Hardie-Tynes Mfg. Co. v. Cruise , 189 Ala. 66 ( 1914 )

SOMEBVILLE, J.

The English and American courts have, Ave believe, AAdthout exception, held that the right to conduct one’s business, without the Avrongful and. injurious interference of others, is a valuable property right which will be protected, if necessary, by the injunctive processes of equity.—Gray v. Build, Trades Council, 91 Minn. 171, 97 N. W. 663, 63 L. R. A. 753, 103 Am. St. Rep. 447, 485, 1 Ann. Cas. 172; Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am.. St. Rep. 443; Beck v. R. T. P. Union, 118 Mich. 497, 77. N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421, 429.

They seem to- be unanimous, also, in holding that employees may rightfully organize themselves into associations for mutual protection and betterment; and that, having thus organized, they may by confederated action withdraw from, .or decline to enter, the service of any particular employer. And it may be further said that there is practically no judicial dissent from the proposition that in the accomplishment of their purposes of self-protection and self-betterment employees or nonemployees have no right to' use threats, intimidation, or violence against or upon employers, or upon their employees or strangers to induce them to- leave or not enter the service of the, former.—24 Cyc. 830, 831.

With respect to the “peaceful persuasion” of others not to enter an employer’s service, it may, perhaps, be said that such'a right is generally recognized by the courts, and injunctive relief, against it is denied, though it is to be noted that interference with existing contracts of service by inducing .those SO' contracting to violate their agreements is such a wrong as may be enjoined in equity.—24 Cyc. 838, and cases cited.

In regard to the practice of “picketing,” as that term is commonly understood, the courts are not in harmony. The consensus of judicial opinion is admirably stated in the following excerpt from the case note to Jensen v. C. & W. Union, 39 Wash. 531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302: “The lawfulness or unlawfulness of ‘picketing’ in the United States—as subsequently shown, it is otherwise in England in consequence of statutory provisions — must be determined in view of the fundamental principle, upon which all the courts are agreed, that the boundary between lawful and unlawful conduct in the effort to induce persons, not under contract, to leave another’s employment, is the line between peaceable persuaision und intimidation. As a practical matter, however, it is not always easy to determine exactly when peaceable persuasion ceases and intimidation commences, or so to frame an injunction that it will, in its practical operation, prevent intimidation without infringing the right of peaceable persuasion. Open threats, much less actual violence, are not an indispensable accompaniment or condition of intimidation. That which in appearance and outward form is but peaceable persuasion may, by virtue of the intent which lies behind it or the circumstances which surround it, carry a menace the practical effect of which is intimidation. Indeed, it is quite conceivable that, under the circumstances generally surround-ing a strike or other labor difficulty, that which was in good faith intended as peaceable persuasion, and designed merely to influence the voluntary action of employees or persons seeking employment, may by reason of the timidity or unprotected condition of persons upon whom it is exerted, operate practically as intimidation or coercion. Picketing a place of business where a strike is in progress, though in intent as well as in outward appearance maintained for the lawful purpose of persuading the classes of persons mentioned, has almost inevitably some tendency to-intimidate individuals belonging to those classes. This tenclency lias induced a few courts, though they are in decided minority, to condemn picketing per se and under all circumstances as unlawful, or at least to enjoin picketing without qualification or exception by reference to intimidation, though even in cases of this kind the showing upon which injunctions have been granted has included facts indicating that the picketing had been accompanied by threats or other conduct amounting to actual intimidation.”

It is further said by the same writer (4 L. R. A. [N. S.] 304) : “Most of the cases that have passed upon the lawfulness of ‘picketing/- and whether the same should be enjoined, have expressly or in effect conceded that picketing is not per se unlawful, and that, if strictly and in good faith confined to the purpose of gaining information as to what persons remain in the employment, or what persons are seeking employment, or of peaceably persuading such persons, if not under contract, to leave the employment, or not to enter the employment, it Avill not be enjoined.”

It may be noted here that “pickets,” a Avord more or less appropriately borrowed from the nomenclature of warfare, is defined by the dictionaries as: “A body of men belonging to a trades union, sent to Avatch and annoy men Avorking in a shop not belonging to the union, or against which a strike is in progress.” — Century Dictionary; Webster’s Dictionary.

It is obvious that upon the established principles of the common law, and without the aid of statutory provision, the bill of complaint in this case contains equity ; and, indeed, this does not seem to be seriously controverted.

It is, however, urged on behalf of the respondents that the bill is demurrable in so far as it seeks to prevent peaceable picketing and the peaceable persuasion of complainant’s workmen to leave their employment. Conceding, without deciding, that the demurrers raise this point, and that the iveight of authority in other states sustains it, the statutes of this state do not permit us to so hold. We notice briefly these provisions:

“Any person who entices, decoys, or persuades any apprentice or servant to leave the service or employment of his master” is guilty of a misdemeanor. — Section 6849, Code of 1907.

This section was construed in Abingdon Mills v. Grogan, 167 Ala. 146, 52 South. 596, as being applicable not only to menial servants, but also the employees of a mill;,and in Tarpley v. State, 79 Ala. 271, it was held that a similar statute was not obnoxious to the Constitution of the State.,

“Any two or more persons who conspire together for the purpose of preventing any person, persons, firm, or corporation from carrying on any lawful business within the State of Alabama, or for the purpose of interfering with the same, shall be guilty of a misdemeanor.”^-Section 6394, Code 1907.

“Any person or persons who go near to or loiter about the premises or place of business of any person, firm, or corporation engaged in a lawful business,- for the purpose of influencing * * * others not to trade with, buy from, sell to, or have business dealings with, such person, firm, or corporation, or to picket the works or place of business of such other person, firm, or corporation for the purpose of interfering with or injuring any lawful business or enterprise, shall be guilty of a misdemeanor.” — Section .6395, Code 1907.

“Any person who, by force-or threats of-violence to person or property, prevents, or seeks to prevent, another from doing work or furnishing materials, for or to any person engaged in any lawful- business, or who disturbs, interferes with, or prevents, or in any manner- attempts to prevent the peaceable exercise of any lawful industry, business, or calling by any other person, must, on conviction, be fined, etc.”— Section 6856, Code 1907.

The meaning and purpose of these provisions are, we think, too- plain for serious discussion. Sections 6394 and 6856 are broad enough to include even the peaceful persuasion of would-be employees not to serve an employer, if its intention and effect is to- prevent the operation of a lawful business. And while the courts do not undertake to enjoin the conspiracy itself, the execution of the conspiracy would be a criminal tort against the employer’s property rights which may be prevented by injunction. Section 6395 is more specific in its inhibition of such forms of “peaceful interference,” and expressly forbids picketing when it is done “for- the purpose of interfering with or injuring any lawful business or enterprise.” Perhaps our Legislature has taken the view, adopted by some of the courts, that in actual practice there is and can be no such thing as peaceful picketing or peaceful persuasion. Certainly this is the effect of our statutes.

It is hardly necessary to say that every criminal act which injures the person or property of another is also a civil tort, redressible by the courts, and preventable in proper cases by injunctive process. The allegations of the bill, the single purpose of which is to- protect the business and property rights of the complainant against injury by the confederated and unlawful acts of the respondents, brings its aims and equities within the principles and provisions of the common law and statutes above adverted to.

It is suggested by counsel for respondents that our construction of section 6395, as being an inhibition of picketing even where threats or violence are not used, renders it unconstitutional. No intimation is offered as to what provision of the Constitution is thereby offended, and we can think of none. Certain it is that a right to actively and directly interfere with and prevent the operation of the lawful business of another is not included among the inalienable rights of “life, liberty, and the pursuit of happiness.” The “liberty” guaranteed by the Constitution (article 1, § 1) is liberty regulated by law and the social compact; and in order that all men may enjoy liberty it is but the tritest truism to say that every man must renounce unbridled license. So, wherever the natural rights of citizens would, if exercised without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulations of municipal law. If one man asserts the constitutional right of preventing another from the pursuit of a lawful business, what is to become of the undoubted constitutional right of that other person to pursue his business unmolested? It is clear that this notion of liberty utterly ignores “the other fellow,” and denies to him the very freedom it claims for itself.

We gather from the opinion of the chancellor that he intended to sustain demurrers only to certain paragraphs of the bill — 7 to 12, inclusive. The decree,' however, in express terms sustains the demurrers to “the bill of complaint,” which at least includes the grounds of want of equity and multifariousness— grounds which from their very nature can relate only to the bill as a whole. The chancellor’s opinion may explain his reasons for the decree, but it cannot qualify the decree itself. As the bill contains equity, and is not multifariousness, the decree is manifestly erroneous in this respect. But, if his action were referable only to the demurrers assigned to the separate paragraphs- of the bill as noted, it would be equally erroneous, because based upon a misconception of the bill, and a misapplication of the rule announced in M. & W. R. R. Co. v. Walton, 13 Ala. 208.

The purpose of the bill, as already noted, is single, viz., to protect the property rights of complainant against the unlawful acts of respondents, which are threatened to be done in the execution of a conspiracy betwen the respondents and others. As evidence of the general as well as the specific intention of the conspirators, the bill charges th'e commission of sundry injurious and unlawful acts by respondents on their co-conspirators — all done for the purpose of interfering with complainant in the lawful conduct of its business, and all tending to- its injury in that behalf.

If the bill were filed merely for the purpose of preventing criminal acts of violence threatened against complainant or its employes, actual or prospective, it would be within the rule declared in M. & W. R. R. Co. v. Walton, supra, on the authority of which alone the chancellor bases his action. In that case it was said: “The courts of law have complete jurisdiction to punish the commission of crimes, and can interpose to prevent their commisiso-n by imprisoning the offender, or binding him to keep the peace. But equity has no-jurisdiction over such matters, at least a court of equity cannot, entertain a bill oh this ground alone.” (Italics ours.).

This qualification has been several- times recognized and applied by this court: “The mere fact that an act is criminal does not divest the jurisdiction of equity to prevent it by injunction, if it be also- a violation of property rights, and the party aggrieved has no other adequate remedy for the prevention of the irreparable injury which will result from the failure or inability of a court of law to redress such rights.”—Port of Mobile v. L. & N. R. R. Co., 84 Ala. 115, 126, 4 South. 106, 112 (5 Am. St. Rep. 342).

See, also, Brown v. Birmingham, 140 Ala. 590, 601, 37 South. 173; In re Debs, 158 U..S. 564, 593, 15 Sup. Ct. 900, 39 L. Ed. 1092.

That the jurisdiction arises to prevent such acts of trespass as are here threatened, by reason of their disturbance of property rights, is thoroughly well settled.—Vegelahn v. Gunter, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443; Arthur v. Oakes, 63 Fed. 310, 11 C. C. A. 209, 25 L. R. A. 414; 24 Cyc. 836b.

A paragraph or part of a bill cannot be separately subject to demurrer unless it attempts to exhibit a separate and distinct basis or aspect for equitable relief.

“A demurrer to part of a bill, on the other hand, is proper when the bill presents more than one claim or basis for the suit, though the bill be not made multifarious thereby, and one of them is not a good claim, or does not constitute a cumulative ground for relief; so that the statement of it merely cumbers the cause and should be stricken out.”—Sims’ Chan. Prac. § 429, and cases cited.

The bill in this case is clearly not of that character, but must be treated as a unit. Its'essential equity .in its single aspect is stated in paragraphs 3 and 4, supplemented by paragraphs 11, 12, and 13. Paragraph 2 is by way of inducement merely. And paragraphs 5 to 10, inclusive, set up general causes and specific instances of threats and unlawful conduct in support and illustration of complainant’s charges of conspiracy and intention to injure on the part of respondents and their confederates.

The character, animus, and aims of such a conspiracy may be as well illustrated by its manifestations against other employers in the same district at about the same time, as by those directed against complainant alone; and the bill charges that all are part of one common plan and purpose.

We are of the opinion that none of the demurrers are well taken. The decree of the chancery court will be reversed, and a decree will be here rendered overruling the demurrers to the bill of complaint and to its several paragraphs separately and severally.

Reversed and rendered.

Anderson, C. J., and Mayfield and de Graffenried, JJ., concur.