Casey v. Cincinnati Typographical Union No. 3

45 F. 135, 12 L.R.A. 193, 1891 U.S. App. LEXIS 1713

• Court: U.S. Circuit Court for the District of Southern Ohio
• Decided: January 31, 1891
• Status: Published

Opinion

Sage, J.,

(after stating the facts as above.) After the presentation of the facts up n the hearing of the motion, the court called upon counsel for ■the defendants to state the grounds of their objections to the granting of an injunction. They first challenged the jurisdiction in equity, citing Kidd v. Horry, 28 Fed. Rep. 773; Society v. Roosevelt, 7 Daly, 188, 190; Assurance Co. v. Knott, L. R. 10 Ch. 142; Richter v. Tailors' Union, 24 Wkly. Law Bul. (Sept., 1890,) 189; Mayer v. Association, (N. J., Nov., 1890,) 20 Atl. Rep. 492; Mogul Steam-Ship Co. v. McGregor 15 Q. B. Div. 476; and Moores v. Brick-Layers Union, 23 Wkly. Law Bul. 48.

Kidd v. Horry was an application to restrain the defendant by injunction from publishing certain circulars alleged to be libelous and injurious to complainants’ patent-rights and business, and from making and uttering libelous and slanderous statements concerning the validity of complainants’ letters patent or their title thereto, or concerning their business, (luring the pendency of a suit to restrain the infringement of said patents. Justice Bradley, who decided the ease, in the course of his opinion said that the application rested principally upon a line of recent English authorities, which depended on certain acts of parliament, and not on the general principles of equity jurisprudence, but that neither the statute law of this country, nor the well-considered judgment of a court, had introduced this new branch of equity into our jurisprudence. “There may be a case or two looking that way, but none that we deem of sufficient authority to justify us in assuming the jurisdiction. * * * Wo do not think that the existence of malice in publishing a libel, or uttering slanderous words, can make any difference in the jurisdiction of the court. Malice is charged in almost every case of libel, and no cases of authority can be found, we think, independent of statutes, in which the power to issue an injunction to restrain a libel or slanderous words has ever been maintained, whether malice was charged or not.”

This case was approved and followed in Wheel Co. v. Bemis, 29 Fed. Rep. 95, by Judges Colt and Carpenter, in the United States circuit court of Massachusetts. To the same effect, see Boston Diatite Co. v. Florence Manuf'g Co., 114 Mass. 69. Mr. Justice Gray was then the chief justice of the supreme court of Massachusetts, and pronounced the opinion, holding that “the jurisdiction of a court of chancery does not extend to cases of libel or of slander or of false representations as to the character or quality of the plaintiff’s property, or as to his title thereto, which involve no breach of trust or of contract.” Upon the authority of this case, and of Assurance Co. v. Knott, the supreme court of Massachusetts held in Whitehead v. Kitson, 119 Mass. 484, that there was no jurisdiction in equity to restrain a person falsely representing that the plaintiff’s patent infringed a patent owned by himself, and thereby deterring others from purchasing the plaintiff’s invention.

The case in 7 Daly was upon a motion to vacate a preliminary injunction, which had been granted, restraining the defendants, as members or visitors of the state board of charities, from publishing the proceedings before them in their inspection and examination, under the statute, of the affairs and conduct of the complainant and its officers, which proceedings, it was averred, were secret and ex parte, the society having been excluded'from being present by counsel, and not allowed to cross-examine witnesses or produce testimony on its own behalf, or to know even, except from the publications of the proceedings, what charges were made against it or its officers. The court held that, conceding the facts as stated, and that the matter published was defamatory and libelous, the defendants could not be restrained by a court of equity, and that those injured must seek their remedy by a civil action, or by an indictment in the criminal courts; the exercise of any equitable jurisdiction to restrain publications being repugnant to the constitutional provision that every citizen may fairly speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right, and that no law should be passed to restrain the liberty of speech and of the press.

In Assurance Co. v. Knott the court was asked to restrain the publication of a pamphlet which, it was charged, contained false statements of the rates oLpremium charged bj1, complainant, and represented the company as being managed with reckless extravagance, and as being in a state of insolvency, and unable to fulfill its engagements; and it was averred that the continued publication would be very injurious to the company’s credit, and could not fail greatly to damage its business and diminish its profits. Hall, V. C., refused to grant an injunction, and the plaintiff, .by way of appeal, applied to Lord Cairns, L. C.,'who held that there was nb ground whatever for the interference of the court; that if the publications did not amount to. libels, and were therefore innocuous and justifiable in the eye of the court of common law, he was at a loss to Understand upon what principle the court of‘chancery could' interfere; and if, on the other hand, the comments were libelous, it was clearly settled that the court of chancery had no jurisdiction to restrain their publication.

In Richter v. Tailors' Union, a similar rule was applied. In that case the petition set forth that the defendants unlawfully combined and conspired to break up and destroy plaintiff’s business, and that in order to accomplish that purpose they maliciously compelled plaintiff’s employes to quit, working for them, and prevented others from working for them. The means by which this was accomplished Ayere not specified. “Whether it was done by. moral suasion, by argument, by reason, or by intimidation and violence, is not shown by either the petition or the evidence.” All that did appear was that the defendants printed and published circulars, and that the plaintiff had lost customers because the latter had heard that plaintiff was employing scab or inferior tailors. It was. not shown from what source the alienated customers derived their information, but it was assumed by counsel for the plaintiff that it was from the circulars. The court held that the only question before it was whether it could enjoin the publication of a libel, and that the only remedy against such publication, was at law. To the same effect is Mayer, v. Association. .Indeed, the law as stated in all these cases is so thoroughly established as to be beyond controversy, and it is not necessarv to refer more particularly to other cases cited in support of it. Francis v. Flinn, 118 U. S. 385, 6 Sup. Ct. Rep. 1148, is quite as strong an authority as any cited.

The question with which we have to deal is whether this case falls within the rule. That the defendant, the typographical union, sot on foot a boycott against the complainant, as stated in the bill, and in the affidavits on file, is not denied. That tins boycott was to be enforced by threatening loss of business to those who, having no connection with the union, should continue to advertise with, or in any way patronize, the complainant, is clearly shown. True, it is claimed that no throats were used; but the language of the circulars has no'doubtful moaning. The affidavits oil file show that it was perfectly understood by those "who received them; and the circumstances indicate that it was intended that it should be so understood. In Brace v. Evans, 3 Ry. & Corp. L. J. 561, it was held that the word “boycott” is in itself a threat. “In popular acceptation it is an organized effort to exclude a person from business relations with others, by persuasion, intimidation, and other ads which fend to violence, and thereby coerce him, through fear of resulting injury, to submit to dictation in the management of his affairs.” Rut it is insisted for the defendants that every representation of fact contained in their hand-bills and circulars is true; that is to say, that the complainant' had, in 1888, broken with the typographical union, discharged all union employes, and had since that date employed only those who were not members of the union; and that after repeatedly promising to unionize his office he had finally, in September, 1890, refused to do so, and declared that he would not employ any person who was connected with the union. All those are conceded facts. Therefore, argue counsel for the defendants, this is only a case of lawful competition. The complainant having declared that he would not employ any member of the union, the union had a right to say that its members would not patronize the complainant. Nobody disputes that proposition. If that were all that is involved in tlds case, there would be nothing for the court to act upon. But it is not all by any means. Instead of “fair, although sharp and bitter, competition,” as is contended by counsel, it was an attempt, by coercion, to destroy all competition affecting the union. It was an organized conspiracy to force the complainant to yield his right to select his own workmen, and submit himself to the control of the union, and allow it to regulate prices for him, and to determine whom he should employ and whom discharge. In other words, it was and is an organized effort to force printers to come into the union, or be driven from their calling for want of employment, and to make the destruction of the complainant’s business Liu: penalty for his refusing to surrender to the union. Whatever moral obligation may have been incurred by complainant by reason of his promises to unionize his office, they were wholly without consideration, and they amount to nothing whatever in law or in equity.

Ño case has been cited where, upon a proper showing of facts, an unsuccessful appeal has been made Lo a court of chancery to restrain a boycott. The authorities are all the other way. At common law an agreement to control the will of employers by improper molestation was an illegal conspiracy. In New York it has been held that the “boycott” is a conspiracy in restraint of trade. People v. Wilzig, 4 N. Y. Crim. R. 403; People v. Kostka, Id. 429. So, also, in Virginia: Com. v. Shelton, 11 Va. Law J. 324. And in Connecticut: State v. Glidden, 3 Atl. Rep. 890. And in England: Reg. v. Barrett, 18 L. R. Ir. 430.

In Emack v. Kane, 34 Fed. Rep. 47, the United States circuit court for the northern district of Illinois held that equity had jurisdiction to restrain an attempted intimidation by one issuing circulars threatening to bring suits for infringement against persons dealing in a competitor’s patented article, the bill charging, and the proof showing, that the charges of infringement were not made in good faith, but with malicious intent to injure complainant’s business. Judge Blodgett recognized, in his decision, the authority of Kidd v. Horry and Wheel Co. v. Bemis, cited for the defendants in this case, but said that the case before him was fairly different and distinguishable from those cases in a material and vital feature. In those cases the interference of the court was sought to restrain the publication of libelous attacks upon the property of the complainant. In Knack v. Kane the gist of the complaint was that the publications were only means employed to carry into effect a malicious intent to injure and destroy the complainant’s business. Judge Blodgett said:

“I cannot believe that a man is remediless against persistent and continued attacks upon his business, such as have been perpetrated by these defendants against the complainant, as shown by the proofs in this case. It shocks my sense of justice to say that a court of equity cannot restrain systematic and methodical outrages like this by one man upon another’s property rights. If a court of equity cannot restrain an attack like this upon a man’s business, then the party is certainly remediless, because an action at law, in most cases, would do no good, and ruin would be accomplished before an adjudication-would be reached. True, it may be said that the injured party has a remedy at law; but that might imply a multiplicity of suits, which equity often interposes to relieve from. But the still more cogent reason seems to be that a court of equity can, by its writ of injunction, restrain a wrong-doer, and thus prevent injuries which could not be fully redressed by a verdict and judgment for damages at law. Redress for a mere personal slander or libel may perhaps properly be left to the courts of law, because no falsehood, however gross and malicious, can wholly destroy a man’s reputation with those who-know him; but statements and charges intended to frighten away a man’s customers, and intimidate them from dealing with him, may wholly break up and ruin him financially with no adequate remedy if a court of equity cannot afford protection by its restraining writ.”

This is a clear and forcible statement of the law, and is in accord with the general current of authority.

How strongly it applies in this case may be readily seen by referring ' to the editorials in the Bulletin, the organ of the union, and to the handbills and circulars set forth in the statement of facts. The editorial in the Bulletin of December 1st declares that the boycott “is still on, and will be until the proprietor of the ‘rat’ sheet employs union men.” It requests “all K. of L., assemblies, unions, and workingmen to bear in mind that Mr. Casey refused to employ or in any way recognize organized labor.” It asks their aid in compelling complainant to recognize the rights of labor by withdrawing their patronage from his paper, and if possible let him know why. It calls upon them not to patronize any merchants who advertise in complainant’s newspaper, and if they see the paper in any place of business to refuse to buy goods unless the merchant immediately stops the “rat” sheet. The communication sent by the union on the 3d of November to Messrs. Griffin, agents for the sale of complainant’s paper, contains the following:

“ This union will consider it a great favor for you to give up the agency of the Commonwealth. If you do not do so, we will have to consider you the enemy of organized labor.”

Those are fair samples, and they indicate the method by which the boycott was to be made effective. Yet counsel say that there were no threats; that the defendants were only exercising their constitutional right 'to freely speak and publish their opinions; that what defendants have done is a necessary and natural and proper incident of hitter, but yot lawful, competition, and that this was only fair argument and persuasion. These propositions are in direct conflict with decisions made long ago, and recognized in all subsequent cases. In Rex v. Eccles, 1 Leach, 274, the defendants were indicted for conspiring to impoverish a tailor, and by direct means to prevent him from carrying on his trade. They were convicted, and upon a motion in arrest of judgment it was objected that the indictment ought to have stated the acts that were committed to impoverish the tailor and to prevent him from carrying on his trade in order that the defendants might thereby have notice of the particular charges they were called upon to answer. But Lord Mansfield, without healing the prosecution, said that that was certainly not necessary. “The offense does not consist in doing the acts by which the mischief is effected, — for they may be perfectly indifferent, — but the conspiring with a view to effect the intended mischief by any means. The illegal combination is the gist of the offense.” See, also, In re Wabash R. Co., 24 Fed. Rep. 217. In that case the following notice was sent to various foremen of the shops of the railroad company, during a strike organized to resist a reduction of wages, the railroad company being at that time in the hands of a receiver appointed by the United States circuit court:

“ * Office of Local Committee.

“ ‘ Juno 17, 1885.

“ *-, Foreman: You are requested to stay away from the shop until the present difficulty is settled. Your compliance with this will command the protection of the Wabash employes. But in no ease are you to consider this an intimidation.’

“Held, that this was an unlawful interference with the management of the road by the receiver, and a contempt of court, for which the writer should he punished.”

The court, in passing upon the case, said:

“The statement in all these notices that they are not to be taken as intimidations goes to show beyond a doubt that the writer knew he was violating the law, and by this subterfuge sought to escape its penalty.”

In U. S. v. Kane, 23 Fed. Rep. 748, Judge Brewer, after stating that “every man has a right to work for whom he pleases, and go where he pleáses, provided in so doing he does not trespass on the rights of others,” by way of illustrating what is a threat, supposes that one of two workmen is discharged. The other is satisfied with his employment and wishes to stay. The discharged workman comes with a large party of his friends, armed with revolvers and muskets, and says: “Now my friends are here; — you better leave; — I request you to leave.” In terms there is no threat, but it is a request backed by a demonstration of force, intended and calculated to intimidate, and the man leaves really because he is intimidated. Again, armed robbers stop a coach. One of their number politely requests the passengers to step out and hand over their valuables, and they do so. To the charge of robbery the defense is made that there was no violence; there were no threats; there was only a po~ lite request, which was complied with. The court said that any judge who would recognize such a defense deserved to be despised, and the court was right.

In State v. Glidden, cited hereinbefore, Judge Carpenter, speaking for the supreme court of Connecticut, states that the defendants said in effect to the publishing company:

“You shall discharge men you have in your employ, and you shall hereafter employ only such men as we shall name. It is true, we have no interest in your business; we have no capital invested therein; we are in no wise responsible for its losses or failure; we are not directly benefited by its success; and we do not participate in its profits,. — yet we have a right to control its management, and compel you to submit to our dictation.”

The court said that the bare assertion of such a right was startling; that, if it existed, all business enterprises were alike subject to the dictation and control of those who asserted it, and upon the same principle and for the same reason the right to determine what business men shall engage in, and when and where and how it shall be carried on, will be demanded, and must be conceded to associations of workingmen of the class of those whom it would be necessary to employ. The opinion in this case, although the case itself arose upon an indictment for conspiracy, is a well-considered discussion of the law with relation to boycotting. See, also, Steam-Ship Co. v. McKenna, 30 Fed. Rep. 48.

In the light of these authorities it is idle to talk about the defendants’ acts and publications as mere incidents of a competition set on foot by complainant’s declaration that he would not employ union printers; that the publications are shielded by constitutional guaranties; or that, viewed in the most unfavorable light, they are nothing more than libels, and the only remedy for any injury resulting is by an action at law.

It is claimed that the recital in the affidavit of Davis of what was said to him by the managers of the advertising department of Mabley & Carew and of Fechheimer Bros. & Co., when they withdrew their patronage from the Commonwealth, to-wit, that it was because they had been visited by a committee of the typographical union, and were threatened with the loss of business, ought not to be considered, because it is hearsay.

There are two answers to this claim:

First. What was said is clearly admissible as part of the res gestee, to show the state of mind of the persons in doing the act which their declarations accompanied.

Second. Upon the hearing of a motion for a preliminary injunction, the' rules of evidence are applied less strictly than upon the final hearing of the cause, and consequently evidence that would not be competent in support of an application for a perpetual injunction should be admitted. Buck v. Hermance,, 1 Blatchf. 322; Matthews v. Manufacturing Co., 19 Fed. Rep. 321. The reason for the rule is plain. Probability of right is sufficient to authorize a preliminary injunction. In many cases it is granted to preserve property in statu quo during the pendency of a suit in which the rights to it are to he decided, and that without expressing, and oftentimes without having the means of forming any opinion as to such rights. Great Western Ry. Co. v. Birmingham & O. J. Ry. Co., 2. Phil. Ch. 597.

The rule, with the reason for it, applies with peculiar force when it is sought to exclude the statements referred to from consideration. The advertising managers made haste to deny that any throats were uttered to them by anybody representing the typographical union. They did not, however, set forth what was said, nor did they deny that they withdrew their advertisements from the Commonwealth, nor intimate any reason for so doing other than that stated by Davis. It is not now the proper occasion to consider fully what prompted their denials. Thai, should be reserved until the final hearing, after full opportunity to cross-examine Davis upon the one hand, and the advertising managers who made the denials upon the other hand, and to present to the court a full showing of all that was said when they were called upon by the committee of the union. According to the logic of counsel for defendants almost anything might have been said without precluding the denials.

1 have made the statement of the facts as they are set forth in the bill and affidavits quite full, and have entered somewhat at length upon the discussion of the questions involved, because of the request by counsel on both sides for a full statement of the case, with the reasons of the court for its conclusions, inasmuch as the decision upon the motion may practically settle the entire controversy between the parties.

The motion for a temporary injunction, to continue in force until the final decree in this cause, will be granted.