Blanchard v. Golden Age Brewing Co.

Tolman, J.

(concurring) — The controversy out of which this litigation arises has already cost at least one human life in this state

(State v. Hiatt,

187 Wash. 226 , 60 P. (2d) 71 ) and I approach the subject with a deep feeling of the responsibility resting upon this court to lay down a true, just and workable rule which will insure peace and safety so far as is possible within the law.

I accept the facts as stated, the analysis of the statute as given, and concur in much of what is said by the majority. My chief reason for concurring specially is to supply in some part, if I may, what has not been said.

The majority says that the precise question is “whether the legislature can abolish or abridge the power of the superior court to issue injunctions” and holds that it may not because “to do so would be an encroachment upon the judicial power.” In my opinion, the legislature may take away from the courts, as now established, the power to protect certain rights and to exercise certain remedies, provided that it supplies a reasonably adequate remedy in the place of the

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one abolished, but by the same token the legislature may not abolish a common law right and its remedy without setting up some reasonable substitute. To attempt to do so is to deny due process of law within the meaning of both the state and Federal constitutions. Cr

ane v. Hahlo,

258 U. S. 142 , 42 S. Ct. 214 ;

Truax v. Corrigan,

257 U. S. 312 , 42 S. Ct. 124 , 27 A. L. R. 375;

New York Central R. Co. v. White,

243 U. S. 188 , 37 S. Ct. 247 , Ann. Cas. 1917D, 629, L. R. A. 1917D, 1;

Hanfgarn v. Mark,

289 N. Y. S. 143;

In re Opinion of Justices,

211 Mass. 618 , 98 N. E. 337 .

This state is committed to that doctrine. The question, while not very clearly set forth, was necessarily decided in

State ex rel. Davis-Smith Co. v. Clausen,

65 Wash. 156 , 117 Pac. 1101 , 37 L. R. A. (N. S.) 466, and

State v. Mountain Timber Co.,

75 Wash. 581 , 135 Pac. 645 , L. R. A. 1917D, 10. The rule was clearly stated and followed by this court in the case of

Casco Co. v. Thurston County,

163 Wash. 666 , 2-P. (2d) 677, 77 A. L. R. 622. Because of the space already given to this case, I shall not cite further authorities. It is sufficient to say that whether this be the majority rule or not, clearly it is the reasonable rule and the one we have adopted.

As applied to the facts and conditions here involved and the general conditions now prevailing to an alarming- extent in this state and throughout the nation, the opposite rule, which upholds legislation abolishing or abridging the power of the courts to enjoin wrongful acts which will produce loss and damage, would, if applied, invite anarchy and civil war.

Every known dispute which our complex civilization has produced is triable before some tribunal whose final judgment is conclusive, except only disputes between nations and disputes between employers and employees and like questions involving the employ

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ment of labor. This is not the place nor is it my duty to discuss the question of disputes between nations, but I conceive it to be my duty, as a judge of this court, under Rem. Rev. Stat., §11042 [P. O. §8673], to call to the attention of the governor, the legislature and the public at large, the lack of statutory means for enforcing a just, prompt and final decision of all §uch disputes as the one here involved.

Courts of equity have no doubt sometimes unwisely and unjustly used their power to enjoin, but, in the absence of the power to enjoin, we have only unlimited, unrestrained and uncontrolled war between employers and employees, whenever they differ, to the great loss and damage of all parties to the particular controversy and, perhaps, even greater loss and damage to the general public. Even by the exercise of the power to enjoin, as heretofore enjoyed by the courts, they cannot decide the controversy, and, injunction or no injunction, the fight goes on until force, necessity, or public opinion compels a settlement or a surrender. Without the power to enjoin wrongful acts, the war will be more cruel, more relentless, and more harmful to all concerned.

This situation is known to every one, and therefore the courts take judicial knowledge of it. Shall this condition continue unabated with no attempt on the part of any one to bring about a change?

I am well aware that neither capital nor labor seeks to have a tribunal created to decide such disputes; that for fear of political consequences no political party and no politician takes a stand upon this question, and that he who raises the question invites the enmity of those who will remember and visit their wrath upon him. Notwithstanding all this, and to the end that public sentiment may be aroused, I take this opportunity to appeal to the governor to recommend and to

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the legislature to enact a law establishing a tribunal to which all such disputes must be promptly submitted and whose decisions shall be final, except only as they may be reviewed by the courts for arbitrary or capricious action, or because the tribunal has proceeded upon a fundamentally wrong basis.

Such a tribunal, like the courts, must be officered by men who may err; but who, having a just cause, will fear to submit it to men chosen for their experience with, and knowledge of, the subject matter, their integrity, their fairness and their general high standing ?

Because, in order to prevent anarchy and civil war, we must preserve the right to enjoin by the courts in all proper cases until we have something better, I concur in the results reached by the majority.

Holcomb, J., concurs with Tolman, J.