Brief for the Respondent in Opposition — Sandberg v. New England Novelty Co.

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_' No. 281 ini

Supreme Court of the United States.

Ocroser Term, 1944.

SAMUEL SANDBERG er Ale,

Petitioners,

v.

NEW ENGLAND. NOVELTY co, ING, e

3 Respondent. a

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF ee

Subject Index.

Statement of the case

Statutory provisions

Jurisdictional statement

Issues presented

Argument

I. The petitioners have not been deprived of their

rights under the Fourteenth Amendment

II. The trial judge did not commit error in refus-

ing to grant petitioners’ motions for a directed

verdict and their several requests for rulings

III. The convictions for contempt were not based

on insubstantial or inadequate findings of fact

IV. The preliminary injunction was not vague or

ambiguous

V. The fact that criminal penalties were imposed

does not make this a criminal proceeding

VI. The preliminary injunction was in full force

and effect at the time that the acts which were the

basis of the contempt adjudication occurred

Conclusion

Table of Authorities Cited.

CasEs.

American Federation of Labor v. Swing, 312 U.S. 321

Bonifazi v. Breschi, 296 Mass. 544

Cafeteria Employees Union v. Angelos, 320 U.S. 293

Carlson v. California, 310 U.S. 106

Krie Railroad Co. v. Tompkins, 304 U.S. 64

Great Northern Railway Co. v. United States, 208

U.S. 452

Howat v. Kansas, 258 U.S. 181

Irving & Casson v. Howlett, 229 Mass. 560

Jennings v. United States, 264 Fed. 399

10

10

11

14

15

il AUTHORITIES CITED.

Page

Klaxon Co. v. Stentor Electric Mfg. Co., Ine., 313 U.S.

487 5

Milk Wagon Drivers Union of Chicago v. Meadow-

moor Dairies, Inc., 312 U.S. 287 6, 9, 10, 12, 14

Nann v. Raimist, 255 N.Y. 307 14

New England Novelty Co., Inc., v. Sandberg, 1944

Adv. Sh. 483 11

New York Central Railroad Co, v. Ayer, 253 Mass. 122 D

Prince v. Massachusetts, 321 U.S. 158 Dd, 10

R. H. White Co. v. Murphy, 310 Mass. 510 11

Senn v. Tile Layers Protective Union, 301 U.S. 468 11

Swift v. Tyson, 16 Pet. 1 5

Thornhill v. Alabama, 310 U.S. 88 8, 12

United States v. L. Cohen Grocery Co., 255 U.S. 81 13

United States v. Railway Employees’ Department,

American Federation of Labor, 283 Fed. 479 14

STATUTES.

Massachusetts General Laws (Ter. Ed.) ¢. 214, see.

9A 3, 14, 15

Massachusetts General Laws (Ter. Ed.) e¢. 220, see.

13A 2, 13

Supreme Court of the United States.

Ocrosper TERM, 1944.

SAMUEL SANDBERG er at.,

Petitioners,

v.

NEW ENGLAND NOVELTY CO., INC.,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

Statement of the Case.

In addition to the facts set forth in the petition for writ

of certiorari and the opinion of the Supreme Judicial

Court of Massachusetts, incorporated in the transcript of

record accompanying said petition, the Court’s attention

is directed to the following additional facts: The prelimi-

nary injunction was issued on October 22, 1941 (Record,

page 31), and the petition for contempt was filed on Octo-

ber 24, 1941 (Record, page 34). The defendants in the

original proceeding (petitioners herein) did not object to

the interlocutory decree ordering this preliminary injune-

tion (Record, page 29, Memorandum). The marching back

i eee

2

and forth by the groups occurred every day only at about

the times that the shift of employees was changing; em-

ployees and persons going to and from the plant had to

pass by the gate at which this marching took place (Ree-

ord, page 7). The marching took place in military fashion

in groups of two or three, one behind the other, the group

consisting of twenty-five or thirty men, the group walking

the entire length of the fence, and actually walking by the

entrance and back again (Record, page 9). This marching

and congregating took place on Adams Street and Cotton

Street, the streets mentioned in the injunction (Record,

page 30, paragraph 3). The marchers were visible to em-

ployees working inside the plant (Record, page 6). The

groups of strikers and the pickets congregated in the

streets, and refused to move from Adams Street and Cot-

ton Street when requested to do so by the police (Record,

pages 10 and 11).

Statutory Provisions.

Massacuusetts GeneraL Laws (Ter. Ep.) Carrer 220,

Section 13A (Acts or 1935, Cuaprer 407, Section 5).

‘«Any person who shall wilfully disobey any lawful writ,

process, order, decree or command of the court in any suit

in which injunctive relief is sought in any matter involv-

ing or growing out of a labor dispute, as defined in section

twenty C of chapter one hundred and forty-nine, by doing

any act or thing in or by such writ, process, order, decree

or command forbidden to be done by him, if the act or

thing so done by him is of such character as to constitute

also a criminal offence under the laws of the common-

wealth shall enjoy the right to a speedy and public trial

for his said contempt by an impartial jury of the county

wherein it shall have been committed; provided, that this

3

right shall not apply to contempts committed in the pres-

ence of the court or so near thereto as to interfere directly

with the administration of justice or apply to the misbe-

havior, misconduct or disobedience of any officer of the

court in respect to the writs, orders or process of the

court.”’

Massacuusetts GeneraL Laws (Terr. Ep.), Craprer 214,

Section 9A (Acts oF 1935, CHAPTER 407, Section 4).

‘*(6) Whenever the court shall issue or deny a prelimi-

nary injunction in a case involving or growing out of a

lahor dispute, the court, upon the request of any party to

the proceeding, shall forthwith report any questions of

law involved in such issue or denial to the supreme judicial

court and stay further proceedings except those necessary

to preserve the rights of the parties. Upon the filing of

such report, the questions reported shall be heard in a

summary manner by a justice of the supreme judicial

court, who shall with the greatest possible expedition af-

firm, reverse or modify the order of the superior court.

The decision of such justice of the supreme judicial court

upon the questions so raised shall be final, but without

prejudice to the raising of the same questions before the

full court upon exceptions, appeal or report after a final

decree in the ease.’’

Jurisdictional Statement.

The respondent does not question the jurisdiction of the

United States Supreme Court to review the matters here

in question,

4

Issues Presented.

The issues presented by the petition for the writ of cer-

tiorari are:

I. Did the petitioners’ conduct come within the protee-

tion of the right of free speech and free press guaranteed

by the Fourteenth Amendment of the United States Con-

stitution?

Il. Did the trial judge commit reversible error in re-

fusing to grant petitioners’ motion for a directed verdict,

and to instruct the jury in accordance with petitioners’

request?

III. The convictions for contempt were not based on in-

substantial or inadequate findings of fact.

IV. The preliminary injunction was not vague or am-

biguous.

V. The imposition of criminal penalties does not make

this a criminal proceeding.

VI. The preliminary injunction was in full force and

effect at the time of the acts which were the basis of the

contempt adjudication.

Argument.

I. THe PETITIONERS HAVE NOT BEEN DEPRIVED OF THEIR

RIGHTS UNDER THE FourRTEENTH AMENDMENT.

In approaching this issue it should be clearly borne in

mind that the question before the Court does not relate to

the propriety of the issuance of the injunction, but rather

to the interpretation of its language, and whether the peti-

tioners have violated its terms. In this contempt pro-

ceeding, as in all contempt proceedings, as is pointed out

in the opinion of the Supreme Judicial Court (1944 Adv.

Sh. 433, 441), the sole issue presented is whether the peti-

4)

tioners (defendants) have violated its terms. While the

injunction remained in force the petitioners (defendants)

were required to obey its terms.

Howat v. Kansas, 258 U.S. 181.

Bonifazi v. Breschi, 296 Mass. 544, 547.

New York Central Railroad Co. v. Ayer, 253

Mass, 122.

Irving & Casson v. Howlett, 229 Mass. 560, at

562, 563.

Jennings v. United States, 264 Fed. 399.

In this connection the attention of the Court is directed

to the principle that is established in the case of Erie Rail-

road Co. v. Tompkins, 304 U.S. 64, where this Court over-

ruled the principle of Swift v. Tyson, 16 Pet. 1, and estab-

lished the principle that the law of the State governs in a

situation such as this (the status of an injunction) and

that this Court is bound by the interpretation of the State

Court. See Klaxon Co. v. Stentor Electric Mfg. Co., Inc.,

313 U.S. 487. There is no constitutional question involved

in the Massachusetts Court’s ruling as to the status of this

injunction in contempt proceedings. It is consistent with

the holding of this Court in Howat v. Kansas, 258 U.S. 181.

The same principle has been applied by this Court. in

Prince v. Massachusetts, 321 U.S. 158, where the Court,

speaking through Rutledge, J., pointed out that the deci-

sion of the Massachusetts Supreme Judicial Court on the

interpretation of the language of a statute was binding on

the United States Supreme Court, even though the Massa-

chusetts decision was contrary to the trend of decisions in

other States.

The case, therefore, must proceed on the basis that the

facts set forth in the original bill of complaint, which

sought the injunction, were sufficient to justify the issu-

6

ance of the injunction and in limiting and defining the

petitioners’ future conduct in connection with this labor

controversy. In Milk Wagon Drivers Union of Chicago v.

Meadowmoor Dairies, Inc., 312 US. 287, this Court held

that the Courts of the State of Illinois did not violate any

constitutional guaranty of freedom of speech in enjoining

all picketing in a setting of disorder and continuing in-

timidation. It held that the Fourteenth Amendment did

not bar a State Court from granting injunctive relief in a

proper case. In this case Mr. Justice Frankfurter uses

the following pertinent language (pp. 292-296) :

‘¢ | The Constitution is invoked to deny Illinois

the power to authorize its courts to prevent the con-

tinuance and recurrence of flagrant violence, found

after an extended litigation to have occurred under

specific circumstances, by the terms of a decree

familar in such cases. Such a decree, arising out of

a particular controversy and adjusted to it, raises

totally different constitutional problems from those

that would be presented by an abstract statute with

an overhanging and undefined threat to free utter-

ance. To assimilate the two is to deny to the states

their historic freedom to deal with controversies

through the concreteness of individual litigation

rather than through the abstractions of a general

law.

‘|. To substitute our judgment for that of the

state court is to transcend the limits of our authority.

And to do so in the name of the Fourteenth Amend-

ment in a matter peculiarly touching the local policy

of a state regarding violence tends to discredit the

great immunities of the Bill of Rights. No one will

doubt that Illinois can protect its storekeepers from

PSS earner ant rence saceten

OT agen

7

being coerced by fear of window-smashings or burn-

ings or bombings. And acts which in isolation are peace-

ful may be part of a coercive thrust when entangled

with acts of violence. The picketing in this case was

set in a background of violence. In such a setting it

could justifiably be concluded that the momentum of

fear generated by past violence would survive even

though future picketing might be wholly peaceful. So

the supreme court of Illinois found. We cannot say

that such a finding so contradicted experience as to

warrant our rejection. Nor can we say that it was

written into the Fourteenth Amendment that a state

through its courts cannot base protection against fu-

ture coercion on an inference of the continuing threat

of past misconduct. Cf. Ethyl Gasoline Corp. v.

United States, 309 U.S. 436.

sé

The Fourteenth Amendment still leaves the

state ample discretion in dealing with manifestations

of force in the settlement of industrial conflicts.

sé

.

A state may withdraw the injunction from

labor controversies but no less certainly the Four-

teenth Amendment does not make unconstitutional

the use of the injunction as a means of restricting

violence. We find nothing in the Fourteenth Amend-

ment that prevents a state if it so chooses from plac-

ing confidence in a chancellor’s decree and compels it

to rely exclusively on a policeman’s club.

‘We have already adverted to the generous scope

that must be given to the guarantee of free speech.

Especially is this attitude to be observed where, as

in labor controversies, the feelings of even the most

detached minds may become engaged and a show of

Tie LEO

SUPRMARNT LT

8

violence may make still further demands on calm judg-

ment. It is therefore relevant to remind that the

power to deny what otherwise would be lawful picket-

ing derives from the power of the states to prevent

future coercion. ... But we do not have revisory

power over state practice, provided such practice is

not used to evade constitutional guarantees. See Fox

River Co. v. Railroad Comm’n, 274 U.S. 651, 655; Long

Sault Development Co. v. Call, 242 U.S. 272, 277. We

are here concerned with power and not with the wis-

dom of its exercise.’’

The opinion then goes on to say that there is nothing in

it which qualified Thornhill v. Alabama, 310 U.S. 88, 105,

and other similar cases, pointing out that in those cases

the Court had before it statutes baldly forbidding all

picketing without any aspect of violence being involved,

which amounted to an unlimited ban on free communi-

cation. It pointed out that even in the Thornhill case the

Court stated that a statute could be so narrowly drawn

as to cover situations of imminent or aggravated danger,

and that, if a statute could do so, so the law of a State may

be fitted to a concrete situation through the authority given

by the State to its Court. The opinion closes with this

language (p. 299):

‘(A final word. Freedom of speech and freedom

of the press cannot be too often invoked as basic to

our scheme of society. But these liberties will not

be advanced or even maintained by denying to the

states with all their resources, including the instru-

mentality of their courts, the power to deal with co-

ercion due to extensive violence. If the people of

Illinois desire to withdraw the use of the injunction

in labor controversies, the democratic process for

9

legislative reform is at their disposal. On the other

hand, if they choose to leave their courts with the

power which they have historically exercised, within

the circumscribed limits which this opinion defines,

and we deny them that instrument of government, that

power has been taken from them permanently. Just

because these industrial conflicts raise anxious diffi-

culties, it is most important for us not to intrude into

the realm of policy-making by reading our own notions

into the Constitution.”’

In the dissenting opinion of Mr. Justice Reed in the same

case, the Court’s right to limit the number of pickets is

recognized in the following language (pp. 318-319) :

‘‘Where nothing further appears, it is agreed that

peaceful picketing, since it is an exercise of freedom

of speech, may not be prohibited by injunction or by

statute. Thornhill v. Alabama, 310 U.S. 88; Ameri-

can Federation of Labor v. Swing [312 U.S. 321]. It

is equally clear that the right to picket is not abso-

lute. It may, if actually necessary, be limited, let us

say, to two or three individuals at a time and their

manner of expressing their views may be reasonably

restricted to an orderly presentation. Thornhill v.

Alabama, supra, 105. From the standpoint of the

state, industrial controversy may not overstep the

bounds of an appeal to reason and sympathy.’’

There is nothing in the decision of this Court in Cafe-

teria Employees Union v. Angelos, 320 U.S. 293, which

limits the decision in the Meadowmoor case. The latter

opinion merely holds that on the facts in that case the

picketing was peaceful and unaccompanied by falsehoods,

and therefore was not subject to Court injunction; in other

10

words, that the facts did not support the issuance of an

injunction. For reasons pointed out earlier in this brief,

it must be conclusively assumed that the facts justified the

issuance of the preliminary injunction. The petitioners

(Brief, page 20) criticise the fact that the injunctive arm

of the Court was used for the purpose of maintaining law

and order and preventing future wrongful and improper

conduct. It is their position that other adequate means

available to the State should have been used. It is sub-

mitted that this reasoning is fallacious. The petitioners

would deny to the Courts of the Commonwealth of Massa-

chusetts the very right which this Court in Milk Wagon

‘Drivers Union of Chicago v. Meadowmoor Dairies, Inc.,

312 U.S. 287, held that the Courts of a State had.

Il. THE TRIAL JUDGE DID NOT COMMIT ERROR IN REFUSING TO

GRANT PETITIONERS’ MOTIONS FOR A DIRECTED VERDICT AND

THEIR SEVERAL REQUESTS FOR RULINGS.

Applying the principle of Erie Railroad Co. v. Tomp-

kins, 304 U.S. 64, and Prince v. Massachusetts, 321 U.S.

158, it must follow that the State Court’s construction of

the language of this injunction and its disposition of the

exceptions relating to the denial of the motions for a di-

rected verdict and the several requests for rulings are

binding and conclusive on this Court.

Ill. THE convicTIONS FOR CONTEMPT WERE NOT BASED ON

INSUBSTANTIAL OR INADEQUATE FINDINGS OF FACT.

Clearly there were sufficient facts, as set forth in the

Transcript of the Record and as summarized in the opin-

ion of the Massachusetts Supreme Judicial Court, to jus-

tify jury findings that the terms of the preliminary in-

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11

junction had been violated. These were not isolated,

disconnected incidents, but were clearly and unmistakably

an interrelated course of conduct carried on under the

direction and the instructions of the Union leaders, de-

signed by force of numbers to intimidate and coerce those

who desired to work, in violation of their constitutional

right to a reasonable opportunity to go to and from their

work without molestation, interference or intimidation.

The large groups that collected at the entrances when

shifts were changing were to demonstrate the power and

strength of the strikers to the employees of the plaintiff

and to instill in them fear and apprehension. This delib-

erate course of conduct was a clear violation of the lan-

guage, purpose and intent of the preliminary injunction.

IV. THE PRELIMINARY INJUNCTION WAS NOT VAGUE OR

AMBIGUOUS.

The language of the injunction as defined by the trial

judge and the Supreme Judicial Court was clear and defi-

nite, and the fact that these petitioners sought by their

conduct to give such language a strained, uncalled for and

distorted interpretation does not serve to make clear and

explicit language vague and indefinite. See New England

Novelty Co., Inc., v. Sandberg, 1944 Adv. Sh. 433, at 441,

443. Paragraph 6 of the injunction, which is relied on by

the petitioners, does not make this injunction vague or

indefinite. In this connection the Massachusetts Court

has held, citing the case of Senn v. Tile Layers Protective

Union, 301 U.S. 468, that the term ‘peaceful picketing,”’

‘implies not only absence of violence but absence of any

unlawful act.’? R. H. White Co. v. Murphy, 310 Mass. 510,

520. Peaceful picketing and peaceful persuasion, as de-

fined by the trial Court (Record, page 23), must be free of

12

acts of molestation, intimidation, force and violence, and

must be done in such a way that ordinary persons could go

to and from work, and would not be intimidated by acts,

words or conduct of the strikers.

The recent decisions of this Court in—

Carlson v. California, 310 U.S. 106;

Thornhill v. Alabama, 310 U.S. 88;

Milk Wagon Drivers Union of Chicago v.

Meadowmoor Dairies, Inc., 312 U.S. 287; and

American Federation of Labor v. Swing, 312

U.S. 321—

on the question of free speech and free press, have held

that picketing, en masse or otherwise, conducted so as to

occasion ‘‘imminent and aggravated danger,’’ was not

within the scope of the constitutional protection of free

speech.

In Great Northern Railway Co. v. United States, 208

U.S. 452, this Court held that an objection to the suffi-

ciency of an indictment will not be considered on certi-

orari where it has not been raised in the Courts below. If

the petitioners desired to raise this question, they could

have done so by filing a motion to dismiss or demurrer in

the Court below.

The provision of paragraph 6 of the preliminary in-

junction does not make the injunction vague or ambiguous.

This provision merely reaffirms the inherent constitu-

tional right afforded to all citizenry. This constitutional

right can be legally exercised only in such manner as to

come within the interpretation placed upon it by the

Courts, and does not protect conduct which is violative of

a Court decree, or goes beyond the bounds of peaceful

picketing as defined by the Court.

13

V. THE FACT THAT CRIMINAL PENALTIES WERE IMPOSED DOES

NOT MAKE THIS A CRIMINAL PROCEEDING.

As is pointed out in the opinion of the Supreme Judicial

Court, the petitioners’ right to a trial by jury is based on

the provisions of G.L. (Ter. Ed.) ¢ 220, see. 13A (see

Statutory Provisions, this Brief, page 2), which estab-

lishes certain procedure in equity actions arising out of

labor controversies, including a provision for trial by jury,

if the alleged wrongful act is of such character as also to

constitute a criminal offense under the laws of the Com-

monwealth. As is pointed out in the opinion of the Su-

preme Judicial Court, the fact that criminal penalties were

imposed upon the defendants does not make that which

otherwise would be a civil remedial proceeding a punitive

one. Nor does the fact that the conduct which constitutes

violation also constitutes a criminal offense change the

nature of an otherwise remedial civil proceeding for con-

tempt. Nor does the change in procedure have the effect

of making what would otherwise be a civil remedial con-

tempt into a punitive one. As to this issue it is also sub-

mitted that the principles applied by the Massachusetts

Court, and its interpretation of the nature of the contempt

proceeding, are binding upon this Court.

The case of United States v. L. Cohen Grocery Co., 255

U.S. 81, relied on by the petitioners, does not aid them. It

was a criminal proceeding and the Court held that a stat-

ute creating a crime and imposing criminal penalties,

which failed to forbid any specific or definite act and

punished all acts detrimental to the public interest when

unjust and unreasonable in the opinion of the Court and

jury, was vague and indefinite and an unconstitutional

delegation of legislative power by Congress to a Court

and jury. It is pointed out that it is distinguishable from

a group of cases, which it cites, where the statute was held

CUA a OD

COREL i AAS NTE 9. PSE Pe EAL Be DRIES AOD TED 0) RT RR a en OBOE AE TE NT RATT Be he i Ho'S

14

to be valid because the statute did set a standard. This

injunction set a clear, definite standard.

VI. THE PRELIMINARY INJUNCTION WAS IN FULL FORCE AND

EFFECT AT THE TIME THAT THE ACTS WHICH WERE THE BASIS

OF THE CONTEMPT ADJUDICATION OCCURRED.

The injunction was issued on October 22, 1941 (Record,

page 31). The petition for contempt was filed and an

order of notice was issued thereon on October 24, 1941

(Record, page 34). The evidence that was the basis of the

conviction related to the conduct of the petitioners between

these two dates (October 22d to October 24th). Clearly

an injunction, to have any effect at all as to future conduct

arising out of the same labor controversy in which the in-

junction was issued, must be held to continue in full force

and effect at least for the duration of the current labor

controversy.

Milk Wagon Drivers Union of Chicago v.

Meadowmoor Dairies, Inc., 312 U.S. 287.

United States v. Railway Employees’ Depart-

ment, American Federation of Labor, 283 Fed.

479.

Nann v. Raimist, 255 N.Y. 307.

If the petitioners wanted the injunction modified or va-

cated, they had ample remedy, by applying to the Court

under G.L. (Ter. Ed.) ¢. 214, sec. 9A, as is pointed out in

the Supreme Judicial Court opinion, at page 441.

FON REN Ny LLL NS LOE DE ESI EE ITT OREO PRIN BTS An NE i

Ng £ So i SEDI IT SOAR. eee eT a ae AP £PE PAIK .

15

Conclusion.

Although this Court has jurisdiction, it should neverthe-

less refuse to exercise it, it being a discretionary rather

than an obligatory one, because (1) the questions sought

to be raised are not novel, and have been recently decided

by this Court adversely to petitioners’ claims, and there-

fore do not require restatement of the principles involved;

(2) the petitioners did not object to the issuance of the

preliminary injunction in its present form; (3) the peti-

tioners failed to avail themselves of the speedy and effec- E

tual remedy provided by G.L. (Ter. Ed.) ¢. 214, see. 9A, é

for a modificauon, clarification or interpretation of the

injunction.

Respectfully submitted,

SAMUEL M. SALNY,

Attorney for Respondent.

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