Blanchard v. Golden Age Brewing Co.

Blake, J.

(dissenting) — The majority say:

“In our opinion, §§ 7, 8 and 9, of the labor disputes act (Rem. Rev. Stat. (Sup.), §§7612-7, 7612-8, 7612-9) constitute an encroachment upon judicial power, and are therefore unconstitutional.”

If I apprehend the true significance of this pronouncement and the argument in support of it, a doctrine is laid down which seems to me to be subversive of the very fundamentals of a democratic or a republican form of government. Such a form of government is predicated upon “certain inalienable rights” of the people. This decision is predicated upon

certain inalienable

rights of courts. It seems to me that the court, in this pronouncement, has lost sight of the character of the remedy by injunction, and particularly of its historical development with respect to labor disputes.

I shall not enter into any general discussion with respect to the power of courts of equity to grant in

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junctive relief. Tlie injunction is as old as equity itself' — indeed older, for it finds its precedent in the Roman interdict. But it must be borne in mind that it is purely a remedy granted to the suitor by grace and not as of right. It must be further borne in mind that the use of the injunction in labor disputes is of distinctly modern origin. Before discussing its historical development with respect to such controversies, it may be well to recapitulate what seem to me to be the salient facts presented by the record in these cases.

Omitting* the portions obviously predicated on the N. R. A. aspects of the bill, the restraining* orders provide :

“The defendants . . . and each of them, are hereby restrained from doing any act whatsoever in attempting to coerce, induce or persuade the plaintiffs to join the defendant union, and that these defendants, and each of them, are enjoined and restrained from calling any strike against the plant of the . . . Brewing Company, at Spokane, "Washington, or from boycotting* the products of said corporation, or from interfering* with its products in any manner, shape or form, or in attempting to induce its customers not to trade with it

because

the . . . Brewing Company refuses to compel its employees, and plaintiffs herein, to join the teamsters’ union.”

The appellant, Harry Dail, not a party to the action, was cited into court for contempt on a show cause order reciting that he had “wilfully and contemptuously disobeyed and violated the restraining order, ’ ’ and had “attempted by force and threats and coercion to induce the Spokane Brewing

&

Malting Company to violate said restraining order ...”

A hearing was had on the show cause order, and appellant was adjudged guilty of contempt. The sum and substance of the evidence upon which conviction was

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predicated was that defendant, knowing of the existence of the restraining order, threatened to call a strike (accompanied by a boycott) in the brewery plant.

Now, to summarize just what has happened, the appellant has been punished for contempt, in an action to which he was not a party, for merely threatening to effectuate demands of his union by means which Mr. Justice Holmes forty years ago asserted to be generally conceded to be lawful. In a dissenting opinion in

Vegelahn v. Guntner,

167 Mass. 92 , 44 N. E. 1077 , 57 Am. St. 443, 35 L. R. A. 722, Justice Holmes said:

“If it be true that workingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest possible return, it must be true that when combined they have the same liberty that combined capital has to support their interests by argument, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully control. I can remember when many people thought that, apart from violence or breach of contract, strikes were wicked, as organized refusals to work. I suppose that intelligent economists and legislators have given up that notion today. I feel pretty confident that they equally will abandon the idea that an organized refusal by workmen of social intercourse with a man who shall enter their antagonist’s employ is wrong, if it is dissociated from any threat of violence, and is made for the sole object of prevailing if possible in a contest with their employer about the rate of wages.”

The pertinency of these remarks to the instant case is that, without regard to chapter 7, Laws of 1933, Ex. Ses., p. 10 (Eem. Eev. Stat. (Sup.), §§7612-1 to 7612-15 [P. C. §§3467-21 to 3467-35]), the injunctive order in this case was improvidently issued. For here there was no overt act — no threat of violence to person

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or property. Of course, since no appeal was taken by tbe

defendants

from tbe restraining order, we are compelled to start with the assumption tbat tbe order was made on sufficient showing. But tbe situation is impressive in view of tbe argument made by tbe majority in defending tbe inherent powers of tbe court against encroachment by legislative action. For here one is being punished who never bad an opportunity to challenge tbe validity of tbe restraining order on tbe ground tbat it was an arbitrary exercise of judicial discretion. Tbat tbe restraining order is an arbitrary exercise of judicial power, seems to me not to be open to question. For it denies to workmen

all

means by which they can make effective their acknowledged rights to organize, to bargain collectively, and to strike.

Passing this, however, we come to tbe main question of tbe case: Is chapter 7, Laws of 1933, Ex. Ses., p. 10, unconstitutional because it is an encroachment upon an inherent power of tbe court? If that act undertook to deny tbe court tbe power to grant injunctive relief in all cases, I should hesitate to disagree with tbe thesis of tbe majority opinion. If tbe use of tbe injunction in labor disputes was of ancient origin, I should yet hesitate to disagree. But such is not tbe case.

Tbe first recorded case of tbe granting of injunctive relief in a labor controversy is

Springhead Spinning Co. v. Riley,

L. R. 6 Eq. 549 (1868). Tbe defendants, who were officers of a trades union, gave notice, by means of placards and advertisements, to workmen not to hire themselves to plaintiff, pending a dispute between the latter and tbe union. Holding tbat these acts tended to tbe destruction of property, tbe court granted an injunction, saying:

“Tbe jurisdiction of this Court is to protect property, and it will interfere- by injunction to stay

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any proceedings, whether connected with crime or not, which go to the immediate, or tend to the ultimate, destruction of property, or to make it less valuable or comfortable for use or occupation.”

The doctrine did not, however, thrive in England. The decision was severely criticized in

Prudential Assurance Co. v. Knott,

10 Ch. App. 142, where it was said:

“The authorities cited are, the case of

Fleming v. Newton

(1), which appears to me to be an authority exactly to the contrary; the case of

Routh v. Webster

(2), which was an authority for preventing the improper use of a man’s name against his will; the case of

Clark v. Freeman

(3), where the injunction was refused, and where Lord Langdale said the Court would not interfere to prevent a libel; and the only other case mentioned,

Springhead Spinning Company v. Riley

(4)_, decided by the Vice-Chancellor himself, upon which of course the learned Judge must be taken to have expressed the same opinion as he expressed in the case of

Dixon v. Holden

(5) . . .

“I think that the Vice-Chancellor Malins, in that case of

Dixon v. Holden,

was, by his desire to do what was right, led to exaggerate the jurisdiction of this Court in a manner for which there was no authority in any reported case, and no foundation in principle. ’ ’

The significance of the last quotation is that the

jurisdiction

of courts of equity to grant injunctive relief in such cases was challenged from the beginning. Even so, the

Springhead

case recognized the limitations on the jurisdiction of equity to grant injunctive relief, as stated by Lord Eldon in

Iveson v. Harris, 7

Vesey, Jr. 251, 256:

“And I have no conception, that it is competent to this court to hold a man bound by an injunction, who is not a party in the cause for the purpose of the cause.”

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For in the

Springhead

case the injunction was directed to parties to the suit.

It remained for the courts of the United States to extend the jurisdiction to grant injunctive relief against the world.

United States v. Debs,

64 Fed. 724 . This was a quick development after the courts of this country seized upon the doctrine of the

Springhead

case in 1888.

Sherry v. Perkins,

147 Mass. 212 , 17 N. E. 307 , 9 Am. St. 689. During the depression years of the early nineties, government by injunction became rampant.

Casey v. Cincinnati Typographical Union,

45 Fed. 135 , 12 L. R. A. 193;

Coeur d’Alene Consolidated & Mining Co. v. Miners’ Union of Wardner,

51 Fed. 260 ,19 L. R. A. 382;

Toledo etc. R. Co. v. Pennsylvania Co.,

54 Fed. 730 , 19 L. R. A. 387. The strong arm of equity was extended to uphold the enforcement of criminal law. One court went so far as to enjoin employees of a railroad company

“ ...

from combining and conspiring to quit, with or ivithout notice, the service of said receivers, with the object and intent of crippling the property in their custody, or embarrassing the operation of said railroad, and from so quitting the service of the said receivers, with or luithout notice, as to cripple the property, or to prevent or hinder the operation of said railroad. . . .” Farmers’ Loan & Trust Co. v. Northern Pac. R. Co.,

60 Fed. 803 , 25 L. R. A. 414.

The doctrine thus enunciated immediately drew criticism from the London “Law Times” where it was described as showing:

“The tremendous powers of government and control over the lives and fortunes of American citizens which may he claimed and exercised. ... It was really placing large masses of workmen engaged upon great industrial undertakings under a slavery

regime.”

97 Law Times 384.

But the power asserted in the

Northern Pacific

case

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was quickly repudiated.

Arthur v. Oakes,

63 Fed. 310 , 25 L. R. A. 414. In that case, Mr. Justice Harlan, sitting as a judge of the circuit court of appeals, said:

“It would be an invasion of one’s natural liberty to compel him to work for or to remain in the personal service of another. One who is placed under such constraint is in a condition of involuntary servitude,— a condition which the supreme law of the land declares shall not exist within the United States, or in any place subject to their jurisdiction.”

An examination of the cases hereinbefore cited will show that, at first, injunctive relief was granted only to protect some tangible or intangible property right of the complainant, and the decree was operative only against parties to the suit.. In the later cases, the theory of protection to the public crept in as a basis for granting injunctive relief, and the decree became operative not only against parties to the suit, but against everyone who might have actual or constructive notice of it. The doctrine of constructive contempt followed as a matter of course.

While, in the decisions, jurisdiction to enjoin acts amounting to crimes has been disclaimed, nevertheless the effect of this extension of equity jurisdiction has been to enjoin criminal acts and to substitute the star chamber for trial by jury.

It is also to be noted that in none of the cases (not even in

Truax v. Corrigan,

257 U. S. 312 , 42 S. Ct. 124 , 27 A. L. R. 375) is the right to grant injunctive relief predicated upon the inherent powers of equity courts. Even in that case the Chief Justice conceded, at least for the sake of argument, that “the legislature has full discretion to grant or withhold equitable relief in any class of cases.” p. 335.

By this rather extended review of the early decisions, I have endeavored to show that there is no historical basis for holding that the court has inherent

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power, invulnerable to legislative regulation, to grant injunctive relief in labor disputes. By analogy, I believe this lack of historical basis for such a holding is demonstrable beyond peradventure.

It will be recalled that the use of the injunction to stay legal proceedings is as ancient as equity itself. Upon the adoption of the codes in this country, many of the states either prohibited entirely or greatly limited the use of the injunction for such purposes. At the present time, injunctions to stay judicial proceedings are absolutely prohibited, unless necessary to prevent a multiplicity of suits, in the following states: Arizona (Revised Code 1928, § 4281); California (Code of Civil Procedure, §526, Civil Code, §3423); Montana (Revised Code 1921, § 9242); North Dakota (Compiled Laws 1913, § 7214); South Dakota (Revised Code 1919, § 2035). In the following states, the power is limited to courts in which the proceedings are taking place: Arkansas (Digest of the Statutes 1921, § 5788); Colorado (Compiled Laws 1921, § 5770); Kentucky (Code of Practice, § 285); Virginia (Code of 1924, §6318). In the following states, the power is conditioned on the requirement of a bond from the petitioner to protect the defendant against delay: Florida (Compiled General Laws 1927, § 4968); New Jersey (Compiled Statutes 1910, pp. 434-435, §§1292-1294).

It is true that we do not find many cases where the validity of such statutes has been challenged — probably for the reason that the power of the legislature to circumscribe remedial rights is too well established to be open to question. The question has arisen, however, in four cases decided by the supreme court of California, in.all of which the legislative power is upheld. Spr

eckles v. Hawaiian Commercial & Sugar Co.,

117 Cal. 377 , 49 Pac. 353 ;

Wright v. Superior Court,

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139 Cal. 469 , 73 Pac. 145 ;

Reclamation Dist. v. Superior Court,

171 Cal. 672 , 154 Pac. 845 ;

Anderson v. Neal Institutes Co.,

37 Cal. App. 174 , 173 Pac. 779 . In the second of the above cited cases, the court had this to say:

“By section 3423, under the same title, it is declared that an injunction cannot be granted ‘ to stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless' such restraint is necessary to prevent a multiplicity of such proceedings.’ (Civ. Code, secs. 3366, 3423.) It is not pretended, nor could it well be, that the injunction in this case was to prevent a multiplicity of actions or proceedings; on the other hand, it added another action to the one already pending. And in the action then pending in the city and county of San Francisco the testimony sought to be had in the action or proceeding in the county of Santa Clara by the so-called bill of discovery could have been taken and used in the former action. Therefore, the action or proceeding now under consideration was not only unnecessary, but expressly prohibited by the Code. In

Spreckles v. Hawaiian etc. Co.,

117 Cal. 377 , these sections of the Code were fully considered, and it was there held that the provisions of the Civil Code upon the subject of specific and preventive relief are designed to cover the whole subject, and are not mere rules of procedure, but define and regulate rights,

and that the constitutional grant to the superior court of jurisdiction in all cases of equity was not intended as a limitation upon the power of the legislature to regulate the rights of persons; and the legislature may either create new rights under which new cases in equity may arise, without endangering the jurisdiction of the courts of equity, or may cause some rights to cease to exist so that certain cases which courts of equity once entertained can no longer arise, without diminishing the jurisdiction of the superior courts in all cases in equity.

“The superior court of Santa Clara county was without jurisdiction to enjoin the action then pending in the city and county of San Francisco, or the parties

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plaintiffs (respondents herein) from prosecuting said action.” (Italics mine.)

And in the first case, it is said:

“Counsel for respondent, however, contend that, if this construction of the law he correct,

it is unconstitutional, because it deprives the court of jurisdiction conferred upon it by the constitution.

Upon this subject the constitution simply provides: ‘The superior courts shall have original jurisdiction in all cases in equity.’ Certainly it still has jurisdiction of all cases in equity notwithstanding these provisions of the Code. The trouble, then is, not that the court has not jurisdiction, for it has, but that the plaintiff under the present law cannot make a case which entitles him to relief. The right does not exist under the law.

Statutory changes are almost perpetual. Neiv rights are created under ivhich new equities arise. These make new cases in equity, of which the courts at once take cognizance. The jurisdiction of courts of equity is not thereby enlarged. Neither is it diminished when, by statutory changes some rights cease to exist and certain cases which courts of equity once entertained can no longer arise.

The grant of power is not confined to cases in equity which could exist under the law as it stood when the constitution was adopted. It includes all cases in equity at all times. It was not intended as a limitation upon the power to legislate upon the rights of persons. These sections deal with the rights of persons, and do not regulate procedure.” (Italics mine.)

While not dealing with the specific subject, the case of

United Railroads v. Superior Court,

170 Cal. 755 , 151 Pac. 129 , Ann. Cas. 1916E, 199, is of much interest. Discussing statutes which prescribed the instances in which, and circumstances under which, injunctive relief could be granted, the court said:

“We are aware of the fact that by our constitution very many limitations have been imposed upon the legislative department, but we are satisfied that there is nothing therein that expressly or impliedly prevents

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the legislature from enacting such regulations as to the exercise by the superior court of its ‘original jurisdiction in all cases in equity’ as those pertinent to the matter before us, to which we have already referred. . . . From what we have said as to our statutory provisions on the subject of

such

injunctions, it is manifestly our opinion that they unequivocally have the effect of precluding any such exercise of power on the part of the trial court.”

There is yet .another field in which the legislatures of many states (including our own) have abrogated or limited the use of the injunction: to restrain the levy and collection of taxes. Our own act (Rem. Rev. Stat., § 11315-1 [P. O. § 6882-189]) provides:

“Injunctions and restraining orders shall not be issued or granted to restrain the collection of any tax or any part thereof, or the sale of any property for the non-payment of any tax or part thereof, except in the following cases:

“(1) Where the law under which the tax is imposed is void; and

“(2) Where the property upon which the tax is imposed is exempt from taxation.”

In the case of

Casco Co. v. Thurston County,

163 Wash. 666 , 2 P. (2d) 677 , 77 A. L. R. 622, this act was challenged on the ground, among others, that it was an unconstitutional invasion of judicial power. The court summarily disposed of the contention in the following language:

“We can see here no encroachment upon the constitutional power of the courts, but simply and solely a legislative attempt to provide an adequate legal remedy where, if a legal remedy before existed, it was a doubtful or inadequate one, so that the courts, while retaining to the full all of the equitable powers inherent in them, will find only lessened occasions for the use of such powers.”

This statement is in harmony with the principles

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laid down in the above quotations from the California cases.

Indeed, these principles are consonant with the more general rule, to which this court is also committed, that there is no vested right in a remedy. A remedial right may be abridged or abrogated, provided the legislation does not impair contract rights or deprive one of a vested property right.

Ettor v. Tacoma,

57 Wash. 50 , 106 Pac. 478 , 107 Pac. 1061 . (This case was reversed by the supreme court of the United States on the ground that the legislation under attack did deprive the plaintiff of a vested property right. The principle above stated, however, was approved and reiterated.

Ettor v. Tacoma,

228 U. S. 148 , 33 S. Ct. 428 );

White v. Powers,

89 Wash. 502 , 154 Pac. 820 ;

Seattle v. Seibert,

129 Wash. 346 , 225 Pac. 67 ; 2 Cooley’s Constitutional Limitations (8th ed.), 754. Even where the legislation affects existing contracts, a remedy may be abrogated, provided another adequate remedy is substituted. Such legislation is held not to impair the obligation of contracts.

Oshkosh Waterworks Co. v. Oshkosh,

187 U. S. 437 , 23 S. Ct. 234 . But when the right is

purely remedial,

and does not affect existing contracts or vested property rights, it may be abrogated without the substitution of another remedy.

Ettor v. Tacoma, supra;

1 Cooley’s Constitutional Limitations (8th ed.), 587

et seq.

This distinction, however, is probably irrelevant, in view of our recent holding in

Shea v. Olson,

185 Wash. 143 , 53 P. (2d) 615 , wherein we held that a

substantive

right may be abrogated without the substitution of another in its stead. In that case we said:

“It is a well-settled principle of law, followed by all courts, that the presumption is in favor of the constitutionality of a statute. 6 R. C. L. 97, § 98. As expressed in our decisions, the rule in this state is that

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the court will uot declare a law unconstitutional unless its invalidity is so apparent as to leave no reasonable doubt on the subject.

State v. Ide,

35 Wash. 576 , 77 Pac. 961 , 67 L. R. A. 280, 102 Am. St. 914;

Litchman v. Shannon,

90 Wash. 186 , 155 Pac. 783 ;

Uhden, Inc. v. Greenough,

181 Wash. 412 , 43 P. (2d) 983 . . . .

“Respondent had no vested right of action at the time that the act was passed. The effective date of the act was prior to the time of the accident. Assuming that at common law respondent would have had a right of action, the rule upon which such right was founded was changed by the legislature, which it had the right to do. A person has no vested interest in any rule of the common law.

Munn v. Illinois,

94 U. S. 113, 134 , 24 L. Ed. 77 ;

New York Central R. Co. v. White,

243 U. S. 188, 198 , 37 S. Ct. 247 , 61 L. Ed. 667 , Ann. Cas. 1917D, 629;

Silver v. Silver,

280 U. S. 117 , 50 S. Ct. 57 , 74 L. Ed. 221 , 65 A. L. R. 939; 3 Willoughby on Constitution of the United States (2d Ed.) 1820, § 1216; 6 R. C. L. 156, 157, § 156. There was no violation of the due process clause.”

If this be true with respect to a chose in action, a substantive property right recognized from time immemorial (2 Kent’s Commentaries, 14 ed. 553), it must be equally true of a remedial right. Taking the holding in the

Shea

case and the holding in the instant case together, the court has in effect said to the legislature,

“You may abrogate substantive rights of the people without restriction, but remedial rights only in so far as you do not trench upon what we conceive to be our judicial prerogatives.”

In my opinion, the position is unsound in law and logic. Holding to that position, the court can give lip service only to the fundamental theory upon which the structure of our government is reared: that it is comprised of three

coordinate

branches.

I dissent.