The opinion
Ed. F. MoFaddin, Justice (dissenting). This is an appeal by Lion Oil Company (hereinafter called “Lion”) from the refusal of the Chancellor to grant a temporary injunction. On May 1,1952, Lion filed suit against some of its employees, seeking to enjoin them from picketing at the Lion plant. Only a regular summons was served on each defendant, notifying him to answer in 20 days. On May 2nd — one day after filing the suit, and without any notice to defendants of such application — Lion applied to the Chancery Judge for a temporary restraining order. The Chancellor refused to issue such temporary injunction, and Lion has appealed from such refusal.
In Riggs v. Hill, 201 Ark. 206 , 144 S. W. 2d 26 , we quoted with approval from 28 Am. Jur. 500 , the rule definitely recognized in this State:
“ ‘The granting or refusing of injunctive relief rests within the judicial discretion of the trial court, and its action in the matter will be sustained on review by an appellate court, where the power has uot been abused...” Applying the foregoing rule to the case at bar, it is clear that, on this appeal, the burden is on Lion to show that the Chancellor abused his discretion in refusing to grant the temporary restraining order on May 2nd. I most sincerely insist that this burden has not been sustained by Lion, because the Chancellor could have refused the temporary injunction for any one of several reasons, 1 each of which was well within the range of discretion allowed a Chancellor in such a case. One such good reason for refusing the temporary injunction is the doubtful right of the plaintiff to the prayed relief; and I propose to show this doubtful right on each of the grounds alleged by Lion for relief.
I. It is Extremely Doubtful that the Picketing Was for an “Unlawful Purpose”. The complaint alleged that the strike was “for an unlawful purpose” because it was in breach of a contract. In claiming that the strike was for an “unlawful purpose”, Lion insists that the injunction against picketing should have been issued under the authority of Self v. Taylor, 217 Ark. 953 , 235 S. W. 2d 45 . But that case affords Lion no support. In Self v. Taylor, supra, it was pointed out that the workers were picketing for a closed shop, and that a closed shop was made unlawful by Amendment 34 to the Arkansas Constitution, and Act 101 of the 1947 Arkansas Legislature. Self v. Taylor, supra, cited and relied on Local v. Asimos, 216 Ark. 694 , 227 S. W. 2d 154 ; and in the Asimos case, the State and Federal holdings were catalogued and discussed in detail, and from them we deduced the conclusion that picketing-can be enjoined only (1) when such picketing has resulted in violence, or (2nd) when the picketing is for an unlawful purpose. There is no evidence of violence in the case at bar, so that phase of the law passes out of consideration. Lion claims that the strike was for an “unlawful purpose”; but in so claiming, I insist that Lion mistakes “unlawful” for “wrongful”. It maybe morally “wrongful” for the union to strike during the life of its contract, but it is not “unlawful ’ ’ to strike in violation of a contract. By this statement, I am not saying that the strike was in violation of the contract. I am merely assuming such fact for the purpose of argument.
“Unlawful” means “in violation of law”. In State v. Bulot, 175 La. 21 , 142 So. 787 , the Supreme Court of Louisiana said that the term “unlawful” means “that which is not lawful, or that which is contrary to some express provision of the law”, and that “unlawful purpose” means for the purpose of doing something that is prohibited by law. I realize that the word “unlawful” may sometimes refer to mere civil violations, as distinct from criminal violations; 2 but the general meaning of “unlawful”.is “violation of law”. 3 Certainly that is the meaning of the words “unlawful purpose” in connection with labor disturbances. In the case of Cole v. State, 214 Ark. 387 , 216 S. W. 2d 402 , 4 we discussed the words “unlawful assemblage” in connection with our Freedom to Work statute; and we there committed this Court to the view that an unlawful assemblage was one for the accomplishing of an act forbidden by law. That case and its reasoning are clearly against the majority holding in the case at bar. There is no law that adjudges a fine or other criminal penalty against a person who violates a contract. All that the defendants have done in this case is to violate a contract, and such is not unlawful within the purview of our labor laws. So I insist that an injunction against picketing should not issue in this case, because the purpose of picketing 5 — while wrongful — was not unlawful.
II. Jt is Extremely DouMful Whether Lion is Entitled to Claim that There ivas a Monopoly. Lion alleges that the defendants, along with other workers throughout the country, have entered into a conspiracy and a monopoly, in that they have staged a simultaneous nationwide strike. Let us assume every one of the charges to be true, yet I can find no case in this or any other court, which applies the anti-trust laws of the United States, or the monopoly laws of this State, to workers who picket. Let it be remembered that this is merely an effort to enjoin picketing, and if they have engaged in a nationwide strike, still I can find no case which holds that such act would justify an injunction against picketing. Counsel for Lion, with becoming candor, admit that they have been unable to find any such case. In view of this situation, I maintain that it is extremely doubtful whether Lion is entitled to any relief on its claim of a monopoly.
Conclusion. Therefore — since (a) it is extremely doubtful that the purpose of the strike was <£unlawful”, and since (b) it is extremely doubtful whether the antitrust laws and the monopoly laws have any application in this case — I insist that the Chancellor was well within his discretion in refusing to grant a temporary injunction. In 28 Am. Jur. 208 , the rule is stated:
££A preliminary injunction will not ordinarily be granted if the parties are in dispute concerning their legal rights, until such rights are established, especially if the legal and equitable claims asserted raise questions of a doubtful or unsettled character.”
It is only when the plaintiff is clearly entitled to the relief sought that a temporary injunction — at most a provisional writ — should be granted. Here we have a case where Lion’s right to the relief is extremely doubtful. Certainly, therefore, the Chancellor did not abuse his discretion in refusing to grant a temporary injunction in advance of the joining of issues.
For these reasons, I respectfully dissent from the majority opinion, which holds that the Chancellor has abused his discretion in refusing to grant the injunction. There is no need to discuss the Taft-Hartley Law. Neither is there any need for me to enter into a discussion of the right of peaceful picketing. All of this is stated in Local v. Asimos, supra. The majority, in reversing the Chancellor in the case at bar, is infringing on the right of peaceful picketing. For the reasons herein stated, I respectfully dissent.
forego any discussion of the right of the Chancellor to refuse a temporary restraining order because of lack of notice to defendants, (See § 32-201 et seq. Ark. Stats.), since the decree in the case at bar recites “that the allegations of the complaint of the plaintiff and the fact stated in the affidavits in support of the application for a temporary restraining order hereinbefore mentioned, do not state facts sufficient to entitle the plaintiff to a temporary restraining order as prayed in the complaint”. This recital in the decree, together with statement of appellant’s counsel in oral arguments in this Court, establish that the Chancellor did not base his refusal to grant the temporary injunction on any lack of notice.
See 66 C. J. 35.
See Kelly v. Worcester, 97 Mass. 284 .
This case was affirmed by the United States Supreme Court in a unanimous opinion. See 338 U. S. 345 , 70 S. Ct. 172 , and 94 L. Ed. 155 .
For Annotations on the validity of statutes and ordinances forbidding picketing, see 35 A. L. R. 1200, 108 A. L. R. 1119, 122 A. L. R. 1043, 125 A. L. R. 963, and 130 A. L. R. 1303,