Petition for Writ of Certiorari — Barker Co. v. Painters Union

IN THE

Supreme Court of the Anited States

BARKER PAINTING COMPANY,

Petitioner,

Us,

LOCAL NO. 734, BROTHERHOOD OF PAINTERS,

DECORATORS AND PAPERIANGERS OF AMERI-

CA; BROTHERHOOD OF PAINTERS, DECORA-

TORS AND PAPERHANGERS OF AMERICA;

GEORGE W. HOFFMAN AND HARRY 8S. WARREN,

Respondents.

Petition for Writ of Certiorari Directed to the United

States Circuit Court of Appeals for the Third Circuit

and Brief in Support Thereof.

“ MERRITT LANE,

Attorney for and of Counsel with Petitioner.

Arthar W. Crow, Law Printer, 55-57 Lafayette Street, Newark, N. J.

Ea

SUBJECT INDEX.

1. Petition for Writ of Certiorari directed to the

United States Circuit Court of Appeals for the

Chin cochiUU dees bist eenk deco e 1

9. Brief in Support of Application for Certiorari 9

a. The Opinion of the Court below ........ 9

I a 9

ec. The Grounds on which the Jurisdiction of

this Court is Invoked.................. 9

d. Statement of the Case.................. 10

e. Specification of Errors................. 10

I. The Cireuit Court of Appeals

erred in declining to consider the

merits of the Appeal because of its

prior decision in Barker Painting

Company vs. The Brotherhood, 15

i ED WE eet ls ven seeces 11

If. The Cireuit Court of Appeals

erred in declining to consider the

merits because the particular work

of petitioner, which had been inter-

fered with, had been completed

under the protection of a temporary

SE Seth s Sade ees owes chews 13

Ill. The District Court erred in

dismissing the bill and the Circuit

Court of Appeals for the Third

Cireuit erred in affirming for the

reasons that: (A) The conduct of

defendants is a boycott, the result

of a conspiracy, illegal at common

law. (B) The rule is unreasonable

and the classification bears no rea-

sonable relation to the wage scale

and the attempt of the Unions to

enforce the rule by combination is

unlawful and a violation of the

:

Pace

rights of petitioner. (C) The com-

bination is in unfair restraint of

trade, inimicable to public welfare

and in violation of the public policy

both of the State of New Jersey and

of the United States and the com-

bination and conspiracy is denounced

by the Act of July 2nd, 1890, Chap-

ter 746, 26 Statutes at Large, p.

209, making illegal contracts, com-

binations and conspiracies in re-

straint of trade of commerce among

the several States, and its supple-

ments and amendments, petitioner

being engaged in interstate trade.

The case involves a matter of suf-

ficient general importance to justify

Dh SOI ics tan knwesivacoen vice 15

IV. The decision of the United

States District Court was based

upon the statute of New Jersey here-

tofore referred to and its construc-

tion by the New Jersey Court of

Errors and Appeals in the New Jer-

sey Painting Company case and the

effect is that the United States Dis-

trict Court ip the instant case has

permitted the application of a statute

which, as construed by it, is offensive

to the provisions of the 14th Amend-

ere ore eer BE Oe re 19

4

TABLE OF CASES.

Barker Painting Co. v. The Brotherhood, 15 Fed.

(2d) 16 (C. A. A. 3rd. Cirenit)

4, 5, 6, 8, 10, 11, 12, 15, 16, 17

Barker Painting Co. v. The Brotherhood, 12 Fed.

(2d) 945 (U. S. District Court, New Jersey) ;

34 Fed. (2d) 3 (C. C. A. 3rd Cirenit) ......

Barr v. Essex Trades Council, 53 N. J. E. 101, 30

EE Sine c e216 chads Al Cuno w eee

Bedford Cut Stone Co. v. Journeyman S. C. Assn.,

ames, Was ¢ TAT: BORG oi ois cicwiccsw de icc

Brennan .v. United Hatters, 73 N. J. L. 729, 65

TMS berets B0boks Sus Obukca wave des ts

Coppage v. Kansas, 236 U. 8. 18, 59 L. Ed. 448

Hitchman Coal & Coke Co. v. Mitchell, 245 U. S.

ee Bis PI ok s Lc dead baa Valeo eben:

International News Service v. Associated Press,

ae a Pe | es ere

J

Jonas Glass Co. v. Glass Bottle Blowers Assn.,

77 N. J. E. 219, 79 Atl. 262...... 4, 7, 15, 18, 19, 20, 21

N

New Jersey Painting Co. v. Local No. 26, ete.,

95 N. J. E. 108, 122 Atl. 622, reversed 96

Bi ie we Cem 206 AG. OP oa 4, 7, 15, 20, 26

New Idea Pattern Co. v. Whitner, 215 Pa. 193,

. PN OO oss i vo ch ehekng kn oeebeednueees 12

oo,

Pag

T

Thompson Machine Co. v. Brown, 89 N. J. E. 326,

Pe Ae BE dies check psusideae coe eA EW Ras 0 1

Truax v. Corrigan, 257 U. S. 312, 66 L. Ed. 254 5,9

V

Vicksburg Waterworks v. Vicksburg, 185 U. S.

We ek ES cece odes owe vusicvaasce> 1

LIST OF STATUTES CITED.

3 Comp. Statutes of N. J. 3051; P. L. 1883, sec.

RS ME ina eocagne Gh uh bn as aceekssepe es 10,1

Judicial Code, sec. 240; 43 Statutes 938, sec. 347;

3 oe ee RS ee rere

Act of July 2, 1890 ; 26 Stat. at Large, ch. 746, p. 209 1

IN THE

Supreme Court of the United States

Barker Paintine Company,

Petitioner, Petition for

vs. Writ of Cer-

tiorari Directed

to the United

States Circuit

Loca No. 734, BrorHerHoop or Parnt-

ERS, DECORATORS AND PaPERHANGERS

or America; BrorHerHoop or Parnt- Court of

ERS, DEcoRATORS AND PAPERHANGERS Appeals for the

or America; Grorce W. HorrmMan Third Circuit

and Harry S. Warren, :

Respondents.

(Italics mine except where otherwise noted.)

To the Honorable the Chief Justice and Associate

Justices of the Supreme Court of the United States.

Petitioner, BARKER PAINTING COMPANY, a corpo-

ration organized and existing under the laws of the State

of New Jersey, humbly showeth:

1, A bill in equity was filed in the United States Dis-

trict Court, for the District of New Jersey, by petitioner,

Barker Painting Company, which has its home office in

the City of New York, and is engaged in the business of

painting and decorating over the United States and

Canada, including the States of New York, New Jersey,

Pennsylvania and the District of Columbia, to enjoin

the respondent, the Brotherhood of Painters, Deco-

rators and Paperhangers of America, a National labor

organization, operating throughout the entire United

States, and the respondent Local No. 734, which claims

jurisdiction over all persons engaged in painting or

decorating within the territory of Somerviiic, Somerset

County, New Jersey, and the respondent, Harry S. War.

ren, who is the organizer for the State of New Jersey of

the National union, and the respondent, George YW,

Hoffman, who is the business agent of Local No. 734, to

enjoin the enforcement, by strike and interference with

the employees of petitioner, of a rule of the National union

which requires an employer, performing work other than

in his home city, to pay the wage scale, either of his

home city or of the place where the work is being per-

formed, whichever be the higher (Bill of Complaint, p,

3). The bill alleged, and the proof on final hearing showed

that: Petitioner employed exclusively union labor,

operating closed union shop; petitioner on November

8, 1924, took a contract from the general contractor for

the painting work on a hospital in Somerville, Somerset

County, New Jersey; the contract provided that the work

should be performed as required by the progress of the

job; petitioner proceeded, employing help all local to

Somerville except the foreman; it complied with all union

conditions as to hours and wages, etc., for the territory

including Somerville; the work proceeded from December

7, 1924, to February 21, 1925, with all of the men satis.

fied; on February 21, 1925, George W. Hoffman, the busi-

ness agent of Local No. 734, instructed by Harry S. War-

ren the state organizer of the National union, insisted

that petitioner pay the wage scale of New York, its

home town, which was higher than that for Somerville,

and threatened that, if it did not, the employees of peti-

tioner would be directed not to work; petitioner refused;

the men were directed to cease work and did so although

satisfied with their wages, hours and working conditions;

they ceased only because they feared, if they continued

at work, that they would be expelled from the union and

thereby deprived of earning a livelihood, the industry

being, in effect, 100 per cent. unionized; the painting in-

dustry in New York, northern New Jersey, Connecticut

and Pennsylvania was and is so unionized, and all other

aT Hi ORY Serer ee

Nee

3

branches of the building industry in the territory were

and are so unionized, and the agreements between the

different branches of the industry were and are such,

as that no painting work could or can be performed except

with union labor, for if it were so performed, all other

branches of the industry would withdraw from the build-

ing and it could never be completed; a contractor can-

not be ‘‘fair’’ in one place and ‘‘unfair’’ in another and if

he employs non-union labor on one job all’ of his jobs,

whether manned exclusively with union labor or not will

be struck throughout. the country, and all building trades

would withdraw from any job upon which he was em-

ployed anywhere in. the country; the National union

threatened to compel petitioner and all other painting

contractors to comply with the rule by strikes, boycotts,

ete.; the effect of the rule and its enfercement already

had been such as that painting contractors of New York

could not take work in New Jersey; the business is highly

competitive and the effect of the rule, if enforced, would

be to limit all painting work to local contractors.

2. The bill was filed March 16, 1925 (p. 3) to enjoin

the enforcement of the rule, and ine actual interference

with the performance of the contract of petitioner for the

painting work on the hospital in Somerville was alleged

as an overt act and an injunction prayed against that

interference. Upon the filing of the bill ad interim re-

straint went and, before final hearing, the building had

been completed.

3. The case came on for final hearing, and, on April

14, 1926, an opinion was filed by Runyon, District Judge

(p. 20), which resulted in the final decree dismissing the

bill (p. 33).

4. From that decree an appeal was taken to the Circuit

Court of Appeals for the Third Circuit, which resuited in

the opinion of the court August 12, 1929, and the order of

affirmance (Addendum to the State of Case).

a

4

5. The jurisdiction of the District Court was basaj

both upon diversity of citizenship and constitution,

grounds.

6. The Cireuit Court of Appeals declined to consider

the merits for two reasons: (i) Because of its prior de

cision on a review from the denial of a preliminary jp.

junction by the District Court for the Eastern District of

Pennsylvania (Judge Buffington dissenting) in Barker

Painting Company v. The Brotherhood, 15 Federal (2nd)

16, and (2) Because the particular work of peti.

tioner, which had been interfered with by the union, had

been completed pending the proceedings under the pro.

tection of the temporary restraint.

7. Petitioner has therefore been deprived of a review

upon the merits by the Circuit Court of Appeals.

8. The writ of certiorari is applied for because the

Cireuit Court of Appeals, in declining to review th

decree dismissing the bill upon its merits, decided a

important question of general law in a way probably

untenable and in conflict with the weight of authority, and

so far departed from the accepted and usual course 0

*% judicial proceedings as to call for an exercise of the power

of supervision of this court, and because the decree of the

District Court decided a matter of so much general im

portance and of so far-reaching effect as to call for th

determination of this court and because the District Court

gave effect to a statute of New Jersey which, as construed

by the Court of Errors and Appeals of New Jersey in

New Jersey Painting Co. v. Local No. 26, 96 N. J. Eq. 632;

126 Atl. 399, overruling its prior decision in Jonas Glass

Co. v. Glass Bottle Blowers Assn., 77 N. J. Eq. 219; 7!

Atl. 262 (written by Chancellor Pitney, afterward a justice

of this court) and as construed by the District Court is

offensive to the provisions of the 14th Amendment to the

Constitution, upon the reasoning of the determination of

5

this court in Truax v. Corrigan, 257 U. S. 312; 66 L. Ed.

254.

9. The decision of the Circuit Court of Appeals for the

Third Circuit, in Barker Painting Company v. The

Brotherhood, 15 Federal (2nd) 16, was on a review of a

decree refusing 6 preliminary injunction. Judge Woolley,

writing t:c opinion for the majority of the Court (Judge

Buffington dissenting), after referring to what might be

urged by the union as justification for the rule, said:

“*We advert to these possibilities, certainly not to

express our views, nor to intimate sympathy with

the rules—for assuredly we have none—nor to sug-

gest arguments in support or reasons justifying

their promulgation, but merely to show that many

variable and intangible factors inevitably enter into

the situation, making the injunctive process of 3

doubtful propriety and legality.’’

He further referred to the fact that, up to the time of

the pronouncement of the decision, all the decisions of

the State Courts were against Bevery sn) the enforcement

of the rule while all of the decisions of the Federal

Courts were contra and he said (p. 17):

“‘The learned trial court was inclined to the 7

reasoning of the state decisions; and so are we,

not because the respondents have shown that the

rules are lawful, but, rather, because the complain-

ant has failed to show that they are unlawful.”

The effect of the refusal of the Circuit Court of Appeals

to consider the instant case on its merits was to give to

its prior decision the quality of res adjudicata, although

that decision was on an application for a temporary injunc-

tion which never issues except where the injury is im-

minent and the right clear both upon the law and the

facts.

10. The effect of its refusal to review because, pending

the suit, the particular work was completed was to treat

the overt act, i. e., the interference with the particular

a

6

contract, as that which was sought to be enjoined and to

ignore the rule that equity acts to prevent a reasonably

anticipated injury and actual injury is not required to set

the court in motion.

The bill was aimed not only at the interference by the

union with the performance of the particular contract but

also at the anticipated acts of the union with respect to

all of the work of petitioner throughout the country. The

interference with the particular contract was relied on

only as showing the reasonable probability that the union

would so interfere generally.

11. The Circuit Court of Appeals in its decision in

Barker Painting Co. v. The Brotherhood, 15 Fed. 2nd, p.

16 expressed .no sympathy with the rule but stated that

it was constrained to its holding as the result of a ‘‘cold

consideration of the cited authorities.’’ In the instant

ease it said:

‘*While we should be more than satisfied to have

this controversy between employer and organized

labor finally decided by the higher court, we are

constrained, until then, to stand by the decision

which we made not casually but after serious study

and, we confess, much mental disturbance.’’

12. The effect of the decision of the District Court,

which it is sought to review here, is to permit a labor

organization operating over the entire country in a trade

so closely unionized and so affiliated with other trades so

closely unionized as that it is impossible for an employer

to perform work without its consent, to arbitrarily dis-

criminate between employers in the matter of wages de-

manded, the discrimination being based solely upon the.

residence of the employer, and to permit unions to com-

bine, and such combinations, which may control labor

throughout the United States, in an industry so unionized

as that no work can be performed by an employer with-

out employing union labor, to establish and enforce such

discrimination. By such means employers of labor may

7

be driven out of a community, except those who may have

their residence therein.

13. The difference in the wage scale is based solely

upon the home town of the employer. He may employ at

the place where the work is being performed all local

help, yet, if the wage scale at his home town is higher

than the wage scale at the place of performance of the

work, he must pay the wage scale of his home town.

14. The District Court based its decision largely upon

the statute of New Jersey, P. L. 1883, p. 36, 3 C. S. of

N. J. 3051, sec. 128 reading as follows:

‘“‘That it shall not be unlawful for any two or

more persons to unite, combine, or bind themselves

by oath, covenant, agreement, alliance or otherwise,

to persuade, advise, or encourage, by peaceable

means, any person or persons to enter into any

combination for or against leaving or entering into

the employment of any person, persons or cor-

porations.’’

It relied upon the decision of the New Jersey Court of

Errors and Appeals in New Jersey Painting Co. v. Local

No. 26, 96 N. J. E. 632; 126 Atl. 399 (reversing the Court

of Chancery of New Jersey, 95 N. J. E. 108; 122 Atl. 622,

in granting an injunction in a case similar to that at

bar) construing that statute and overruling its previous

decision in Jonas Glass Company v. Glass Bottle Blowers

Association, 77 N. J. E. 219; 79 Atl. 262, which was to the

effect that, if the statute was to be construed as the Court

of Errors and Appeals did construe it in New Jersey

Painting Company v. Local No. 26, 96 N. J. E. 632; 126

Atl. 399, it was unconstitutional under New Jersey Con-

stitution, article I, par. 1, which is the due process clause

of the New Jersey Constitution, and, if offensive to that

provision of the New Jersey Constitution, it would be

equally offensive to the provision of the 14th Amendment

to the Constitution of the United States which prohibits a

state enforcing any law which denies due process of law

a

et ES

8

or the equal protection of the law. The District Court

adopted the construction put upon the statute by the New

Jersey Court of Errors and Appeals in New Jersey

Painting Company v. Local No. 26, 96 N. J. E. 632; 126

Atl. 399, and gave effect to the statute as so construed

with the result that the decree rests upon a statute which,

as construed by the New Jersey Court of Errors and Ap-

peals and by the District Court, is offensive to the pro-

visions of the 14th Amendment to the Constitution of the

United States.

Wherefore your petitioner respectfully prays that a

writ of certiorari may issue out of and under the seal

of this Court, directed to the United States Circuit Court

of Appeals for the Third Circuit, commanding the said

court to certify and send to this court on a day certain

to be therein designated, a full and complete transcripi

of the record and all proceedings of the said United States

Circuit Court of Appeals for the Third Circuit, and of

the District Court of the United States, for the District

of New Jersey, and all proceedings in both courts, to the

end that the said case may be reviewed and determined

by this court, as provided by law, and that your petitioner

may have such further and other relief or remedy in the

premises as to this court may seem appropriate, and that

the said decree of the United States Circuit Court of

Appeals for the Third Circuit affirming the decree of the

United States District Court for the District of New

Jersey may be set aside and that the decree of the United

States District Court, for the District of New Jersey, may

be set aside and the record remitted to that court with

instructions to enter a decree granting the relief prayed

for by the plaintiff, and your petitioner will ever pray,

etc.

MERRITT LANE,

Attorney for and of Counsel with Petitioner.

—

BRIEF IN SUPPORT OF APPLICATION FOR

FOR CERTIORARI.

I.

The opinion of the court below.

The opinion of the United States District Court, for

the District of New Jersey, the court of first instance, is

reported in 12 Federal (2nd) 945, and is printed p. 20

of the record. The opinion of the Circuit Court of Appeals

for the Third Circuit is reported in 34 Federal (2nd)

p. 3 (Advance sheets) and is printed in the addendum to

the record.

IT.

Jurisdiction.

The jurisdiction of this Court is rested on Section 240 of

the Judicial Code, as amended by the Act of February 13,

1925, sec. 1, 43 Statutes 938, sec. 347, title 28, U. S. C. A., p.

359.

The date of the decree of the United States Circuit

Court of Appeals for the Third Circuit to be reviewed is

August 12, 1929 (Addendum to record).

ITI.

The grounds on which the jurisdiction of this court is

invoked.

In declining to review the decree of the United States

District Court, for the District of New Jersey, upon its

merits, the Circuit Court of Appeals for the Third Circuit

has decided an important question of general law in a way

probably untenable and in conflict with the weight of

authority and has so far departed from the accepted and

usual course of judicial proceedings as to call for the

exercise of this court’s power of supervision.

10

The United States District Court for the District of

New Jersey and the Circuit Court of Appeals for the

Third Circuit, by affirming its decree, have determined a

matter of such general interest in a way which will lead

to such incalculable harm and injury to rights of em.

ployers as that the matter should be reviewed by this court

and. have given effect to a statute of New Jersey, P. L,

1883, p. 36, C. S. of N. J. 3051, sec. 128, which, as con-

strued by the District Court, is offensive to the 14th

Amendment of the Constitution of the United States in

that it denies due process of law and the equality of the

law.

IV.

Statement of the case.

The case is fully stated in the petition, paragraph 1.

V.

Specification of errors.

«

+. The Circuit Court of Appeals erred in declining to

consider the merits of the appeal because of its prior

decision in Barker Painting Company v. The Brotherhood,

15 Fed. (2nd) 16—

2. The Circuit Court of Appeals erred in declining to

consider the merits because the particular work of peti-

tioner which had been interfered with had been completed,

under the protection of a temporary injunction.

3. The District Court erred in dismissing the bill

and the Cireuit Court of Appeals for the Third Circuit

erred in affirming for the reasons that— (a) The conduct

of defendants is a boycott, the result of a conspiracy,

illej;al at common law; (b) The rule is unreasonable and

the classification bears no reasonable relation to the wage

scale and the attempt of the unions to enforce the rule by

1l

combination is unlawful and a violation of the rights of

petitioner; (c) The combination is in unfair restraint of

trade, inimicable to public welfare and in violation of the

public policy both of the Staie of New Jersey and of the

United States and the combination and conspiracy is de-

nounced by the Act of July 2, 1890, chapter 746, 26

Statutes at Large, p. 209, making illegal contracts, com-

binations and conspiracies in restraint of trade or com-

merce among the several states and its supplements and

amendments, petitioner being engaged in interstate trade.

The case involves a matter of sufficient general im-

portance to justify a review.

4. The decision of the United States District Court,

ror the District of New Jersey was based upon the statute

of New Jersey heretofore referred to and its construction

by the New Jersey Court of Errors and Appeals in the

New Jersey Painting Company case, and the effect is that

the United States District Court in the instant case has

permitted the application of a statute which, as construed

by it, is offensive to the provisions of the 14th Amendment.

I,

The Circuit Court of Appeals erred in declining to con-

sider the merits of the appeal because of its prior de-

cision in Barker Painting Company vs. The Brotherhood,

15 Federal (2nd) 16.

The decision of the Circuit Court of Appeals in the

case cited was on a review of a decree of a District Court

of Pennsylvania declining to grant a preliminary injunc-

tion.

A consideration of the opinion will indicate that, in the

last analysis, the Circuit Court of Appeals based its

decision upon the rule that preliminary -injunctions will

not go unless the right is clear both upon the law and the

fact. In its opinion it devoted considerable space to refer-

12

ence to reasons which might be advanced by the union

in justification of the rule expressly stating that it did _

not do so to intimate any sympathy with the rule ‘for

assuredly we have none.”’ |

That there is a distinction with respect to the amount

and kind of proof which will induce a court to grant a

permanent injunction after a full hearing and that which

will induce a court to grant a preliminary injunction after

a hearing only upon affidavits almost goes without saying,

The distinction is, I think, as well drawn as anywhere

in New Idea Pattern Co. v. Whitner, 215 Pa. 193, 64 Atl.

518, at p. 520:

‘*A preliminary injunction is not, however, to be

granted where the plaintiff’s right to it is in doubt.

1 Spelling, Extraordinary Relief, sec. 20; Black

Lick Mfg. Co. v. Gas Co., 189 Pa. 448, 454, 21 Atl.

432; Waring v. Cram, 1 Pars. Eq. Cas. 516. The

refusal of it does not repudiate the plaintiff’s rights

if he can ultimately establish any; it merely denies

him an extraordinary remedy properly applicable

only to cases in no respect equivocal; Daizell vr.

Crawford, 1 Pars. Eq. Cas. 37, 46.’’

An application was made in Barker Painting Co. v. The

Brotherhood, 15 Fed. (2nd) 16, to this court for a cer-

tiorari, which was denied, 273 U. S. 748; 71 L. Ed. 872. It

is impossible, of course, for counsel to know why it was

denied, but it may well have been, the application being

for a preliminary injunction, heard upon affidavits, that it

was conceived that, if the matter was to be reviewed, it

should be after a final hearing, with full opportunity to

both sides to adduce all the proofs possible. The decree

in the case at bar followed such a hearing.

e # : stig

13

II.

The Circuit Court of Appeals erred in declining to

consider the merits because the particular work of peti-

tioner, which had been interfered with, had been com-

pleted under the protection of a temporary injunction.

The Circuit Court of Appeals misapprehended the pur-

pose of the bill. It was aimed at the conspiracy t2 inter-

fere with any work of petitioner throughout the country

on which petitioner did not pay the wage scale of his

home town or of the place in which the work was being

done, whichever was the higher. The International Union

had adopted a resolution directing the enforcement of

its rule which required such a wage scale to be paid and

to enforce that rule its representatives threatened to

interfere with any work upon which the rule was not being

observed. The bill alleged, and the proofs showed, that

the painting industry in New York, northern New Jersey,

Connecticut and Pennsylvania was so unionized, and all

other branches of the building industry in the territory

were so unionize<, and the agreements between the dif-

ferent branches of the industry were such, as that no

painting work could be performed except by union lahor

for if it was so performed all other branches of the

industry would withdraw from the building and it could

never be completed and that a contractor could not be

‘fair’? in one place and ‘‘unfair’’ in another, and if he

employed non-union labor on one job all of his jobs,

whether manned exclusively by union labor or not, would

be struck throughout the country, and all trades would

withdraw from «ny building job anywhere in the country

upon which he was employed.

The National Union had notified all contractors by

letter of December 5, 1921, Exhibit P. 4, p. 156, that the

rule would be enforced. The bill alleged, and the proofs

showed, that such an enforcement of the rule would re-

14

strict work to contractors local to the territory in which

the work was being performed.

The actual interference by the union with the work of

petitioner on the hospital in Somerville was alleged and

proven only as indicating that the union meant what it

said and as proof of the kind of interference which would

be resorted to.

In Bedford Cut Stone v. Journeymen S.C. Asso., 274

U. S. 37, at p. 54, and 71 L. Ed. 916, at p. 924, this court

said:

‘The record does not disclose whether petitioners

at the time of bringing suit had suffered actual in-

jury; but that is not material. An intent to restrain

interstate commerce being shown, it is enough to

: justify equitable interposition by injunction if there

be a dangerous probability that such injury will

happen; and this clearly appears.’’

And this court quoted among other cases Thompson

Machine Co. v. Brown, 89 N. J. E. 326-228; 104 Atl. 129,

in which case the Court said:

‘If the threats, open and implied, of the various

users of the machinery and workers thereon, are

carried out, there will, unquestionably, be injury.

This court does not wait until there is actual injury;

it protects against anticipated imjury.’’

In Vicksburg Waterworks v. Vicksburg, 185 U. S. 66,

at p. 82, 46 L. Ed. 808, at p. 816, this court said:

“It is further contended that the bill does not

disclose any actual proceeding on the pari of the

city to displace complainant’, right» under the con-

tract, that mere apprehension that illegal action

may be taken by the city cannot be the basis of

enjoining such action, and that therefore the circuit

court did right in dismissing the bill. We cannot

accede to this contention. It is one often made in

eases where bi'ls in equity are filed to prevent

anticipated and threatened action. But it is one

of the most valuable features of equity jurisdiction

to anticipate and prevent a threatened injury, where

the damages would be insufficient or irreparable.”

15

ITI.

The District Court erred in dismissing the bill and the

Circuit Court of Appeals for the Third Circuit erred in

affirming for the reasons that (a) The conduct of defend-

ants is a boycott, the result of a conspiracy, illegal av

common law; (b) The rule is umreasonable and the

classification bears no reasonable relation to the wage

scale and the attempt of the unions to enforce the rule

by combination is unlawful and a violation of the rights

of petitioner; (c) The combination is in unfair restraint

of trade, inimicable to public welfare and in violation of

the public policy both of the State of New Jersey and of

the United States and the combination and conspiracy is

denounced by the Act of July 2, 1890, Chapter 746, 26

Statutes at Large, p. 209, making illegal contracts, com-

binations and conspiracies in restraint of trade of com-

merce among the several states, and its supplements and

amendments, petitioner being engaged in interstate trade.

THE CASE INVOLVES A MATTER OF SUFFI-

CIENT GENERAL IMPORTANCE TO JUSTIFY A

REVIEW.

I will not attempt to argue the merits to any great

extent. That there are merits to be argued is demon-

strated by the facts that: up until the time of the decision

of the Cireuit Court of Appeals in the prior case, the

Barker Painting Company v. The Brotherhood, 15 Fed.

(2nd) 16, as stated by the court in that opinion, the State

decisions were against the awarding of an injunction re-

straining the enforcement of the rule while the Federal

decisions were contra; the Vice-Chancellor, in New Jersey

Paiming Co. v. Local No. 26, 95 N. J. E. 108; 122 Atl. 622,

in a well-reasoned opinion, held that an injunction should

go and it was necessary, in reversing, for the Court of

Errors and Appeals of New Jersey, 96 N. J. E. 632; 126

Atl. 399, to overrule its prior decision in Jonas Glass Co.

v. Glass Bottle Blowers Asso., 77 N. J. EB. 219; 79 Atl. 262,

~ ay

16

which had been taken as settled law, and to construe a

statute of New Jersey in such a way as to make it offensive

to the provisions of the 14th Amendment to the Constitn.

tion; the vote in the Court of Errors and Appeals was ten

to five, with a sho e t vigorous and well-reasoned dissent

by Judge Whitel 3; the Circuit Court of Appeals

both in its prior decision in Barker Painting Co. v. The

Brotherhood, 15 Fed. (2nd) 16, and in its decision in the

present case, 34 Fed. (2nd) 3, addendum to the record,

expressed its lack of sympathy with the rule, its ‘‘mental

disturbance’’ and its more than gladness to have the case

passed upon by the higher court, reaching its conclusion

only because it felt that it was ‘‘constrained’’ to do so;

Judge Buffington dissented in the first case and did not

sit in the second.

The argument here will be confined to an attempt to

indicate that the matter is of sufficient general importance

to justify a review by this court.

The far-reaching effect of the adjudication that the

union may enforce this rule by strikes, combinations and

boycotts, cannot be over-estimated. If this union can

promulgate such a rule and enforce it, all unions may do

the same, and they may, in combination, enforce their

respective rules with the result that labor may dictate

what employers shall be permitted to perform work in

certain localities. If a discrimination can be based upon

the place of the employer’s main office, it may be based

upon whether the employer is an individual, corporation

or partnership, and upon the amount of invested capital

and upon the net worth and upon the return which the

employer has been able to make upon his investment. I

submit that no such power can be permitted to exist in

any group or groups of men without the destruction of the

fundamental principles upon which this government is

founded—equality of opportunity.

17

The Circuit Court of Appeals for the Third Circuit in

its opinion in Barker Painting Co. v. The Brotherhood,

15 Federal (2nd) 16 indicated its lack of sympathy with

the rule and also pointed to the divergent holdings in the

State and the Federal courts upon the validity of the rule.

In its opinion in this case it confessed its ‘‘mental dis-

turbance’’ in reaching the conclusion it had in: the first

case, and it stated that it would be more than satisfied

to have this controversy between employer and organized

labor finally decided by the higher court.

And Judge Buffington dissented in the first case.

The Vice-Chancellor in New Jersey Painting Co. v.

Local No, 26, 95 N. J. E. 108; 122 Atl. 622, used vigorous

language in coming to the conclusion that an injunction

should go against the enforcement of the rule. He said:

‘*That the operation of the amendment would be

in unlawful restraint of trade is too obvious to

require extended discussion. Its effect would be

practically to bar a foreign contractor, ruled as he

is by the higher union wage scale at his place of

business, from successfully competing with a local

contractor, for, in bidding, he would necessarily

have to estimate on the basis of his home wage

scale as against the local contractor’s bid at the

local and lower scale. This, manifestly, would

destroy fair and honest competition. In the in-

stant case it operates to the injury of a citizen of

another state, and the union seeks to do, in effect,

what the states are forbidden to do by the United

States Constitution.’’

The New Jersey Court of Errors and Appeals in the

same case 96 N. J. E. 632; 126 Atl. 399, based its decision

upon the statute of New Jersey, P. L. 1883, p. 36; 3 Comp.

Stat. of N. J., p. 3051, sec. 128, reading as follows:

‘that it shall not be unlawful for any two or more

persons to unite, combine or bind themselves by

oath, covenant, agreement, alliance or otherwise, to

persuade, advise or encourage, by peaceable means,

any person or persons to enter into any combination

18

for or against leaving or entering into the employ.

ment of any person, persons or corporation.’’

Five judges of the New Jersey Court of Errors and

Appeals dissented, and Judge White, in his, dissenting

opinion in 126 Atl. at p. 403 : (wet cfpre. nope

‘*The place of residence of the contractor is not

in any way germane to the wage scale he should be

required to pay. If he attempts to do work where

there is no established wage scale, his employees or

their organization for them, may fix the wages at

which they are willing to work and he cannot com.

plain; but where, as here, his employees’ organiza-

tion has fixed the wage scale for the locality in-

volved, they may not, it seems to me, boycott him

by providing that because he does not personally

live in that locality, but, as here, lives in some other

city or state, he shall because of that reason alone

be required to pay a higher wage scale. The place

of residence of the contractor not being germane to

the subject of the wage scale he may be required

to pay, any discrimination made against him

founded upon such place of residence alone is in

principle a boycott, and is unlawful.’’

‘‘This principle was thought so important by the

framers of our Federal Constitution that they pro-

vided in that instrument against any such dis-

crimination by any state against the citizens of any

other state, and it seems to me a curious condition

which, while denying to the sovereign states them-

selves this privilege of invading the equal rights

of the citizens, should accord such right of invasion

to the Star Chamber Ex parte Committee which met

in Dallas, Texas, in the year 1922, and promulgated

the rule here in question for the government (under

penalty of strike) of all the citizens of all of the

states.’’

In reaching its conclusion that the statute permitted the

enforcement of such a rule as this by strikes, etc., the

Court of Errors and Appeals of New Jersey overruled its

prior decision in Jonas Glass Co. v. Glass Bottle Blowers

. Asso., TT N. J. E. 218; 79 Atl. 262 and construed the

————_—_— —

19

statute in such a way as to render it offensive to the pro-

visions of the 14th Amendment to the Constitution of the

United States.

The case is of so much general importance as to merit

a review by this court.

IV.

The decision of the United States District Court was

based upon the statute of New Jersey heretofore referred

to and its construction by the New Jersey Court of Errors

and Appeals in the New Jersey Painting Company case

and the effect is that the United States District Court in

the instant case has permitted the application of a statute

which, as construed by it, is offensive to the provisions

of the Fourteenth Amendment.

In Jonas Glass Co. v. Glass Bottle Blowers Asso., 77

N. J. E. 219; 79 Atl. 262, in an opinion by the Chancellor,

Mahlon Pitney, later a Justice of this Court, the New

Jersey Court of Errors and Appeals, said:

‘*In Mayer v. Journeymen Stonecutters’ Asso.,

47 N. J. E. (2 Dick) 519, 531, Vice-Chancellor Green

apparently treated this act as legalizing private

injuries. And in Cumberland Glass Manufacturing

Co. v. Glass Bottle Blowers’ Asso., 59 N. J. E.

(14 Dick) 49, 53, Vice-Chancellor Reed construed it

as permitting the adoption of peaceable measures

for inducing workmen to quit or to refuse to enter

an employment. Whatever may have been the pur-

pose of its framer, there are, as we think, con-

stitutional obstacles in the way of giving the act so

extensive a force. The rights of enjoying and de-

fending life and liberty, acquiring, possessing and

protecting property, and pursuing and obtaining

safety and happiness, are declared by our Constitu-

tion to be unalienable. N. J. Const. art. I, pl. 1.

No act of the Legislature is to be construed as

infringing upon these rights unless its language

plainly and clearly requires such a construction. If

its language so reads, it is to the extent indicated

unconstitutional and void. The act of 1883, is as we

think, properly to be treated as merely rendering

the combination no longer indictable; in effect, as

repealing the rule laid dowu Ly the Supreme Court

of this State in State v. Donaldson, 32 N. J. Law

(3 Vr.) 151. It does not legitimize an invasion of

private rights nor prevent the party injured from

having full redress.’’

Since the decision of the New Jersey Court of Errors

and Appeals in Brennan v. United Hatters, 73 N. J. L.

at p. 744, 65 Atl. 165, opinion also written by Justice

Pitney and the decision of the same Court in Jonas Glass

Co. v. Glass Bottle Blowers Asso., 77 N. J. E. 219, 79

Atl. 262, also written by Mr. Justice Pitney (then Chan-

cellor), in view particularly of the dissenting opinion of

Mr. Justice Minturn which succinctly set forth the effect

of the decision as to the statute, it was considered by the

Bar that the matter was settled in the State of New Jersey

and that, as stated in the Jonas Glass Co. case, the

statute could not be given any such wide scope as the

New Jersey Court of Errors and Appeals gave it in New

Jersey Painting Co. v. Local No. 26, 96 N. J. EB. 632, 126

Atl. 399, and that:

‘“‘The act of 1883 is, as we think, properly to be

treated as merely rendering the combination no

longer indictable; in effect, as repealing the rule

laid down by the Supreme Court of this State in

State v. Donaldson, 32 N. J. L. 151. It does not

legitimize an invasion of private rights u>r prevent

the party injured from having full redress. Its

proper scope is indicated in the opinion of Vice-

Chancellor Pitney in Frank & Dugan v. Herold, 63

N. J. E. 443, 447, 448.”’

The decision of the Court, upon that point, was dis-

sented to by but one judge, Mr. Justice Minturn. Three

other judges dissented from the result but not from that

part of the opinion having to do with the scope of this

statute.

21

The opinion in Jonas Glass Co. v. Glass Bottle Blowers

Asso., 77 N. J. E. 219, relied upon and cited with approval

Barr v. Essex Trades Council, 53 N. J. E. 101, 30 Atl.

881; Brennan v. United Hatters, 73 N. J. L. 729, 65 Atl.

165.

This court has cited with approval the case of Barr v.

Essex Trades Council, 53 N. J. E. 101, 30 Atl. 881, in

Truaxz v. Corrigan, 257 U. S. 311, 320, 66 L. Ed. 255, and

it cited, with approval, Brennan v. United Hatters, 73

N. J. L. 729, 65 Atl. 165, in Hitchman v. Mitchell, 245

U. S. 229, 62 L. Ed. 260, and both Barr v. Essex Trades

Council and Brennan v. United Hatters were cit.d with

approval in International News Service v. Associated

Press, 248 U. S. at page 213, 63 L. Ed. 211.

If the New Jersey statute is to have the construction

put upon it by the New Jersey Court of Errors and Ap-

peals in New Jersey Painting Co. v. Local No. 26, 96

N. J. Eq. 632, 126 Atl. 399, and by the District Court

in the case at bar, then it is offensive to the 14th amend-

ment under the decision of this court in Truaw v. Corri-

gan, 257 U. 8. 312, 66 L. Ed. 255. In that case there

came before this court the refusal of the Supreme Court

of the State of Arizona to grant an employer an injunc-

tion against a conspiracy and boycott, one of the con-

comitants of the conspiracy and boycott being picketing.

The Supreme Court of Arizona rested its decision upon a

statute of Arizona which, as construed by the Supreme

Court of Arizona, prevented the court from prohibiting

picketing so long as peaceful, and, as the Chief Justice

of this Court said in delivering the opinion of this Court:

“The effect of this we is that, under the

statute, loss may be inflicted upon the plaintiffs’

property and business by ‘picketing’ in any form

if violence be not used, and that, because no vio-

lence was shown or claimed, the campaign carried

on, as described in the complaint and exhibits, did

not unlawfully invade complainants’ rights.”’

ae ,

This court held that the statute was unconstitutional

both as a taking of property without due process of law

and a denial of the equal protection of the law. It said:

‘‘The —- of the State Supreme Court in this

case, if taken alone, seems to show that the statute

ants complete immunity from any civil or crim.

inal action to the defendants, for it pronounces

their acts lawful. * * *”’

‘It is argued that while the right to conduct a

lawful business is property, the conditions surround-

ing that business, such as regulations of the State

for maintaining peace, good order and protection

against disorder, are matters in which no person

has a vested right. The conclusion to which this

inevitably leads in this case is that the State may

withdraw all protection to a property right by civil

or criminal action for its wrongful injury, if the

injury is not caused by violence.’’

This Court held that, if the statute should be construed

as merely to withhold from the parties a remedy through

the equitable relief of injunction, it was void as denying

the equal protection of the law.

This Court said that the classification of employers in

the manner created by the statute was illusory, and

‘‘Classification like the one with which we are

here dealing is said to be the development of the

philosophic thought of the world, and is opening

the door to legalized experiment. When fundamen-

tal rights are thus attempted to be taken away,

however, we may well subject such experiment to

attentive judgment. The Constitution was intended

—its very purpose was—to prevent experimenta-

tion with the fundamental rights of the individual.

We said through Mr. Justice Brewer, in Muller ».

Oregon, 208 U. S. 412, 52 L. Ed. 551, ‘it is the pe-

culiar value of a written constitution that it places

in unchanging form limitations upon legislative

action, and thus gives a permanence and stability _

to popular government which otherwise would be _

lacking.”’ * * *

:

23

“It seems a far cry from classification on the

basis of relation of employer and employee in re-

spect of injuries received in course of employment

to classification based on the relation of an em-

ployer, not to an employee, but to one who has

ceased to be so, in respect of torts thereafter com-

mitted by such ex-employees, on the business and

property right of the employer. It is really a lit-

tle difficult to say, if such classification can be sus-

tained, why special legislative treatment of as-

saults upon an employer or his employees by ex-

employees may not be sustained with equal reason.

It is said the State may deal separately with such

disputes because such controversies are a frequent

and characteristic outgrowth of disputes over terms

and conditions of employment. Violence of ex-em-

ployees toward present employees is also a char-

acteristic of such disputes. Would this justify a

legislature in excepting ex-employees from criminal

prosecution for such assaults, and leaving the as-

a persons to suits for damages at common

aw?

The dissenting opinion of Mr. Justice Holmes, in which

he says:

‘‘By calling a business ‘property’ you make it

seem like land, and lead up to the conclusion that a

statute cannot substantially cut down the advan-

tages of ownership existing before the statute was

passed.’’

indicates to what extent the prevailing opinion went.

In conclusion I submit to your Honors that if unions

are permitted to use the weapon of the strike to enforce

a discrimination such as is here involved, merely because

that discrimination has to do with the matter of wages,

however arbitrary the classification may be, then it will

not be difficult to devise means whereby, under the law,

the business fabric of the country can be torn apart and

the present social system completely destroyed; that if

discrimination of this kind is permitted by combinations

of labor unions employers must be accorded the same

24

right as against labor unions, for, as this court said |

Coppage v. Kansas, 236 U. 8. 18, 59 L. Ed. at p. 448:

*‘ And can there be one rule of liberty for the ]

bor organization and its members, and a differe

and more restrictive rule for employers?’’

Employers, therefore, must be permitted to combine

discriminate against employees upon any conceivab

ground, however arbitrary.

Instead of a government of law, in which each man

free, enjoying equal rights with his fellows, we will ha

a government of labor unions and combinations of e1

ployers.

Upon these grounds it is urged that a writ of cer

orari should go as prayed.

Respectfully submitted,

MERRITT LANE,

Attorney for and of Counsel with

Barker Painting Company.