Paragraph 1464 as far from those of § 20 of the Clayton
Act in meaning as if they were in wholly different language.
We conclude that the demurrer in this case should have been
overruled, the defendants required to answer, and that, if the
evidence sustain the averments of the complaint, an injunction
should issue as prayed.
Objection is made to this conclusion on the ground that, as we
hold certain clauses of Paragraph 1464 of the Arizona Code, as
construed, invalid, they cannot be separated from paragraph 1456,
which must also be held invalid, and then there is no law in
Arizona authorizing an injunction in this or any case.
Connolly
v. Union Sewer Pipe Co., 184 U. S. 540, is
cited to sustain this view. There, a new antitrust statute was
enacted, making criminal and subject to injunction what before had
not been so. The exception from its operation of products of the
farm in the hands of the producers, contained in the law as
enacted, was declared to be a denial of equal protection of the
laws, and the whole law was declared invalid because the Court, in
view of the exception, could not assume that the legislature would
have enacted the law had it known that the producers of farm
products would have come within its terms. But here, the case is
quite different. Paragraph 1456 has been the statute law of
Arizona, state and territory, since 1901. It was first adopted in
the code of the territory of 1901. It was continued in force by
virtue of the new Constitution of Arizona adopted by the people in
1912, which merely changed the name of the court upon which general
equity jurisdiction was conferred from the district court to the
superior court, and which provided that the authority,
jurisdiction, practice, and procedure of the district courts should
continue in force and apply and govern superior courts until
altered or repealed. Arizona came into the
Page 257 U. S. 342
Union with this Constitution February 14, 1912. At the session
of 1912, provision was made for revision and codification of the
laws. The present code was adopted by the legislature at its third
special session of 1913. Paragraph 1464 was passed, as the code
itself states, at the second session of 1913. Thus, Paragraph 1464
was an amendment to paragraph 1456, and was included with the
original section in the code revision of 1913. To invalidate
paragraph 1456, we must assume that, had the legislature known that
the clauses of Paragraph 1464 here involved, construed as the
Arizona Supreme Court has construed them, were unconstitutional, it
would have repealed all the existing law conferring the equitable
power of injunction on its first instance courts of general
jurisdiction. We cannot make this assumption. The exception
introduced by amendment to Paragraph 1456 proving invalid, the
original law stands without the amendatory exception.
The judgment of the Supreme Court of Arizona is reversed,
and the case remanded for further proceedings not inconsistent with
this opinion.
MR. JUSTICE HOLMES, dissenting.
The dangers of a delusive exactness in the application of the
Fourteenth Amendment have been adverted to before now.
Louisville & Nashville R. Co. v. Barber Asphalt Paving
Co., 197 U. S. 430,
197 U. S. 434.
Delusive exactness is a source of fallacy throughout the law. By
calling a business "property," you make it seem like land, and lead
up to the conclusion that a statute cannot substantially cut down
the advantages of ownership existing before the statute was passed.
An established business no doubt may have pecuniary value and
commonly is protected by law against various unjustified injuries.
But you cannot give it definiteness of contour by calling it a
thing. It is a course of conduct, and, like other conduct, is
Page 257 U. S. 343
subject to substantial modification according to time and
circumstances both, in itself and in regard to what shall justify
doing it a harm. I cannot understand the notion that it would be
unconstitutional to authorize boycotts and the like in aid of the
employees' or the employers' interest by statute when the same
result has been reached constitutionally without statute by courts
with whom I agree.
See The Hamilton, 207 U.
S. 398,
207 U. S. 404.
In this case, it does not even appear that the business was not
created under the laws, as they now are.
Denny v. Bennett,
128 U. S. 489.
I think further that the selection of the class of employers and
employees for special treatment, dealing with both sides alike, is
beyond criticism on principles often asserted by this Court. And
especially I think that, without legalizing the conduct complained
of, the extraordinary relief by injunction may be denied to the
class. Legislation may begin where an evil begins. If, as many
intelligent people believe, there is more danger that the
injunction will be abused in labor cases than elsewhere, I can fell
no doubt of the power of the legislature to deny it in such cases.
I refer to two decisions in which I have stated what I understand
to be the law sanctioned by many other decisions.
Carroll v.
Greenwich Ins. Co., 199 U. S. 401,
199 U. S. 411;
Quong Wing v. Kirkendall, 223 U. S.
59.
In a matter like this, I dislike to turn attention to anything
but the fundamental question of the merits, but
Connolly v.
Union Sewer Pipe Co., 184 U. S. 540,
raises at least a doubt in my mind of another sort. The exception
and the rule as to granting injunctions are both part of the same
Code, enacted at the same time. If the exception fails, according
to the
Connolly case, the statute is bad as a whole. It is
true that here, the exception came in later than the rule, but,
after they had been amalgamated in a single act, I cannot know that
the later legislature
Page 257 U. S. 344
would have kept the rule if the exception could not be allowed.
If labor had the ascendancy that the exception seems to indicate, I
think that probably it would have declined to allow injunctions in
any case, if that was the only way of reaching its end. But this is
a matter upon which the state court has the last word, and if it
takes this view, its decision must prevail. I need not press
further the difficulty of requiring a state court to issue an
injunction that it never has been empowered to issue by the
quasi-sovereign that created the court.
I must add one general consideration. There is nothing that I
more deprecate than the use of the Fourteenth Amendment beyond the
absolute compulsion of its words to prevent the making of social
experiments that an important part of the community desires, in the
insulated chambers afforded by the several states, even though the
experiments may seem futile or even noxious to me and to those
whose judgment I most respect. I agree with the more elaborate
expositions of my Brothers PITNEY and BRANDEIS, and in their
conclusion that the judgment should be affirmed.
MR. JUSTICE PITNEY, with whom concurred MR. JUSTICE CLARKE,
dissenting.
The Supreme Court of the State of Arizona sustained, against
objections raised by plaintiffs in error under the "due process of
law" and "equal protection" clauses of the Fourteenth Amendment, a
statutory provision found in Paragraph 1464, Arizona Civil Code
1913, which restricts the employment of the process of injunction
against what are called peaceful picketing and boycotting under
certain circumstances in terms similar to those found in § 20 of
the Clayton Act of Congress (October 15, 1914, c. 323, 38 Stat.
730, 738).
*
Page 257 U. S. 345
Plaintiffs in error, who were plaintiffs in the trial court and
appellants in the supreme court of the state, were engaged in the
business of conducting a restaurant in Bisbee, enjoying and
dependent for success upon the goodwill, custom, and patronage of
the public; defendants had been employed in one capacity or another
in the restaurant, and were members of a local labor union. A
dispute arose concerning the terms and conditions of the
employment, and, in the course of it, demands were made upon
plaintiffs by the union with which plaintiffs refused to comply.
Because of this, the union ordered a strike of all its members then
employed by plaintiffs, and defendants joined in the strike and
left plaintiffs' employ. Thereupon, for the purpose of winning the
strike and
Page 257 U. S. 346
coercing plaintiffs into complying with the demands of the
union, defendants and numerous other persons unknown combined to
inaugurate and did inaugurate a boycott of plaintiffs and their
restaurant business in order to induce plaintiffs' customers and
patrons to refrain from patronizing the restaurant. In furtherance
of the boycott, defendants caused persons to walk back and forth
along the street in front of the restaurant and near to the
entrance during business hours, carrying banners bearing
conspicuous notices denouncing plaintiffs as unfair to organized
labor, etc., and caused printed handbills to be distributed among
plaintiffs' customers and patrons recommending and attempting to
persuade them to refrain from patronizing the restaurant. Having
sustained serious pecuniary loss, and being threatened with further
and irreparable damage, plaintiffs brought suit for injunction,
setting up that defendants were relying upon the provisions of
Paragraph 1464 of the Civil Code and praying that this might be
held violative of the Fourteenth Amendment, and that they might
have an injunction and other relief.
The supreme court, conceding that, prior to the enactment of
Paragraph 1464, picketing carried on in any manner, even in a
concededly peaceable manner, was unlawful by the law of Arizona,
nevertheless, upon authority of a previous case decided by it upon
substantially identical facts (
Truax v. Bisbee Local No.
380, 19 Ariz. 379, 392), held that relief was barred by the
statute. 20 Ariz. 7.
Upon the facts, it hardly could be said that defendants kept
within the bounds of a "peaceful" picket or boycott. They appear to
have gone beyond mere attempts to persuade plaintiffs' customers to
withdraw their patronage, and to have resorted to abusive and
threatening language towards the patrons themselves. The court
declared, however, that the statute established a new rule
Page 257 U. S. 347
of evidence for determining whether picketing was peaceful and
not otherwise unlawful, and that, measured by the standard thus
prescribed, defendants were not subject to injunction. By this
construction we are bound, and the only question is whether, by the
statute, as so construed and as applied to the facts of the case,
plaintiffs are deprived of rights secured to them by the Fourteenth
Amendment.
As to this, I regret that I am not in accord with the views of
the majority of the Court. Expressing no opinion as to the wisdom
or policy or propriety in the general sense of Paragraph 1464, with
neither of which is our duty concerned, I consider first whether,
as construed and applied, it has the effect of depriving plaintiffs
in error of their liberty or property without due process of
law.
It is beside the question to discuss whether, under the rules of
the common law or the general principles of justice, picketing or
boycotting, or the conduct of defendants, however described, is
lawful. The Supreme Court of Arizona virtually conceded that, in
that state, in the absence of statute, they were not. The question
is whether in this respect the law might be altered by act of
legislation to the extent of depriving a party aggrieved, and
threatened with irreparable injury, of relief by injunction.
That the right to conduct a lawful business, and thereby acquire
pecuniary profits, is property is indisputable. That the state of
society, and the existing condition of good order, or the opposite,
surrounding the business, and its liability to or immunity from
interruption through particular forms of disorder affect its
profitableness likewise is plain. But it seems to me clear that, so
far as these result from the general operation of the laws and
regulations established by authority of the state for maintaining
the peace, good order, and tranquility of its people and affording
protection against disturbing elements
Page 257 U. S. 348
and ill disposed persons, those laws and regulations, as rules
of conduct and measures of relief, are subject to be changed in the
normal exercise of the legislative power of the state. That no
person has a vested interest in any rule of law entitling him to
have it remain unaltered for his benefit is a principle thoroughly
settled by numerous decisions of this Court and having general
application not confined at all to the rights and liabilities
existing between employers and employees or between persons
formerly occupying that relation.
Munn v. Illinois,
94 U. S. 113,
94 U. S. 134;
Hurtado v. California, 110 U. S. 516,
110 U. S. 532;
Second Employers' Liability Cases, 223 U. S.
1,
223 U. S. 50;
Chicago & Alton R. Co. v. Tranbarger, 238 U. S.
67,
238 U. S. 76;
New York Central R. Co. v. White, 243 U.
S. 188,
243 U. S.
198.
The use of the process of injunction to prevent disturbance of a
going business by such a campaign as defendants here have conducted
is, in the essential sense, a measure of police regulation. And,
just as the states have a broad discretion about establishing
police regulations, so they have a discretion equally broad about
modifying and relaxing them. They may adopt the common law or some
other system as their own judgment of the interests of their people
may determine. They have general dominion, and, saving as
restricted by particular provisions of the federal Constitution,
complete dominion over all persons, property, and business
transactions within their borders, and, in regulating its internal
affairs, a state may establish by legislation a policy differing in
one or more respects from those of other states, just as it might
establish a like difference through the decisions of its
courts.
Hence I have no doubt that, without infringing the "due process"
clause, a state might by statute establish protection against
picketing or boycotting however conducted, just as many states have
done by holding them to be contrary to the common law recognizing a
property
Page 257 U. S. 349
value in a going business, and applying equitable principles in
safeguarding it from irreparable injury through interference found
unwarranted.
Vegelahn v. Guntner, 167 Mass. 92, 97-98;
Beck v. Railway Teamsters' Protective Union, 118 Mich.
497, 520-521;
Barnes v. Typographical Union, 232 Ill. 424,
435, 437;
Jensen v. Cooks' & Waiters' Union, 39 Wash.
531, 536;
St. Germain v. Bakery & C. Workers' Union,
97 Wash. 282, 289, 295;
Jonas Glass Co. v. Glass Bottle
Blowers' Assn., 77 N.J.Eq. 219, 222-224. And, just as one
state might establish such protection by statute, so another state
may by statute disestablish the protection, even as states have
differed in their judicial determination of the general law upon
the subject. In neither case can I find ground for declaring that
the state's action is so arbitrary and devoid of reasonable basis
that it can be called a deprivation of liberty or property without
due process of law in the constitutional sense. In truth, the
states have a considerable degree of latitude in determining, each
for itself, their respective conditions of law and order and what
kind of civilization they shall have as a result.
Paragraph 1464 does not modify any substantive rule of law, but
only restricts the processes of the courts of equity. Ordinary
legal remedies remain, and I cannot believe that the use of the
injunction in such cases -- however important -- is so essential to
the right of acquiring, possessing, and enjoying property that its
restriction or elimination amounts to a deprivation of liberty or
property without due process of law within the meaning of the
Fourteenth Amendment.
Secondly, it is said that Paragraph 1464, Arizona Civil Code,
denies to plaintiffs in error the "equal protection of the laws;"
but it seems to me evident that it does not offend in this regard.
Examination shows that it does not discriminate against the class
to which plaintiffs belong
Page 257 U. S. 350
in favor of any other. It applies not only to cases between
employers and employees, irrespective of who is plaintiff and who
defendant, but to cases between employees and between persons
employed and those seeking employment. And it applies equally to
all persons coming within its reach.
It is said that, because, under other provisions of the Arizona
statute law, plaintiffs would have been entitled to an injunction
against such a campaign as that conducted by defendants had it been
in a controversy other than a dispute between employer and former
employees -- for instance, had competing restaurant keepers been
the offenders -- refusal of relief in the particular case by force
of Paragraph 1464 is undue favoritism to the class of which
defendants are members. But I submit with deference that this is
not a matter of which plaintiffs are entitled to complain under the
"equal protection" clause. There is no discrimination as against
them; others situated like them are accorded no greater right to an
injunction than is accorded to them. Whatever complaint the
competing restaurant keepers might have if, in the case supposed,
they were subject to be stopped by an injunction where former
employees were not, it would not be a denial of equal protection to
plaintiffs. Cases arising under this clause of the Fourteenth
Amendment preeminently call for the application of the settled rule
that, before one may be heard to oppose state legislation upon the
ground of its repugnance to the federal Constitution, he must bring
himself within the class affected by the alleged unconstitutional
feature.
Rosenthal v. New York, 226 U.
S. 260,
226 U. S.
270-271;
Jeffrey Mfg. Co. v. Blagg,
235 U. S. 571,
235 U. S. 576;
Arkadelphia Co. v. St. Louis S.W. Ry. Co., 249 U.
S. 134,
249 U. S. 149;
Middleton v. Texas Power & Light Co., 249 U.
S. 152,
249 U. S.
156-157.
A disregard of the rule in the present case has resulted, as it
seems to me, in treating as a discrimination what, so
Page 257 U. S. 351
far as plaintiffs are concerned, is no more than a failure to
include in the statute a case which, in consistency, ought, it is
said, to have been covered -- an omission immaterial to plaintiffs.
This is to transform the provision of the Fourteenth Amendment from
a guaranty of the "protection of equal laws" into an insistence
upon laws complete, perfect, symmetrical.
The guaranty of "equal protection" entitles plaintiffs to
treatment not less favorable than that given to others similarly
circumstanced. This the present statute gives them. The provision
does not entitle them, as against their present opponents under
present circumstances, to protection as adequate as they might have
against opponents of another class under like circumstances. I find
no authority for the proposition that the guaranty was intended to
secure equality of protection "not only for all, but against all
similarly situated," except as between persons who properly belong
in the same class. The familiar expression, in
Barbier v.
Connolly, 113 U. S. 27,
113 U. S. 32,
"[c]lass legislation discriminating against some and favoring
others" refers to a discrimination which at the same time favors
others similarly situated. The same is true of what was said in
Hayes v. Missouri, 120 U. S. 68,
120 U. S. 71-72,
to the effect that the Amendment
"merely requires that all persons subjected to such legislation
shall be treated alike, under like circumstances and conditions,
both in the privileges conferred and in the liabilities
imposed."
Other decisions are to the same effect. Nothing in the Arizona
statute under consideration, either as written or as construed and
applied, operates to discriminate against plaintiffs in favor of
others similarly circumstanced and conditioned. Neither class of
supposed offenders -- those exempt from or those subject to
injunction -- stands in like case with plaintiffs who seek an
injunction.
But, assuming plaintiffs were entitled to assert, as a denial of
equal protection, the alleged discrimination arising
Page 257 U. S. 352
from a denial of equitable relief in one class of cases which
would be granted in another, I am unable to see that the statute
creates an arbitrary and unreasonable discrimination in this
regard.
It is going far -- too far, I submit -- to assume that there is
any discrimination in fact. Such a campaign as that conducted by
defendants, the legislature foresaw, was likely to be resorted to
by employees or former employees in the case of a dispute with the
employer concerning terms or conditions of employment. In such a
case, for reasons deemed sufficient, the legislature declared there
should be no injunction. That such picketing or boycotting ever was
conducted in Arizona, or that the legislature had reason to
anticipate that it would be undertaken in the future, by
competitors in business or any others than participants in a labor
dispute does not appear, and cannot be assumed. Without this, the
supposed discrimination is but theoretical, not practical.
But, were there actual discrimination, granting immunity from
injunction to laboring men who resort to unlawful conduct in the
way of picketing, boycotting, and the like, seriously interfering
with the employer's business, while denying the like immunity to
other classes who may resort to similar unlawful and harmful
conduct, but with what the legislature probably regarded as a
slighter claim to indulgence, I cannot agree that this demonstrates
the classification to be so arbitrary and unreasonable as to render
the act a denial of the equal protection of the laws. Doubtless the
legislature, upon a review of the subject in the light of a
knowledge of conditions in their own state that we do not possess,
concluded that, in labor controversies, there were reasons
affecting the public interest for preventing resort to the process
of injunction, and leaving the parties to the ordinary legal
remedies, which reasons did not apply generally. The simple truth
is they merely singled out, as properly they
Page 257 U. S. 353
might, a particular kind of controversy for what they regarded
as appropriate treatment, and, as already shown, they acted upon it
in a manner consistent with due process of law. There is here no
denial of equal protection. Legislation, almost of necessity,
proceeds subject by subject, with classification as an essential
part of the process. In adjusting their laws to the needs of the
people, the states have a wide range of discretion about
classification; the equal protection clause does not require that
all state laws shall be perfect and complete, nor that the entire
field of proper legislation shall be covered by a single act, and
it is not a valid objection that a law made applicable to one
subject might properly have been extended to others.
Rosenthal
v. New York, 226 U. S. 260,
226 U. S.
270-271;
Missouri, Kan. & Texas Ry. Co. v.
Cade, 233 U. S. 642,
233 U. S.
649-650. All employers' liability and workmen's
compensation laws proceed upon the basis that the responsibility of
employers for injuries sustained by employees forms a proper
subject for separate treatment.
See Second Employers' Liability
Cases, 223 U. S. 1;
New
York Central R. Co. v. White, 243 U.
S. 188;
Hawkins v. Bleakly, 243 U.
S. 210;
Mountain Timber Co. v. Washington,
243 U. S. 219;
Middleton v. Texas Power & Light Co., 249 U.
S. 152;
Arizona Employers' Liability Cases,
250 U. S. 400. And
I see no adequate reason for denying the authority of a state to
deal separately with those controversies between employer and
employees or between persons employed and those seeking employment
which experience has shown to be a characteristic outgrowth of
disputes over the terms and conditions of employment.
I am unable to conclude that Paragraph 1464 either deprives
plaintiffs in error of liberty or property without due process of
law or denies to them the equal protection of the laws within the
meaning of the Fourteenth Amendment.
MR. JUSTICE CLARKE concurs in the above opinion.
Page 257 U. S. 354
*
"No restraining order or injunction shall be granted by any
court of this state, or a judge or the judges thereof, 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 employment unless necessary to
prevent irreparable injury to property or to a property right of
the party making the application for which injury there is no
adequate remedy at law, and such property or property right 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."
"And no such restraining order or injunction shall prohibit any
person or persons from terminating any relation of employment, or
from ceasing to perform any work or labor, or from recommending,
advising, or persuading others by peaceful means so to do, or from
attending at or near a house or place where any person resides or
works, or carries on business, or happens to be for the purpose of
peacefully obtaining or communicating information or of 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 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 at any place 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."
MR. JUSTICE BRANDEIS dissenting.
The first legislature of the State of Arizona adopted in 1913 a
Civil Code. By Title 6, c. III, it sets forth conditions and
circumstances under which the courts of the state may or may not
grant injunctions. Paragraph 1464 contains, among other things, a
prohibition against interfering by injunction between employers and
employees in any case growing out of a dispute concerning terms or
conditions of employment unless interposition by injunction is
necessary to protect property from injury through violence. Its
main purpose was doubtless to prohibit the courts from enjoining
peaceful picketing and the boycott. With the wisdom of the statute
we have no concern. Whether Arizona, in enacting this statute,
transgressed limitations imposed upon the power of the states by
the Fourteenth Amendment is the question presented for
decision.
The employer has, of course, a legal right to carry on his
business for profit, and incidentally the subsidiary rights to
secure and retain customers, to fix such prices for his product as
he deems proper, and to buy merchandise and labor at such prices as
he chooses to pay. This right to carry on business -- be it called
liberty or property -- has value, and he who interferes with the
right without cause renders himself liable. But, for cause, the
right may be interfered with, and even be destroyed. Such cause
exists when, in the pursuit of an equal right to further their
several interests, his competitors make inroads upon his trade, or
when suppliers of merchandise or of labor make inroads upon his
profits. What methods and means are permissible in this struggle of
contending forces is determined in part by decisions of the courts,
in part by acts of the legislatures. The rules governing the
contest necessarily change from time to time. For conditions
change, and, furthermore, the rules evolved, being merely
experiments
Page 257 U. S. 355
in government, must be discarded when they prove to be
failures.
Practically every change in the law governing the relation of
employer and employee must abridge, in some respect, the liberty or
property of one of the parties -- if liberty and property be
measured by the standard of the law therefore prevailing. If such
changes are made by acts of the legislature, we call the
modification an exercise of the police power. And, although the
change may involve interference with existing liberty and property
of individuals, the statute will not be declared a violation of the
due process clause unless the court finds that the interference is
arbitrary or unreasonable or that, considered as a means, the
measure has no real or substantial relation of cause to a
permissible end. [
Footnote 1]
Nor will such changes in the law governing contests between
employer and employee be held to be violative of the equal
protection clause merely because the liberty or property of
individuals in other relations to each other (for instance, as
competitors in trade or as vendor and purchaser) would not under
similar circumstances be subject to like abridgment. Few laws are
of universal application. It is of the nature of our law that it
has dealt not with man in general, but with him in relationships.
That a peculiar relationship of individuals may furnish legal basis
for the classification which satisfies the requirement of the
Fourteenth Amendment [
Footnote
2] is clear. That the relation of employer
Page 257 U. S. 356
and employee affords a constitutional basis for legislation
applicable only to persons standing in that relation has been
repeatedly held by this Court. [
Footnote 3] The questions submitted are whether this
statutory prohibition of the remedy by injunction is in itself
arbitrary and so unreasonable as to deprive the employer of liberty
or property without due process of law, and whether limitation of
this prohibition to controversies involving employment denies him
equal protection of the laws.
Whether a law enacted in the exercise of the police power is
justly subject to the charge of being unreasonable or arbitrary can
ordinarily be determined only by a consideration of the
contemporary conditions, social, industrial, and political, of the
community to be affected thereby. Resort to such facts is
necessary, among other things, in order to appreciate the evils
sought to be
Page 257 U. S. 357
remedied and the possible effects of the remedy proposed. Nearly
all legislation involves a weighing of public needs as against
private desires, and likewise a weighing of relative social values.
Since government is not an exact science, prevailing public opinion
concerning the evils and the remedy is among the important facts
deserving consideration, particularly when the public conviction is
both deep-seated and widespread, and has been reached after
deliberation. [
Footnote 4] What
at any particular time is the paramount public need is necessarily
largely a matter of judgment. Hence, in passing upon the validity
of a law charged as being unreasonable, aid may be derived from the
experience of other countries and of the several states of our
Union in which the common law and its conceptions of liberty and of
property prevail. The history of the rules governing contests
between employer and employed in the several English-speaking
countries illustrates both the susceptibility of such rules to
change and the variety of contemporary opinion as to what rules
will best serve the public interest. The divergence of opinion in
this difficult field of governmental action should admonish us not
to declare a rule arbitrary and unreasonable merely because we are
convinced that it is fraught with danger to the public weal, and
thus to close the door to experiment within the law.
In England, a workingman struggling to improve his condition,
even when acting singly, was confronted until 1813 with laws
limiting the amount of wages which he might demand. [
Footnote 5] Until 1824, he was punishable as
a criminal if he combined with his fellow workmen to raise wages or
shorten hours or to affect the business in any
Page 257 U. S. 358
way, even if there was no resort to a strike. [
Footnote 6] Until 1871, members of a union
who joined in persuading employees to leave work were liable
criminally although the employees were not under contract and the
persuasion was both peaceful and unattended by picketing. [
Footnote 7] Until 1871, threatening a
strike, whatever the cause, was also a criminal act. [
Footnote 8] Not until 1875 was the right of
workers to combine in order to attain their ends conceded fully. In
that year, Parliament declared that workmen combining in
furtherance of a trade dispute should not be indictable for
criminal conspiracy unless the act, if done by one person, would be
indictable as a crime. [
Footnote
9] After that statute, a combination of workmen to effect the
ordinary objects of a strike was no longer a criminal offense. But
picketing, though peaceful, in aid of a strike, remained illegal,
[
Footnote 10] and likewise
the boycott. [
Footnote 11]
Not until 1906 was the ban on
Page 257 U. S. 359
peaceful picketing and the bringing of pressure upon an employer
by means of a secondary strike or a boycott removed. [
Footnote 12] In 1906, also, the act
of inducing workers to break their contract of employment
(previously held an actionable wrong) [
Footnote 13] was expressly declared legal. [
Footnote 14] In England, improvement
of the condition of workingmen
Page 257 U. S. 360
and their emancipation appear to have been deemed recently the
paramount public need.
In the British dominions, the rules governing the struggle
between employer and employed were likewise subjected to many
modifications, but the trend of social experiment took a direction
very different from that followed in the mother country. Instead of
enabling the worker to pursue such methods as he might deem
effective in the contest, statutes were enacted in some of the
dominions which forbade the boycott, peaceful picketing, and even
the simple strike and the lockout; [
Footnote 15] use of the injunction to enforce compliance
with these prohibitions was expressly sanctioned; [
Footnote 16] and violations of the
statute
Page 257 U. S. 361
was also made punishable by criminal proceedings. [
Footnote 17] These prohibitions were
the concomitants of prescribed industrial arbitration through
administrative tribunals by which the right of both employer and
employee to liberty and property were seriously abridged in the
public interest. Australia [
Footnote 18] and New Zealand [
Footnote 19] made compulsory both arbitration and
compliance with the award. [
Footnote 20] Canada limited the compulsion to a
postponement of the right to strike until the dispute should have
been officially investigated and reported upon. [
Footnote 21] In these dominions, the
uninterrupted pursuit of industry and the prevention of the
arbitrary use of power appear to be deemed the paramount public
needs.
In the United States, the rules of the common law governing the
struggle between employer and employee have likewise been subjected
to modifications. These have
Page 257 U. S. 362
been made mainly through judicial decisions. The legal right of
workingmen to combine and to strike in order to secure for
themselves higher wages, shorter hours, and better working
conditions received early generally recognition. [
Footnote 22] But there developed great
diversity of opinion as to the means by which, [
Footnote 23] and also as to the persons
through whom, [
Footnote 24]
and upon whom, [
Footnote 25]
pressure might permissibly be
Page 257 U. S. 363
exerted in order to induce the employer to yield to the demands
of the workingmen. Courts were required, in the absence of
legislation, to determine what the public welfare demanded, whether
it would not be best subserved by leaving the contestants free to
resort to any means not involving a breach of the peace or injury
to tangible property, whether it was consistent with the public
interest that the contestants should be permitted to invoke the aid
of others not directly interested in the matter in controversy, and
to what extent incidental injury to persons not parties to the
controversy should be held justifiable.
The earliest reported American decision on peaceful picketing
appears to have been rendered in 1888, [
Footnote 26] the earliest on boycotting in 1886.
[
Footnote 27] By no great
majority, the prevailing judicial opinion in America declares the
boycott
Page 257 U. S. 364
as commonly practiced an illegal means [
Footnote 28] (
see Duplex Printing Press Co.
v. Deering, 254 U. S. 443),
while it inclines
Page 257 U. S. 365
towards the legality of peaceful picketing. [
Footnote 29]
See American Steel
Foundries v. Tri-City Central Trades Council, ante,
257 U. S. 184. But
in some of the states, notably New York, both peaceful picketing
and the boycott are declared permissible. [
Footnote 30] Judges, being thus called upon to
exercise a
quasi-legislative function and weigh relative
social values, naturally differed in their conclusion on such
questions. [
Footnote 31]
Page 257 U. S. 366
In England, observance of the rules of the contest has been
enforced by the courts almost wholly through the criminal law or
through actions at law for compensation. An injunction was granted
in a labor dispute as early as 1868. [
Footnote 32] But, in England, resort to the injunction
has not been frequent, and it has played no appreciable part there
in conflict between capital and labor. In America, the injunction
did not secure recognition as a possible remedy until 1888.
[
Footnote 33] When, a few
years later, its use became extensive and conspicuous, the
controversy over the remedy overshadowed in bitterness the question
of the relative substantive rights of the parties. In the storms of
protest against this use, many thoughtful lawyers joined. [
Footnote 34] The equitable remedy,
although applied in accordance with established practice, involved
incidents which, it was asserted, endangered the personal liberty
of wage earners. The acts enjoined were frequently, perhaps
usually, acts which were already crimes at common law or had been
made so by statutes. The issues in litigation arising out of trade
disputes related largely to questions of fact. But, in equity,
issues of fact as of law were tried by a single judge, sitting
without a jury. Charges of violating an
Page 257 U. S. 367
injunction were often heard on affidavits merely, without the
opportunity of confronting or cross-examining witnesses. [
Footnote 35] Men found guilty of
contempt were committed in the judge's discretion, without either a
statutory limit upon the length of the imprisonment or the
opportunity of effective review on appeal or the right to release
on bail pending possible revisory proceedings. [
Footnote 36] The effect of the proceeding
upon the individual was substantially the same as if he had been
successfully prosecuted for a crime; but he was denied, in the
course of the equity proceedings, those rights which, by the
Constitution, are commonly secured to persons charged with a
crime.
It was asserted that, in these proceedings, an alleged danger to
property, always incidental and at times insignificant, was often
laid hold of to enable the penalties of the criminal law to be
enforced expeditiously without that protection to the liberty of
the individual which the Bill of Rights was designed to afford;
that, through such proceedings, a single judge often usurped the
functions not only of the jury, but of the police department; that,
in prescribing the conditions under which strikes were
permissible,
Page 257 U. S. 368
and how they might be carried out, he usurped also the powers of
the legislature, and that incidentally he abridged the
constitutional rights of individuals to free speech, to a free
press, and to peaceful assembly.
It was urged that the real motive in seeking the injunction was
not ordinarily to prevent property from being injured, nor to
protect the owner in its use, but to endow property with active,
militant power which would make it dominant over men -- in other
words, that, under the guise of protecting property rights, the
employer was seeking sovereign power. And many disinterested men,
solicitous only for the public welfare, believed that the law of
property was not appropriate for dealing with the forces beneath
social unrest; that, in this vast struggle, it was unwise to throw
the power of the state on one side or the other, according to
principles deduced from that law; that the problem of the control
and conduct of industry demanded a solution of its own, and that,
pending the ascertainment of new principles to govern industry, it
was wiser for the state not to interfere in industrial struggles by
the issuance of an injunction. [
Footnote 37]
After the constitutionality and the propriety of the use of the
injunction in labor disputes was established judicially, those who
opposed the practice sought the aid of Congress and of state
legislatures. The bills introduced varied in character and in
scope. Many dealt merely with rights; and, of these, some declared,
in effect, that no act done in furtherance of a labor dispute by a
combination of workingmen should be held illegal unless it
would
Page 257 U. S. 369
have been so if done by a single individual, while others
purported to legalize specific practices like boycotting or
picketing. Other bills dealt merely with the remedy, and of these
some undertook practically to abolish the use of the injunction in
labor disputes, while some merely limited its use either by
prohibiting its issue under certain conditions or by denying power
to restrain certain acts. Some bills undertook to modify both
rights and remedies. [
Footnote
38] These legislative proposals occupied the attention of
Congress during every session but one in the twenty years between
1894 and 1914. [
Footnote 39]
Reports recommending such legislation
Page 257 U. S. 370
were repeatedly made by the judiciary committee of the House or
that of the Senate, and at some session by both. [
Footnote 40] Prior to 1914, legislation of
this character had at several sessions passed the House, [
Footnote 41] and in that year
Congress passed and the President approved the Clayton Act, § 20 of
which is substantially the same as Paragraph 1464 of the Arizona
Civil Code. Act Oct. 15, 1914, c. 323, 38 Stat. 730, 738.
Such was the diversity of view concerning peaceful picketing and
the boycott expressed in judicial decisions and legislation in
English-speaking countries when, in 1913, the new State of Arizona,
in establishing its judicial system, limited the use of the
injunction, and when, in 1918, its supreme court was called upon to
declare for the first time the law of Arizona on these subjects.
The case of
Truax v. Bisbee Local No. 380, 19 Ariz 379,
presented facts identical with those of the case at bar. [
Footnote 42] In that case, the
supreme court made its decision on four controverted points of law.
In the first place, it held that the officials of the union were
not outsiders with no justification for their acts. 19 Ariz. 379,
390. [
Footnote 43] In the
second place, rejecting the view held by the federal courts and the
majority of the state courts on the illegality of the boycott,
it
Page 257 U. S. 371
specifically accepted the law of New York, Montana, and
California, citing the decisions of those states. 19 Ariz. 379,
388, 390. [
Footnote 44] In
the third place, it rejected the law of New Jersey, Minnesota, and
Pennsylvania that it is illegal to circularize an employer's
customers, and again adopted the rule declared in the decisions of
the courts of New York, Montana, California, and Connecticut, 19
Ariz. 379, 389. [
Footnote
45] In deciding these three points, the Supreme Court of
Arizona made a choice between well established precedents laid down
on either side by some of the strongest courts in the country. Can
this Court say that thereby it deprived the plaintiff of his
property without due process of law?
The fourth question requiring decision was whether peaceful
picketing should be deemed legal. Here too, each of the opposing
views had the support of decisions of strong courts. [
Footnote 46] If the Arizona court
had decided that, by the common law of the state, the defendants
might peacefully picket the plaintiff, its decision, like those of
the courts of Ohio, Minnesota, Montana, New York, Oklahoma, and New
Hampshire, would surely not have been open to objection under the
federal Constitution, for this Court has recently held that
peaceful picketing is not unlawful.
American Steel Foundries v.
Tri-City Central Trades Council, supra. The Supreme Court of
Arizona found it unnecessary to determine what was the common law
of the state on that subject, because it construed Paragraph 1464
of the Civil Code as declaring peaceful picketing to be legal. In
the case at bar, commenting on the earlier case, the court
said:
"The statute adopts the view of a number of courts which have
held picketing,
Page 257 U. S. 372
if peaceably carried on for a lawful purpose, to be no violation
of any legal right of the party whose place of business is
picketed, and whether as a fact the picketing is carried on by
peaceful means, as against the other view taken by the federal
courts and many of the state courts that picketing is
per
se unlawful."
Shortly before that decision, the Criminal Court of Appeals of
Oklahoma had placed a similar construction upon a statute of that
state, declaring that
"the doctrine [that picketing is not
per se unlawful]
represents the trend of legal thought of modern times, and is
specifically reflected in the statute above construed."
Ex parte Sweitzer, 13 Okl.Cr. 154, 160.
See St.
Louis v. Gloner, 210 Mo. 502. A state, which, despite the
Fourteenth Amendment, possesses the power to impose on employers
without fault unlimited liability for injuries suffered by
employees, [
Footnote 47] and
to limit the freedom of contract of some employers and not of
others, [
Footnote 48] surely
does not lack the power to select for its citizens that one of
conflicting views on boycott by peaceful picketing which its
legislature and highest court consider will best meet its
conditions and secure the public welfare.
The Supreme Court of Arizona, having held as a rule of
substantive law that the boycott as here practiced was legal at
common law, and that the picketing was peaceful, and hence legal
under the statute (whether or not it was legal at common law),
necessarily denied the injunction, since, in its opinion, the
defendants had committed no legal wrong, and were threatening none.
But even if this Court should hold that an employer has a
constitutional right to be free from interference by such a
boycott, or that the picketing practiced was not in fact peaceful,
it does not follow that Arizona would lack the power to refuse to
protect that right by injunction. For it is clear that the refusal
of an equitable remedy for a tort is not
Page 257 U. S. 373
necessarily a denial of due process of law. And it seems to be
equally clear that such refusal is not necessarily arbitrary and
unreasonable when applied to incidents of the relation of employer
and employee. The considerations which show that the refusal is not
arbitrary or unreasonable show likewise that such refusal does not
necessarily constitute a denial of equal protection of the laws
merely because some, or even the same property rights which are
excluded by this statute from protection by injunction, receive
such protection under other circumstances, or between persons
standing in different relations. The acknowledged legislative
discretion exerted in classification, so frequently applied in
defining rights, extends equally to the grant of remedies.
[
Footnote 49] It is for the
legislature to say -- within the broad limits of the discretion
which it possesses -- whether of not the remedy for a wrong shall
be both criminal and civil and whether or not it shall be both at
law and in equity.
A state is free since the adoption of the Fourteenth Amendment,
as it was before, not only to determine what system of law shall
prevail in it, but also by what processes legal rights may be
asserted, and in what courts they may be enforced.
Missouri v.
Lewis, 101 U. S. 22,
101 U. S. 31;
Iowa
Page 257 U. S. 374
Central Railway Co. v. Iowa, 160 U.
S. 389. As a state may adopt or reject trial by jury,
Walker v. Sauvinet, 92 U. S. 90, or,
adopting it, may retain or discard its customary incidents,
Hayes v. Missouri, 120 U. S. 68;
Brown v. New Jersey, 175 U. S. 172;
Maxwell v. Dow, 176 U. S. 581, as
a state may grant or withhold review of a decision by appeal,
Reetz v. Michigan, 188 U. S. 505, so
it may determine for itself from time to time whether the
protection which it affords to property rights through its courts
shall be given by means of the preventive remedy or exclusively by
an action at law for compensation.
Nor is a state obliged to protect all property rights by
injunction merely because it protects some, even if the attending
circumstances are, in some respects, similar. The restraining power
of equity might conceivably be applied to every intended violation
of a legal right. On grounds of expediency, its application is
commonly denied in cases where there is a remedy at law which is
deemed legally adequate. But an injunction has been denied on
grounds of expediency in many cases where the remedy at law is
confessedly not adequate. This occurs whenever a dominant public
interest is deemed to require that the preventive remedy, otherwise
available for the protection of private rights, be refused, and the
injured party left to such remedy as courts of law may afford.
Thus, courts ordinarily refuse, perhaps in the interest of free
speech, to restrain actionable libels.
Boston Diatite Co. v.
Florence Mfg. Co., 114 Mass. 69;
Prudential Insurance Co.
v. Knott, L.R. 10 Ch. App. 142. In the interest of personal
liberty, they ordinarily refuse to enforce specifically, by
mandatory injunction or otherwise, obligations involving personal
service.
Arthur v. Oakes, 63 F. 310, 318;
Davis v.
Foreman, [1894] 3 Ch. 654, 657;
Gossard v. Crosby,
132 Ia. 155, 163-164. In the desire to preserve the separation of
governmental powers, they have declined to protect by injunction
mere political rights,
Giles v.
Page 257 U. S. 375
Harris, 189 U. S. 475, and
have refused to interfere with the operations of the police
department,
Davis v. American Society for the Prevention of
Cruelty to Animals, 75 N.Y. 362;
Delaney v. Flood,
183 N.Y. 323.
Compare Bisbee v. Arizona Insurance Agency,
14 Ariz. 313. Instances are numerous where protection to property
by way of injunction has been refused solely on the ground that
serious public inconvenience would result from restraining the act
complained of. Such, for example, was the case where a neighboring
landowner sought to restrain a smelter from polluting the air, but
that relief, if granted, would have necessitated shutting down the
plant, and this would have destroyed the business and impaired the
means of livelihood of a large community. [
Footnote 50] There are also numerous instances
where the circumstances would, according to general equity
practice, have justified the issue of an injunction, but it was
refused solely because the right sought to be enforced was created
by statute, and the courts, applying a familiar rule, held that the
remedy provided by the statute was exclusive. [
Footnote 51]
Such limitations upon the use of the injunction for the
protection of private rights have ordinarily been imposed in the
interest of the public by the court, acting in the exercise of its
broad discretion. But, in some instances, the
Page 257 U. S. 376
denial of the preventive remedy because of a public interest
deemed paramount, has been expressly commanded by statute. Thus,
the courts of the United States have been prohibited from staying
proceedings in any court of a state, Judicial Code § 265, and also
from enjoining the illegal assessment and collection of taxes,
Rev.Stats., § 3224;
Snyder v. Marks, 109 U.
S. 189;
Dodge v. Osborn, 240 U.
S. 118. What Congress can do in curtailing the equity
power of the federal courts state legislatures may do in curtailing
equity powers of the state courts, unless prevented by the
constitution of the state. In other words, states are free since
the adoption of the Fourteenth Amendment, as they were before,
either to expand or to contract their equity jurisdiction. The
denial of the more adequate equitable remedy for private wrongs is,
in essence, an exercise of the police power by which, in the
interest of the public and in order to preserve the liberty and the
property of the great majority of the citizens of a state, rights
of property and the liberty of the individual must be remolded from
time to time to meet the changing needs of society.
For these reasons, as well as for others stated by MR. JUSTICE
HOLMES and MR. JUSTICE PITNEY, in which I concur, the judgment of
the Supreme Court of Arizona should, in my opinion, be affirmed:
first because, in permitting damage to be inflicted by means of
boycott and peaceful picketing, Arizona did not deprive the
plaintiff of property without due process of law or deny him equal
protection of the laws, and secondly because, if Arizona was
constitutionally prohibited from adopting this rule of substantive
law, it was still free to restrict the extraordinary remedies of
equity where it considered their exercise to be detrimental to the
public welfare, since such restriction was not a denial to the
employer either of due process of law or of equal protection of the
laws.
[
Footnote 1]
Muller v. Oregon, 208 U. S. 412;
Dominion Hotel v. Arizona, 249 U.
S. 265.
[
Footnote 2]
"The rule, therefore, is not a substitute for municipal law; it
only prescribes that that law have the attribute of equality of
operation, and equality of operation does not mean indiscriminate
operation on persons merely as such, but on persons according to
their relations."
Mr. Justice McKenna in
Magoun v. Illinois Trust &
Savings Bank, 170 U. S. 283,
170 U. S.
293.
In
Fidelity Mutual Life Assn. v. Mettler, 185 U.
S. 308, and
Northwestern National Life Insurance Co.
v. Riggs, 203 U. S. 243, the
relation of insurer and insured was made the subject of regulation;
in
Western Union Telegraph Co. v. Commercial Milling Co.,
218 U. S. 406;
Seaboard Air Line Ry. v. Seegers, 207 U. S.
73, and
Yazoo & Miss. Valley Ry. v. Jackson
Vinegar Co., 226 U. S. 217,
that of public utility and patron; in
Noble State Bank v.
Haskell, 219 U. S. 104,
that of banker and depositor; in
St. Louis & San Francisco
Ry. Co. v. Mathews, 165 U. S. 1;
Missouri, Kansas & Texas Ry. Co. v. May, 194 U.
S. 267, and
Minneapolis & St. Louis Ry. Co. v.
Emmons, 149 U. S. 364,
that of railway and adjoining landowner.
[
Footnote 3]
Holden v. Hardy, 169 U. S. 366;
St. Louis, Iron Mountain & St. Paul Ry. Co. v. Paul,
173 U. S. 404;
Tullis v. Lake Erie & Western R. Co., 175 U.
S. 348;
Knoxville Iron Co. v. Harbison,
183 U. S. 13;
Atkin v. Kansas, 191 U. S. 207;
Great Southern Hotel Co. v. Jones, 193 U.
S. 532;
Minnesota Iron Co. v. Kline,
199 U. S. 593;
Wilmington Star Mining Co. v. Fulton, 205 U. S.
60;
Muller v. Oregon, 208 U.
S. 412;
McLean v. Arkansas, 211 U.
S. 539;
Louisville & Nashville Ry. Co. v.
Melton, 218 U. S. 36;
Mobile, Jackson & Kansas R. Co. v. Turnipseed,
219 U. S. 35;
Chicago, Rock Island & Pacific Ry. Co. v. Arkansas,
219 U. S. 453;
Arizona Employers' Liability Cases, 250 U.
S. 400;
compare Second Employers' Liability
Cases, 223 U. S. 1.
[
Footnote 4]
Muller v. Oregon, 208 U. S. 412,
208 U. S.
420.
[
Footnote 5]
53 Geo. Ill, c. 40. For the earlier law,
see, for
instance, 23 Edw. 3, cc. 1-8; 25 Edw. 3, cc. 1-7, The Statutes
of Laborers; 5 Eliz. c. 4; 1 Jac. 1, c. 6.
[
Footnote 6]
5 Geo. 4, c. 95 (replaced by 6 Geo. 4, c. 129). For the earlier
law,
see, for instance, 34 Edw. 3, c. 9;
The King v.
Journeymen Tailors of Cambridge, 8 Modern, 10; Wright, The Law
of Criminal Conspiracies.
[
Footnote 7]
Criminal Law Amendment Act (1871), 34 & 35 Vict. c. 32, § 1,
last paragraph. For the earlier law,
see Regina v.
Rowlands, 2 Dem. 363.
[
Footnote 8]
Criminal Law Amendment Act (1871), 34 & 35 Vict. c. 32, § 1,
subsec. 2. For the earlier law,
see Walsby v. Anley, 3 E.
& E. 516;
Skinner v. Kitch, 10 Cox. C.C. 493; L.R. 2,
Q.B. 393 (1867).
[
Footnote 9]
The Conspiracy and Protection of Property Act (1875), 38 &
39 Vict. c. 86, § 3.
But see Rigby v. Connolly, L.R. 14
Ch.D. 482, 491.
[
Footnote 10]
38 & 39 Vic., c. 86, § 7;
Regina v. Bauld, 13 Cox,
282;
Lyons v. Wilkins, [1896] 1 Ch. 811, 826, 831; [1899]
1 Ch. 255;
Taff Vale Ry. v. Amal. Soc. Ry. Servants,
[1901] A.C. 426.
[
Footnote 11]
Temperton v. Russell, [1893] 1 Q.B. 715;
Quinn v.
Leathem, [1901] A.C. 495.
But compare with these
cases
Boots v. Gruady, 82 L.T.R. 769;
Scottish Co-op.
Soc. v. Glasgow Fleshers, 35 Scottish L.R. 645;
Bulcock v.
St. Ann's Master Builders' Assn., 19 T. L.R. 27. A distinction
between these and the two former is pointed out in
Quinn v.
Leathem, supra at 539. The Royal Commission on Trade Disputes
and Trade Combinations, whose recommendations were the basis of the
Trade Disputes Act.1906, 6 Edw. VII, c. 47, recommended (Report, p.
16)
"that an act should be passed for the following objects: . . .
(2) To declare strikes from whatever motive or for whatever
purposes (including sympathetic or secondary strikes), apart from
crime or breach of contract, legal. . . ."
It is probable that §§ 1 and 3 of the Act of 1906 make the
secondary strike or boycott in the course of a trade dispute legal.
But see note 14
par. 2.
[
Footnote 12]
The Trade Disputes Act (1906), 6 Edw. VII, c. 47, § 2.
[
Footnote 13]
Read v. Friendly Society of Stone Masons, [1902] 2 K.B.
88, 732;
South Wales Miners' Federation v. Glamorgan Coal
Co., [1905] A.C. 239.
[
Footnote 14]
6 Edw. VII, c. 47, § 3:
"An act done by a person in contemplation or furtherance of a
trade dispute shall not be actionable on the ground only that it
induces some other person to break a contract of employment or that
it is an interference with the trade, business, or employment of
some other person, or with the right of some other person to
dispose of his capital or his labor as he wills."
But the employee who breaks his contract remains personally
liable in damages.
The law of England still prohibits certain practices which might
prove effective in the struggle between employer and employee.
Thus, the Trade Disputes Act,
supra, does not sanction
same threats or coercion.
Conway v. Wade, [1909] A.C. 506,
511. It does not permit a strike to force the discharge of a member
of the union who has not paid a fine.
Conway v. Wade,
supra. Nor does it permit inducing an employer's men to break
their contracts in order to force him to join an employers'
association, since this is not a trade dispute within the meaning
of the act.
Larkin v. Long, [1915] A.C. 814. The judges
are by no means agreed as to what constitutes coercion.
Compare
Hodges v. Webb, [1920] 2 Ch. 70;
Valentine v. Hyde,
[1919] 2 Ch. 129;
Pratt v. British Medical Assn., [1919] 1
K.B. 244, and
Davies v. Thomas, [1920] 1 Ch. 217.
[
Footnote 15]
Australia: Commonwealth Conciliation and Arbitration Act,
1904-1915, §§ 6-9; New South Wales, Industrial Arbitration Act,
1912-1918, §§ 48d and 48e.
Compare Queensland, Industrial
Arbitration Act, 1916, § 65. New Zealand: Industrial Conciliation
and Arbitration Act, 1908, § 108; Industrial Conciliation and
Arbitration Amendment Act, 1908, part I.
[
Footnote 16]
The Industrial Disputes Act of New South Wales, 1908, § 60, made
strikes and lockouts illegal, and Industrial Arbitration Act, 1912,
which replaced it, continued their outlawry (§§ 44-48), and
expressly provided that they might be enjoined by the Court of
Industrial Arbitration; but by the Act of 1918, § 15, §§ 45 to 48,
inclusive, of the earlier act, dealing with strikes, were
amended:
"45. The following strikes and no others shall be illegal:"
"(a) Any strike by employees of the crown, etc."
"(b) Any strike by the employees in an industry the conditions
of which are for the time being wholly or partially regulated by an
award or by an industrial agreement, etc."
"(c) Any strike which has been commenced prior to the expiry of
fourteen clear days' notice in writing of intention to commence the
same or of the existence of such conditions as would be likely to
lead to the same given the minister, etc."
"46. In the event of an illegal strike occurring in any
industry, the court may order any trade union, whose executive or
members are taking part in or aiding or abetting the strike, to pay
a penalty not exceeding five hundred pounds."
The Commonwealth Conciliation and Arbitration Act, 1904, §
38(e), provides that the Court of Arbitration and Conciliation
shall have power "to enjoin any organization or person from
committing or continuing any contravention of this Act."
[
Footnote 17]
See note 15
supra.
[
Footnote 18]
The Commonwealth Conciliation and Arbitration Act, 1904-1915, §§
19-31 (printed as Appendix A to Commonwealth Acts, 1914-1915).
See Henry B. Higgins, "A New Province for Law and Order,"
29 Harv.Law Rev. 13, 32 Harv.Law Rev. 189, 34 Harv.Law Rev.
105.
[
Footnote 19]
Industrial Conciliation and Arbitration Act, 1908,
supra, §§ 53-104, as amended by Acts 1908, No. 239, part
II; Acts 1911, No. 33; Acts 1913, No. 7.
[
Footnote 20]
Compare Kansas act creating a court of industrial
relations, Laws 1920, c. 29.
See State v. Howat, 107 Kan.
423;
State v. Howat, 198 P. 686;
Court of Industrial
Relations v. Charles Wolff Packing Co., 201 P. 418.
[
Footnote 21]
Industrial Disputes Investigation Act, 1907, 6 & 7 Edw. VII,
c. 20, §§ 56, 57;
Rex v. McGuire, 16 O.L.R. 522; 9 &
10 Edw. VII, c. 29; 8 & 9 Geo. V, c. 27, 10 & 11 Geo. V, c.
29.
Picketing is illegal. Criminal Code, § 501;
Krug Furniture
Co. v. Union of Woodworkers, 5 O.L.R. 463;
Cotter v.
Osborne, 18 Man. 471;
Vulcan Iron Works v. Winnipeg
Lodge, 21 Man. 473;
Le Roi Mining Co. v. Rossland Miners'
Union, 8 B.C. 370.
But see R.S. B.C. c. 228.
[
Footnote 22]
Commonwealth v. Hunt, 4 Metc. 111. For earlier common
law and statutory provisions,
see Carew v. Rutherford, 106
Mass. 1, 14; 1 Weeden, Economic and Social History of New England,
pp. 173, 334; Freund, Police Power, § 331; Commons, History of
Labor in the United States vol. 1, c. 5.
[
Footnote 23]
For the boycott,
see note 27 infra, and for peaceful picketing,
note 28 infra.
In some jurisdictions, the strike was considered an unlawful
means of procuring the unionization of the shop.
See Plant v.
Woods, 176 Mass. 492;
Pickett v. Walsh, 192 Mass.
572, 585;
Lucke v. Clothing Cutters' Assembly, 77 Md. 396;
Erdman v. Mitchell, 207 Pa. 79; Freund, Police Power, §
331, while in others it was regarded as permissible.
National
protective Assn. v. Cumming, 170 N.Y. 315;
Kemp v.
Division No. 241, 255 Ill. 213;
Grant Construction Co. v.
St. Paul Building Trades, 136 Minn. 167;
State v. Van
Pelt, 136 N.C. 633;
Jetton-Dekle Lumber Co. v.
Mather, 56 Fla. 969;
Cohn & Roth Electric Co. v.
Bricklayers Union, 92 Conn. 161.
[
Footnote 24]
In some jurisdictions, the officers of the national union, not
being employees, are regarded as outsiders, with no justification
for their acts.
Booth v. Burgess, 72 N.J.Eq. 181;
Jonas Glass Co. v. Assn., 72 N.J.Eq. 653, 77 N.J.Eq. 219.
In other jurisdictions, it is held that they are furthering a
legitimate interest.
See Allen v. Flood, 1898 A.C. 1;
Jose v. Metallic Roofing Co., 1908 A.C. 514,
reversing 14 Ontario Law Reports, 156;
Gill Engraving
Co. v. Doerr, 214 F. 111;
Lindsay & Co. v. Montana
Federation of Labor, 37 Mont. 264.
See American Steel
Foundries v. Tri-City Trades Council, ante, 257 U. S. 184.
[
Footnote 25]
In some jurisdictions, the courts seek to localize the conflict
by making it illegal to bring in any party beyond those between
whom the original dispute arose.
Burnham v. Dowd, 217
Mass. 351;
Booth v. Burgess, 72 N.J.Eq. 181;
Purvis v.
United Brotherhood of Carpenters and Joiners, 214 Pa. 348. In
other jurisdictions, it is considered that anyone having business
relations with either party which bear on the matter in controversy
has violated his neutrality, and is subject to reprisal from the
union which is carrying on the struggle.
Bossert v. Dhuy,
221 N.Y. 342;
Master Builders' Assn. v. Domascio, 16
Colo.App. 25;
Pierce v. Stablemen's Union, 156 Cal. 70,
76;
Cohn & Roth Electric Co. v. Bricklayers Union, 92
Conn. 161;
Gill Engraving Co. v. Doerr, 214 F. 111;
Grant Construction Co. v. St. Paul Building Trades, 136
Minn. 167.
See 31 Harv.L.Rev. 482, and
Auburn Draying
Co. v. Wardell, 227 N.Y. 1, for limitations.
Again, in some states, it is unlawful to resort to the method of
notifying persons that a strike will occur if a nonunion employer
or his product is employed,
Booth v. Burgess, 72 N.J.Eq.
181;
Gray v. Building Trades Council, 91 Minn. 171, while
in other states, it is lawful,
Cohn & Roth Electric Co. v.
Bricklayers, 92 Conn. 161, 167;
Bossert v. Dhuy, 221
N.Y. 342.
[
Footnote 26]
Sherry v. Perkins, 147 Mass. 212. But the doctrine was
not established until eight years later.
Vegelahn v.
Guntner, 167 Mass. 92.
[
Footnote 27]
The earliest reported cases seem to be
People v.
Wilzig, 4 N.Y.Cr.R. 403, and
People v. Kostka, 4
N.Y.Cr.R. 429, both of which occurred in June, 1886. The leading
case of
State v. Glidden, 55 Conn. 46, came the next year.
Laidler, however, speaks of an unreported case in 1840.
See Laidler, Boycotts and the Labor Struggle, p. 70.
See also Commons, History of Labor in the United States,
vol. 2, pp. 267, 317, 364.
[
Footnote 28]
Some of the difference of opinion results from a difference in
definition. A boycott is sometimes defined so as to entail violence
or malicious oppression,
State v. Glidden, 55 Conn. 46,
while in other cases it is simply pressure exerted by abstention
from business relations,
Mills v. U.S. Printing Co., 99
App.Div. 605, 91 N.Y.Supp. 185,
aff'd, 199 N.Y. 76. The
terms primary and secondary, as describing the boycott, are also of
uncertain content. Only a boycott that is free of violence or
malevolence is anywhere held to be lawful. This peaceful boycott in
support of a
bona fide industrial conflict, however, is
not everywhere held lawful, and its lawfulness often is held to
depend on whether it is used against the industrial antagonist
directly (primary boycott) or against an outsider because of his
influence on or connection with the industrial antagonist
(secondary boycott). Holding the boycott, primary and secondary,
illegal:
Wilson v. Hey, 232 Ill. 389;
Beck v. Railway
Teamsters' Union, 118 Mich. 497;
Gray v. Building Trades
Council, 91 Minn. 171;
Booth v. Burgess, 72 N.J.Eq.
181;
Purvis v. United Brotherhood of Carpenters, 214 Pa.
348;
Patch Mfg. Co. v. Protection Lodge, 77 Vt. 294;
State v. Glidden, 55 Conn. 46;
Crump v.
Commonwealth, 84 Va. 927, 939;
Jensen v. Cooks', etc.,
Union, 39 Wash. 531;
Webb v. Cooks', etc., Union, 205
S.W. 465;
Seubert v. Reiff, 164 N.Y.S. 522;
American
Federation of Labor v. Buck's Stove & Range Co., 33
App.D.C. 83;
Burnham v. Dowd, 217 Mass. 351;
My
Maryland Lodge v. Adt, 100 Md. 238.
Holding primary boycott legal,
Foster v. Retail Clerk'
Assn., 78 N.Y.S. 860, 867;
Butterick Pub. Co. v.
Typographical Union, 100 N.Y.S. 292;
Gill Engraying Co. v.
Doerr, 214 F. 111;
Empire Theater Co. v. Cloke, 53
Mont. 183;
Steffes v. Motion Picture Union, 136 Minn. 200;
Stoner v. Robert, 43 Wash.(D.C.) Law Rep. 437;
Guethler v. Altman, 26 Ind.App. 587;
Pierce v.
Stablemen's Union, 156 Cal. 70;
Riggs v. Cincinnati
Waiters, 5 Ohio Nisi Prius 386;
McCormick v. Union,
13 Ohio Cir.Ct.(N.S.) 545;
Ex parte Sweitzer, 13 Okl.Cr.
154.
See Laws Utah 1917, c. 68;
Root v. Anderson,
207 S.W. 255.
Holding secondary boycott legal,
Bossert v. Dhuy, 221
N.Y. 342, though
compare Auburn Draying Co. v. Wardell,
227 N.Y. 1;
Stoner v. Robert, 43 Wash.,(D.C.) L.Rep. 437;
Lindsay & Co. v. Montana Federation of Labor, 37 Mont.
264;
Pierce v. Stablemen's Union, 156 Cal. 70, 76;
Parkinson Co. v. Building Trades Council, 154 Cal. 581;
see Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo.
133.
[
Footnote 29]
Holding picketing in itself illegal:
Vegelahn v.
Guntner, 167 Mass. 92;
Pierce v. Stablemen's Union,
156 Cal. 70;
Barnes Co. v. Chicago Typographical Union,
232 Ill. 424;
Lyon & Healy v. Piano, etc., Workers'
Union, 289 Ill. 176;
Beck v. Railway Teamsters'
Union, 118 Mich. 497;
Clarage v. Luphringer, 202
Mich. 612;
Baldwin Lumber Co. v. Brotherhood of Teamsters,
etc., 91 N.J.Eq. 240;
Baasch v. Cooks, Union, 99
Wash. 378;
Webb v. Cooks Union, 205 S.W. 465. The
Washington Act, 1915, c. 181, declaring picketing to be unlawful
was defeated on referendum in 1916.
See Atchison, Topeka &
Santa Fe Ry. Co. v. Gee, 139 F. 582.
Stating that peaceful picketing is lawful:
Riggs v.
Cincinnati Waiters, 5 Ohio Nisi Prius 386;
McCormick v.
Union, 13 Ohio Cir.Ct. R. (N.S.) 545;
Jones v. Van Winkle
Machine Works, 131 Ga. 336, 340;
Karges Furniture Co. v.
Amalgamated, 165 Ind. 421, 430-431;
Everett Waddey Co. v.
Richmond Typographical Union, 105 Va. 188;
Steffes v.
Motion Picture Union, 136 Minn. 200.
See also Laws
1917, c. 493;
Stoner v. Robert, 43 Wash. (D.C.) L.Rep.
437;
Empire Theater Co. v. Cloke, 53 Mont. 183;
Mills
v. U.S. Printing Co., 99 App.Div. 605,
aff'd, 1969
N.Y. 76;
Ex parte Sweitzer, 13 Okl.Cr. 154;
White
Mountain Freezer Co. v. Murphy, 78 N.H. 398.
See Laws
Utah 1917, c. 68;
American Engineering Co. v. International
Moulders Union, 25 Pa.Dist. 564;
Iron Molders Union v.
Allis-Chalmers Co., 166 F. 45;
St. Louis v. Gloner,
210 Mo. 502.
[
Footnote 30]
Mills v. U.S. Printing Co., 99 App.Div. 605,
aff'd, 199 N.Y. 76.
See also cases in
note 29 supra, from Ohio,
Minnesota, Montana, and Oklahoma.
[
Footnote 31]
Compare Plant v. Woods, 176 Mass. 492, 502, last
paragraph,
with Cohn & Roth Electric Co. v.
Bricklayers, 92 Conn. 161, 167,
and Bossert v. Dhuy,
221 N.Y. 342, 359.
See Geldart, Present Law of Trade
Unions and Trade Disputes, p. 24; Hoxie, Trade Unionism in the
United States, p. 231; "Strikes and Boycotts," 34 Harv.Law Rev.
880.
[
Footnote 32]
Springhead Spinning Co. v. Riley, L.R. 6 E. 551.
[
Footnote 33]
The earliest case of importance was
Sherry v. Perkins,
147 Mass. 212 (1888). But injunctions were granted four or five
years earlier. Commons, History of Labor in the United States, vol.
2, p. 504.
[
Footnote 34]
"Government by Injunction," by W. H. Dunbar, 13 Law Quarterly
Review, 347; "Government by Injunction," by Charles Noble Gregory,
11 Harvard Law Rev. 487; "Injunction and Organized Labor," by
Charles C. Allen, 28 Am.Law Rev. 828; "The Modern Use of
Injunctions," by F. J. Stimson, 10 Pol.Sci. Quarterly, 189;
"Strikes and Courts of Equity," by William Draper Lewis, 46 Am.Law
Reg. 1; "Government by Injunction," by Percy L. Edwards, 57 Albany
Law Journal, 8; "The Abuses of Injunction," by Samuel Seabury, 29
Arena, 561; "Government by Injunction," by Cornelius H. Fauntleroy,
69 Central Law Journal, 129; "Government by Injunction," by Thomas
F. Hargis, 4 Amer.F. 227.
See Report of U.S. Industrial
Commission (1901) vol. XVII, p. 611.
[
Footnote 35]
In
Long v. Bricklayers, etc., Union, 17 Pa.Dist. 984,
the judge prefaced his opinion as follows:
"Hardly anything of greater private or public gravity is ever
presented to the court, and yet these matters are constantly
receiving adjudication without a single witness brought before the
judge. It is a bad practice. I confess my inability to determine
with any satisfaction, from an inspection of inanimate manuscript,
questions of veracity. In disposing of the present rule, I am
compelled to find, as best I may from perusing 235 lifeless
typewritten pages of conflicting evidence, the facts which must
determine respondent's guilt or innocence on the
quasi-criminal charge of contempt."
[
Footnote 36]
Hake v. People, 230 Ill. 174, 196, discretion of judge;
Tinsley v. Anderson, 171 U. S. 101,
171 U. S.
107-108, unlimited commitment;
State v.
Erickson, 66 Wash. 639, 641;
State v. District Court,
51 Mont. 337, 342;
Scoric v. United States, 217 F. 871,
scope of review;
People v. Tefft, 3 Cow. (N.Y.) 340;
Matter of Vanderbilt, 4 Johns.Ch. (N.Y.) 57, admission to
bail within discretion of judge.
[
Footnote 37]
See Final Report of the (U.S.) Industrial Commission
(1902); Final Report of the (U.S.) Commission on Industrial
Relations (1915, Sen.Doc. 415, 64th Cong., 1st Sess.), vol. 1, pp.
52-53, 90-92, vol. 11, testimony of Mr. Gilbert E. Roe, p. 10477;
testimony of Mr. Arthur Woods, p. 10550; testimony of Dr. Frank
Goodnow, p. 10599, American Federationist, vol. 7, p. 350; vol. 9,
p. 685; vol. 15, p. 976.
[
Footnote 38]
53d Congress, S. 1563, S. 1898, S. 2253, H.R. 7362, H.R. 7363;
54th Congress, S. 237, S. 1750, S. 2984, H.R. 319; 56th Congress,
S. 4233, H.R. 8917; 57th Congress, S. 1118, S. 4553, H.R. 9678,
H.R. 11060; 58th Congress, H.R. 89, H.R. 1234, H.R. 4063, H.R.
6782, H.R. 8136, H.R. 18327; 59th Congress, S. 2829, H.R. 4445,
H.R. 9328, H.R. 17976, H.R. 18171, H.R. 18446, H.R. 18752; 60th
Congress, S. 4533, S. 4727, S. 5888, H.R. 69, H.R. 94, H.R. 17137,
H.R. 21358, H.R. 21350, H.R. 21454, H.R. 21489, H.R. 21539, H.R.
21629, H.R. 21991, H.R. 22010, H.R. 22032, H.R. 22298, H.R. 26300,
H.R. 24781, H.R. 36609; 61st Congress, S. 3291, S. 4481, H.R. 3058,
H.R. 9766, H.R. 10890, H.R. 16026, H.R. 18410, H.R. 20486, H.R.
20680, H.R. 20827, H.R. 21334, H.R. 22566; 62nd Congress, S. 6266,
H.R. 4015, H.R. 4651, H.R. 5328, H.R. 5606, H.R. 9435, H.R. 11032,
H.R. 23189, H.R. 21486, H.R. 21595, H.R. 22208, H.R. 22349, H.
22354, H.R. 22355, H.R. 23635; 63d Congress, S. 927, H.R. 1873,
H.R. 4659, H.R. 5484, H.R. 15657 -- which became the Clayton
Act.
[
Footnote 39]
See note 38 Also
53d Congress, resolutions to investigate the use of the injunction
in certain cases, 26 Cong.Rec. 2466; 56th Congress, debate, 34
Cong.Rec. 2589; 60th Congress, hearings, Sen.Doc. 525; special
message of the President, Sen.Doc. 213, 42 Cong.Rec. 1347; papers
relating to injunctions in labor cases, Sen.Docs. 504 and 524; 61st
Congress, debate, 45 Cong.Rec. 343; 62d Congress: debate, 48
Cong.Rec. 6415-6470; hearings, Sen.Doc. 944; petitions, Sen.Doc.
440; hearings before the House committee on the judiciary, Jan. 11,
17-19, Feb. 8, 14, 1912; hearings before a subcommittee of Senate
committee on the judiciary, 62d Cong.2d Sess.; 63d Congress,
see debates on H.R. 15657 (the Clayton Act).
[
Footnote 40]
54th Congress, House Report No. 2471; 56th Congress, House
Report No.1987, 2007; 57th Congress, Senate Report No. 1650, House
Report No. 1622; 62d Congress, House Report No. 612; 63d Congress,
Senate Report No. 698, house Report No. 627, Conference Report,
Senate Document 585.
[
Footnote 41]
In the 57th Congress, H.R. 11060 passed the House, 35 Cong.Rec.
4995. In the 62d Congress, H.R. 23635 passed the House, 48
Cong.Rec. 6470, 6471.
[
Footnote 42]
In this case, the Supreme Court of Arizona said:
"This action is founded on the identical facts upon which the
case of
Truax v. Bisbee Local No. 380, 19 Ariz. 379, was
founded. . . . The questions presented in this record were
necessarily decided by this court in the former hearing of the
matter."
Truax v. Corrigan, 20 Ariz. 7, 8.
[
Footnote 43]
See note 23
[
Footnote 44]
See note 28
[
Footnote 45]
See note 24 2nd
paragraph; also
Lindsay & Co. v. Montana Federation of
Labor, 37 Mont. 264;
Parkinson Co. v. Building Trades
Council, 154 Cal. 581.
[
Footnote 46]
See note 29
supra.
[
Footnote 47]
Arizona Employers' Liability Cases, 250 U.
S. 400.
[
Footnote 48]
Dominion Hotel v. Arizona, 249 U.
S. 265.
[
Footnote 49]
In
Gooch v. Stephenson, 13 Me. 371 (1836), the
plaintiff attacked as unconstitutional a statute declaring that no
action of trespass should be brought against an owner of cattle
breaking through an insufficient fence. The court,
inter
alia, said:
"It has been insisted that justice and the security of rights is
best promoted by maintaining the remedy as it before existed, but
that is an argument which addresses itself to the legislative
power, and not to the judicial. . . . It was for the legislature to
determine what protection should be thrown around this species of
property . . . and where he [the owner] might invoke the aid of
courts of justice. They have no power to take away vested rights,
but they may regulate their enjoyment."
In the case, the public importance of good fences was held to
justify the denial of an existing remedy for injuries to property
or a curtailment of the right.
[
Footnote 50]
See McCarthy v. Bunker Hill & Sullivan Mining &
Concentrating Co., 164 F. 927;
Bliss v. Anaconda Copper
Mining Co., 167 F. 342;
Bliss v. Washoe Copper Co.,
186 F. 789;
Cameron Furnace Co. v. Pennsylvania Canal Co.,
2 Pearson (Pa.) 208;
Johnson v. United Railways Co., 227
Mo. 423, 450;
Conger v. N.Y. W. S. & B.R. Co., 120
N.Y. 29;
Wilkins v. Diven, 106 Kan. 283;
Marconi
Wireless Tel. Co. v. Simon, 227 F. 906; 231 F. 1021.
[
Footnote 51]
Dimmick v. Delaware, Lackawanna & Western R. Co.,
180 Pa. 468;
Curran v. Delano, 235 Pa. 478;
Janney v.
Buell, 55 Ala. 408. The mechanic's lien, for instance, is not
protected by equitable remedies, but only by statutory provisions.
Chandler v. Hanna, 73 Ala. 390;
Walker v.
Daimwood, 80 Ala. 245; Phillips on Mechanics' Liens, §§ 307,
308.