The opinion
STEPHENS, Associate Justice,
dissenting in part, concurring in part:
I dissent from the dictum of the majority that no labor dispute exists within the meaning of the Norris-LaGuardia Act [ 47 Stat. 70 , 29 U.S.C.A. §§ 101-115 ] until differences arise between the employer and the employee or any organization in which the employee may be a member. Cinderella Theater Co. v. Sign Writers’ Local Union (D.C.) 6 F.Supp. 164 ; Dean v. Mayo (D.C.) 8 F.Supp. 73 ; cf. Levering & Garrigues Co. v. Morrin (C.C.A.) 71 F.(2d) 284 , certiorari denied 293 U.S. 595 , 55 S.Ct. 110 , 79 L.Ed. 688 ; see Legislation Note, The Norris-LaGuardia Act: Cases Involving or Growing Out of a Labor Dispute (1937), 50 Harv.L.Rev. 1295. The dictum would exclude from the operation of the Norris-LaGuardia Act a dispute between two unions as to the right to represent employees, the employer being indifferent as to the result, and would also exclude from the operation of the Act a dispute as to unionization between a union and an employer of exclusively non-union labor. Neither of such types of disputes is involved in the instant case, and we should therefore not even in dictum rule concerning them.
I dissent from the affirmance of that part of the 'decree which as worded enjoins the appellants from boycotting the appellee. I think it was erroneous for the trial court in effect to order the appellants to trade at the appellee’s store.
I concur with the majority in the conclusion that in the instant case the Norris-LaGuardia Act does not prevent the issuance of an injunction. The dispute in the instant case is not, I think, a labor dispute within the definition given to that phrase in the Norris-LaGuardia Act — even under the most liberal construction of that Act. E. g., Cinderell Theater Co. v. Sign Writers’ Local Union, Dean v. Mayo, Levering & Garrigues Co. v. Morrin, all supra. See Legislation Note, supra, 1301 n. 32. Therefore the trial court had jurisdiction to issue an injunction.
I feel bound to concur further with the majority in the conclusion that in the instant case the injunction was prop *514 erly issued. I do so with reluctance for I think courts should be cautious indeed in limiting application of the general proposition so happily stated by Justice Hofstadter, in Julie Baking Co. v. Graymond, 152 Misc. 846 , 274 N.Y.S. 250 :
“The right of an individual or group of individuals to protest in a peaceable manner against injustice or oppression, actual or merely fancied, is one to be cherished and not to be proscribed in any well-ordered society. It is an essential prerogative of free men living under democratic institutions. And it is salutary for the state, in that it serves as a safety valve in times of stress and strain. . . .” [ 152 Misc. 846 , at page 847, 274 N.Y.S. 250 , at pages 251-252]
But this proposition was uttered in a case which though it did not involve a labor dispute also did not involve a racial dispute. It was a dispute between a neighborhood organization and a bakery concerning alleged extortionate prices.
How far a right may be exercised, or how far it is proper to limit its exercise, is a question of policy and one which, however delicate, must nevertheless be determined by courts according to their best judgment — in the absence of some controlling statute. The questions of policy involved in picketing in labor disputes have been thought by Congress, in the Norris-LaGuardia Act, and by many courts, to operate against restraint of peaceful picketing. 1 Peaceful picketing has been recognized as legal, however, not upon the theory that it is not an invasion of another’s right but upon the theory that it is a justifiable invasion. As said by Mr. Justice Holmes in Aikens v. Wisconsin, 195 U.S. 194 , 204, 25 S.Ct. 3 , 49 L.Ed. 154 :
“. . . prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law . . . requires a justification if the defendant is to escape.”
And, as said the same author in Privilege, Malice, and Intent (1894), 8 Harv.L.Rev. 1, 9:
“. . . when a responsible defendant seeks to escape from liability for an act which he had notice was likely to cause temporal damage to another, and which has caused such damage in fact, he must show a justification. The most important justification is a claim of privilege. In order to pass upon that claim, it is not enough to consider the nature of the damage, and the effect of the act, and to compare them. Often the precise nature of the act and its circumstances must be examined. It is not enough, for instance, to say that the defendant induced the public, or a part of them, not to deal with the plaintiff. ... in all such cases the'ground of decision is policy; and' the advantages to the community, on the one side and the other, are the only matters really entitled to be weighed. tf
The problem of policy has also been well put thus:
“The truth to be dealt with is that every measure upon which a labor union relies for acceptance of its demands, involves the curtailment of some temporal interest of employer, non-union employee, and frequently the public. .
* * *
“The damage inflicted by combative measures of a union — the strike, the boycott, the picket — must win immunity by its purpose. But neither this nor any formula will save courts the painful necessity of deciding whether, in a given conflict, privilege has been overstepped. The broad questions of law — what are permissible purposes and instruments for damage, — and the intricate issues of fact to which they must be applied, together constitute the area of judicial discretion within which diversity of opinion finds ample scope. . . [Frankfurter and Greene: The Labor Injunction (1930), at 24, 25]
One of the main factors of policy which must be weighed in judicial determination of whether an injunction shall issue to restrain picketing is the probability of violence in' the particular circumstances involved. The decisions legi *515 timatizing peaceful picketing in labor disputes have been based in part upon the proposition that picketing can be carried on in such manner as not imminently to endanger the public peace and safety, and in part upon the further proposition that the likelihood of violence in picketing in labor disputes is not sufficient to over-weigh the public interest in picketing as one means of accomplishing improvement of labor conditions. In the instant case, the factor of the likelihood of violénce operates I think to require an opposite conclusion. The dispute here is in essence and emphasis not a labor dispute but a racial dispute. True, it is a racial dispute concerning hiring, and has thus in a broad sense to do with a question of labor; but this does not make it less racial in essence and in insistence. Violence in racial disputes is, as a matter of common knowledge, highly probable. Therefore, as a matter of public policy, picketing in such disputes cannot be justified, even though in its inception, as in the instant case, it is actually peaceful.
The Norris-LaGuardia Act denies jurisdiction to enjoin “Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence.” 47 Stat. 71 , 29 U.S.C.A. § 104 (e). And see the following decisions: Senn v. Tile Layers’ Protective Union, 301 U.S. 468 , 57 S.Ct. 857 , 81 L.Ed. 1229 ; Iron Holders’ Union v. Allis-Clialmers Co. (C.C.A.) 166 F. 45 , 20 L.R.A.(N.S.) 315; Exchange Bakery & Restaurant, Inc. v. Rifkin, 245 N.Y. 260 , 157 N.E. 130 .