"As we have pointed out, it was not unlawful for the strikers to use legitimate argument and moral suasion in presenting their case to those who offered to take their places, so long as it is neither coercive nor intimidating in character. In affirming the judgment, direction is given to so amend the decree as to make it accord with the opinion of the court in this particular."

In Hoster Brewing Co. v. Giblin (14 Ohio Dec., 305), it was held that striking employees have a right to maintain a patrol of pickets of such persons as they may detail from their number for the purpose of observing who go to and from the place of employment, to enable them to exercise the right which they have of trying to persuade other men from taking their places.

Like expressions were given in Jones v. Maher (116 N. Y. Supp., 180; affirmed without opinion in 141 App. Div., 919; 125 N. Y. S., 1126) and in Fletcher Co. v. International Association of Machinists (55 Atlantic, 1027); Levy v. Rosenstein (100 N. Y. S., 101); Kerbs v. Rosenstein (56 App. Div., 619; 67 N. Y. S., 385); Standard Tube & Forkside Co. v. International Union (7 Ohio N. P., 87); Perkins v. Rogg (11 Ohio Dec., reprint, 585); Everett-Waddey Co. v. Richmond Typographical Union (53 S. E., 273).

FEDERAL CASES TOUCHING GENERAL SUBJECT OF ARGUMENT.

In other connections we have referred to Federal cases touching this general subject, and we shall now add a few additional authorities.

It seems to us that the case of Francis v. Flinn (118 U. S., 385, 30 Law. Ed., 165) is exactly in point. There a suit was brought in equity to restrain the defendants from doing things charged against them intended to injure the plaintiff and destroy his property and business. It was said that the defendants had combined for the purpose of plaintiff's destruction by publication in the newspapers and by various suits, and by injunctions, etc., but the court said that:

The whole gist of the complaint is that the defendants do not treat the plaintiff as having a right to use his vessel as a pilot boat, and have publicly so stated, and that some of the parties mentioned have been subjected to suits for their acts in piloting. But if this be so, the plaintiff has a full remedy for his alleged wrongs in the courts of law. They furnish no ground for the interposition of a court of equity. If the plaintiff has a right to pilot vessels with his boat through the pass and is wrongfully interfered with by the defendants or others, he can prosecute them for the wrong. If his vessel is arrested in its passage, without lawful warrant, he can bring the defendants before the courts to answer for their conduct. If his pilots are duly licensed, and they are hindered or prevented from the exercise of their business, both he and they have the same means of redress which are afforded to every citizen whose rights are invaded and obstructed. If the publications in the newspapers are false and injurious, he can prosecute the publishers for libel. If a court of equity could interfere and use its remedy of injunction in such cases, it would draw to itself the greater part of the liti gation properly belonging to courts of law."

We do not cite or comment upon the case of Loewe v. Lawlor (208 U. S., 274, 52 Law. Ed., 274), as the questions decided in that case relate exclusively to boycotting, and because of the later adoption of the Clayton Act.

We may refer to the Paine Lumber Co. v. Neale (244 U. S., 459, 61 Law. Ed., 1256). In this case there was concerted action to prevent the use of nonunion-made material manufactured in other States, and an injunction was refused as not permissible under the Sherman Act because sought at the instance of a private party. In the opinion of the majority, however, it is said that "as this court is not the final authority concerning the laws of New York, we say but a word about them. We shall not believe that the ordinary action of a labor union can be made the ground of an injunction under those laws until we are so instructed by the New York Court of Appeals. (National Protective Association v. Cummings, 170 N. Y., 315, 58 L. R. A., 135, 88 An. St. Rep., 618, 63 N. E., 369).”

The opinion of Mr. Justice Pitney in dissent, referring to the Clayton Act, says hat section 6 safeguards these (labor) “organizations while pursuing their legitimate objects by lawful means, and prevents them from being considered, merely because organized, to be illegal combinations or conspiracies in restraint of trade."

In Soma v. Aluminum Castings Co. (214 Fed., 936), it is aid that "picketing when accompanied by violence, or any manner of coercion or intimidation, to prevent others from entering or remaining in the service of their employer, is unlawful," indicating clearly that picketing without violence, coercion, or intimidation remains lawful, and, therefore within the language alike of the Arizona statute and of the Clayton Act.

In Gill Engraving Co. v. Doerr (214 Fed., 111) (a strike and boycott case) the judge found that "the great and all-absorbing object of defendant's endeavors was and is to get all the work in the trade or, at any rate, all the work worth having, for their own members," and an injunction was refused.

In Stoner v. Roberts (43 Washington Law Rep., 437), Justice McCoy of the Supreme Court of the District of Columbia held, as correctly stated in the syllabus, that "the stationing by a labor union whose members are on strike because of differences with certain breweries regarding the terms of employment of pickets in front of the premises of a saloon keeper to inform patrons of said saloon keeper that he sold nonunion beer, is not unlawful and will not be enjoined, where the proof shows that such picketing is entirely peaceful and has in it no element of intimidation of would-be patrons."

SUMMARY AS TO CASES TOUCHING PICKETING AND AFFECTING THE CONSTITUTIONALITY OF THE ARIZONA STATUTE.

Certain things are made perfectly clear from a consideration of the foregoing cases; one is that in no single instance, according to the reports, has any court, State or Federal, declared such acts as the Arizona act under consideration and the Clayton Act to be in the slightest degree unconstitutional; nor has any court in any reported case furnished the slightest justification for a declaration of unconstitutionality. On the other hand, time and again the courts have recognized the perfect right of the legislative authority to do away with proceedings by injunction, leaving to the law court determination of the question of the infliction of real and unlawful damage.

It is, of course. true, as we have stated, that in certain instances injunctions have been granted and sustained where resort has been had, or is threatened, to coercion, intimidation and unlawful threats and violence, including violation of State statutes and municipal ordinances designed for the vindication of order. Where attempts have been made to bring about the breaking of contracts, injunction has also, in many cases, been permitted, but with this branch of the subject we are not called upon to deal.

The naked proposition enunciated by plaintiffs is that in the case of a peaceful strike, with relation to which members of labor organizations have informed the public by spoken or printed words, the plaintiff has a property right in having their mouths shut and their pens stopped. No court has ever enunciated such a doctrine save two or three which have held as a matter of law that there is no such thing as peaceful picketing. In view of the citations we may say without need of further argument on the subject, that there is no principle of law declaring picketing to be necessarily disorderly and no property right in the plaintiffs in the maintenance of any such absurd proposition.

EQUAL PROTECTION OF THE LAWS.

In alleging that the Arizona statute here under review violates that provision of the fourteenth amendment to the United States Constitution providing for equal protection of the laws, appellants allege a discrimination which the words of the statute surely do not justily. That law does not hold in favor of any particular class, or against any other particular class, but instead makes a provision as to "any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment." A broader classification could hardly be conceived, as nearly the entire human race can be grouped under the words "employers or employees." The only possible exception would be the extremely small number of professional or business men who have no clerk or assistant or servant whatsoever, and who, at the same time, do not sustain the relation of employee to any other individual; and in addition a few of those who do no work and have no business, hence may be considered the drones of society. It is not apparent how either of these small groups is discriminated against by not having the benefit of paragraph 1464 of the Civil Code, Revised Statutes of Arizona 1913.

It is indisputable that the lawmaking body has the power to create certain classications in enacting legislation, and were this not so the subjects upon which the legislature could enact statutes would be very limited indeed.

The cases selected by plaintiffs in error in support of their contention on this point do not sustain their argument. That from the California Reports (Goldberg, Bowen & Co. v. Stablemen's Union, 149 Calif., 429) shows upon its face that the words relied upon are mere obiter dicta; for the court first holds that the statute could not be construed as undertaking to prohibit it from enjoining the wrongful acts charged in the complaint, and then remarks (unnecessarily) that "if it could be so construed it would to that extent be void."

As to the opinion of justices of the Supreme Judicial Court of Massachusetts (211 Mass., 618), that can have no application here because the proposed statute there considered was one in favor of "a trade union or an association of employers," and undertook to confer special privileges upon combinations, whether of employers or laborers, and at the same time to deny them to employers who were not members of a combination. It placed a premium upon the fact of employers or laborers combining, and to that extent deprived individuals who either employed or were employed from having the same benefits. It was a clear discrimination in favor of associated employers and of trade unions, and to that extent it was violative of the constitutional guaranty against a denial of the equal protection of the laws.

The words in that statute are so fundamentally different from those of the Arizona statute involved in the instant case that opposing counsel must have been hard pressed for an argument to rely upon that opinion.

As to Bogni v. Perotti (224 Mass., 152), the same involved a Massachusetts statute, a portion of which was somewhat similar to part of the Arizona statute now under discussion; but the remainder of that law was utterly different from this, and, consequently, the ruling of the Massachusetts court is not pertinent here. Thus, under section 2 of that act the right to work or to employ others was held and construed to be "a personal and not a property right," and, consequently, the court held, all of the guarantees built up by the Federal and the State constitution around property rights were attempted to be swept away in so far as was concerned the right to enter into and continue in the relation of employer or employee. The Arizona statute makes no such provision.

Moreover, sections 1 and 3 of the Massachusetts law placed a premium on combinations of laborers, and that resulted in the acts of intimidation which led to the bringing of the action by Bogni et al. They were members of an unincorporated association, whereas the defendants were officers of a labor union duly incorporated. The latter had caused the former to be discharged from their employment and had prevented them from getting other employment by intimidating their employers or prospective employers, and thus had deprived them of their right of securing work-and the Massachusetts law assisted them by declaring that such right was not a property right but a mere personal one.

It will thus be noted that the Massachusetts statute, declared unconstitutional in Bogni v. Perotti, was considered one passed in the interest and for the benefit of combinations of labor, thus discriminating against individual laborers and against all employers, and for that reason it was possibly more objectionable than the proposed law considered in the opinion of justices (supra). But both of those Massachusetts provisions were wholly different from the Arizona law here under consideration, as this law provides equally for employers and employees and gives no advantage to combinations of either, as against uncombined and unassociated workmen and em ployers.

While plaintiffs in error have quoted at length from the language of the Massachusetts court in the case cited, they have failed to mention that portion of it which distinguishes that case from cases like the one at bar. We will, accordingly, quote that here:

"Doubtless the legislature may make many classifications in laws which regulate conduct and to some extent restrict freedom. So long as these have some rational connection with what may be thought to be the public health, safety, or morals, or in a more restricted sense, 'so as not to include everything that might be enacted on grounds of mere expediency,' the public welfare, they offend no constitutional provision. (Commonwealth v. Strauss, 191 Mass., 545, 550.) Booth v. Indiana, (237 U. S., 391); Tanner v. Little (240 U. S., 369), where many cases are collected." The court also characterized as the gist of the whole case "the preference attempted to be conferred upon combinations of labor by the act," and we submit that is the real basis of the ruling in Bogni v. Perotti.

* *

*

In addition to the two decisions of this court above cited, we refer to that in Singer Sewing Machine Co. v. Brickell (233 U. S., 304), in which it was held that an act of the State of Alabama providing for the taxation of companies selling sewing machines, but making an exception in favor of those selling them from stores rather than from delivery wagons, was not a violation of the provision of either the Federal or the State Constitution guaranteeing equal protection of the laws.

Likewise to the recent decision of this court in International Harvester Co. v. Missouri (234 U. S., 199), wherein it was ruled that an act of that State prohibiting combinations of companies engaged in the sale of certain commodities was not unconstitutional by reason of its failure to prohibit similar combinations of employees, etc. In that case, and likewise in the Singer Sewing Machine case, this court characterized the right of the State to make classifications as a very broad one and to be interfered

with only upon a clear showing that it resulted in denying the equal protection of the laws. These decisions, and praticularly the International Harvester one, have digested the cases on the subject so exhaustively that it seems hardly necessary for us to do more than cite them. Certainly the “discrimination" alleged by plaintiffs in error in the present case is no greater, to say the least, than those in the Alabama and Missouri laws, held by this court to be not unconstitutional in the two cases cited.

JACKSON H. RALSTON,

WILEY E. JONES,

SAMUEL HERRICK,
STANLEY D. WILLIS,
Attorneys for Appellees

(The decision of Mr. Justice Pitney, in the case of Duplex Printing Press Co. v. E. J. Deering and William Bramley, referred to and submitted by Mr. Wallace, is as follows:)

[Supreme Court of the United States. No. 45, October term, 1920.]

Duplex Printing Press Co., appellant, v. Emil J. Deering and William Bramley, individually and as business agents of district No. 15 of the International Association of Machinists, et al.

Appeal from the United States Circuit Court of Appeals for the Second Circuit. (Jan. 3, 1921.)

Mr. Justice Pitney delivered the opinion of the court.

This was a suit in equity brought by appellant in the District Court for the Southern District of New York for an injunction to restrain a course of conduct carried on by defendants in that district and vicinity in maintaining a boycott against the products of complainant's factory, in furtherance of a conspiracy to injure and destroy its good will, trade, and business-especially to obstruct and destroy its interstate trade. There was also a prayer for damages, but this has not been pressed and calls for no further mention. Complainant is a Michigan corporation and manufactures printing presses at a factory in Battle Creek, in that State, employing about 200 machinists in the factory in addition to 50 office employees, traveling salesmen, and expert machinists or road men who supervise the erection of the presses for complainant's customers at their various places of business. The defendants who were brought into court and answered the bill are Emil J. Deering and William Bramley, sued individually and as business agents and representatives of district No. 15 of the International Association of Machinists, and Michael T. Neyland, sued individually and as business agent and representative of Local Lodge No. 328 of the same association. The district council and the lodge are unincorporated associations having headquarters in New York City, with numerous members resident in that city and vicinity. There were averments and proof to show that it was impracticable to bring all the members before the court and that the named defendants properly represented them; and those named were called upon to defend for all, pursuant to equity rule 38 (226 U. S., 659). Other jurisdictional averments need no particular mention. The district court, on final hearing, dismissed the bill (247 Fed. Rep. 192); the circuit court of appeals, affirmed its decree (252 Fed. Rep. 722); and the present appeal was taken. The jurisdiction of the Federal court was involved both by reason of diverse citizenship and on the ground that defendants were engaged in a conspiracy to restrain complainant's interstate trade and commerce in printing presses, contrary to the Sherman Antitrust Act of July 2, 1890 (ch. 647, 26 Stat., 209). The suit was begun before but brought to hearing after the passage of the Clayton Act of October 15, 1914 (ch. 323, 38 Stat., 730). Both parties invoked the provisions of the latter act, and both courts treated them as applicable. Complainant relied also upon the common law; but we shall deal first with the effect of the acts of Congress.

The facts of the case and the nature of the relief prayed are sufficiently set forth in the report of the decision of the circuit court of appeals (252 Fed. Rep., 722). The case was heard before Circuit Judges Rogers and Hough and District Judge Learned Hand. Judge Rogers, although in the minority, stated the case and the pleadings for the court (pp. 723-727) and delivered an opinion for reversal in which he correctly outlined (pp. 734-737) the facts as shown by the undisputed evidence defendants having introduced none. Judges Hugh and Hand followed with separate opinions for affirmance, not, however, disagreeing with Judge Rogers as to the facts. These may be summarized as follows. Complainant conducts its business on the "open shop" policy, without discrimination against either union or nonunion men. The individual defendants and the local organizations of which they are the representatives are affiliated with the International Association of Machinists, an unincorporated

association having a membership of more than 60,000; and are united in a combination, to which the International Association also is a party, having the object of compelling complainant to unionize its factory and enforce the "closed shop," the 8hour day, and the union scale of wages, by means of interfering with and restraining its interstate trade in the products of the factory. Complainant's principal manufacture is newspaper presses of large size and complicated mechanism, varying in weight from 10,000 to 100,000 pounds, and requiring a considerable force of labor and a considerable expenditure of time-a week or more-to handle, haul, and erect them at the point of delivery.

These presses are sold throughout the United States and in foreign countries; and, as they are especially designed for the production of daily papers, there is a large market for them in and about the city of New York. They are delivered there in the ordinary course of interstate commerce, the handling, hauling, and installation work at destination being done by employees of the purchaser under the supervision of a specially skilled machinist supplied by complainant. The acts complained of and sought to be restrained have nothing to do with the conduct or management of the factory in Michigan, but solely with the installation and operation of the presses by complainant's customers. None of the defendants is or ever was an employee of complainant, and complainant at no time has had relations with either of the organizations that they represent. In August, 1913 (eight months before the filing of the bill), the international association called a strike at complainant's factory in Battle Creek, as a result of which union machinists to the number of about 11 in the factory and 3 who supervised the erection of presses in the field left complainant's employ. But the defection of so small a number did not materially interfere with the operation of the factory, and sales and shipments in interstate commerce continued. The acts complained of made up the details of an elaborate program adopted and carried out by defendants and their organizations in and about the city of New York as part of a country-wide program adopted by the international association, for the purpose of enforcing a boycott of complainant's product. The acts embraced the following, with others: Warning customers that it would be better for them not to purchase, or having purchased not to install, presses made by complainant, and threatening them with loss should they do so; threatening customers with sympathetic strikes in other trades; notifying a trucking company usually employed by customers to haul the presses not to do so, and threatening it with trouble if it should; inciting employees of the trucking company, and other men employed by customers of complainant, to strike against their respective employers in order to interfere with the hauling and installation of presses, and thus bring pressure to bear upon the customers; notifying repair shops not to do repair work on Duplex presses; coercing union men by threatening them with loss of union cards and with being blacklisted as "scabs "if they assisted in installing the presses; threatening an exposition company with a strike if it permitted complainant's presses to be exhibited; and resorting to a variety of other modes of preventing the sale of presses of complainant's manufacture in or about New York City, and delivery of them in interstate commerce, such as injuring and threatening to injure complainant's customers and prospective customers, and persons concerned in hauling, handling, or installing the presses. In some cases the threats were undisguised, in other cases polite in form but none the less sinister in purpose and effect. All the judges of the circuit court of appeals concurred in the view that defendants' conduct consisted essentially of efforts to render it impossible for complainant to carry on any commerce in printing presses between Michigan and New York; and that defendants had agreed to do and were endeavoring to accomplish the very thing pronounced unlawful by this court in Loewe v. Lawlor (208 U. S., 274; 235 U. S., 522). The judges also agreed that the interference with interstate commerce was such as ought to be enjoined, unless the Clayton Act of October 15, 1914, forbade such injunction.

That act was passed after the beginning of the suit but more than two years before it was brought to hearing. We are clear that the courts below were right in giving effect to it, the real question being whether they gave it the proper effect. In so far as the act (a) provided for relief by injunction to private suitors, (b) imposed conditions upon granting such relief under particular circumstances, and (c) otherwise modified the Sherman Act, it was effective from the time of its passage, and applicable to pending suits for injunction. Obviously, this form of relief operates only in futuro, and the right to it must be determined as of the time of the hearing. State of Pennsylvania v. Wheeling & Belmont Bridge Co. (18 How., 421, 431-432). (See, also, United States v. Schooner Peggy (1 Cranch 103, 110; Sampeyreac v. United States, 7 Pet., 222, 239240; Mills v. Green, 159 U. S., 651, 653; Dinsmore v. Southern Express Co., 183 C. S., 115, 120; Berry v. Davis, 242 U. S., 468, 470).

The Clayton Act, in section 1, includes the Sherman Act in a definition of “antitrust laws," and, in section 16 (38 Stat., 737), gives to private parties a right to relief by