Petitioners Brief — Barker Co. v. Painters Union

Supreme Court brief1930

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IN THE

Supreme Court of the Runited States

No. 477. October Term, 1929.

BARKER PAINTING COMPANY,

Petitioner,

and

LOCAL No. 734, BROTHERHOOD OF PAINTERS,

DECORATORS AND PAPERHANGERS OF

AMERICA, et als.,

Respondents.

BRIEF OF PETITIONER.

Plaintiff Below

MERRITT LANE,

Attorney for and of Counsel with Petitioner.

Arthur W. Crose, Law Printer, 55-57 Lafayette Street, Newark, N. J.

TOPICAL INDEX.

Pace

Il THE OPINIONS BELOW 1

Il. JURISDICTION 1

lll. STATEMENT OF THE CASE.........000.000000000.... 2

Resume of the Facts 2

Further Consideration of the Facts 4

The Claimed Justification for the Rule.................. q

SPECIFICATION OF ERRORS................... ig Se

ARGUMENT ; 13

1, The Circuit Court of Appeals erred in declining

to consider the merits of the appeal because of its prior

decision in Barker Painting Co. v. The Brotherhood, etc.,

15 Fed. (2d) 16 13

2. The Circuit Court of Appeals erred in declining to

ceasider the merits because the particular work of plain-

iff which had been interfered with had been completed

under the protection of a temporary injunction................ 15

3. The District Court erred in dismissing the bill

and the Circuit Court of Appeals erred in affirming for

the reasons that (a) the conduct of defendants is a boy-

eott, the result of a conspiracy, illegal at commor 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 combination is un-

lawful and a violation of the rights of plaintiff; (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, Ch. 746, 26 Stat. at Large, p. 209,

Title 15 U. 8. C. A. sec. 1, p. 4, making illegal contracts,

combinations and conspiracies in restraint of trade and

commerce among the several States, and its supplements

and amendments, plaintiff being engaged in interstate

trade Lpaiehsicdaiticbedidosieoban eedibnonsaites : AGSE | j

Pacr

The effect of a decision sustaining the right of the

union to promulgate and enforce the rule here

involved

The cases in which the challenged rule has been

considered

The opinion of the District Court

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 reasonable relation to the wage scale and the

attempt of the union to enforce it by combination is

unlawful and a violation of the rights of plaintiff.......

The law of boycott as applied to the case at bar

Neither the fact that the act is one which may

properly be performed by a single individual nor the

fact that the object has some reference to wages,

hours or working conditions, is determinative of the

legality of the acts of a combination.......................2....

It is not always true that men may quit work for

any or for no reason

The underlying principle upon which the acts of

defendants must be held to be illegal

ce. Defendants are engaged in a conspiracy in vio-

lation of the anti-trust acts, sec. 1, U. 8. C. A. Title

15, p. 4, Act of July 2, 1890, c. 647, sec. 1, 26 Stat. 209

(Sherman Anti-Trust Act), secs. 12, 13, 14, 15, 16 and

17 U. 8. C. A., Title 15, p. 148, Act of October 15, 1914,

¢c. 323, 38 Stat. 730 (Clayton Act)

& &

(1) Plaintiff is engaged in interstate commerce |

within the meaning of the Anti-Trust Acts................

(2) The conduct of defendants is a combination

and conspiracy in restraint of trade within the

meaning of the Sherman Act, sec. 1, Title 15 U. 8.

C, A. “Commerce and Trade” p. 4, Act of July 2,

1890, c. 647, 26 Stat. 209, and within the meaning

of sec. 12, Title 15, U. 8. C. A. p. 148, Act of Oct. 15,

iii

Pacer

1914, c. 323, 38 Stat. 730, sec. 1, Clayton Act, and is

not within the protection of sec. 17, Title 15 U. 8.

C. A. p. 210, Act of Oct. 15, 1914, sec. 6 63

4. The decision of the District Court was based upon

the Statute of New Jersey heretofore mentioned and its

construction by the New Jersey Court of Errors and

Appeals in the New Jersey Painting Company case, 96

N. J. E. 632, 126 Atl. 399, and the effect is that the Dis-

trict Court in the instant case has permitted the appli-

cation of a statute which, as construed by it, is offensive

to the provisions of the 14th Amendment. 71

(1) Truax v. Corrigan, 257 U. 8. 320, 66 L. Ed.

254 80

IV. CONCLUSION 84

iv .

INDEX OF CASES.

Pace

Aeolian Co. v. Fischer (D.C.), 35 Fed. (2d) 34; (C. C. A.)

37 Fed. (2d) 61

A. & L. Mfg. Co. v. Carpenters’ Council, 308 Ill. 488, 139

N. E. 887 35

Allen v. Flood, (1898) App. Cases 1 oa

Allgeyer v. Louisiana, 165 U. 8. 578; 41 L. Ed. 832............. 79

American Steel Foundries v. Tri-City C. T. Council, 257

U. 8. 184, 66 L. Ed. 189.. 64, 66, 74

Anderson v. The Shipowners, 272 U. 8. 359, 71 L. Ed. 298... 61

A. T. Stearns Lumber Co. v. Howlett, 260 Mass. 45, 157

N. E. 82 36, 45, 47, 48

Baldwin Lumber Co. v. Int. Brotherhood of Teamsters,

etc., 91 N. J. Eq. 240, 109 Atl. 147. 46, 48, 73

Barker Painting Co. v. Brotherhood of Painters, etc., (C.

C. A.) 15 Fed. (2d) 16; application for certiorari, 71

L. Ed. 872, 273 U. 8. 748 12, 14, 18, 28, 35

Barker Painting Co. v. Brotherhood of Painters, etc.,

(Opinion of Runyon, J.), 12 Fed. (2d) 945; (C. C. A.)

| ie MRAM SRS nie ad ere DOH A ls PIE 1

Barker Painting Co. v. Brotherhood of Painters, etc.,

(Court of Appeals, D. C.) 23 Fed. (2d) 743; appli-

eation for certiorari, 276 U. 8. 631, 72 L. Ed.

FU rick cbiiniciiettnaernanin dilepadpaneitiniaicnbigidiitjireaantans 27, 31, 33, 35

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

SP eh ndcacepesiepinhetsnibdenipinisicivetieiniisterpicsnibistoctasiwimenestesiodilbisods 38, 73, 74, 77

Beck v. Railway Teamsters Protective Union, 42 L. R. A.

407, 118 Mich. 497 39

Bedford Cut Stone Co. v. Journeymen 8. C. Assn., 274

U. 8. 37, 71 L. Ed. 916 16, 63, 68

Berry v. Donovan, 188 Mass. 353, 74 N. BE. 603 46

Binderup v. Pathe Exchange, 263 U. 8. 291, 68 L. Ed. 308... 58

Pace

Brennan v. United Hatters, 73 N. J. Law 729, 65 Atl. 165,

9L. R. A. (N. 8.) 254 32, 51, 72, 73, 74, 77

Burnham v. Dowd, 217 Mass. 351, 104 N. E. 841 47

Connors v. Connolly, 86 Conn. 641, 86 Atl. 600... 46

Coppage v. Kansas, 236 U. S. 11, 59 L. Ed. 441 55, 84

Curran v. Galen, 152 N. Y. 33, 46 N. E. 297 46

Cyrus Currier v. International Molders, etc., 93 N. J. Eq.

61, 115 Atl. 66 51, 73

Decorative Stone Co. v. Building Trades Council, 18 Fed.

(2d) 333, affd. 23 Fed. (2d) 426 64

Delaware & Raritan Canal Co. v. Lee, 22 N. J. Law 243... 37

Douglas & Bros., Inc. v. Mallette, Equity #7502, Su-

perior Court of Rhode Island (not reported)................ 25, 27

Dubrow v. Hornstra, 95 N. J. Law 288, 112 Atl. 336............ 73

Duplex Printing Co. v. Deering, 254 U. 8. 443, 65 L. Ed.

349 38, 63, 64, 70

Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316 46, 48

Fox Film Corp’n v. Federal Trades Commission, 296 Fed.

353 59

Fox Film Corp’n v. Trumbull, 7 Fed. (2né) T18Q.....u........ 59

Frank & Dugan v. Herold, 63 N. J. Eq. 443, 52 Atl. 152........ 72

Frank & Dugan v. Nat. Alliance of Billposters, 89 N. J.

Law 380, 99 Atl. 134 : 72

Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23 57

Gompers v. Buck Stove Co., 221 U. 8. 418, 55 L. Ed. 797,

34 L. R. A. (N. 8.) 874, 31 Sup. Ct. Rep. CR iiscctissinas 36, 44

Pacn

Hass, Inc. v. Local Union No. 17, 300 Fed. 894...................... 22, 24

Haverhill Strand Theatre Co., Inc. v. Gillen, 118 N. E. 671,

L. R. A. (N. 8.) 1918 C 813, 229 Mass. 413 47

Hitchman Coal & Coke Co. v. Mitchell, 245 U. 8. 229, 62

L. Ed. 260 32, 36, 37, 45, 51, 70, 74, 79

International Organization v. Red Jacket C. C. Co., 18

Fed. (2nd) 839. 48, 63

International News Service v. Associated Press, 248 U. 8.

215, 63 L. Ed. 211 74

Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53

Atl. 230 76

Jonas Glass Co. v. Glass Bottle Blowers’ Assn., 77 N. J.

Eq. 219, 79 Atl. 262 20, 23, 71, 72, 73, 74, 79

Keuffel & Esser v. International Assn. of Machinists, 93

N. J. Eq. 429, 116 Atl. 9 73

Kidd v. Pearson, 128 U. 8. 1, 32 L. Ed. 346 57

Kirby v. Tallmadge, 160 U. 8. 379, 40 L. Ed. 463.................... 9

‘ L .

Lehigh Structural Steel Co. v. Atlantic Smelting & Refin-

ing Co., 92 N. J. Eq. 131, 111 Atl. 376 46, 48

Lochner v. New York, 198 U. 8S. 45, 49 L. Ed. 937................ 80

Loew v. Lawlor, 208 U. 8. 288, 52 L. Ed. 488. 63

Loizeauz, J. D., Lumber Co. v. Carpenter’s Local, N. J.

(not reported) 47

Pacs

Marienelli, Ltd. v. United Booking Offices, 227 Fed. 165...... 58

Marshall v. Brotherhood of Painters, etc. (not re-

ported) 24, 25, 27

McCord Co. v. Thompson-Starrett, 113 N. Y. Supp. 385,

affd. 198 N. Y. 587, 92 N. E. 1090 46

Mobile County v. Kimball, 102 U. 8. 691, 26 L. Ed. 238... 57

New Idea Pattern Co. v. Whitner, 215 Pa. 193, 64 Atl. 518 14

N. J. Painting Co. v. Local No. 26, etc., 95 N. J. Eq. 108,

122 Atl. 622; reversed 96 N. J. Eq. 632, 126 Atl.

399 11, 18, 19, 20, 22, 24, 25, 27,

36, 37, 40, 71, 73, 74, 80, 83, 84

N. Y. Central Ry. Co. v. White, 243 U. 8. 188, 61 L. Ed.

667 81

Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753... 36, 45

Pierce v. Society of Sisters, etc., 268 U. 8. 510, 69 L. Ed.

1070 54

Pittsburgh Terminal Coal Corpn. v. United Mine Workers

of America, 22 Fed. (2nd) 559 63

Plant v. Wood, 176 Mass. 492, 57 N. E. 1011 36, 45

Quinn v. Leatham, 1901 App. Cases, 495, 1 B. R. C. 197.. 36, 43, 44

Ramsay v. Associated Billposters, etc., 260 U. 8. 501, 67

L. Ed. 368 59

Read v. Friendly Society, etc., (1902) 2 K. B. 732, 1 British

Ruling Cases 503 47

Pacr

Second Employers Liability Cases, 223 U. 8. 1, 56 L. Ed.

327 57

State v. Donaldson, 32 N. J. Law 151 75, 79

State v. Glidden, 55 Conn. 46, 8 Atl. 890,3 Am. St. Rep. 23 43

Sullivan v. Associated B. & D. of U. 8., 272 Fed. 323........... 59

Swift & Co. v. United States, 196 U. S. 375, 49 L. Ed. 518 = 7

Thompson Machine Co. v. Brown, 89 N. J. E. 326, 104 Atl.

129 16

Toledo A. A. & N. M. Ry. Co. v. Penn. Co., 54 Fed.

730 35, 38, 48

Truax v. Corrigan, 257 U. 8. 312, 66 L. Ed. 254............ 23, 33, 38, 64,

66, 74, 80

Truax v. Raich, 239 U. 8. 33, 60 L. Ed. 131 32, 79

United Shoe Machinery Co. v. Fitzgerald, 237 Mass. 537,

130 N. E. 86 47

U. 8S. v. Eastern States Retail Lumber Dealers Assn., 201

Fed. 581, aff’d 234 U. 8. 600, 58 L. Ed. 1490.................... 57

U. 8S. v. Brims, 272 U. 8S. 549, 71 L. Ed. 403, 6 Fed. (2d)

188 63, 67

U. 8S. ex rel. Vajtauer v. Commissioner of Immigration, 273

U. 8. 102, 71 L. Ed. 561 9

U. 8S. v. Patten, 226 U. 8. 525, 57 L. Ed. 333 70

U. 8. v. Railway Employees’ Dept., 283 Fed. 479 (Motion

to dissolve injunction, 286 Fed. 228) 70

U. S. v. Reading Co., 226 U. 8. 324, 57 L. Ed. 243_............... 70

U. 8S. v. U. 8. Shoe Machinery Co., 234 Fed. 127................... 59

Vandell v. U. 8., 6 Fed. (2d) 188 70

Pace

Vicksburg Waterworks v. Vicksburg, 185 U. 8. 66, 46 L.

Ed. 808 ‘ 16

Vonnegut Machinery Co. v. Toledo Machine & Tool Co.,

ca haga Ebest EEN: 64, 65

W. A. Snow Iron Works v. Chadwick, 227 Mass. 382, 116

N. E. 801 35

Western Union Tel. Co. v. Int. Brotherhood of Electrical

Workers, 2 Fed. (2d) 993 ; aff'd 6 Fed. (2d) 444.000. 70

Supreme Court of the Rnited States

Barker Parntine Company,

Petitioner,

and On Certiorari.

Locau No. 734, BrornerHoop or/ No. 477 October

Painters, Decorators anp Papgr-| Term, 1929.

HANGERS OF AMERICA, ef als.,

Respondents.

BRIEF OF PETITIONER.

(Italics mine except where otherwise noted.)

The Opinions Below.

This case is here on certiorari granted December 9,

1929 (p. 169) U. S. Supreme Court Advance Opinions, No.

4, p. 135, 74 L. Ed. 135, to review a decree of the Circuit

Court of Appeals for the Third Circuit, filed August 12,

1929 (p. 168) affirming a decree of the District Court for

the District of New Jersey, filed March 28, 1928 (p. 33),

dismissing plaintiff’s bill in equity. The opinion of

the District Court, 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 is reported

in 34 Federal 2nd p. 3, and is printed p. 165 of the

record,

II.

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 jurisdiction of the District Court was rested upon:

diversity of citizenship; that the statute of the State of

@ New Jersey, entitled: ‘‘An act relative to persons com-

® bining and encouraging other persons to combine,’’ P. L.

*@ 1883, p. 36,3 C. S. of N. J. p. 3051, which reads as follows:

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

sa rsons to unite, combine or bind themselves

ik. covenant, agreement, alliance or otherwise,

4 persuade, advise or encourage, by peaceable

means, any person or persons to enter into any

combination for or against leaving or entering into

So employment of any persons, person or corpora-

on.

3 as construed by the highest court of the State, is re-

® pugnant to the 14th amendment to the constitution of the

United States in that its effect is to deprive petitioner of

property without due process of law and to deny it the

equal protection of the law; that the defendants are en-

gaged in a conspiracy in violation of Section 1, U. S. C. A.

Title 15, p. 4, Act of July 2, 1890, c. 647 Sec. 1 26 Stat. 209

(Sherman Anti Trust Act) and p. 148, Sects. 12, 13, 14, 15,

16 and 17 U. S. C. A. Title 15, Act of Oct. 15, 1914, ¢.

323, 38 Stat. 730 (Clayton Act).

Il.

STATEMENT OF THE CASE.

Resume of the Facts.

The bill alleged, and the proof on final hearing showed

that: petitioner employed exclusively union labor, operat-

ing 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; peti-

tioner proceeded, employing help all local to Somerville

except the foreman; it complied with all union conditions

as to hours and wages, ete. for the territory in which

Somerville is located; 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, not a painter but acting also

for the Building Trades Council having jurisdiction in

Somerville, that council being made up of delegates from

various building trades unions, instructed by Harry S.

Warren 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 petitioner

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 de-

prived of earning a livelihood, the industry being, in effect,

100 per cent. unionized ; the painting industry and all other

branches of the building industry in New York, northern

New Jersey, Connecticut and Pennsylvania are so union-

ized, and the agreements between the different branches

of the building industry are such, as that no painting work

can be performed except with union labor, for if it were

80 performed, all other branches of the building industry

would withdraw from the building and it could never be

completed; a contractor cannot be ‘‘fair’’ in one place and

“unfair” in another and if he employs non-union labor on

one job all of his jobs throughout the country whether

manned exclusively with union labor or not, will be struck

and all building trades will withdraw from any job upon

which he is engaged anywhere in the country ; the National

union threatened to compel petitioner and all other paint-

ing contractors to comply with the rule by strikes and boy-

cotts; the effect of the rule and its enforcement at the time

of the trial 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,

will be to limit all painting work to local contractors.

The foregoing is a summary of the facts.

Further Consideration of the Facts.

In his answer to the petition for certiorari and his

brief counsel for respondents questioned some of these

statements which makes it necessary to refer to the

record.

The substance of the rule, the enforcement of which

the bill seeks to prevent, is stated in the bill paragraph

second 7, p. 9, admitted by the answer paragraph 5,

p. 18, and in the opinion of the District Court, p, 21,

as follows:

‘*Where there is a difference between the wage

scale of two cities all members employed upon a

job in one of the two cities by an employer from

the other (whether sent from the city in which

the employer’s place of business is situated or

hired in the city where the work is done) shall

receive the higher of the two wage scales.’’

This rule was supplemented by another which provides

that upon any job performed by an outside employer

at least 50 per cent. of the employees engaged on such

job shall be hired from the locality in which it is being

performed (Bill, par. 12, p. 12; Answer, par. 8; Rule 62,

Exhibit D. 1, p. 157).

There are elaborate provisions in the constitution of

the Brotherhood for clearance cards, etc. so that no

member can go from one locality to the other without

the consent of the Local having jurisdiction in the place

in which the work is to be done and for implicit obedi-

ence of every member with every rule and for fine and

expulsion for violation of a rule (Sec. 133, p. 148; Sec.

971, 274, p. 151).

In the States of New York, Pennsylvania, New Jersey

and Connecticut the painting industry, and the building

industry as a whole, is practically 100 per cent. unionized

(Rosenthal, p. 43; Hass, p. 62; Kelley, p. 60; Joseph

F. Kelley, p. 130) ; it is impossible to complete a building

without the use of union labor (Rosenthal, p. 43; Kelley,

p. 60; Hass, p. 62); there is an understanding, some-

times expressed in rules where there are district councils

which take into their memberships representatives of the

various unions controlling labor in different branches of

the building industry, to the effect that, if any work is

performed upon a building by non-union labor in one

trade, the other trades will do no work upon the building

(Warren, pp. 89 to 91; Rosenthal, p. 47; Hoffman, p. 74);

a contractor cannot be fair in one place and unfair in

another so that, if in one locality he employs non-union

labor, union labor will not work for him in another nor

will the union labor work upon buildings upon which he

has a contract in other localities (Warren, p. 91; Rosen-

thal, p. 44; Hass, p. 62); the rules of the Union have

the force of law (Landow, p. 79; J oseph F. Kelley, p. 137) ;

it is impossible for a contractor to pay more than the

local rate for union painters in the locality in which the

work is being done, labor representing 65 per cent. of

the cost of contracting painters (Mackay, p. 98; Rosen-

thal, p. 44; Kelley, pp. 59, 61; Hass, p. 62), and still

continue in business.

There is a contention by defendants that, painting con-

tractors in bidding figure on the wage scale of their

‘‘home cities’’ if that scale happens to be the higher, but

there is no evidence of probative value to support the

contention.

The evidence relied upon by defendants is that of Joseph

F. Kelley (Second General Vice-President of the union)

(pp. 107, 110), but see his cross examination (pp. 119,

121, 123, 124); Warren (p. 86, but see his cross ex-

amination (p. 92); Landow, p. 77); all of whom are

officials of the Union and who, the testimony demon-

st~ates, know nothing about it, whereas the testimony of

Josenthal (p. 42); Hass (p. 62); John S. Kelley (p. 60)

and Mackay (p. 98), all contracting painters, the three

latter having no connection with plaintiff, is to the

contrary.

Plaintiff, Barker, had a contract for the painting and

decorating work on the Somerset Hospital, Somerville,

New Jersey, dated November 8, 1924 (Exhibit P. 1,

p. 143); it commenced work late in January, 1925, start-

ing with a couple of men and running up to about six

(p. 44); the union rate at the ‘‘home city’’ of plaintiff

was $10.50 for an eight-hour day (p. 44); the union rate

in Somerville, New Jersey, was $8.00 per day; plaintiff

operated a closed union shop, as it must to do any busi-

ness and it employed exclusively union men (p. 44); the

work progressed for several weeks, when it was stopped

because of the refusal of plaintiff to pay the New York

wage to local men (p. 44); the work was about thirty per

cent. complete and its condition was such as that it was

necessary that it should be forthwith prosecuted so as

not to interfere with the completion of the building; the

work was figured by plaintiff upon the local rate (p. 48);

Arthur P. Demaray (p. 49), Thomas Winsor (p. 52),

and Joseph Housh (p. 56), employees of plaintiff who

ceased work, were called by plaintiff and the effect of

their testimony as to why they quit is well expressed by

Demaray, who says that George W. Hoffman, who is the

Business Agent, representing the Somerville Building

Trades Council, which is composed of carpenters, plumb-

ers, electricians, painters and laborers (p. 66), came upon

the job and said: ‘‘You fellows can’t continue here;

you will have to let today be your last,’ and by Housh,

when he said (p. 56) that Hoffman came on the job and

said to the men ‘‘I will have to pull the job, you fellows

are entitled to ten dollars and fifty cents and you can’t

come back until it is settled and they pay ten dollars

and fifty cents a day.’’

These employees were perfectly satisfied with the wage

which they were receiving and, after the temporary in-

junction had been granted, Winsor and Housh went back

to work.

The control of the union representatives over the men is

well indicated by the statement of Winsor (p. 54) that he

went back because he couldn’t “find anybody to tell me not

to go back to work.’’ Demaray, who did not go back to

work for plaintiff after the injunction, says that he was

content with his wages, hours and working conditions and

that the only reason why he quit was that Hoffman told

him to.

Hoffman went on the job at the time he stopped it after

a conferene with Warren, General Organizer of the

Brotherhood, with the purpose and intent of preventing

the work being prosecuted unless the rules were complied

with (Hoffman, pp. 66, 67).

The Claimed Justification for the Rule.

The alleged justification for the rule, from an economic

standpoint, is found in the testimony of Warren (p. 87);

Landow (p. 76); Joseph F, Kelly (p. 112). Were the

reasons stated founded on fact, they would not be sufficient

to justify a combination to enforce such a rule so inter-

fering with the natural rights of the employer, the builder

and the public desiring to erect houses, by coersion.

Substantially the reasons given by the unions were that

employers were in the habit of employing partly foreign

and partly local employees and paying the local rate to

the local employees and the foreign rate to the foreign em-

ployees, which created friction and that the foreign em-

ployer always figured upon the rate prevailing at the place

of his main office.

It is hard to say, from the testimony, what the claimed

justification for the action of the Brotherhood is. While

it is suggested that there is a justification because of fric-

tion which had occurred prior to the enforcement rule

there is an indefiniteness in the testimony offered which

indicates quite clearly that it was not the real reason.

It would seem from the testimony of Joseph F. Kelly,

(Second General Vice-President of the union) that

the real reason for the adoption of the rule was that

certain of the Brotherhood members thought that em-

ployers, who came from a foreign district, figured their

jobs upon the foreign rate (pp. 112-117). The witness

testified—

‘*‘A Yes, sir; some of the things that I advanced

were advanced on the floor of the assembly. One,

in L was the fact that in a number of in-

stances the higher rate was estimated on and for

that reason the delegates that were advocating the

higher rate advanced that as their reason for this

change in our constitution.’’

Again, when asked to summarize the reasons for the

rule:

**T thought I explained those early in the affair.

Of course, I said that the reasons advanced were

on account of the members knowing and believing

that all this work was estimated at the hi a

and again for to keep down the friction that

exist where there were two scales of wages.’’

There is no probative evidence of any friction sufficient

to justify the rule. It is stated by the Brotherhood that

the rule had been in existence for upwards of fifteen

years, but if it was, it was not enforced until after the

Dallas convention in 1921, after which the letter of De-

cember 5, 1921, Exhibit P. 4, p. 156, was sent by the

Brotherhood to contractors directing their attention to

the action of the Dallas convention, and advising them

that they should be guided accordingly.

If the friction existed it was easily susceptible of proof

and the lack of definite proof must be taken as an indica-

tion that it did not exist. The rule that where testi-

mony is within the control of a party and not produced,

the inference is against the existence of the fact alleged

applies.

22 Corpus Juris, title ‘*Evidence,’’ see, 24, p. 81;

sec. 55, sec. 56, p. 115;

United States, ex rel, Vajtauer v. Comr. of Im-

migration, 273 U. S. 102 (1926), 71 L. Ed. 561, at

p. 565;

Runkle v. Burnham, 153 U. 8. 217, 38 L. Ed. 694

at p. 697 (1894);

Kirby v. Tallmadge, 160 U. §. 379, 40 L. Ed. 463

(1895).

It is passing strange, that if there were any such fric-

tion as is suggested, the industry could have been con-

tinued with harmony for fifteen years with this rule in

existence and not enforced.

And so with the other claimed justification for the rule,

i. ¢., that contractors always figure upon the higher wage

rate. Defendants here contented themselves with the pro-

duction of the testimony of Landow ( p. 77); Warren

(p. 86); Joseph F. Kelly (pp. 112, 116), officials of the

union or its locals, who really know nothing about the

matter and their statements are opposed to those of Ro-

senthal, Hass, Mackay and John §. Kelly, who are gen-

eral contractors and who do know and, here, too, if the

fact existed, it was easily susceptible of proof.

That the Brotherhood itself did not consider its claim

that the so-called national contractors figured on the

higher rate as well founded is indicated by the testimony

of Joseph F. Kelly (Second General Vice-President of

the union). He had testified on his direct exam-

ination that contractors who had contracts before the rule

went into effect were permitted to operate under the old

rule. On cross examination (p. 119) he is asked to ex-

plain why it would be unfair to enforce the rule as to

contracts already made if it were true that contractors

figured on the higher wage scale and he is at a loss for

an explanation which explains.

In any event as a remedy for the friction the rule goes

much too far. It requires that the foreign employer pay

the higher rate whether the employees are all local men,

or whether they are all foreign men. It does not seek to

base the discrimination upon difference of residence of the

employees. It makes a discrimination arbitrarily upon

the basis of the place of the main office of the employer.

Joseph F. Kelly cannot give any reason for the dis-

crimination against foreign contractors who employ all

local labor. He testified page 127:

*“‘Q Do you know of any reason why if the New

York contractors or the national contractor em- —

ploys all local men the local rate should not be

paid? A Do I know any reason where a national

contractor peys a local rate or—

Q No. you know of any reason why a na-

tional contractor who employs all local men that

the local rates should not be pai hy the local

rates should not be paid? A For the reasons that

I have given in saying why this amendment was

enacted into our law. I testified to it.

Q It cannot be for all of them because I have

eliminated the friction. I am assuming that the

national contractor employs all local men. What is

the reason why he should pay the home rate? A

Well, for the reason that has been advanced, as I

in the price.’’

The testimony of Mackay (p. 98) (painting contractor)

is to the effect that the so-called national contractors as a

On page 107 Joseph F. Kelly (official of the union) says:

“‘A Invariably I would Say that they (the _na-

my knowledge would come in of those contracts

being charged at a greater sum.’’

Now, in addition to these extra expenses which the for-

eign contractor must bear in competition with the local

contractor, the Brotherhood desires to add another arbi-

trary additional expense, to wit, an increase in wages

over and above what the local contractor must pay.

Tn its last analysis, so far as justification is concerned,

it comes down to the answer to the question “‘Zs the Io-

ity in which the contractor may have his main office a

sufficient grownd for discrimination against him with re-

spect to price of labor?’ The question answers itself.

And the answer was put in words by Judge White in his

dissenting opinion in New Jersey Painting Company v.

Local No. 26, etc., 96 N. J. E. 632, reversing 95 N. J. E.

108, the dissenting opinion of Judge White being reported

in 126 Atl. at p. 403 (not officially reported), four judges

of the Court of Errors and Appeals of New Jersey

dissenting.

Even if there were friction in certain cases and even if

certain contractors figured on the wage scale of their home

city (how they could do this and compete is not dis-

closed) the unions would not be justified in putting a rule

such as this into effect. The fact that there is an evil to

be remedied does not justify every method that can be

thought of to remedy it. Many ills must be borne. Un-

doubtedly there is friction among employers because of

competition and a sure cure is a combination to prevent

competition but that is not permitted because of its effect

on others than employers. So, here, if there is friction, a

combination, the result of which is injury to employers

and to the public, will not be permitted to eliminate that

friction.

Specification of Errors.

The assignments of error in the Circuit Court of Ap

peals are found in the record, p. 36. They are 19 in nun-

ber but are so numerous only that constitutional ques-

tions involved may be properly raised. The case may be

argued under four heads:

1. The Circuit Court of Appeals erred in declining to

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

cision 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 plain-

tiff 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 Circuit Court of Appeals 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)

and the combination and conspiracy is denounced by the

Act of July 2, 1890, chapter 746, 26 Statutes at Large,

p. 209, Title 15, U. S. O. A. sec. 1, p. 4, making illegal

contracts, combinations and conspiracies in restraint of

trade or commerce among the several states, and its sup-

plements and amendments, plaintiff being engaged in

interstate trade.

ARGUMENT.

er ee cuit Court of Appeals erred in declining to con.

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

cision in Barker Painting Company v. 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 injunction.

A consideration of the opinion. will indicate that, in the

last analysis, the Circuit Court of Appeals based its de-

cision upon the rule that preminary injunctions will not

go unless the right is clear boi upon the law and the fact.

In its opinion it devoted conderable space to reference

to reasons which might be adanced by the union in justi-

fication of the rule expressly tating that it did not do so

to intimate any sympathy wit the rule ‘‘for assuredly we

have none.’’

That there is a distinctiorwith respect to the amount

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

permanent injunction after dull hearing and that which

will induce a court to grant preliminary injunction after

a hearing only upon affidavitalmost goes without saying.

The distinction is, I thinkas well drawn as anywhere

in New Idea Pattern Co, v. 7hitner, 215 Pa. 193, 64 Atl.

518, at p. 520:

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

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

1 Spelling, Extraorhary ief, sec. 20; Black

Lick Mfg. Co. v. Gasto., 139 Pa. 448, 454, 21 Atl.

432, Waring v. Cram, Pars. Eq. Cas. 516. The re-

fusal of it does not mpudiate the plaintiff’s rights

if he can ultimately dablish any; it merely denies

him an extraordinar remedy properly applicable

only to cases in norespect equivocal; Dalzell »,

Crawford, 1 Pars. EcCas. 37, 46.’’

An application was maden Barker Painting Co. v. The

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

tiorari, which was denied, 23 U. 8. 748; 71 L. Ed. 872. It

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

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

- for a preliminary injunctio, heard upon affidavits, that it

was conceived that, if thenatter was to be reviewed, it

should be after a final hering, with full opportunity to

both sides to adduce all tk proofs possible. The decree

in the ease at bar followed ach a hearing. )

II.

The Cireuit Court of Appeals erred in declining to con.

sider the merits because the particular work of plaintiff,

which had been interfered with, had been completed

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 to inter-

fere with any work of plaintiff throughout the country

on which plaintiff did not pay the wage scale of its

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

done, whichever was the higher. The Internationa] 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

The bill prayed, prayer 2, p. 16, for an injunction

against the defendants generally from interfering with

any work of plaintiff for the purpose of enforcing the rule,

and, prayer 3, p. 17, for a decree that the rule may be

adjudged and declared illegal and void, and that all steps

taken to enforce and put into effect the rule be adjudged

and declared illegal and void.

The National Union had notified all contractors by letter

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

- would be enforeed. The bill alleged, and the proofs

showeu that such an enforcement of the rule would re-

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

plaintiff 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 8S. 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 others Thompson Machine

Co. v. Brown, 89 N. J. E. 326-328; 104 Atl. 129, in which

case the court said:

‘Tf 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 injury.’’

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 part of the

city to displace complainant’s rights 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 bills 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 sont be insufficient or irreparable.’’

Il.

The District Court erred in dismissing the bill and the

Circuit Court of Appeals erred in affirming for the rea-

sons 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 rights of plaintiff; (c) The com-

bination is in unfair restraint of trade, inimicable to pub-

lic 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,

Title 15, U. 8. ©. A., Sec. 1, p. 4, making illegal contracts,

combinations and conspiracies in restraint of trade and

commerce among the several states, and its supplements

and amendments, plaintiff being engaged in interstate

trade,

The effect of a decision sustaining the right of the

Union to promulgate and enforce the rule here involved.

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.

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 ‘‘meatal dis-

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

case. :

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.

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, agréement, alliance or otherwise, to

persuade, advise or encourage, by peaceable means,

Five judges of the New Jersey Court of Errors and

Appeals dissented, and J udge White, in his dissenting

opinion in 126 Atl. at p. 403 (not officially reported), said:

“The place of residence of the contractor is not

im 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

‘“‘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 den i fo to the —s states them-

selves this pri of invading the equal rights

of the citizens, should accord a 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

Courts of Errors and Appeals of New Jersey overruled its

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

Asso., 77 N. J. E. 218; 79 Atl. 262 and construed the

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

provisions of the 14th amendment to the Constitution of

the United States as will be hereinafter argued.

The cases in which the challenged rule has been consid-

ered.

The first case was New Jersey Painting Company v.

Local No. 26, etc., in the Court of Chancery of New

Jersey, 95 N. J. E. 108, 122 Atl. 622, in which Vice-

Chancellor Backes held the demand of the Union unrea-

sonable and discriminatory and said (p. 110):

“‘The assigned reason as a justification in law

for the strike is manifestly without merit. In its

self-serving pursuit the union entirely overlooked

the effect of its action upon trade, and the conse-

quences to the employers of labor. It cannot be

denied that the union may arbitrarily fix a uni-

form scale of wage applicable to all its members,

or that it may classify its members and arbitrarily

fix a uniform scale based on qualification, or that

it may localize such uniform scale, and strike to

enforce its demands, however oppressive they may

be, and the strike will not be interfered with by

the courts if it is lawfully carried on. The reason-

ableness or unreasonableness of the demands would

not be regarded as a justifiable question, but one

to be fought out by — and labor by their

eir Own weapons. Na-

- tional Protective Association v. Cumming, 170

unfair restraint of trade, inimical to public wel-

fare and in violation of public policy, and any at-

tempt of the union to impose its will by the coercive

means of strike would be an unwarranted and un-

lawful exercise of the power of might. The prin-

ciple upon which the law interdicts such union ac-

tivity has been often and clearly expounded by

the courts. The authorities are numerous and illus-

trative. Some of them are: Gompers v. Buck

Stove & R. Co., 221 U. §. 418; Berry v. Donovan,

188 Mass. 353; Pickett v. Walsh, 192 Mass, 572;

Wilcutt & Sons », Driscoll, 200 Mass. 110; Burn-

ham v. Dowd, 217 Mass. 351; United Shoe Machin-

ery Corp. v. Fitzgerald, 237 Mass. 537; Haverill

Strand Theatre ». Gillen, 229 Mass. 413; L. R. A.

1918 C. 813; Grassi Contracting Co. ». Bennett,

160 N. Y. Supp. 279; Baldwin Lumber Co. v. Inter-

national Brotherhood &. 91 N. J. E. 240; Currier

& Sons v. International Molders’ Union, 93 N. J. E.

61; Lehigh Co. v. Atlantic S. & R. Works, supra.

That the operation of the amendment would be in

unlawful restraint of trade is too obvious to re-

quire 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

scale as against the local contractor’s bid at the

local and lower scale. This, manifestly, would de-

stroy fair and honest

ease it operates to the

other state, and the union seeks

what the states are forbidden to d

States Constitution.’’

The next case was Hass Inc. v. Local Union No. 17, etc.,

300 Federal 894, in which, after referring to the rule

and the injury which it would cause, conceding that there

had been no threats of force, the court said:

‘*That no threats of force have been used is im-

material, for threats of fine and expulsion from the

defendant union are just as effectual as threats

of force, where, as here, ulsion would mean the

loss by the person expelled of the opportunity to

make a living at his trade.’’

‘*The injury thus inflicted on the outside contrac-

tor and the public cannot be justified, since ne

legitimate interest of the defendants would be fur-

oo ‘le jeiseea't of say Bee in ge pen

t was esigned for the sole purpose of ez-

cluding outside _ompetition in the home market on

the — of outside contractors, and since the plain-

tiff been injured by the operation of the rule

he is entitled to an injunction enjoining the defend-

ants from enforcing it. The same conclusion was

recently reached by Vice-Chancellor Backes in New

Jersey Painting Co. v. Local Union No. 26, Brother-

erhood of Painters, Decorators, Paper Hangers of

America (N. J. Ch.) 122 Atl. 622, where the same

rule was under consideration, as well as in Barker

Painting Co. v. Brotherhood of Painters, Deco-

rators and Paper eo of America, Supreme

arg District of Columbia, decided April 8,

The next case was New Jersey Painting Co. v. Local

No. 26, etc., in the Court of Errors and Appeals of New

Jersey, 96 N. J. E. 632, 126 Atl. 399, reversing the same

ease below, 95 N. J. E. 108, 122 Atl. 622. Five judges

of the Court of Errors and Appeals cissented—Justices

Kalisch, Katzenbach, Lloyd and Judges White and Gard-

ner. Judge White wrote a dissenting opinion, which is

reported in 126 Atl. 403 (not Officially reported) and

which, succinctly, states the principle for which I contend.

A careful consideration of Justice Black’s opinion for

the majority will indicate, I submit, that it is somewhat

diffieult to get at what the real theory of the court was.

The learned justice, at great length, refers to the statute

of 1883, p. 36, 3 C. S. of N. J. p. 3051, sec. 128, and indi-

cates that the restriction put upon the language of that

statute by the same court in Jonas Glass Co. v. Glass

Bottle Blowers Association, 77 N. J. E. 219, 79 Atl. 262,

was not proper, overlooking, that, if the restriction be

removed, the statute is unconstitutional because it de-

prives an employer of labor of his property without due

process of law and of the equal protection of the law,

guaranteed under the 14th amendment to the Constitu-

tion of the United States. Truar v. Corrigan, 257 U. S.

312, 66 L. Ed. 254.

The court at p. 639 of 96 N. J. E., 126 Atl. 399, says:

“‘But the argument by the complainant, followed

by the learned vice-chancellor in this case, seems

to be based upon the idea that the union cannot in

good faith frame or adopt a rule roviding for a

sliding scale of wages to fit ost ly the varying

local economic conditions throughout the United

States, which, in effect, does discriminate against

some employers as a class in the matter of wages

to be paid. It seems to be based upon the ground

that such regulations create an unfair restraint of

trade. The attack is aimed, not at the combination,

but at its effect wpon the employers, This is un-

sound, both legally and economically. (The court

does not tell us how or why an attack aimed at the

effect of a combination is unsound either legally

or economically.) In the last analysis the prime

object of the rule attacked is to establish a stand-

ard of wages.’’

This is a misconception of the argument of the com-

plainant in that case as is succinctly pointed out by Judge

White in his dissenting opinion, 126 Atl. 403 (not officially

reported).

It was not at the framing or adoption of a@ rule which

would provide for a sliding scale of wages to fit osten-

sibly the varying local economic conditions throughout

the United States at which the attack was aimed in New

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

Atl. 399, but at the ignoring by the Union of that sliding

scale of wages, when fixed, in cases where contractors

had their main offices in localities other than that in which

the work was being done, and the use by the Union of

the boycott to effectuate the rule of discrimination—quite

a different thing

The next case was Marshall v. Brotherhood of Painters,

Decorators and Paper Hangers of America, in the Com-

mon Pleas Court of Philadelphia, not reported, a copy of

the opinion being herewith handed to the court. The

court indulged in no reasoning, relying almost wholly upon

the opinion of the New Jersey Court of Errors and Ap

in New Jersey Painting Co. v. Local No. 26, %

N. J. E. 632, 126 Atl. 399, and fell into the same error

as that court did with respect to the objection to the rule,

treating it as a rule ‘‘establishing a sliding scale of wages

to fit ostensibly the varying local economic conditions

throughout the United States.’’

The court assumed to quote from Hass Inc. v. Union

No. 17, etc., 300 Federal 894. It quoted the language of

the court in that case:

‘‘The effect of the rule in question is to make

it difficult, if not impossible, for an outside con-

tractor * * * The injury thus inflicted on the

outside contractor and the public cannot be justi-

fied, since no legitimate interest of the defendants

would be furthered by the operation of the rule in

question.’’

And it then says:

‘We do not see how the public ean be injured

by any such means.’’

What the court had said in the Hass case was:

**This result has been accomplished by a com-

bination of the defendants to prevent, by means of

threats and intimidations, persons who otherwise

would be willing to do so from working for such

outside contractor, except on terms that make it

difficult, if not impossible, for them to compete with

local contractors. * * * The injury thus in-

flicted, ete. * © #9

I had always assumed that the public is injured by the

elimination of competition. The Philadelphia court seems

to have thought otherwise.

The next case was Douglas & Bros. Inc. v. Mallette,

Equity No. 7502, in the Superior Court of Rhode Island,

not reported, copy of which opinion is handed to the

court. The court followed New Jersey Painting Company

v. Local No. 26, 96 N. J. E. 632, 126 Atl. 399, and Mar-

shall v. Brotherhood of Painters, Decorators and Paper-

hangers of America, Common Pleas Court of Philadel-

phia, and it expressed its view that the public was in no-

wise injured, apparently by the elimination of competi-

tion, and also said that it clearly became necessary for

the Union to regulate the matter by some rule ‘‘because

it would seem clear that, from the point of view of the

Union, it would be unwise to have different members of

the Union from different localities working on the same

job in the same place, receiving different wages for doing

the same work,”’ and it also stated that the Union had

obviously had in mind the establishment of a sliding scale

of wages.

Just why it would be unwise, and what complaint there

could be, if different members of the union from different

localities working on the same job, received different

wages for doing the same work, if in the different locali-

ties from which the members came there was a differ-

ence in the cost of living which, in turn, was reflected in

the different wage scales, is not made plain. It would

seem to be clear that if a man, with a family in New

York, living under New York conditions and therefore

enjoying a New York wage scale, should be transported

to Somerville, New Jersey, he should receive the New

York wage, for he is living in New York and obliged to

support himself and his family by paying New York rates.

But it is not at all clear that, because this man, who

must pay for his living at New York rates, is to be paid

upon the New York scale, a local artisan living in Somer.

ville with a rate of wage fixed by the Union in the light

of the Somerville cost of living, should likewise receive

the New York wage. If he is paid the New York wage,

then the difference between the local rate and the New

York rate is a gift from the contractor, and ultimately

from the public, for the public pays.

Why is it unwise to have different rates of wages?

The Union suggests because there may be friction, but I

repeat that no probative proof of any such friction has

been offered, and although the rule was in existence, de-

‘fendants claim, for fifteen or sixteen years it was never

enforced and work went on harmoniously, and in every

case in which injunctions have been granted, the work

proceeded harmoniously. Workmen do not labor harmo.

niously merely because of an injunction of the court. We

have not a single artisan called who testifies that he is

insisting upon any such rule as is here involved. The de-

mand does not come from the workmen, but from their

leaders.

Moreover, as I have already pointed out, under the

existing rule, even if the contractor employs all local men,

still he must pay, if it be the higher, the wage scale of the

locality in which he has his main office. The basis of

classification is not the locality from which the workmen

come.

The rule creates an unjust discrimination among Union

members. Six workmen, all from Somerville, may be em-

ployed in Somerville, equally divided between two jobs

precisely alike—one being erected by a local and the other

by a foreign contractor. One set doing the same work

coming from the same locality gets a higher wage than

the other. What possible justification can there be for

this?

The court also indicated that because it was not the

purpose of the rule to discriminate, there could be no

relief. Acts are judged by their effect and not their pur-

pose, as will be hereafter argued.

The court also fell into the same error, as did the New

Jersey Court of Errors and Appeals, in New Jersey Paint-

ing Co. v. Local No. 26, etc., et als., 96 N. J. E. 632, 126

Atl. 399, i. e., that the complaint was against the establish-

ment of a sliding scale of wages, whereas it was against

the establishment of a sliding scale of wages and the ignor-

ing of that sliding scale of wages because a contractor

happens to have his main office in another district.

The next case was Barker Painting Company v. Brother-

hood of Painters, Decorators and Paper Hangers, etc., et

als., in the District Court of the United States for the

Eastern District of Pennsylvania, in which the court de-

nied a preliminary injunction with the statement that it

agreed with the reasoning and conclusions in Marshall v.

Brotherhood of Painters, etc., in the Common Pleas Court

of Philadelphia, and in Douglas & Bro. v. Mallette, in the

Superior Court of Rhode Island, and in New J ersey Paint-

ing Co. v. Local No. 26, etc., 96 N. J. E. 632, 126 Atl. 399.

That case came to the Circuit Court of Appeals of the

Third Circuit and the decision was affirmed in 15 Federal

2nd, p. 16, Judge Buffington dissenting (p. 19.) The ap-

plication was for a prelimiary injunction and the court

said:

‘‘In this proceedir the burden of justifying the

rules does not rest o the respondents; it is for the

complainant, who prised for a preliminary tnjunc-

tion before the ansvr was filed, to establish that

the rules are unlawil by evidence sufficient to in-

voke that extraordinry remedy.”’

The court, after indicatig that there might be justifi-

cation for the rule, instancig certain matters which might

be taken into considerationsaid:

‘*We advert to thse possibilities, certainly not

to express our viewSpor to intimate sympathy with

the rules,—for asswrdly we have none—nor to sug-

gest arguments in thir support or reasons justify-

ing their promulgaon, but merely to show that

many variable andintangible factors inevitably

enter into the situatin, making the injunctive proc-

ess of doubtful prpriety and legality. * * *

Because of many Uxnown factors and the uncer-

tainty of what woul be the consequences to both

employers and emplyees of a ruling of the nature

sought by the comjainant, the case is far from

clear.”’

The net effect of the desion of the court was that the

plaintiff had not satisfied iby clear and convincing proof,

that it was entitled to a ta porary injunction.

Judge Buffington dissemq and pointed that

‘Enforced as thy (the rules) will be by the

affirmance of this cée, the rules shut out a citizen

of the United State¢rom fair competition in Phila-

delphia business sithly because he is a resident of

New York State, 4d give to this competitor a

monopoly of that bsiness because he is a resident

of Pennsylvania.’’

An application for a wriof certiorari from the Supreme

Court of the United Statesyas denied, 273 U. S. 748, 71L.

Ed. 872. In the instant Cse, an appeal from a final de-

eree, reliance is placed irjystifying the rule only upon

the elimination of friction which is not proven to have

existed, and the fact that defendants believe that foreign

contractors figure on the higher rate for labor. None of

the other reasons, which are referred to by the Third

Circuit Court of Appeals in 15 Federal, 2nd, at p. 18, are

availed of. That court said (p. 18)—

“Tf he (the foreign contractor) pay a higher rate

to the home laborers and a lower rate to the local

laborers, trouble will inevitably follow.’’

The complete answers are: for fifteen or sixteen years

there was harmony; if there had been any trouble it would

have been perfectly easy to introduce probative evidence

to the effect and none was offered; after the Union de-

termined to enforce the rules, when injunctions were

. granted, the laborers continued to harmoniously work;

there is an economic reason why the rate paid to the arti-

san brought in from a foreign district should be that of

the foreign district, whereas, the artisan hired on the

spot should be paid the rate of the locality from which

he comes, and it is not to be assumed, at least with-

out proof, that there is going to be friction among

union laborers because of a difference in wage scale when

there is an economic reason for that difference, as men are

supposed to be reasonable; there was no evidence that on

this job any different rate of wages was applied to labor-

ers performing the same work; the rule applies whether

any ‘‘foreign’’ laborers are employed or not; the differ-

ence is not based on the residence of the laborers or the

place from which they come but on the locality of the main

office of the contractor; if a laborer living in New York

works in Somerville for a local contractor he gets the local

wage; if he performs the same work for a contractor with

a main office in New York, he gets the New York wage.

The Third Circuit Court of Appeals suggested that an

argument might be made that the higher wage scale should

be paid because, when an employer leaves his locality of

higher wages, he may leave at home laborers unemployed

and that the union may “‘legislate for the continued em-

ployment of laborers in varied localities at varied wage

rates by providing rules that will measurably insure em-

ployment everywhere.’’ This argument is not made, or

at least was not in the courts below, and I do submit that

it would be going pretty far to say that labor may, in

order to secure its employment by a contractor in his

‘*home’’ ‘district, so discriminate, and enforce that discrim-

ination by the boycott, against that contractor when he

goes to any other district as to compel him to remain in

his ‘‘home’”’ district and not take work elsewhere, for to be

effective the power of the Union must go to that extent.

But, even then, it will not be effective for the number of

laborers employed in a district does not depend upon the

number of contractors in that district but upon the amount

of work. Wherever there is work to be done, there will

be found contractors to do it, and, labor in the building

industry over the territory which we are discussing being

practically 100 per cent. organized, it is quite immaterial

(from an economic standpoint) whether contractor A or

contractor B performs the work.

The result of admitting any such right in the Union is to

admit its right not only to determine that none but union

labor shall work but who shall be permitted to contract to

do the work.

The remaining suggestion of the Third Circuit Court of

Appeals with respect to the influx of laborers and the in-

crease in work at one place or the decrease of laborers

and the decrease of work at another place, etc., is not met

by the provision of the rule which requires the higher wage

seale to be paid, nor is it designed to be met by that pro-

vision. It is met, as far as it may be, by the provision of

the rule which requires the foreign contractor to engage

fifty per cent. local help, and that rule is not in dispute in

this case, If the Union desires to raise the precentage it

may do so. The matter of ‘‘influx, ete. of laborers’? is not

governed by the ‘‘influx of contractors’’ but by the in-

crease of work. Contractors neither create nor diminish

work—work creates and diminishes the contractors.

The next and last case was Barker Painting Company v.

Brotherhood of Painters, Decorators and Paper Hangers,

etc., et als., 23 Federal, 2nd 743, Court of Appeals for the

District of Columbia. That case went off in the court

below and, in effect, in the Appellate Court because there

was in fact no interference by the Union with the men em-

ployed by the Barker Painting Company. The Barker

Painting Company inserted advertisements in the local

newspapers for workmen, and, in answer thereto, a num-

ber of local union painters appeared at the place of work.

These men were met, however, by officers of the Union,

who informed them that the Barker Painting Company in-

tended to disregard the union rules, whereupon they re-

fused to accept employment and left the place. The court

said:

“In this instance there was no strike or intimida-

tion nor any threat of disorder or interference with

appellant’s right to employ non-union painters, It

cannot be claimed that there was any breach of con-

tract by the men; the latter simply refused to enter

into any contract of employment upon the terms

offered by appellant. It is certain that appellant

could not compel the union painters to work for it

upon its own terms, regardless of their con-

sent e . - 9

In the case at bar, plaintiff had commenced the work and

had prosecuted it to the point that it was thirty per cent.

complete. Its workmen were proceeding willingly, peace-

fully and satisfied, when the union officials, because of the

rule, ordered them off the work, and it was only because

of the active interference of the union officials that they

left, and, when the pressure of the union officials was re-

moved by the injunction of the court, all but one returned

and he did not remain away because of the rule.

Notwithstanding the fact that the employees of plaintiff

were not under contract, it is entitled to their good-will

‘precisely as a merchant is entitled to the good-will of

his customers, although they are under no obligation to

continue to deal with him. The value of the relation lies

in the reasonable probability that, by properly treating

its employees and paying them fair wages, and avoiding

reasonable grounds of complaint, it will be able to retain

them in its employ, and to fill vacancies occurring from

time to time by the employment of other men on the same

terms. The pecuniary value of such reasonable probabili-

ties is incalculably great, and is recognized by the law in

a variety of relations.’’ * * * ‘Plaintiff, having in the ex-

ercise of its undoubted rights established a working agree-

ment between it and its employees, with the free assent of

the latter, is entitled to be protected in the enjoyment of

the resulting status, as in any other legal right. That the

employment was at will and terminable by either party at

any time, is of no consequence.”’

Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229,

62 L. Ed. 260, at p. 276, citing with approval Truaz v.

Raich, 239 U. 8S. 33, 38, 60 L. Ed. 131; Brennan v. United

Hatters, 73 N. J. L. 729, 749; 9 L. R. A. (N. S.) 254; 118

American State Reporter 727, 65 Atl. 165, 9 Ann. Cas. 698,

In this case the question is not whether union employees

may cease from work because the rule is violated nor is

it whether officers of the Union may step between em-

ployer and prospective employees and insist upon com-

pliance with the rule; it is whether, the relationship of

employer and employee having been established, with the

mutual assent of both parties, the officers of the Brother-

hood may direct the severance of the relationship upon

penalty that, if the orders are not obeyed the employee

either lose his membership or be fined, the loss of the

membership meaning that the employee cannot obtain

work at his trade anywhere, at least within the states here-

tofore mentioned, due to the unionization of the industry.

The proof showed in Barker Painting Co. v. Brother-

hood, etc., 23 Fed. (2nd) 743, that non-union labor might

be obtained in Washington and the element of power of

the Union due to the fact that the trade was practically

100 per cent. unionized was not present—as it is in the case

at bar.

Upon the application of the Sherman Act, the court held

that the union was protected by section 6 of the Clayton

Act. But, I submit, that, in so holding, the court ignored

the effect of the decision of this court in Truax v. Corri-

gan, 257 U. S. 312; 66 L. Ed. 254,

The court expressed the view that it did not think that

the regulations were discriminatory, unreasonable, arbi-

trary or oppressive. It stated that the higher wage and

shorter week rules were adopted by the Brotherhood prior

to the year 1913; the fifty per cent. rule in 1922; and

“they have been in force ever since.’’

The evidence in the case at bar shows that the rule, with

respect to the higher wage rate and shorter hours, was

not enforced prior to the Dallas convention of 1921, which

led to the sending out of the letter of December 5, 1921,

Plaintiff’s Exhibit P. 4, p. 156, and that it had not been en.

forced is impliedly conceded by defendants’ witness Joseph

F. Kelly, the Second General Vice-President of the

Brotherhood, when he says that, even after the Dallas Con-

vention of 1921, the rule was not enforced with respect to

contracts which had been made before the notice of the

Union of December 5, 1921, Exhibit P. 4. He says that it

would have been unfair to have enforced it with respect to

those contracts (p. 118).

The eourt further said:

‘‘They (the rules) are designed to meet a situation

which without regulation would be productive of

confusion and disorder for union labor. The cost

of living is higher in some places than in others;

therefore union wages vary in different localities.

If a contractor employs union labor upon work

in his own city, he must pay the union wages of that

locality; but, if he moves his force of local labor to

another city, he may meet there with a higher or

lower union wage scale, as well as with different

limitations as to periods of labor. It was to meet

these conti cies that the rules now in question

were adopted; and this case does not involve their

wisdom, but only their legality.’’ (Suppose he does

not move his force but employs local labor. Then

why should he pay the wage scale of the locality in

which he has his main office, assuming that to be

the higher?)

I have already indicated that there is not in this case

any evidence whatever that, in the absence of the rule,

there was any confusion or disorder; the evidence is to the

contrary.

The statement of the court that the contractor must

meet different conditions in different places may be a state-

ment of fact but the court does not indicate how the fact

affords any justification for the rule.

While it may be true that the case does not involve the

wisdom of the rule, it does involve more than its legality

for there is in the case the question as to whether, by com-

bination, a boycott may be put in motion against Barker

to enforce a rule which, as applied to Barker, is wholly un-

reasonable. The court continues:

‘*The rules do not discriminate against any par-

ticular person or place, and are uniform in their

operation throughout the country.’’

It is not clear, I submit, how the effect of the discrim-

ination is any less injurious or violative of Barker’s rights

because it is not directed at it individually but at it as a

member of a class arbitrarily created. If the rights of but

one person were involved it would, except for the principle,

be of little public importance whether the business of that

one person was ruined. The fact that the discrimination

extends to more than one has never been held to justify

arbitrary discrimination. ‘The extent of the discrimination

indicates its public importance. What the court, undoubt-

edly, had in mind, as did other courts dealing with the

same question and making the same statements, were those

eases which have suggested that malice is a necessary

element before the court will interfere in cases of this kind.

I will deal with that subject later and content myself here

with the statement that the recent authorities all hold that

“‘malice,’’ when used in this connection, means but an act

performed without lawful justification.

W. A. Snow Iron Works v. Chadwick, 227 Mass.

382, 116 N. E. 801;

A. € L, Mfg. Co. v. Carpenters’ Council, 308 Til.

488, 139 N. E. 887;

Toledo A, A. € N. M. Ry. Co. v. Pennsylvania

Co., 54 Fed. Rep. 730;

Martin on the Modern Law of Labor, published

in 1916, p. 34, ete.

An application made for a writ of certiorari from this

court was denied, 276 U. S. p. 631, 72 L. Ed. 741.

The Opinion of the District Court.

The decision of the District Court was rendered prior

to that of the Circuit Court of Appeals in Barker Paint-

ing Co. v. Brotherhood of Painters, Decorators and

Paperhangers, etc., 15 Fed. 2nd, 16, and the decision in

the Barker Painting Co. v Brotherhood of Painters, Deco-

rators, Paperhangers, etc., in the Court of Appeals for

the District of Columbia, 23 Fed. 2nd, 743. It is found

the state of case, and is reported in 12 Fed-

The court below quoted copiously from the opinion of

of the Court of Errors and Appeals of New

Jersey in New Jersey Painting Co. v. Brotherhood of

Painters, etc., 96 N. J. E. 632, 126 Atl. 399, and, in effect,

based its conclusion upon the statute of New Jersey,

P. L. 1883, 3 Comp. Stat. of N. J. 1910, p. 3051, sec. 128,

which statute I will argue, if construed to permit the con-

duct of the Unions, is in contravention of the 14th amend-

ment to the Constitution of the United States as well as

of the Constitution of New Jersey.

The court noticed the argument that the mere fact that

one or any other number of workmen may refuse to work

for any reason, or for no reason, does not justify a com-

bination, to, in effect, boycott by agreeing to decline to

work, but stated that the trend of modern economic

usage, both as practiced and as given expression in the

courts, is increasingly against regarding combinations

among laborers as unlawful per se, narrowing condemna-

tion to those combinations which are formed for the pur-

pose of effecting an unlawful object, or the doing of a

distinct injury to one against whom the activities of the

combination may be directed. I submit that the court

has, in effect, treated as lawful a combination to effect

any object which an individual acting alone might effect,

which is not the law.

Gompers v. Buck’s Stove € Range Co., 221 U. 8.

418, 439, 55 L. Ed. 797, 805;

Hitchman Coal & Coke Co. v. Mitchell, 245 U. 8.

229, 62 L. Ed. 260;

Quinn v. Leathem, 1901, App. Cases 495;

Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753, at

p. 757.

Plant v. Woods, 176 Mass. 492, 57 N. E. 1011;

A. T. Stearns Lumber Co. v. Howlett, 157 4. E.

82, 260 Mass. 45.

the intimation contained in the majority

New Jersey Court of Errors and Appeals in New Ver

Painting Co. v. Local No. 26, 126 Atl. 399, 96 N. J. E.

632, to the effect that ‘‘The attack is aimed, not the com

bination, but at its effect upon the employers. This

unsound, both legally and economically.”’

Both courts, I submit, overlooked the fact that the ques-

tion as to the legality of the combination, or rather as to

whether a civil wrong is committed by the combination,

is determined by the effect produced upon those against

whom the act is directed and by the application of the

principle sic utere tuo ut alienum non laedas, as the Su-

preme Court of New Jersey said in Delaware and Rari-

tan Canal Co. v. Lee, 22 N. J. L. 243, at p. 247, and as

this court said in Hitchman Coal and Coke Co. v. Mit-

shell, 245 U. 8S. 229, 62 L. Ed. 260.

There are but few acts which are inherently right or

wrong. An act is denounced as a crime, or as a civil

wrong, because of its effect upon others than the perpe-

trator of the act.

Every combination, and the acts of every combination,

would be lawful were it not because of the effect upon

others than those parties to the combination and to the

acts. Why not?

In considering the object of the rule, the District Court

said (p. 29) that in the minds of those who framed its

terms there was one main plan—‘‘that of increasing

wages under certain conditions therein named. What-

ever dispute there may be regarding these conditions,

the fact must remain that there was in contemplation

their utilization as a basis for wage increase.’’

And the court then went on to state that “the quest

for increased wages is a lawful object.’’

The District Court then proceeded to say that the un-

lawfulness of the acts must be found either in the resi-

dential feature of the rule, or in the methods adopted in

the attainment of the object, or in the effect which such

attainment has produced.

In considering the methods used to effectuate the object

the court indicated that the record is barren of any show-

ing of intimidation, violence, or disorder of any sort and

that that feature may safely be eliminated.

While there was no evidence of violence or disorder

there was evidence of intimidation. The District Court

overlooked the fact that it has been uniformly held that

there may be intimidation without violence.

Barr v. The Essex Trades Cowncil, 53 N. J. E.

101, 30 Atl. 881;

Toledo A. A. € N. M. Ry. Co v. Pennsylvania Co.,

54 Fed. Rep. 730, opinion by Judge Taft;

Truaz v. Corrigan, 257 U. 8. 312, 66 L. Ed. 254;

Duplex Printing Co. v. Deering, 254 U. 8. 443, ©

L. Ed. 349;

And many other cases.

It is not possible, I submit, to urge that there is no

intimidation when the penalty which would be visited upon

workmen who persisted in working against the order of the

Union leaders, would be dismissal from the union, in which

event they would lose the right to earn a livelihood at their

trade, or a fine, and it is not necessary for a threat that it

be expressed in words. It is sufficient that it be under-

stood.

See the cases above cited and Beck v. Railway Team-

sters’ Protective Union, 118 Mich. 497 ; 42 L. R. A. 407,

at p. 416.

But, I submit that the court has overlooked another

factor to be considered, i. e., the factor of combination and

this involves the argument that has already been, and

Upon the matter of the legality of the classification the

District Court said:

“*Had the rule in question drawn a specfic line of

demarcation, basing its operation avowedly upon

differences in state citizenship, I can conceive that

such differentiation would constitute an unlawful

and forbidden discrimination; but as I read the

subject to that interpretation, con-

in nowise with state lines, but apply-

and everybody who essays to do

iness outside of his home city, whether it be in

& neighboring town in his own state, or in some

distant foreign jurisdiction.”’

And the court said that, because of that fact, the rule

is free ‘‘of the charge of effecting an unlawful discrimina-

tion.”’

While it is true that the basis of classification is not on

State lines, the effect is to discriminate against con-

tractors coming from a foreign state, but the objection

is not only that there is a discrimination against con-

tractors coming from foreign states, but also that the

classification is wholly based upon the locality in which

the contractor may have his main office, which has no

reasonable relation to a wage scale as pointed out by Judge

White in uis dissenting opinion in New Jersey Painting

Company v. Local No. 26, New Jersey Court of Errors

and Appeals, 96 N. J. E. 632; 126 Atl. 399, at p. 403.

The District Court, while conceding the rule that the

classification ‘‘must always rest upon some difference

which bears a reasonable and just relation to the act in

respect to which the classification is proposed, and can

never be made arbitrarily and without any such basis”

suggested that the classification in this case has a reason-

able relation to the subject matter for the reason that ‘‘yet,

even so, it can hardly be urged as a general proposition

that the matter of residence is one not germane to the —

question of wages, since it is, in a real sense and under all

ordinary conditions, the controlling factor. A contractor,

living and doing business in a small town, pays his workers

the union wage scale established for that town. Eventu-

ally, and of his own accord, moving his business and estab-

lishing it in a large city, he accepts the altered conditions

and pays the identical staff of workers the enlarged rate

of the metropolis, for which the change of his ‘home city’

has come the consequent change in the stipend of his

workers.’’

But the learned court must have been here referring not

to a ‘‘contractor’’ but to a ‘‘manufacturer.’’ It is quite

true that when a manufacturer changes his ‘‘home’”’ city,

he changes his rate of wages, either lower or higher, if

there be a difference, but that is because he removes his

entire business to the new ‘‘home city’’ and his workmen,

who are employed in the ‘‘home city’’ live in the ‘‘home

city.’ It is not the change of the ‘‘home city’’ of the

| ee e

manufacturer which makes the change in wage. It is the

fact that the work which is now performed for him is

performed in a “‘new’’ city. It is the place of the per-

formance of the work which governs the wage scale and

that is because the workmen are obliged to meet the living

conditions of the place in which they perform their work,

the living conditions being the determining factor in a

wage scale.

But a painter or a building contractor does not perform

his work at the place of his ‘‘home city.’’ On the con-

trary, in his ‘‘home city,’’ all that he may have is an office

and all of his work may be performed outside of his ‘*home

city,”’ and in places far remote.

Just as in the case of the manufacturer who moves his

plant from one city to the other—the place of his plant,

where the work is performed, should be the place deter-

mining the wage scale, so in the case of a contractor who

has his work performed by labor outside of his ‘‘home

city’’—the place of performance should be the determin-

ing factor in the wage scale.

The District Court said:

“‘The natural effect of all of the foregoing is to

equalize, at the higher rate, the wages of all workers

employed under the conditions set out in the rule

under review, and thus, as it appears to me, the ob-

ject and effect of the rule are lawful, as are also

the foundation laid and the means relied on for its

enforcement.’’

It is quite true that the effect of the rule is to equalize

wages, at the higher rate, but the equalization is based

upon a difference which has no relation whatever, econom-

ically, to the wage scale.

(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 reasonable relation to the wage scale and the

attempt of the Union to enforce it by combination is un-

lawful and a violation of the rights of plaintiff.

Considerable of the argument applicable to this has

already been made. There are, however, certain prin-

ciples of law to which reference should be made with

their particular application to the case at bar.

This case may be argued to be one of primary boycott.

There are directly involved, only the particular workmen

employed by plaintiff, but there is superimposed, not only

a rule adopted by all persons engaged in the painting

industry, but an interference by Union officials (represent-

ing not only the painters’ union but others) with the

workmen of plaintiff, the only persons directly involved,

who were working harmoniously with it despite the rule,

and the compulsion of those union officials upon the work-

men of plaintiff to comply with the rule under penalty

of a fine or loss of membership in the organization, which

would mean the loss of opportunity to make a livelihood.

The general law of boycott is of importance.

Many of the courts, including the courts below, I submit,

have fallen into the error of assuming that, because an

act may be performed by one, it may be performed by

many in combination and the mere fact of combination,

plus compulsion brought by the combination as such, upon

the individual members of the combination to comply

with the demand of the combination may not, in and of

itself be sufficient to render the acts of the combination

illegal.

The law of boycott as applied to the case at bar.

In the very first case in ‘this country in which the

word ‘‘boycott’’ was used, State v. Glidden, 55 Conn. 46,

8 Atl. 890, 3 Amer. St. Rep. 23, the Connecticut court

said (at p. 895 of 8 Atl. Rep.):

‘It is also a combination of many to impoverish

and oppress a few. The weaker party needs and

must receive the protection of the law. If in any

case it is criminal for many to combine to do what

any one may lawfully do singly, it would seem that

this would be such a case. Numbers can accomplish

what one man cannot—evil as well as good; and

that is the reason of the combination. The law

encourages combinations for good, and combina-

tions by workmen to better their condition by legiti-

mate and fair means are commendable, and should

be encouraged. But combinations for evil purposes,

whether by one class of men or another, are detri-

mental to the public weal and cannot be regarded

with favor by the courts. But combinations for

good purposes may be perverted, and when their

power is sought to be used to harm their fellow-

men, to deprive others of their just rights, then,

not the combination, but the use of it becomes

criminal. In such use there is a large element of

wantonness and malice. Any one man, or any one

of several men, acting independently, is powerless ;

but when several combine and direct their united

energies to the accomplishment of a bad purpose, the

combination is formidable. Its power for evil in-

creases as its numbers increase.’’

And the court further said, p. 894:

‘‘As a means of accomplishing the purpose, the

parties intended to harm the Carrington Publishing

Company, and therefore it was malicious.”

In Quinn v. Leatham, in the House of Lords of England

(1901), Appeal Cases 495, 1 British Ruling Cases, 197,

at p. 232, Lord Brampton said:

‘“‘Much consideration of the matter has led me

to be convinced that a number of actions and things

—

not in — actionable or — if done

separately without conspiracy may, with conspir-

acy, become dangerous and alarming, just as a grain

of gunpowder is harmless, but a pound may be

highly destructive, or the administration of one

grain of a particular drug may be most beneficial

as a medicine, but administered frequently and in

large quantities, with a view to harm, may be fatal

as a poison.’’

And Lord Macnaghten said (p. 213):

‘‘That a conspiracy to injure—an oppressive

combination—differs widely from an invasion of

civil rights by a single individual cannot be

doubted. I agree in substance with the remarks

of Bowen, L. J. and Lords Bramwell and Hannen

in the Mogel case, (1889) 23 Q. B. D. 598 (1892)

A. C. 25, 61 L. J. Q. B. N. S. 295, 66 L. T. N.S.

1, 40 Week Rep. 337, 7 Asp. Mar. L. Cas. 120, 56

J. P.101. A man may resist without much difficulty

the wrongful act of an individual. He would prob-

ably have at least the moral support of his friends

and neighbors; but it is a very different thing (as

Lord Fitzgerald observes) when one man has to

defend himself against many combined to do him

wrong.”’

And the House of Lords in that case considered the

prior case of Allen v. Flood (1898), A. C. 1.

The effect of the decision of Quinn v. Leatham is that

the gist of the action is not the malice but the effect

produced, or sought to be produced, by the combination

upon the rights of others. When the courts use the term

‘‘malice’’ they mean only the absence of a just cause

or excuse, not for the act performed, but for the effect

produced.

This court in Gompers v. Buck Stove & R. Co. (1911)

221 U. S. 418, 55 L. Ed. 797, at p. 805 said:

‘‘But the very fact that it is lawful to form these

bodies, with multitudes of members, means that they

have thereby acquired a vast power, in the presence

of which the individual may be helpless. This

power, when unlawfully used against one, cannot be

met, except by his purchasing peace at the cost of

submitting to terms which involve the sacrifice of

rights protected by the Constitution; or by stand-

ing on such rights and appealing to the preventive

powers of a court of equity. en such appeal is

made, it is the duty of government to protect the

one against the many, as well as the many against

the one.’’

In Hitchman Coal and Coke Co. v. Mitchell, 245 U. 8S.

229, 62 L. Ed. 260 (1917) this court recognized the effect

of numbers when it said at p. 279:

“It was one thing for plaintiff to find from time

to time, comparatively small numbers of men to

take vacant places in a going mine; another and a

much more difficult thing to find a complete gang

of new men to start up a mine shut down by a

strike, when there might be a reasonable appre-

hension of violence at the hands of the strikers

and their sympathizers,’’

And in Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753,

at p. 757, the Supreme Court of Massachusetts said:

“In addition to the limitation thus put on labor

unions there is a fact which puts a further limita-

tion on what acts a labor union can legally do.

That is the increase of power which a combination

of citizens has over the individual citizen. * * ©»

“The result of this greater power of coercion on

the part of a combination of. individuals is that

what is lawful for an individual is not the test of

what is lawful for a combination of individuals; or

to state it im another wa , there are things which

it is lawful for an individual to do which it is not

lawful for a combination of individuals to do.’?

And see Plant vy. Wood, 176 Mass. 492, 57 N. E. 1011

(1900),

A. T. Stearns Lumber Co. v. Howlett, 260 Mass.

45; 157 N. E. 82 (1927).

Neither the fact that the act is one

erly be performed by a single individual nor the fact that

the object has some reference to wages, hours or working

conditions, is determinative of the legality of the acts of

a@ combination.

The right of a single union man to refuse to work with

a non-union man is conceded.

The maintenance of a closed shop has a direct bearing

upon both wages and terms of employment but a strike, as

a result of a combination to enforce a closed shop over a

wide territory, is unlawful, although the right of an in-

dividual not to work in any but a closed shop must be

conceded.

Baldwin Lumber Co. v. Int. Brotherhood of Team.

sters, 91 N. J. E. 240, 109 Atl. 147 (1920);

Connors v. Connolly, 86 Conn. 641, 86 Atl. 600,

(1913) ;

Curran v. Galen (1897), 152 N. Y. 33, 46 N. E.

297 ;

Lehigh Structural Steel Co. v. Atlantic Smelting

é Refining Co. (1920), 92 N. J. E. 131, 111 Atl. 376;

McCord v. Thompson-Starrett (1910), 113 N. Y.

Supp. 385, affirmed 198 N. Y. 587, 92 N. E. 1090;

Folsom v. Lewis (1911), 208 Mass. 336, 94 N. E.

316,

The right of a single union man to refuse to work with

a non-union man is conceded and that right has a relation

to the terms of employment but an agreement to compel

an employer to discharge a non-union man at the request

of the union is illegal.

Berry v. Donovan (1905), 188 Mass. 353, 74 N. E.

603.

The right of a union man to refuse to handle material

sold by any particular person may be conceded, but an

agreement among union members to so refuse to handle

such material is unlawful.

Burnham vy. Dowd, 217 Mass. 351; 104 N. E. 841

1914) ;

; A. T. Stearns Lumber Co. v. Howlett, 260 Mass.

45, (1927), 157 N. BR. 82;

J. D. Loizeaux Lumber Co. v. Carpenters’ Local

of Roselle, N. J., N. J. Chancery, opinion by Vice-

Chancellor Buchanan, unreported, opinion handed

to the court.

The matter of employment of apprentices has reference

to the terms of employment, nevertheless a combination to

protest against the employment of an employee as an ap-

prentice on the ground that it is a breach of one of the

rules of the association is illegal,

Read vy. Friendly Society of Operative Stone-

masons (1902), 2 K. B. 732, 1 British Ruling Cases,

503.

The number of men employed by an employer not only

has reference to the terms of employment but also to the

matter of wages, nevertheless a rule of labor union re-

quiring the employment of a minimum number is unlawful.

_ Haverhill Strand Theatre Co. Inc. vy. Gillen

(1918), 118 N. BE. 671, Massachusetts Supreme

Court, L. R. A. (N. S.) 1918 C. 813, 229 Mass. 413.

Collective bargaining goes to the terms of the employ-

ment but a strike to enforee it is unlawful.

United Shoe Machinery Co, y. Fitzgerald (1921),

237 Mass. 537, 130 N. E. 86.

A single white man may rightfully refuse to work with

@ colored man, but a combination of white men to refuse

to work with a colored man is illegal.

It is not always true that men may quit work for any

or for no reason.

It is necessary to cite but one case.

In Toledo A. A. € N. M. Ry. Co. v. Pennsylvania Co.

(1893), Cirenit Court, Northern District of Ohio, before

the late Chief Justice Taft, then Circuit Judge and Ricks,

J., 54 Federal 730, the late Chief Justice conceded at p.

737 that the statement is not always true, and he said:

‘*But it is said that it cannot be unlawful for an

employee either to threaten to quit or actually to

quit the service when not in violation of his con-

tract, because a man has the inalienable right to

bestow his labor where he will, and to withhold his

labor as he will. Generally speaking, this ts true,

but not absolutely. If he uses the benefit which

his labor is or will be to another, by threatening to

withhold it or agreeing to bestow it, or by actually

withholding it or bestowing ii, for the purpose of

inducing, procuring, or compelling that other to

commit an unlawful or criminal act, the withhold-

ing or bestowing of his labor for such a purzose

is itself an unlawful and criminal act. The same

bere . true with Ngo ” me — of the

ight of pro ‘ man has the right to give

or ask hie srepeler where. he will, but if he gin

sell it, or refuse to give or sell it as a means of

inducing or compelling another to commit an unlaw-

ful act, his giving or selling it or refusal to do s0

is itself unlawful.’’

Many cases in which strikes, as such, have been en-

joined are in point.

Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316;

Baldwin Lumber Co. v. Local No. 560, etc. 9

N. J. E. 240, 109 Atl. 147;

A, T. Stearns Lumber Co. v. Howlett, 157 N. EB

82; 260 Mass. 45.

Lehigh Structural Steel Co. v. Atlantic Smelting

& Refining Co., 92 N. J. E. 131, 111 Atl. 376;

International Organization v. Red Jacket C. C.

Co., 18 Fed. (2d) 839.

The underlying principle upon which the acts of de-

fendants must be held to be illegal.

The underlying principles upon which boycotts are

held unlawful are not difficult to ascertain. Every man

is entitled to conduct his business freely, and as he

chooses, subject, of course, to the maxim ““sic utere tuo

et alienwm non laedas.’’ Every man is entitled to labor,

or not to labor, for another as he chooses. Every man

has the right to deal freely with any other man, and

every man has the right to have others deal freely with

him. These rights are as absolute as any rights may be,

all rights being subject to constraint in the interest of

the public. If, in the exercise of the respective rights of

~ the individual, injury is done to others, the injury is

damnum absque injuria. But there is no absolute right

of individuals to act in concert. The right to act in con-

cert is a qualified right. Whether it may be exercised or

not depends upon the effect which it may have upon the

nearly absolute rights, qualified only by the maxim before

mentioned, of individuals outside the combination. If the

_ effect of the act performed in combination is to unduly

injure the public, or the absolute rights of individuals

outside of the combination, then, because of that effect, the

act of the individuals in combination may be prevented,

although each individual acting separately, may have per-

formed the act free from interference. The underlying

principle is that there is no absolute right to act in com-

The right of a single individual to refuse to work for

John Jones, except at the rate of fifteen dollars a day, and

to refuse to work for John Smith except at the rate of ten

dollars a day, and to agree to work for Robert Roe at

. the rate of five dollars a day is coneeded. The reason

that he may so discriminate is not because the discrimina-

tion is based upon a matter of wages but because he may

refuse to work for any one of the three for any reason

whatever. The fact that the discrimination is accom-

plished by a difference in a wage demand adds nothing

to the right. But can it be that all workers, or any con-

siderable number of workers in a community may combine

to refuse to work for John Jones except at the rate of

fifteen dollars a day, and to refuse to work for John

Smith except at the rate of ten dollars a day and to agree

to work for Richard Roe for five dollars a day? Does

the fact that the discrimination is accomplished by means

of a wage demand justify the combination to discriminate?

It must be conceded that the right to discriminate, so far

as the individual is concerned, for an arbitrary cause or

for no cause, is just as broad as the right to discriminate

because of a matter of wages. It likewise must be con-

ceded that a combination to discriminate, in the manner in

which I have pointed out is illegal if the cause be arbitrary,

Does the fact that the basis of discrimination has refer-

termine the persons engaged in an industry who shall do

business and who shall not. Can this be?

absolute right to perform the acts but the effect of what

they do by agreement upon others.

Otherwise stated, it is not a denial of the right of the

parties to the agreement to do the things they do, but a

denial ot the right to exercise that right in combination

because of the effect of the exercise of the right upon

relative rights of others. Why is it that a union cannot

insist, by agreement, upon a minimum number of workers

It is because of the effect upon the business of the

ployer. Why is it that a union is not permitted to

to enforce a closed shop over a wide territory? It is be-

cause of the effect upon the non-union man. Why is it that

a combination is not pe~mitted to compel the employment

of a union foreman? It is because of the effect upon the

business of the employer. Why is it that a union is pro-

hibited from interfering with non-union employers of a

shop in order to unionize a non-union shop? Hitchman

Coal & Coke Co. v. Mitchell, 245 U. 8. 229, 62 L. Ed. 260.

It is because of the effect upon the business of the em-

ployer and the effect upon non-union workers. Why is it

that an agreement to refuse to handle materials sold by one

who furnishes supplies to an employer of non-union labor

is prohibited? It is because of the effect upon the em-

ployer, the effect upon the person who sells the material

manufactured by non-union labor, the effect upon the non-

union men who work for that employer and the effect upon

the public.

It is not yet necessary to pass upon the question whether

or not a combination of individuals may be permitted to

insist upon payment to them of a wage which is outrageous

based upon no economic ground and destructive of em-

ployers as a whole. The time may be coming when that

question will have to be dealt with and, when it comes,

there is no doubt but that the courts will deal with it by

applying the maxim sic utere, ete. Brennan v. United

Hatters, 73 N. J. L. 729, 65 Atl. 165; Cyrus Currier vy.

International Molders, 93 N. J. E. 61, 115 Atl. 66.

The right of workers to combine to refuse to work ex-

cept upon a certain scale of wages is the result of growth.

A history, somewhat incom

—

under the English common law, such combinations were

unlawful. A consideration of the history will indicate that

the growth was a matter of economic conditions and it was

finally determined that there might be such a combination.

But the reason of it was, as stated by Eddy, who wrote

in 1900, sec. 444, p. 323:

**It is better for the law to leave employers and

employees free to form such associations as they

please in relation to rates of compensation so long

as the associations are voluntary. These associa-

tions will act upon each other; if the employees de-

mand too much or the employers offer too little, such

condition cannot continue for long or be productive

of any serious inconvenience to the community, as

that side must ultimately give way the of

which are not founded in reason and justice. Where,

however, combinations = formed to intimidate

employers or to coerce other employees, it matters

little what are the measures adopted, if the object

is to interfere with the rights of others and to con- —

trol their free action, ination is illegal.” —

There have been many changes since 1900, and, as the law

as it was laid down in 1900 was the result of growth, chang-

ing from time to time, it is not and never can be con-

sidered static, but must remain capable of growth to cope

with new conditions and I have no doubt but that, were

there a labor union in this country strong enough to

enforce upon employers an outrageous demand for wages,

which would have the effect of doing injury to the public,

and the economic conditions were such as that the bal-

ancing of association against association, as indicated by

Eddy, would not work, the law would find a way to cope

with the situation.

But that is not the situation here. This is not an attempt

to compel employers generally to pay a certain wage. It

is an attempt never before tried, so far as my examina-

tion of the books discloses, by agreement to discriminate

in the demand for wages between certain employers.

There is injected in it the idea of discrimination which

was not present in any of the cases referred to by Eddy

or which I can find.

If the workers have the right to, by combination, dis-

criminate in matter of wages as they have attempted in

this case, there is no limit to their power to advance one

employer and to destroy his competitor. Such a dis-

crimination is abhorent to every idea of equality upon

which the American government is founded.

It is a violation of the fundamental idea expressed in

the 14th amendment to the Constitution of the United

States and in the first section of the Constitution of New

Jersey. It is not contended but that one man may dis-

criminate. He may, for any reason or for no reason, but

just as there cannot be an agreement to refuse to work

for no reason so that can be no agreement to discrimi.

sate, using as & weapon of the discrimination a matter of

wages. The illegality arises not, as has been stated,

because of the combination but because of the effect of

the combination upon the employers, that effect being

produced by the greater power of the combination and,

as Eddy says, it matters little what are the means adopted

if the object is to interfere with the rights of others and

This Court has indicated that there are certain acts

which may be so abhorent to the fundamental concept of

our government as that one may be considered as pro-

tected against their performance under the constitution

although the right is not clearly expressed in the consti-

tution.

Pierce v. Society of Sisters, etc., 268 U. S. 510;

69 L. Ed. 1070.

It is one thing for a combination of employees to be

formed to deal with a combination of employers on matters

of wages, where the employers are to be treated as one

group and the employees as another, but when the com.

bination of workers seek to make distinction between the

employers then the check stated by Eddy fails.

If the law is as stated by the District Court then any

union organization operating throughout the country may

arbitrarily ordain discrimination as against employers,

based solely upon their residence, and not only may any

union do this thing, but unions may combine, and the com-

bination, which may control all labor throughout the United

States, may arbitrarily establish such discrimination. By

this means all employers of labor may be driven out of a

community except those who may have their residence

therein. If discrimination is justified against non-resi-

dents, the conclusion cannot be escaped but that discrim-

ination may be directed against residents, and all resident

employers in a community may, by concerted acts of the

union, be driven out of the community in which they reside

in favor of non-residents. Not only may discrimination as

to residence be based upon State lines, but county lines,

or such arbitrary districts as the union may set up. A

resident of the County of Essex, New Jersey, doing work

in the adjoining County of Hudson, New Jersey, may be

obliged to pay higher wages than a resident of the County

of Hudson, New Jersey, doing work therein, and a resident

of the adjoining County of Bergen, New Jersey, may be

obliged to pay still higher rates.

If such a right is to be accorded to combinations of

labor upon the theory that they have labor to sell for a

price, and that must be the theory, then I submit that a

similar privilege must be accorded to the sellers of any

other product, and I see no reason, upon principle, why

there may not be a combination of those dealing in hard-

ware, or any other article of commerce, to sell at one

price to a resident and at a lower price to a non-resident,

or vice versa, and the districts may be as arbitrary as the

combination of sellers desires to make them.

If this right is to be accorded to combinations of em

ployees it cannot, upon principle, be withheld from com-

binations of employers (Coppage v. Kansas, 236 U. 8.

1; 59 L. Ed. 441), and employers may combine to pay one

price for labor where the employees come from one dis-

trict and another where the employees come from another

district.

If combinations may make discriminations based upon

the residence of an employer, upon principle, I submit

that they may make discriminations between employers

based upon any other ground of distinction which may

occur to their minds, as, for instance, between those who

have capital invested of $100,000. and those who have

have capital invested of $200,000.; between those who

have made eight per cent. on invested capital for the pre-

ceding twelve months and those who have made sixteen

per cent.; between those who are individuals, partnerships

or corporations. Bases of discrimination may be created

ad infinitum. And this is not fanciful. There can be

found greater justification for a difference between the

rate of wages to be charged to employers who have an

invested capital of $100,000 and those who have an in-

vested capital of $200,000 and those who may be in-

dividuals or partnerships or corporations, as the case

may be, or between those who have made twelve per cent.

on invested capital for the preceding twelve months and

those who have made other percentages, than there is for

a difference between those who may have their main offices

in one place and those who may have them at another.

Profit sharing may be compelled with a vengeance. It is

hardly necessary to say that if, under the law, such

power exists in labor combinations, no amendment to the

Constitution is required to permit a complete destruction

of property and the establishment of a new social system.

Just as the power to tax includes the power to destroy,

so does the power to discriminate and make that dis-

crimination effective include the power to destroy.

p. 4, Act of July 2, 1890, c. 647, Sec. 1,

man Anti-Trust Act), Secs. 12, 13, 14, 15, 16

Stat. 730 (Clayton Act).

Plaintiff is engaged in interstate commerce within the

meaning of the anti-trust acts.

The uncontradicted testimony of Rosenthal (p. 42) is

to the effect that plaintiff carries on its business over the

United States from New York to Winnipeg, New Orleans

to New York to Dallas to New Orleans to Winnipeg; its

materials are usually purchased in New York and shipped

to different jobs in different states of the union, and then

back to New York; large amounts of material are pur-

chased in New York and shipped; some materials are

bought on the jobs; as a part of its business it makes

eontracts for the performance of work all over the United

States, the contract, the performance of which was inter-

fered with by the action of defendants, was made for the

performance of work in the State of New Jersey; the

effect of compliance with the rule will be to exclude

plaintiff from competition with local contractors in dif-

ferent parts of the United States.

The terms ‘‘trade’’ or ‘‘commerce’’ as used in the

anti-trust acts are not technical terms. They comprehend

every species of commercial intercourse.

Gibbons v. Ogden, 9 Wheaton 1; 6 L. Ed. 23;

Kidd v. Pearson, 128 U. S. 1; 32 L. Ed. 346.

In Second Employers Liability Cases, 223 U. S. 1; 56

L. Ed, 327, this court said:

“‘The term ‘commerce’ comprehends more than

the mere exchange of goods. It embraces com-

mercial intercourse in all its branches, including

transportation of passengers, and property by com-

mon carriers, whether carried on by water or land.’’

In United States v. Eastern States Retail Lumber

Dealers’ Assn. et als., 201 Fed. 581, District Court, South-

ern District of New York, Cireuit J udges Lacombe, Coxe,

Ward and Noyes sitting, Circuit Court Judge Lacombe

delivering the opinion of the court said:

‘It is now well settled that the words ‘restraint

of Trade’ in that (the Sherman) Act are to be con-

strued as including restraint of competition. Full,

free and untrammeled competition in all branches

of —- commerce is the desideratum to be

secured.’’

The decree was affirmed in this court, 234 U. S. p. 600;

58 L. Ed. 1490.

And see County of Mobile v. Kimball, 102 U. S. 691; 26

L. Ed. 238.

In Swift é Company v. United States, 196 U. 8. 375; 49

L. Ed. p. 518, this court 49 L. Ed. p. 525 said:

““* * * commerce among the States is not a

technical legal conception, but a practical one,

drawn from the course of business. When cattle

are sent for sale from a place in one State, with

the expectation that they will end their transit,

after purchase, in another, and when in effect they

do so with only the interruption necessary to find a

purchaser at the stock yards, and when this is a

typical, constantly recurring course, the current

thus existing is a current of commerce among the

States, and the purchase of the cattle is a part and

incident of such commerce.’’

In Binderup v. Pathe Exchange, et al., 263 U. S. 291; 68

L. Ed. 308, reversing the Cireuit Court of Appeals for the

8th Circuit, this court held that the manufacturing of mov-

ing picture films in one State and finding customers for

them in another State, making contracts with the customers

for their use and transporting the films from the State

where manufactured to the State where they are to be

used, constitutes interstate commerce even though the

films are consigned in the different States to local deposi-

tors as agents for the manufacturer.

Marienelli, Ltd. v. United Booking Offices of America,

et al., 227 Fed. 165 (District Court, S. D. New York), was

a suit for damages under the Sherman Act. The in-

dividual defendants owned many vaudeville theatres

throughout the United States, arranged in two Circuits,

an eastern and a western. The two corporate defendants

were booking agents for the two circuits. The defendants

entered into an agreement that the Eastern Owners would

not employ anyone not booked through the Eastern book-

ing house, and no performers would be employed who

played outside of the two Circuits. A similar arrange-

ment was made by the Western owners and the Western

booking house. Black-lists were made up by each of the

booking houses and these were exchanged between them.

There was a demurrer to the complaint. The court said:

‘*Undeniably certain aspects of the business are

interstate commerce, as, for instance, the contracts

made by the booking companies under which the

performers must go from state to state, throughout

the circuit, acting here and there and fulfilling their

contracts as much by travel as by the acting. Since

‘

Hoke v. United States, 227 U. 8. 308, and Wilson v.

United States, 232 U. S. 563, it cannot be doubted

that this feature of the business was within the

complete powers of Congress for such purposes as

it might find to the public interest. This moreover,

applies as well to that feature incidental to the

foregoing, which consists in the carriage of the

performer’s stage properties and paraphernalia

from one state to another, a necessary part of the

performance of their contracts with defendants.

(Citation.) The same may be said of the scenery

and advertising matter sent from state to state by

the theatres heaves. In respect of all these

details, the business, therefore, consists of inter-

state commerce.’’

The same ruling was made by the Circuit Court of

Appeals for the Second Circuit in Fox Film Corporation

v. Federal Trade Commission, 296 Fed. 353, and also in

Fou Film Corporation v. Trumbull, 7 Fed. 2d 715, 721.

The Marienelli cases has been approved in:

United States v. United States Shoe Machinery

Co., 234 Fed. 127, 144;

Sullivan v. Associated B. & D. of U. S8., 272 Fed.

323, 327.

A case which is of the utmost importance I submit is

Ramsey v. Associated Billposters, et al., 260 U. §. 501;

67 L. Ed. 368, reversing the United States Circuit Court

of Appeals for the 2nd Circuit, 271 Fed. 140. This was

an action for damages against the Associated Billposters

under the Sherman Act. Plaintiffs were solicitors of

advertising for customers in many states; they prepared,

designed, purchased and sold billposters, and caused them

to be displayed by local operators throughout the United

States and Canada, contracting with their customers and

Teceiving pay for the entire service of preparing, de-

signing, purchasing and posting the advertisements, and

it was held that they were engaged in interstate com-

merce, and that a combination interfering with the con-

duct of their business was a violation of the Sherman

Act. The court said at p. 370 of 67 L. Ed.:

‘¢Plaintiffs had — a lucrative and profit-

able business when, in July, 1911, the Association

cancelled their licenses and refused to renew the

same. Now, as a result of the defendant’s unlawful

acts, they are disabled from competing in the

markets, and their business is restricted and un-

profitable.

The court below held: ‘The business of the solici-

tors is to send their customers’ advertisements to

be posted on billboards in various towns and cities

throughout the country. Assuming that this busi-

ness is, as between them and their customers, inter-

state commerce, we are clear that after the posters

have arrived at destination, the posting of them by

the billposters is purely local service, not directly

affecting, but merely incidental to, interstate com-

merce, We think this follows from the decision of

the Supreme Court in Hopkins v. United States,

171 U. S. 578, 43 L. Ed. 290, 19 Sup. Ct. Rep. 40.’”

With respect to this statement of the court below this

court said:

‘*We cannot accept this view. The alleged com-

bination is nation-wide; members of the Associa-

tion are bound by agreement to pursue a certain

course of business, designed and probably adequate

materially to interfere with the free flow of com-

merce among the states and with Canada. As a

direct result of the defendant’s joint acts, plain-

tiff’s interstate and foreign business has_been

greatly limited or destroyed. Hopkins v. United

States is not applicable. There the holding was

that the rules, regulations, and practices of the as-

sociation directly affected local business only. The

purpose of the combination here challenged is to

destroy competition and secure a monopoly by lim-

iting and restricting commerce in posters to chan-

nels dictated by the confederates, to exclude from

such trade the undesired, including the plaintiffs,

and to enrich the members by demanding non-

competitive prices. The allegations clearly show

—

the result has been as designed—that the statute

has been violated and plaintiff’s business has suf-

fered.

This court has heretofore laid down and ade-

quately discussed the — principles. (Citing

many cases.) The fundamental purpose of the

Sherman Act was to secure equality o opportunity

and to protect the public against evils commonly

incident to destruction of competition through

monopolies and combinations in restraint of trade.

The alleged actions of defendants are directly op-

posed to this beneficient purpose and are denounced

by the statute.’’

In Aeolian Company against Fischer, and others, Uni-

ted States Circuit Court of Appeals for the Second Cir-

euit, decided April, 1930 (at this writing not reported,

but it will be reported in 37 Federal, 2nd ), the Cir-

cuit Court of Appeals, reversing the District Court

35 Federal, 2nd, 34 held that organ manufacturers who

built parts of organs in one State and erected the

organs in buildings in another were engaged in Interstate

Commerce and that the business of erection was a part

of the interstate commerce, and that a combination of

unions to call strikes in building trades employed on the

buildings in which the organ manufacturers were install-

ing their organs was a conspiracy in restraint of inter-

state commerce.

The Circuit Court of Appeals relied upon Anderson v. |

The Shipowners, 272 U. S. 359; 71 L. Ed. 298 and said:

‘‘The undoubted purpose of the appellees was to

monopolize the work with which the appellants

were concerned, that is, the installation of organs,

and require only their membership or union work-

ers for each = It restricted the liberty of em-

ployers and employees to engage in interstate com-

merce, whenever the employment of non-union

members is involved, and is an interference with

Interstate commerce. It is immaterial whether the

combination is unlawful because it interferes with

the right of non-union men to engage in such part

of interstate commerce or with the right of em-

ployers of non-union men to so e e; the result

is the same. If the combination is legal for either

reason, the person or corporation injured in its or

his property rights is entitled to relief. Chatta-

—— ee Pipe Works v. mg Atlanta,

208 U. S. 390; U. S. v. Colgate & Co. U. S. 300;

Loewe ». Lawler, 226 U. S. 274; U.S. v. Patten,

2296 U. S. 525. Tne ingeiry is not as the court be-

low evnceived it to be, whether or not there was a

combination to exclude the appellants’ organs from

interstate trade or commerce. I/t is as much a vio-

lation of the Sherman Act, as amended by the Clay-

ton Act, for combinations to exclude individuals

from work in interstate commerce, Finding that

the installation of the organ was work in interstate

commerce and that there was a combination directl

to restrict and obstruct that work, the opportuni.

ties of e ing therein was work of interstate

commerce. But the interference with this inter-

siate commerce was not confined to preventing

workmen from engaging in the employment of the

appellants as non-union men. There was a com-

bination to obstruct and interfere with the appel-

lants in carrying out their interstate trade and

commerce in their usual and practical way which, of

itself, was a violation of the act. It is not material

or important whether the restraint operates upon

this interstate commerce at the point of origin or

at the point where it comes to rest. Bedford Stone

Co. v. Journeymen’s Stone Co., 274 U. S. 37; Bin-

derup v. Pathe Exchange Inc., 263 U. S. 291; Ram-

say Co. v. Associated Bill Posters, 260 U. 8. 501;

Duplex Printing Press Co. v. Deering, 26 U. S.

443. The combination formulated by the appellees

to curtail the liberty of the appellants and their

employees to engage in the phase of the interstate

commerce involving installation, was a violation of

the anti-trust laws and their refusals to permit non-

union men to work and striking to interfere with

the work of the appellants in installing organs,

was a violation of the anti-trust acts. Duplex

—

Printing +.<s Co. v. Deering, supra; Bedford

Stone Co. v. Journeymen’s Stone Co., supra.’’

The opinion was by Manton and Chase, J. J. A. N.

Hand, J. filed a concurring opinion.

(2) The conduct of defendants is u combination and

conspiracy in restraint of trade within the meaning of the

Sherman Act, Section 1, Title 15, U. 8. C. A., “Commerce

and Trade,’’ p. 4, Act of July 2, 1890, c. 647, 26, Stat, 209

and within the meaning of Section 12, Title 15, U. 8. C. A.

p. 148, Act of October 15, 1914, c. 323; 38 Stat. 730,

sec. 1, Clayton Act, and is not within the protection of

Section 17, Title 15, U. 8. C. A. p. 210; Act of October 15,

1914, sec. 6.

That the conduct of defendants has the direct effect of

eliminating and suppressing competition can admit of no

question. The evidence is that the enforcement of the

rule will be teat painting work will be confined to local

contractors. Other than local contractors cannot com-

pete. That the conduct of defendants has such an effect

upen interstate commerce as to come within the condem-

natien of the Sherman Act and is not saved by the ex-

emption provisions of the Clayton Act is, I submit, indi-

cated by a consideration of the following cases:

Bedford Cut Stone Co. vy. Journeymen 8S. C.

Ass’n, 274 U. S. 37, 71 L. Ed. 916;

Duples Printing Co. v. Deering, 254 U. S. 443,

65 L. Ea. 349, 16 A. L. R. 196;

Loew v. Lawlor, 208 U. S. 284; 52 L. Rd. 488, 13

Annotated Cases 815;

United States v. Brims, 72 U. S. 549, 71 L. Ed.

403 ;

International Organization v. Red Jacket C. C.

Co., 18 Fed. (2nd), 839.

Pittsburgh Terminal Coal Corporation v. United

Mine Workers of America, et el., 22 Fed. (2nd)

599 ;

American Steel Foundries v. Tri-City C. T.

Council, 257 U. S. 184, 66 L. Ea. 189;

Vonnegut Machinery Co. v. Toledo Machine and

Tool Co., 263 Fed. 192, 200;

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

Decorative Stone Co. v. Building Trades Council,

18 Fed. (2nd) 333, affd. 23 Fed. (2nd) 426.

In Duplex Printing Press Co. v. Deering, 254 U. S. 443,

65 L. Ed. 349, this court, holding that a corporation’s

business is a property right and is entitled to protection

against unlawful injury or interference, said that: if

the purpose be unlawful, it may not be carried out even

by lawful means, and although the purpose be lawful it

may not be carried out by unlawful means; peaceful par-

ticipation, even under the Clayton Act, is as much within

the prohibition as one accompanied by force or threats

and cannot be justified upon the ground that the partici-

pants may have some object beneficial to themselves or

their associates, which possibly they might have been at

liberty to pursue in the absence of the statute; the prin-

cipal importance of Section Six of the Clayton Act is in

what it does not authorize, and the limit it sets to the

immunity conferred, it assuming the normal objects of a

labor organization to be legitimate and that such an

organization shall not be held in itself—because of its

existence and operation—to be illegal, but that section

does not relieve it from accountability for departure from

its normal and legitimate objects, nor authorize it to

engage in an actual combination or conspiracy or permit

a labor organization to become a cloak for an illegal

combination or conspiracy; the first paragraph of Section

20 of the Clayton Act merely puts into statutory form

familiar restrictions already established and of general

application, and it is but declaratory of the law as it

stood before; the restrictive clauses of Section 20 must

be strictly and literally construed; that section does not

——

repeal the prohibitions of the Sherman Act so far as

applicable to labor organizations and does not confer upon

such organizations a control over commerce that is denied

to the governments of the States themselves; and this

court further said:

‘That complainant’s business of manufacturing

printing presses and disposing of them in commerce

18 a property right, entitled to protection against

unlawful injury or interference; that unrestrained

access to the channels of interstate commerce is

necessary for the successful conduct of the busi-

ness; that a widespread combination exists, to

which defendants and the associations represented

by them are parties, to hinder and obstruct com-

plainant’s interstate trade and commerce by the

means that have been indicated; and that as a

result of it complainant has sustained substantial

damage to its interstate trade, and is threatened

with further and irreparable loss and damage in

the future; is proved by clear and undisputed evi-

dence. Hence the right to an injunction is clear

if the threatened loss is due to a violation of

the Sherman Act as amended by the Clayton

Act. * * o 0

In Vonnegut Machinery Co. v. Toledo Machine and Tool

Co., 263 Fed. 192, 200, the court said:

‘The interesting and unique question in the case

however, is whether we have a situation here con-

templated by and within the provisions of the first

paragraph of Section 20 of the so-called Clayton

Act. (Citation), and consequently one in which

the court’s injunctional powers are limited in view

of any construction of the force of that measure.

Concretely the query is whether at the foundation

of this case is a controversy between employer

and employees respecting terms and conditions of

employment. If the Clayton Act is a discrimina-

tory one, being in that respect class legislation, and

assuming that it is yet constitutionally sustainable,

an established and entirely valid rule of construc-

tion is applicable to the effect that the terms used

should be strictly kept to their ordinary and usnal

force and meaning, while maintaining at the same

time consideration of the evident purpose of the

act. A law giving special immunities to a class

necessarily impinges upon the rights of those

against whom tae statutory discriminations operate.

The disturbanve of parity of legal privileges be-

tween parties to a controversy manifestly affects

the right, hence the rule of strict construction

applies (Citation).”?

In American Steel Foundaries v. Tri-City Council, 257

U. S. 184, 66 L. Ed. 189 this court declared that Section

20 of the Clayton Act ‘‘introduces no new principle into

the equity jurisprudence of those (the Federal) courts.

It is merely declaratory of what was the best practice

always,’’ and the court also said:

‘“‘TIt has been determined by this court that the

irreparable injury to property or to a property

right, in the first paragraph of Section 20, includes

injury to the business of an employer, and that the

second paragraph applies only in cases growing out

of a dispute concerning terms or conditions of

employment, between an are and employees,

between employers and employees or between em-

ployees, or between persons employed and persons

seeking employment, and not such dispute between

an employer and persons, who are neither ex-

employees nor seeking employment. Duplex Print-

ing Press Company v. Deering, 254 U. S. 443, 65

L. Ed. 349, 16 A. L. R. 195,41 Sup. Ct.172. * * *”

In Truax v. Corrigan, 257 U. S. 312, 323, 66 L. Ed. 24

this court said:

‘“We have but recently considered the clauses of

section 20 of the Clayton Act sometimes errone-

ously called the ‘picketing’ clause. American Steel

Foundries v. Tri-City Central Trade Council, opin-

ion announced December 5th (257 U. S. 184, ante

A. L. R. 42 Sup. Ct. Rep. 72). They forbid an

injunction in labor controversies prohibiting any

person ‘from attending at any place where any such

person or persons may lawfully be for the purpose

of peacefully obtaining or communicating informa-

[

. $e: 67

tion, or from peacefully persuading any person to

work or to abstain from working; or from ceasing

to patronize or to employ any party to such dis-

pute, or from recommending, advising, or persuad-

ing, others by peaceful and lawful means so to do.’

“We held that under these clauses picketing was

unlawful, and that it might be enjoined as such,

and that ceful picketi>g was a contradiction in

terms which the statute sedulously avoided, but

that, subject to the primary right of the employer

and his employees and would-be employees to free

‘access to his premises without obstruction by vio-

lence, intimidation, annoyance, importunity, or dog-

ging, it was lawful for ex-employees on a strike

and their fellows in a labor union to have a single

representative at each entrance to the plant of the

employer to announce the strike and peaceably to

persuade the employees and would-be employees to

join them in it. We held that these clauses were

merely declaratory of what had always been the law

and ‘he best practice in equity, and we thus applied

them. The construction put upon the same words

by the Arizona supreme court makes these clauses

of PP 1464 as far from those of section 20 of the

Clayton Act in meaning as if they were in wholly

different language.’’

In United States v. Brims, 272 U. S. 549, 71 L. Ed. 403,

6 Fed. (2d) 188, this court, in a case where the facts

showed that a union workman would not work upon non-

union made mill work, and this regardless of whether the

same came from within or without the State of Illinois,

where the agreement was made, and holding the defendants

to be guilty of criminal conspiracy, in violation of the

Sherman Act, said:

‘“‘They wished to eliminate the competition of

Wisconsin and other non-union mills which were

paving lower wages and consequently could under-

sell them. Obviously, it would tend to bring about

the desired result if a general combination could be

secured under which the manufacturers and con-

tractors would employ only union carpenters with

the understanding that the latter would refuse to

install non-union made millwork. And we think

there is evidence reasonably tending to show that

such a combization was brought about, and that, as

intended by all the parties, the so-called outside

competition was cut down and thereby interstate

commerce directly and materially impeded. The

local manufacturers, relieved from the competition

that came through interstate commerce, increased

their output and profits; they gave special dis-

counts to local contractors; more union carpenters

secured employment in Chicago and their wages

were increased. These were the incentives which

brought about the combination. The non-union mills

outside of the city found their Chicago market

greatly circumscribed or destroyed; the price of

buildings was increased; and as usual under such

circumstances, the public paid excessive prices.

The allegations of the bill were sufficient to cover

a combination like the one which some of the evi-

dence tended to show. It is a matter of no con-

sequence that the purpose was to shut out non-union

millwork made within Lllinois as well as that made

without. The crime of restraining interstate com-

merce through combination is not condoned by the

inclusion of intrastate commerce as well.’’

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

274 U. S. 37; 71 L. Ed. 916 this court reversed a decree of

the United States Circuit Court of Appeals for the 7th

Circuit, affirming a decree of the United States District

Court of the District of Indiana, dismissing a bill filed to

enjoin a conspiracy in alleged violation of the Anti-Trust

Acts. The plaintiffs in that action were engaged in the

business of quarrying or fabricating, or both quarrying

and fabricating, Indiana limestone. The Journeymen Stene

Cutters Association was an association of mechanics en-

gaged in the stone cutting trade. Plaintiffs sold some oi

their stone directly to buildings where it was fitted,

trimmed, and set in place and the remainder was sold in

the rough to contractors to be fabricated. The plaintiffs

were operating upon the open shop basis. The General

Union issued a notice to all of its locals and members di-

recting its members not to work on stone ‘‘that has been

started, planed, turned, eut, or semi-finished by men work-

ing in opposition to our organization.’”? Such stone was

termed ‘‘unfair.’’

This court said p. 920:

‘“‘From a consideration vf all the evidence, it is

apparent that the enforcement of the general order

to strike against petitioners’ product could have

had no purpose other than that of coercing or in

ducing the local employers to refrain from pur-

chasing such product, To accept the assertion made

here to the contrary, would be to say that the order

and the effort to enforce it were vain and idle

things without any rational purpose whatsoever.

And indeed, on the argument, in answer to a ques-

tion from the bench, counsel for respondents very

frankly said that unless petitioners’ interstate trade

in the so-called unfair stone were injuriously af-

fected, the strikes would accomplish nothing.’’

‘That the means adopted to bring about the con-

templated restraint of commerce operated after

hysival transportation had ended is immaterial.

oewe v. Lawlor, 208 U. S. 274, 301, 52 L. Ed. 488,

502, 28 Sup. Ct. Rep. 301, 13 Ann. Cas. 815; Boyle v.

er States, 170 C. C. A. 603, 259 Fed. 803, 05,

And further:

Sup. Jt. Rep. 276. Prevention of the use of peti-

tione’'s’ product, which, withovt more might have

n a purely local matter, therefore, was only a

part of the conspiracy, which must be construed as

an entirety; and, when so regarded, the local trans-

actions became a part of the general plan and pur-

pose to destroy or narrow petitioners’ interstate

trade. W. W. Montague & Co. v. Lowry, 193 U. S.

38, 45, 46, 48, L. Ed. 608, 611, 612, 24 Sup. Ct. Rep.

307. In other words, strikes against the local use of

the product were simply the means adopted to

effect the unlawful restraint. And it is this result,

not the means devised to secure it, which gives

character to the conspiracy.’’

Neither the fact that there was no violence involved nor

that one of the objects of the union was legitimate is an

answer if the direct effect, as here, is to restrain interstate

commerce.

United States v. Reading Co., 226 U. S. 324, 57

L. Ed. 243;

Vandell v. United States, 6 Fed. (2d) 188;

Western Union Tel. Co. v. Int. Brotherhood of

Electrical Workers, 2 Fed. (2d) 993, affirmed 6 Fed.

(2d) 444; :

Hitchman Coal & Coke Co. v. Mitchell, 245 U. 8.

229, 62 L. Ed. 260;

United States v. Railway Employees Department

of American Federation of Labor, et al., 283 Fed.

479.

In this latter case the court quoted from Duplex Print-

ing Co. v. Deering, 254 U. S. 443, 65 L. Ed. 349 and United

States v. Patten, 226 U. S. 525, 57 L. Ed. 333 and other

cases in this court, and generally reviewed the law.

The same case again came before the same court in 286

Fed. 228, on motion to dissolve the temporary injunction

and dismiss the bill, which motions were denied, the ques-

tions involved were considered at lengtl:, and th: conten-

tions of the defendant overruled.

Reviewing and citing cases at length, the court further

said:

‘‘Defendant’s construction of section 20 would

confer immunity upon the specified acts when com-

mitted in a labor controversy, even though back of

that controversy there was a conspiracy to over-

throw the government itself. * * * The prin-

ciple that acts lawful in themselves take on an un-

lawful character when they are so interwoven with

acts inherently criminal that the whole plan must

be condemned is one of such frequent application

that it is unnecessary to comment upon it, further

than to mention its application to Gompers v. Buck’s

Stove dé Range Co., 221 U. S. 418.”?

Iv.

The Decision of the District Court was based upon the

Statute of New Jersey heretofore mentioned and its con-

struction by the New Jersey Court of Errors and Appeals

in the New Jersey Painting Company Case, 96 N. J. E.

632; 126 Atl. 399, and the effect is that the District Court

in the instant case has permitted the application of a stat-

ute which, as construed by it, is offensive to the provi-

sions of the Fourteenth Amendment.

The New Jersey statute—‘An act relative to persons

combining and encouraging other persons to combine, ”’

. P. L. 1883, p. 36, 3 Comp. Statutes of New Jersey, p. 3051,

reads 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, or persons, or cor-

poration.’’

In Jonas Glass Co. v. Glass Bottle Blowers’ Association

(1910), 77 N. J. E. 219, at p. 224, 79 Atl. 262, the New

Jersey Court of Errors and Appeals, with respect to the

scope of the act, P. L. 1883, p. 36,3 C. S. of N. J. 3051, said

(p. 224): :

“*Reliance is placed by the defendants upon the

‘Act relative to persons combining and encouraging

other persons to combine.’ P. L, 1883, p. 36; Gen.

Stat. p, 2344, Pl, 23.

—

The enactment is (here follows the act):

‘*In Mayer v. Journeymen Stonecutters’ Asso., 47:

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

apparently treated this act as legalizing private in-

juries. 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 purpose

of its framer, there are, as we think, constitutional’

obstacles in the way of giving the act so extensive

a force,

The rights of enjoying and defending life and

liberty, acquiring, possessing and protecting prop-

erty, and pursuing and obtaining safety and hap-

piness, are declared by our constitution to be un-

alienable. N. J. Const. art. 1, p. 1. No act of the

legislature is to be construed as infringing upon

these rights unless its language goad and clearly

requires such a construction. /f its language so

reads, it is to the extent wmdicated 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 down by the supreme court of this state in

State v. Donaldson, 32 N. J. L. (3 Vr.) 151. It does

not legitimize an invasion of private rights nor

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. (18 Dick.) 443, 447, 448.”’

The same court in Brennan v. United Hatters, 73

N. J. L. 729, at p. 744, 65 Atl. 165, had quoted with ap

proval the statements contained in Frank ¢ Dugan v.

Herold, 63 N. J. E. 443, 52 Atl. 152.

Brennan v. United Hatters, 73 N. J. L. 729, 65 Atl. 165,

and Jonas Glass Co. v. Glass Bottle Blowers’ Asso., 77

N. J. E. 219, 79 Atl. 262 were cited, with approval, in

Frank v. Nat. Alliance of Bill Posters, Supreme Court of

the State of New Jersey, 89 N. J. L. 380, 99 Atl. 134 and,

again, in Dubrow v. Hornstra, 95 N. J. L. 288, at p. 290,

112 Atl. 336 and by the Court of Chancery of New Jer-

sey in Baldwin Lumber Co. v. Local No. 560, etc., 91

N. J. E. 240, 109 Atl. 147 and, again, in Currier & Sons

v. Inter. Molders’ Union, 93 N. J. E. at p. 66, 115 Atl. 66

and, again, by the Court of Errors and Appeals in K euf-

fel @ Esser v. Inter. Asso. of Machinists (1921), 93

N. J. E. 429, 116 Atl. 9.

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

N. J. E. 219, 79 Atl. 262 the vote was ten to four. Min-

turn, J., wrote a dissenting opinion, 77 N. J. E. 225, 79

Atl. 265.

In Keuffel € Esser v. Inter. Asso. of Machinists, 93

N. J. E. 429, 116 Atl. 9 the vote was 9 to 5. There were .

several dissenting opinions. That of Mr. Justice Minturn

is found on p. 439 of 93 N. J. Eq. 429 at page 12 of 116

Atl. Reference to these dissenting opinions will indicate

that the decisions of the New Jersey Court of Errors and

Appeals in Jonas Glass Co. case, and Keuffel & Esser v.

Inter. Asso. of Machinists were reached after a careful

consideration of all that could be said in favor of the

construction now apparently put upon the statute by the

same court in New Jersey Painting Co. v. Local No. 26,

etc., 96 N. J. Eq. 632, 126 Atl. 399 and the court deliber-

ately refused to put that construction upon the statute

and held that, if such a construction were put upon the

statute, it would be unconstitutional.

The decisions in Jonas Glass Co. v. Glass Bottle Blow-

ers’ Asso., 77 N. J. E. 224, 79 Atl. 262 and in Brennan v.

United Hatters, 73 N. J. L. 729, 65 Atl. 165 were written

by Mr. Justice Pitney, afterwards a Justice of this court.

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

Essez Trades Council, 53 N. J. EB. 101, 30 Atl. 881, which

was referred to, relied upon and approved by the New

Jersey Court of Errors and Appeals in Jonas Glass Co.

v. Glass Bottle Blowers’ Asso., 77 N. J..E. 224, 79 Atl.

262 in Truaz v. Corrigan, 257 U. S. 312, 254.

Brennan v. United Hatters, 73 N. J. L. 7 165

was cited with approval by this court in Hitchman Coal

and Coke Co. v. Mitchell, 245 U. S. 229, 62 L. Ed. 260

Both Barr v. Essex Trades Council and Brennan v. Uni-

ted Hatters were cited, with approval, in International

News Service v. Associated Press, 248 U. 8. 215, 63 L. Ed.

211, and in that case this court said:

‘*The rule that a court of equity concerns itself

oy in ~ — of og ets rights treats any

civil ri of a na as a pro

ight; ad the sah te eaweits roperty by “a

labor or the conduct of a lawful business is as much

entitled to protection as the right to guard property

already acquired.’’

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

N. J. E. 219, 223, 41 L. R. A. N. S. 445, 79 Atl. 262 was

cited with approval in Hitchman Coal and Coke Co. v.

Mitchell, (1921) 245 U. S. 229, 62 L. Ed. 260, at p. 278;

and, again, in American Steel Foundries v. Tri-City C. T.

Council, (1921) 257 U. S. 184, 66 L. Ed. 189, at p. 198.

In the opinion in New Jersey Painting Co. v. Local No.

26, etc., et als., 96 N. J. E. 632, 126 Atl. 399, the New

Jersey Court of Errors and Appeals, in disapproving

what that court had previously said, in Jonas Glass Co.

v. Glass Bottle Blowers’ Asso., 77 N. J. E. 219, 41 L. R. A.

(N. S.) 445, 79 Atl. 262, as to the effect of the statute,

said at p. 640: (96 N. J. E.)—‘‘ Employers have no vested

interest in the labor of workers.”’

This may be true, but employers have a vested inter-

est in the free flow of labor, and in the right to make

contracts for the employment of labor, and these rights

may not be interfered with, except for causes which the

law deems adequate, and in no case has the right to the

free flow of labor and the right to be free from unlawful

interference with the relationship of employer and em-

ployee been more strongly asserted than in State v. Don-

aldson, 32 N. J. L. 151 (1867), where the Supreme Court

of New Jersey, said:

“It appears to me that it is not to be denied that

the alleged aim of this combination was unlawful ;

the effort was to dictate to this vag whom he

should discharge from his employ. This was an

unwarrantable interference with the conduct of his

business, and it seems impossible that such acts

should not be, in their usual effects, highly injuri-

ous. How far is this mode of dictation to be held

lawful? If the manufacturer can be compelled in

this way to discharge two or more hands, he can,

by tain ah means, be coerced to retain such work.

men as the conspirators may choose to designate.

So his customers may be prescribed, and his busi-

ness in other respects controlled. I cannot regard

such a course of conduct as lawful. It is no an-

swer to the above considerations to say, that the

employer is not compelled to submit to the demand

of his employees; that the penalty of refusal is sim-

ply that they will leave his service. There is this

coercion; the men agree to leave simultaneously,

in large numbers and by phan gy “ery action. We

cannot close our eyes to the fact, that the threat of

workmen to quit the manufacturer, under these cir-

cumstances is equivalent to a threat, that unless he

yield to their unjustifiable demand, they will de-

range his business, and thus cast a heavy loss upon

him. The workmen who make this threat under-

stand it in this sense, and so does their employer.

In such a condition of affairs, it is idle to suggest

that the manufacturer is free to reject the terms

which the confederates offer. In the natural po-

sition of things, each man acting as an individual,

there would be no coercion; if a single employee

should demand the discharge of a co-employee, the

employer would retain his freedom, for he could

entertain or repel the uisition without embar-

rassment to his concerns; but in the presence of a

coalition of his employees, it would be but a waste

of time to pause to prove that, in most cases, he

must submit, under pain of often the most ruinous

losses, to the conditions imposed on his necessities,

It is difficult to believe that a right exists in law,

which we can scarcely conceive can produce, in any

sture of affairs, other than injurious results. It

is — the right of workmen, by concert of ac-

tion, by taking advantage of their position, to

control the business of another.’’

In Jersey City Printing Company v. Cassidy, 63 N. J. E.

759 (1902) 53 Atl. 230 Vice-Chancellor Stevenson said:

‘‘The underlying right in this particular case

under consideration, which seems to be coming into

general recognition as the subject of protection by

courts of equity, through the instrumentality of

an injunction, appears to be the right to enjoy a

certain free and natural condition of the labor

market, which, in a recent in the house of

lords, was referred to, in the language of Lord

Ellenborough, as a ‘probable expectancy.’ This

underlying right has otherwise been broadly de-

fined or described as the right which every man

has to earn his — or to pursue his trade or

business, without undue interference, and might

otherwise be described as the right which every

man has, whether employer or employee, of abso-

lute freedom to employ or to be 3 The

peculiar element of this perhaps newly-recognized

right is that it is an interest which one man has

in the freedom of another.’’

‘*A large part of what is most valuable in modern

life seems to depend more or less directly upon

‘probable expectancies.’ When they fail, civiliza-

tion, as at present organized, may go down. As

social and industrial life develops and grows more

complex these ‘probable expectancies’ are bound

to increase. It would seem to be inevitable that

courts of law, as our system of jurisprudence is

evolved to meet the growing wants of an increas-

ingly complex social order, will discover, define and

protect from undue interference more of these

‘probable expectancies.’ ’’

‘‘In undertaking to ascertain and define the rights

and remedies of employers and employees, in re-

spect of their ‘probable expectancies’ in relation

to the labor market, it is well not to lose sight alto-

gether of any other analogous rights and remedies

which are based upon similar ‘probable tan-

cies.’ It will proba ly be found in the end, I think,

that the natural expectancy of employers in relation

to the labor market and the natural expectancy of

merchants in respect to the merchandise market

must be recognized to the same extent by courts of

law and courts of equity and protected by sub-

stantially the same rules,”’

**It is freedom in the market, freedom in the pur-

chase and sale of all things, including both goods

and labor, that our modern law is endeavoring to

insure to every dealer on either side of the market.

The valuable thing to merchant and to customer, to

employer and to employee, manifestly is freedom

on both sides of the market. The merchant with

his fortune invested in goods and with perfect

freedom to sell, might be ruined if his customers

were deprived of their freedom to buy; the pur-

chaser, a householder, seeking supplies for his

family, with money in his pocket and free to buy

might find his liberty of no value and might suffer

from lack of food and clothing if the shopmen who

deal in these articles were so terrorized by a power-

ful combination as to be coerced into refusing to

sell either food or clothing tohim. * * *»

‘‘A man establishes a large factory where work-

ing people reside, taking the risk of his being able

to conduct his industry and offer these working

people employment which they will be willing to

accept. He takes the risk of destructive competi-

tion and a large number of other risks, out of

which, at any time, may come his financial ruin and

the suspension of his manufacturing works. But

our law, in its recent development, undertakes to

insure to him, not only that he may employ whom

he pleases, but that all who wish to be employed by

him may enter into and remain in such employment

freely, without threats of harm, without unreason-

able molestation and annoyance from the words,

actions or other conduct of any other persons acting

in combination.’’ (Italics the court’s.)

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

(1894), 30 Atl. 881 Vice-Chancellor Green said at page 112:

‘¢A man’s business is property. By the first sec-

tion of the bill of rights of the constitution of New

Jersey, the right of acquiring, possessing and pro-

tecting property is classed, as @ natural and in-

alienable right which all men have, with those of

enjoying and defending life and liberty, and of

pursuing and obtaining safety and happiness. This

is an echo of Magna Charta repeated in the De-

claration of Independence. Mr. Justice Bradley, in

the Slaughter House Cases, 16 Wall. 36 (at p

116) says: ‘For the preservation, exercise and en-

joyment of these rights (life, liberty and the pur-

suit of happiness) the individual citizen, as a neces-

sity must left free to adopt such calling, pro-

fession or trade as may seem to him most con-

ducive to that end. Without this right he cannot

be a freeman. This right to choose one’s calling is

an essential part of that liberty which it is the

object of the government to protect, and a calling,

when chosen, is a man’s property and right. (Italics

the court’s.) Liberty and property are not pro-

tected where these rights are arbitrarily assailed.”

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

165) the New Jersey Court of Errors and Appeals at p.

744, said:

‘Our Court of Chancery in Barr v. Essex Trades

Council, 8 Dick. Ch. Rep. 101, 115; Frank & Dugan v.

Herold, 18 Dick. 443, and Jersey City Printing Co.

v. Cassidy, Id. 759, has affirmed the right of the

citizen to conduct his business free from malicious

interference, including his right to have free op-

portunity to hire employees. And we may remark

that the right of one seeking employment to have

free opportunity to gain employment, and to retain

a position of employment once it is gained, is as

precious in the eye of the law as the right of the

employer.”’

And substantially the statement was repeated in Jonas

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

p. 223, 41 L. R. A. (N. S.) 445, 79 Atl. 262.

That right was expressly recognized by this court in

Truaz v. Raich, 239 U. 8. 33, 38, 60 L. Ed. 131, 134 and

Hitchman Coal and Coke Co, v. Mitchell, 245 U. 8. 229,

62 L Ed. 260, at p. 276.

It is a mistake to say that this right to the free flow of

labor is any new right. It was recognized at common law.

It was the basis of the rule at common law that it was an

indictable conspiracy to entice away a servant which was

the justification for the decision of the Supreme Court

of New Jersey in State v. Donaldson, 32 N. J. L. 151 to the

effect that it was an indictable conspiracy for several em-

ployees to unite to compel a person to quit his employ-

ment. It is =. necessary right in the conduct of a business.

It is as necessary as the right to be free to sell an article

of commerce, What can it profit a man if he has the right

to build a manufacturing establishment without unrea-

sonable interference and to sell the product which he shall

manufacture without such interference if he have not the

right to obtain employees to manufacture the article with-

out unreasonable interference?

That right is property. Being property, it is protected

from being interfered with by the Legislature, both under

the Constitution of the State and the Fourteenth Amend-

ment of the Federal Constitution. It is not, I repeat, ‘‘a

vested interest in the labor of workers.’’ It is a vested

interest in the right to make contracts, and to employ

workers without unreasonable interference.

In Allgeyer v. State of Louisiana, 165 U. S. 578, 41

L. Ed. 832, this court said:

“‘The liberty mentioned in that amendment means,

not only the right of the citizen to be free from

the mere physical restraint of his person, as by in-

carceration, but the term is deemed to embrace the

right of the citizen to be free in the enjoyment of

all his faculties; to be free to use them in all lawful

ways; to live and work where he will; to earn his

livelihood by any lawful calling; to pursue any

livelihood or avocation, and for that purpose to

enter into all contracts which may be proper, neces-

sary and essential to his carrying out to a successful

conclusion the purposes above mentioned.”’

And to the same effect is Lochner v. New York, 198 U.S.

45, 49 L. Ed. 937.

I now come to a decision of this court which I urge

clearly indicates that, if the statute is to be construed as

the New Jersey Court of Errors and Appeals in New Jer-

sey Painting Co. v. Local No. 26, 126 Atl. 399, 96 N. J. E.

632, and as the court below, construed it, the act is uncon-

stitutional, 7. e.,

Traux v. Corrigan, 257 U. S. 320, 66 L, Ed. 254.

In that case there came before this court the refusal of

the Supreme Court of the State of Arizona to grant an

employer an injunction against a conspiracy and boycott,

one of the concomitants of the conspiracy and boycott

being picketing. The Supreme Court of Arizona rested

its decision upon a statute of Arizona which, as construed

by that court, prevented it from prohibiting picketing 80

long as peaceful, and, as the late Chief Justice of this

court said in delivering the opinion of this court:

“The effect of this ruling 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 violence

was shown or claimed, the campaign carried 01,

as described in the complaint and exhibits, did not

unlawfully invade complainants’ rights.”’

——__oOoO_

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 opinion of the State Supreme Court in this

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

grants 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 sur-

rounding that business, such as regulations of the

State for maintaining peace, good order and pro-

tection 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.’’

It was sought to sustain the statute under New York

Central R. R. Co. v. White, 243 U. S. 188, 61 L. Ed. 667,

upon the ground that the State had control over the rela-

tions of employees and employers and that they were a

class by themselves. This court said, 66 L. Ed. 261:

‘*These cases, all of them, relate to the liabilities

of employers to employees growing out of the re-

lation of employment for injuries received in the

course of employment. They concern legislation as

to the incidents of that relation. They affirm the

power of the State to vary the rules of the com-

mon law as to the fellow-servant doctrine, assump-

tion of risk, and negligence in that relation. They

hold that employers have no vested right in those

rules of the common law. The broad distinction

between one’s right to protection against a direct

injury to one’s fundamental property right by an-

other who has no special relation to him, and one’s

liability to another with whom he establishes a vol-

untary relation under a statute, is manifest upon

its statement. It is true that no one has a vested

right in any particular rule of the common law,

but it is also true that the legislative power of a

State can only be exerted in subordination to the

fundamental principles of right and justice which

the guaranty of due process in the Fourteenth

Amendment is intended to preserve, and that a

purely arbitrary or capricious exercise of that

wer, whereby a wrongful and highly injurious

invasion of property rights, as here, is practically

sanctioned and the owner stripped of all real rem-

edy, is wholly at variance with those principles.’’

This court held that, if the statute should be construed

as merely to withhold from the parties a remedy through

equitable relief by injunction, it was void as denying the

equal protection of the law.

The 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.

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