Allis-Chalmers case will afford sufficient and proper guidance for the modification of the decree herein."

While the case was decided adversely to the general contentions of the union, it is worthy of note under the point we are now specially considering, that the court, in Stephens v. Ohio State Telephone Co. (240 Fed., p. 759, District Court, Northern District of Ohio), said:

"The statute but enacts the position which courts have universally taken; there is nothing new in it, for we hold that no case exists where a court has attempted jurisdiction to control lawful and peaceable action by injunction, although it may seem that sometimes judgment may have been faulty as to what particular action was 'unlawful or 'provocative of a disturbed peace.' * If its (Local 245 of the International Brotherhood of Electrical Workers) members will confine their strike activities within the limits of the Clayton Act, then whatever embarrassment ensues to the company will be no illegal interference."

**

In the case of Puget Sound Traction Light & Power Co. v. Whitley (243 Fed., 945), it said: "There is no statement in the complaint or any of the supporting affidavits charging any one of the defendants with any act of destruction of complainant's property * * nor is there any allegation that the picketing that is carried on is not peaceable and in accordance with the provisions of the Clayton Act (act, Oct. 15, 1914, chap. 323, 38, Stat., 730). There is the allegation that picketing will not be done peaceably, but no act is charged as the basis for the conclusion for future conduct.

*

*

"If the defendants were engaged in peaceable picketing, that is recognized by the Clayton Act, which must control the act of this court."

In Kroger Grocery & Baking Co. v. Retail Clerks' International Protective Associa tion (250 Fed., p. 890), the court said:

"By that act (the Clayton Act) Congress has seen proper to limit the powers of courts of the United States, sitting as courts of equity, to grant injunctions in disputes between employers and employees, except in certain cases."

* *

*

"It is a mistake to suppose that by these provisions of the act, any act or acts which were unlawful at the time the act was passed were legalized; the only effect of this act is to prevent United States courts, sitting as courts of equity, from granting injunctions in the cases mentioned therein; but so far as the legality of the acts is concerned, if they were illegal at that time, they are illegal to-day, and if the plaintiff has been damaged thereby, he may obtain from the courts any remedy which could have been obtained before that time, except an injunction."

Evidently, the court did not believe, as in effect is contended for by the plaintiff's brief, that the plaintiff had a property right in the peculiar processes of a court of equity.

Discussing the subject of picketing, the court said:

"So far as the distribution of the circulars is concerned, they had a perfect right to distribute them if it was done peaceably. They had a perfect right to say to persons who were in the habit of trading in the stores that 'I wish you would not trade there; we have been clerks employed there, and have not been treated fairly, we have not been receiving wages that will allow us to live properly when the cost of living is sohigh; if you people will stand by us, and refuse to trade with these people until they grant us the relief to which we think we are justly entitled,' they may do so. That would not have been illegal so as to justify an injunction under the Clayton Act." In Duplex Printing Press Co. v. Deering (247 Fed., 192) peaceful picketing was held legal, and the provisions of the Clayton Act held in force and are constitutional.” This case was affirmed (252 Fed., 722) by a majority of the court.

The provisions of the Clayton Act have not been directly under discussion in the Supreme Court of the United States, but have received incidental reference in the case of Hitchman Coal & Coke Co. v. John Mitchell (245 U. S., 249, 62 Law. Ed., 2€0; decided under a state of facts created before the passage of the Clayton Act), and Paine Lumber Co. v. Neal (244 U. S., 459, 61 Law Ed., 1256). In neither of these cases was there any suggestion on the part of either the majority or minority of the court that the labor provisions of the Clayton Act were unsatisfactory. In the latter case the minority opinion by Mr. Justice Pitney expresses no view that the Clayton Act can be called into question, while discussing at length the inapplicability of the act to the particular state of facts under discussion.

PICKETING.

We have pointed out that what had really been done by the defendants as charged in the bill of complaint, was simply to communicate by print or word of mouth to possible customers of the plaintiffs the fact that plaintiffs' restaurant was, in the opinion of

the defendants, unfair to organized labor, that, therefore, in essence, what the plaintiffs were seeking to do was to suppress for their benefit freedom of speech and of the press, rights as dear to the defendants as any supposed right of property could be to the plaintiffs.

As the exercise of freedom of speech and of the press took a form which has sometimes been denominated as picketing, we find it necessary (though from our point of view, simply as illustrative) to review many of the decisions of the courts and authorities which may be grouped under the head of “picketing." Before doing so, however, let us advert briefly to the argument of the plaintiffs. Their brief seeks to confuse such "picketing" as has been indulged in by the defendants (peaceful and orderly communication of desires by word of mouth or printed characters) with the general subject of boycotting, with which it has but an incidental relation, and even in this respect the brief, unconsciously, doubtless for the most part begs the real question in the case, the character, lawful or unlawful, of the defendants' action. For instance, the brief declares (pp. 19 and 20) that a large number of authorities vindicate a man's right to carry on his business as a property right "free from unlawful interference" without defining the adjective. To this point, on page 20, is quoted Watson v. Sutherland (5 Wallace, 74, 18 Law. Ed., 580), showing that injunction is available to protect the right to carry on business "free from unlawful interference;" on page 22, Crump v. Commonwealth (84 Va., 927; 6 S. E., 620), as justifying injunction when it is sought to injure another by preventing any and all persons from doing business with him "through fear of incurring the displeasure, persecution, and vengeance of the conspirators;" on page 23, the case of Brace Bros. v. Evans (5 Pa. Co. Ct., 163), is quoted on the subject of boycotting" as having reference to persuasion, intimidation and other acts which tend to violence, and on the same page, Toledo, Ann Arbor & North Michigan Railway Co. v. Pennsylvania Co. (54 Fed., 730), is quoted to sustain a definition of " "boycotting," including coercion and threats, neither of which apply in this case. On page 24 the case of Hopkins v. Oxley Stave Co. (83 Fed., 912) is likewise quoted with reference to "boycotts" "by means of threats and intimidation." On page 25, Gompers v. Buck's Stove & Range Co. (221 U. S., 418), is quoted with reference to the power of organized labor "when unlawfully used against one," and certain acts are referred to "whereby property is unlawfully damaged." On page 27, the case of Atchison, Topeka & Santa Fe Railway Co. v. Gee (139 Fed., 582) is cited to show that in that instance violence was threatened by gesticulations, menaces, and harsh names to the persons addressed, and none of which exist in this case. Some of the language of Allis-Chalmers Co. v. Iron Molders' Union (150 Fed., 155), a case which is opposed to the plaintiffs' position, as modified and corrected in 166 Fed., 45, is quoted to define what would be unlawful intimidation, again not existing in this case. And, similarly, Kolley v. Robinson (187 Fed., 415) is cited to the same point.

It is perfectly evident from the foregoing that the unlawful means referred to in nearly all of the plaintiffs' citations are threats of personal damage leveled at the person addressed, violence, coercion, and intimidation, none of which elements is to be found set out in the bill of complaint.

While plaintiffs' cases are leveled especially at what is called a boycott, a quite different subject matter, let us review some of the authorities touching picketing

cases.

In Martin's Law of Labor Unions, section 72, it is said with abundance of citation that:

"In a preceding chapter it has been shown that in aid of a lawful strike, it is lawful to use peaceable persuasion and argument to induce other workmen in the employ of the person against whom the strike has been declared, and not bound by contract for a definite term to quit his service, or to induce other workmen not in his employ not to enter his service. There is practically no dissent from this doctrine, and by parity of reasoning, it is not unlawful for members of a union, or their sympathizers, to use in aid of a justifiable strike peaceable argument and persuasion to induce customers of the person against whom the strike is in operation to withhold their patronage from him, although their purpose in so doing is to injure the business of their former employer and constrain him to yield to their demands, and the same rule applies where the employer has locked out his employees. These acts may be consummated by direct communication or through the medium of the press, and it is only when the combination becomes a conspiracy to injure by threats and coercion the property rights of another, that the power of the courts can be invoked. The vital distinction between combinations of this character and boycotts is that here no coercion is present, while, as was heretofore shown, coercion is a necessary element of a boycott.” (Italics author's.)

"So it has been held that the circulation by members of a labor union, acting in concert, of circulars stating certain facts and requesting every member and all other justly thinking persons not to buy goods from a person therein designated, and the putting up of posters having on them the words, 'Scab labor! Don't patronize!' (the complaining witness) is not a criminal conspiracy within a statute making it a misdemeanor for two or more persons to conspire to prevent another from exercising a lawful trade or calling or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property used by such person. Labor organizations, it was said, have a right to appeal to the community and request that they withhold patronage from one who does not give fair compensation for labor."

STATE CASES AS TO PICKETING.

Let us now refer to some of the many cases in which peaceful picketing such as has been indulged in by the defendants is declared entirely lawful.

The fundamental principles involved are most thoroughly discussed in the case of Commonwealth v. Hunt (38 Am. Dec., 346, 4 Metcalf., 111).

An interesting illustration in this case of Chief Justice Shaw's point of view is afforded by the following extract:

"Suppose a baker in a small village had the exclusive custom of his neighborhood and was making large profits by the sale of his bread; supposing a number of those neighbors, believing the price of his bread too high, should propose to him to reduce his prices or if he did not that they would introduce another baker, and on his refusal such other baker should under their encouragement set up a rival establishment and sell his bread at lower prices; the effect would be to diminish the profit of the former baker and to the same extent to impoverish him. And it might be said and proved that the purpose of the associates was to diminish his profits and thus impoverish him, though the ultimate and laudable object of the combination was to reduce the cost of bread to themselves and their neighbors. The same thing may be said of all competition in every branch of trade and industry, and yet it is through that competition that the best interests of trade and industry are promoted. It is scarcely necessary to allude to the familiar instances of opposition lines of conveyances, rival hotels, and the thousand other instances, where each strives to gain custom to himself by ingenious improvements, by increased industry, and by all the means by which he may lessen the price of commodities and thereby diminish the profits of others.

"We think, therefore, that associations may be entered into, the object of which is to adopt measures that may have a tendency to impoverish another-that is, to dimin ish his gains and profits and yet, so far from being criminal or unlawful, the object may be highly meritorious and public spirited."

The highest court of Massachusetts has held that right to employment, which is strictly analogous with right to sell to a community, is a personal right and does not involve property. (See Worthington v. Waring, 157 Mass., 421; 32 N. E., 744.)

In the case of Macauley v. Tierney (19 R. I., 255; 33 Atlantic, 1), injunction was forbidden where a master plumbers' association affiliated with a national body agreed not to purchase supplies from any wholesalers who sold to plumbers not members of the association, and notified certain wholesalers, as well as members of the association, to that effect.

The case of Johnston Harvester Co. v. Meinhardt (60 Howard Practice, 168, affirmed 24 Hun, 489), is interesting as showing that when common law rules relative to the issuance of injunctions are done away with no property right is necessarily affected. The defendants were charged with inducing employees to leave plaintiffs by persuasion, personal appeals, the giving of traveling expenses, etc., and it was held that the laws of 1870, chapter 19, having altered the common law rule, there was no ground for injunction.

The case of Foster v. Retail Clerks' Association (78 N. Y. Supplement, 860; 39 Misc., 48) is very much in point. Retail clerks of Syracuse had struck against the plaintiffs for a reduction of hours of labor; they distributed circulars declaring plaintiff had been declared unfair, and endeavored to persuade customers and union men to stay away from the store and maintained pickets. No injunction issued.

National Protective Association v. Cummings (170 N. Y., 315; 63 N. E., 369) is useful as declaring the right of men to refuse to work for any reason, and that it is not illegal to threaten to do what one has a legal right to do; that the motive of helping members of the union to gain employment and of protecting them against the negligence of fellow employees was a good one.

Mills v. U. S. Printing Co. (99 App. Div., 605; 91 N. Y. Supp., 185) shows that a boycott is not necessarily illegal; that one has a right to refuse to deal with another

and that a combination may do what one can so long as there is no unlawful object in view; that two or more may, by persuasion and entreaty, bring others to their side. Although the effect of the combination is to injure another, when the result sought is to protect the members of a combination or to enhance their welfare the loss is but an incident of the act, the means whereby the ultimate end is gained.

In Butterick Publishing Co. v. Typographical Union No. 6 (100 N. Y. S., 292. 50 Misc., 1) a strike occurring, the defendants were allowed to send circulars throughout the United States requesting customers not to purchase plaintiff's publications, or those printed by plaintiff for customers.

In Bohn Manufacturing Co. v. Hollis (54 Minn., 223; 55 N. W., 1119) an injunction against a trade boycott indulged in by the Northwestern Lumbermen's Association was refused, the court holding that any man could refuse to deal with any class of men as he saw fit unless under contract obligation and that combination did not make such act illegal.

In the case of Marx & Haas Clothing Co. v. Watson (168 Mo., 133; 67 S. W., 391) injunction was sought to restrain the defendants, garment workers of St. Louis on strike against the plaintiffs, manufacturers, from visiting customers and endeavoring to persuade them to cease dealing with plaintiffs, in some cases threatening them with loss of business unless they acceded to demands, but in no cases threatening physical violence. It was held that injunction would not issue where there was no intimidation through fear of personal violence or of destruction of property, but only the mere abstaining from business relations and the persuading of others to do likewise. That issuance of injunctions would mean the denial of the right of free speech granted by the Constitution, and would prevent workmen from telling the story of their supposed wrongs. The impecunious character of the defendants constituted no argument for an injunction.

The right to peacefully picket is recognized in Berry Foundry Co. v. International Molders' Union (177 Mo. App., 84; 164 S. W., 245).

A later Missouri case is that of Ex parte Heffern (163 S. W., 652, St. Louis Court of Appeals), in which it was held that injunction would not issue restraining defendants, singly or in numbers, from stationing themselves or congregating upon sidewalks adjoining or in front of plaintiff's business for the purpose of distributing cards or circulars concerning plaintiff or its business, or of addressing remarks concerning plaintiff, or its business, to persons along the sidewalk; that the court was without power to restrain parties from thus using the sidewalk unless they did so with a view of interfering with plaintiff's business, its employees, or patrons, through threats, violence, or intimidation, or by persuading persons desiring to patronize it, or cause them to desist therefrom against their will, except to restrain the free ingress and egress about plaintiff's premises. Such would be a private nuisance through continued trespass.

The same court in Root v. Anderson (207 S. W., 255), quite recently held, following the case last cited, and the case of St. Louis v. Gloner (210 Mo., 502; 124 Am. St. Rep., 750), that picketing in the sense in which that word is used under such circumstances, for the purpose alone of peaceful persuasion, argument, or entreaty, is not unlawful or actionable. The case was one of boycott of a theater, the declaration reciting circulation of false circulars, picketing, statements to persons about to attend that plaintiff employed scab labor, etc.

In the case of Steffes v. Motion Picture, etc., Union (136 Minn., 206), the court allowed the display of banners describing plaintiff's place as unfair to organized labor, and relied on Gray v. Building Trades Council (91 Minn., 171; 63 L. R. A., 753; 103 Am. St. Rep., 477) as showing that mere notification of unfairness was not a threat or unlawful, further citing Foster v. Retail Clerks, etc., and Butterick v. Typographical Union above cited. The case of Rorabach v. Motion Pictures Union (163 N. W., 766) was distinguished because there the cause of attack was plaintiff's working for himself. Ordinary picketing to aid the union was recognized as having a lawful purpose. The case of Richter v. Journeymen Tailors (24 Weekly Law Bulletin, 189, Ohio) was one for injunction, in which it was sought to enjoin libelous circulars. The defendant had placed on walls, buildings, and bulletin boards in the vicinity of plaintiff's business posters stating that the public should shun scab shops, and sent letters to the public alleged to contain libelous statements. A court of equity was held without jurisdiction to intervene.

In the case of Riggs v. Waiters' Alliance Local (5 Ohio N. P., 386) injunction was sought to restrain distribution of so-called libelous circulars. Waiters on strike displayed placards and distributed circulars in front of and in the vicinity of plaintiff's premises which stated that plaintiff was on the unfair list and requested customers not to patronize it. The circulars were alleged to be libelous. It was held, however, 53203-21

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that such acts could not be enjoined on the ground that they were a nuisance, as the public highway was not obstructed and that equity will not interfere by injunction to restrain publication or circularization of a libel. "Where the gist of the injury is purely personal, as, for instance, in cases of a libel, the fact that it may be injurious to property does not give a court jurisdiction." To restrain such libel would be to interfere with freedom of speech and liberty of the press; abuse of this right may only be punished criminally or subject the offender to civil suit for damages.

In the case of State v. Van Pelt (136 N.C., 633, 49 S. E., 177) carpenters and joiners had notified the employer that he would not be considered in sympathy with organized labor unless he employed only union men and discharged his nonunion men, some of whom were under contract relations with him, and on his refusal to accede to their demands published a resolution in a newspaper that the employer was unfair, and that henceforth union men would refuse to work on material from his shop. The court held that defendants had a right to publish a statement setting forth that they had done, or intended to do, acts which they had a legal right to do.

In the case of J. P. Parkinson Co. v. Building Trades Council (154 Calif., 581; 98 Pacific, 1027) injunction was asked for because of a boycott involving patronage. The defendants had struck against the proprietor of a lumber, plumbing, and tinning shop because of his employment of a nonunion man, and sent circulars to plaintiff's customers stating that his shop was unfair and that union men would not work for any contractors purchasing supplies from him. A number of customers ceased dealings, some canceling unfilled orders. It was held that no injunction should be granted; that the purpose of the strike to secure the employment only of union men was lawful, as was the ruling of the council that no union men should handle nonunion goods; that fair dealing required that contractors be informed of the status of the plaintiff; and that, therefore, the sending of notice was justifiable. Judge Sloss declared that the defendants had the right to cease to deal with one pursuing a course detrimental to them and with one aiding by their patronage the offenders' detrimental policies; that defendants had a legal right to refuse to enter into business relations with others. and that threats to exercise their legal right would not be considered unlawful.

In Pierce v. Stablemen's Union (156 Calif., 70; 103 Pac., 324), where the defendants had instituted a boycott establishing a picket and using menacing language, the appellate court held that the strikers had the right by all legitimate means-by fair publication and fair oral or written persuasion-to induce others interested in or sympathetic with their cause to withdraw their social intercourse and business patronage from the employer.

In the case of Lindsay v. Montana Federation of Labor (37 Mont., 264; 96 Pac., 127), injunction was granted by the lower court against circulars calling upon all laboring men and those in sympathy with organized labor not to patronize the plaintiff, the demand being made, as was stated, for the protection of those appealed to, and “for the protection of organized labor.' The supreme court, however, held that as it was not unlawful for an individual to withdraw his patronage from the plaintiff, or from any other concern which might be doing business with him for any reason, it was not for a combination; that the defendants could not be enjoined from boycotting unless they used unlawful means; that the only means here used was the publication of a circular, and that a court of equity might not enjoin its publication. If libelous it could only be reached by civil or criminal process.

In the later case of Theater Co. v. Cloke (53 Mont., 183) the defendants used banners, declared boycott, published orally that the theater was unfair, and said so to persons in front of it and about to enter, and the court said that he could so publicly publish and announce "without committing a nuisance, stop every person in the city and communicate their message, so long as they did not take their stand in the immediate vicinity of the theater, and there demean themselves so as to create an obstruction to the plaintiff's free use of the property or of an obstruction of the streets as a means of access thereto."

In the case of Union Labor Hospital Association v. Vance Redwood Lumber Co. (158 Calif., 551; 112 Pac., 886) the defendants, employers of labor, gave their employees tickets which would admit them to four hospitals of the city, excluding plaintiff's, but it was held that no malicious intent to injure the plaintiff's business was shown, and even if malice existed, defendants exercised a legal right, and motive under these conditions was immaterial; that the intimidation was purely moral and not illegal and no element of monopoly entered into it.

In Karges Furniture Co. v. Amalgamated Woodworkers' Local (165 Ind., 421; 2 L. R. A. (N. S.), 788), it was held that peaceful picketing designed to persuade employees to join strikers was not unlawful.

In Jones v. Van Winkle Bin & Machinery Works (131 Ga., 336; 17 L. R. A. (N. S.), the court said: