§ 91. Injunction against act punishable as crime.-In some instances has been applied the rule that an injunction may be granted against an act that is also punishable as a crime.7 § 92. Injunction against use of words.-It is clear that under certain conditions there exists a liability for injury resulting from the use of words as distinguished from acts; also that such liability is enforcible in an action at law, thus for slander or libel. And injunctions have been allowed against such use of words. But it seems at least questionable whether the al Am. Law Reg. (N. S.) 1 (1898); 44 Id. 465 (1905) by W. D. Lewis; 10 Pol. Sci. Quart. 189 (1895) by F. J. Stimson; 13 Law Quart. Rev. 347 (1897) by W. H. Dunbar; 3 Va. Law Reg. 549 (1897) by W. J. Peterkin; Id. 625 (1898) by S. S. Patterson. See also 2 Eddy on Combinations, § 1011. 7 Arthur v. Oakes, 63 Fed. 310, 329; 11 C. C. A. 209, 228; 25 L. R. A. 414, 433 (7th C., 1894); Consolidated Steel & Wire Co. v. Murray, 80 Fed. 811 (C. C. Ohio, 1897); Vegelahn v. Guntner, 167 Mass. 92; 44 N. E. 1077; 35 L. R. A. 722; 57 Am. St. Rep. 443 (1896). See Utah Comp. Laws (1907), § 4491. So in the following cases of acts of striking employees or those in sympathy with them. Union Pac. R. Co. v. Ruef, 120 Fed. 102, 109, 125 (C. C. Neb., 1902); Jones v. E. Van Winkle Gin & Machine Works, 62 S. E. 236; 17 L. R. A. N. S. 848 (Supm. Ct. Ga., 1908); Christensen V. Kellogg Switchboard, etc., Co., 110 Ill. App. 61, 73 (1903); Underhill v. Murphy, 117 Ky. 640; 78 S. W. 482; 111 Am. St. Rep. 262 (1904); Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212; 32 S. W. 1106; 52 Am. St. Rep. 622 (1895); Cumberland Glass Manuf. Co. v. Glass Bottle Blowers' Assoc., 59 N. J. Eq. 49; 46 Atl. 208 (1899); Davis v. Zimmerman, 91 Hun, 489; 36 N. Y. Suppl. 303 (1895); N. Y. Central Iron Works Co. v. Brennan, 105 N. Y. Suppl. 865 (Supm. Ct., Sp. T., 1907). See also Matthews v. Shankland, 25 Misc. 604; 56 N. Y. Suppl. 123 (Supm. Ct., Sp. T., 1898). In Union Pac. R. Co. v. Ruef, supra, Hamilton-Brown Shoe Co. v. Saxey, supra, was said not to have been overruled by Marx & Haas Clothing Co. v. Watson, 168 Mo. 133, 150; 67 S. W. 391, 395; 56 L. R. A. 951, 958; 90 Am. St. Rep. 440 (1902). See § 92. 8 See, for instance, Ryan v. Burger, etc., Brewing Co., 13 N. Y. Suppl. 660 (Supm. Ct., Gen. T., 1891). 9 Thus, to restrain officers of a labor union from printing or publishing placards or advertisements for the purpose of intimidating workmen from entering the service of the plaintiff. Springhead Spinning Co. v. Riley, 6 L. R. Eq. Cas. 551 (1868). So held under a statute, though the acts were declared to be unlawful at common law. So against displaying banners with devices, as a means of threats and intimidation, to prevent persons lowance of such an injunction is not inconsistent with a constitutional guaranty of freedom of speech.10 § 93. Injunction against libel.-But we are here confronted with the technical rule, supported by much authority, that an injunction will not be granted against a mere libel.11 It may from entering into or continuing in the employment of the plaintiffs. Sherry v. Perkins, 147 Mass. 212; 17 N. E. 307; 9 Am. St. Rep. 689 (1888). 10 Under a constitutional provision that "no law shall be passed impairing the freedom of speech; every person shall be free to say, write or publish whatever he will on any subject, being responsible for all abuse of that liberty," an injunction against a mere boycott, in the absence of violence or intimidation was held unauthorized in Marx & Haas Clothing Co. v. Watson, 168 Mo. 133, 150; 67 S. W. 391, 395; 56 L. R. A. 951, 958; 90 Am. St. Rep. 440 (1902). The court said: "The fact that in exercising that freedom they thereby do plaintiff an actionable injury does not go a hair towards a diminution of their right of free speech, etc., for the exercise of which, if resulting in such injury, the constitution makes them expressly responsible. But such responsibility is utterly incompatible with authority in a court of equity to prevent such responsibility from occurring." This decision was followed in Lindsay v. Montana Federation of Labor, 96 Pac. 127 (Supm. Ct. Mont., 1908), in holding not allowable an injunction against publication of a circular as a means of enforcement of a boycott. To like effect seems Ward v. South Dakota Retail Merchants', etc., Assoc., 150 Fed. 413 (D. C. S. D., 1907). In Lohse Patent Door Co. v. Fuelle, 114 S. W. 997, 1012 (Supm. Ct. Mo., 1908), in allowing an injunction against a boycott (see § 62), Marx & Haas Clothing Co. v. Watson was distinguished as a case of "publishing a boycott," it being said: "The clear object of this case is to prohibit the defendants from continuing the boycott in force heretofore declared, or to enjoin the defendants from declaring a threatened boycott against plaintiff's business, and not to enjoin its publication. If the boycott itself is enjoined, there would be no occasion for complaint against its publication." See criticism of Marx & Haas Clothing Co. v. Watson in Rocky Mountain Bell Tel. Co. v. Montana Federation of Labor, 156 Fed. 809, 821 (C. C. Mont., 1907). See also editorial note in 36 Am. Law Rev. 609 (1902); also Buck's Stove & Range Co. v. American Federation of Labor, 36 Wash. Law Rep. 822, 841 (Supm. Ct. D. C., 1908); Riggs v. Cincinnati Waiters' Alliance, 5 Ohio N. P. 386 (Cin. Super. Ct., 1898); National Tel. Co. v. Kent, 156 Fed. 173 (C. C. W. Va., 1907); Jordahl v. Hayda, 1 Cal. App. 696; 82 Pac. 1079 (1905). 11 For instances of statements held to be mere libels and not furnishing ground for injunctions, see Balliet v. Cassidy, 104 Fed. 704 (C. be easy to see how such rule originated under conditions in which a libel was commonly the act of a single individual. But if the doctrine becomes established that an injunction is under any conditions an available remedy against the use of words producing injury or fear of injury, it is difficult to see on principle why it should not be an available remedy against such use of words as constitutes a libel, when frequently repeated by large numbers of persons over a considerable extent of territory. 12 C. Oreg., 1900); Allegretti Chocolate Cream Co. v. Rubel, 83 Ill. App. 558 (1899); Mayer v. Journeymen Stonecutters' Assoc., 47 N. J. Eq. 519; 20 Atl. 492 (1890); Marlin Fire Arms Co. v. Shields, 171 N. Y. 384; 64 N. E. 163; 59 L. R. A. 310 (1902); Owen v. Partridge, 40 Misc. 415, 422; 82 N. Y. Suppl. 248, 253 (Supm. Ct., Sp. T., 1903); Butterick Publishing Co. v. Typographical Union No. 6, 50 Misc. 1; 100 N. Y. Suppl. 292 (Supm. Ct., Sp. T., 1906); Riggs v. Cincinnati Waiters' Alliance, 5 Ohio N. P. 386 (Cin. Super. Ct., 1898). See Ward v. South Dakota Retail Merchants', etc., Assoc., 150 Fed. 413 (C. C. S. D., 1907). See, on the general subject, article in 34 Am. Law Rev. 161, 468 (1900) by S. D. Thomp son. In Richter v. Journeymen Tailors' Union, 24 Weekly L. Bull. 189 (Franklin Co., Ohio, Com. Pl., 1890), a case of the circulation and posting by members of a labor union, of circulars and posters claimed to contain statements injurious to the plaintiff's business, Sherry v. Perkins, supra (§ 92), was distinguished on the ground that there, in addition to the display of the banner, there was the element of intimidation of the plaintiff's em ployees. Springhead Spinning Co. v. Riley, 6 L. R. Eq. Cas. 551 (1868), supra (§ 92), was said, in Mayer v. Journeymen Stonecutters' Assoc., supra, to have been overruled in Prudential Assurance Co. v. Knott, 10 L. R. Ch. App. 142 (1875). 12 Thus, in Gilbert v. Mickle, 4 Sandf. Ch. (N. Y.) 357 (1846), the jurisdiction to enjoin the continuous display of a placard containing offensive words was recognized, even on the supposition that the placard was a libel. See Foster v. Retail Clerks' Protective Assoc., 39 Misc. 48, 58; 78 N. Y. Suppl. 860, 867 (Supm. Ct., Sp. T., 1902). See also 2 High on Injunctions (3d ed.), § 1015; 1 Jaggard on Torts, p. 353. It seems to be the common practice in England to grant injunctions against libels. Thus, in Trollope v. London Building Trades Federation, 72 L. T. R. 342 (1895), a case of a trade libel. But as to whether this practice is not based on legislation, see article by W. D. Lewis (see § 94); also by same author in 42 Am. Law Reg. N. S. 322 (1903), and Kidd v. Horry, 28 Fed. 773 (C. C. Pa., 1886); De Wick v. Dobson, 18 App. D. 399; 46 N. Y. Suppl. 390 (1897); Owen v. Partridge, supra. § 94. Words producing injury or fear of injury, and libelous words. A distinction has been sought to be maintained between an injunction against the use of words producing injury or fear of injury, and mere libelous words. Thus it has been said: "A clear distinction will be observed between the two classes of cases above noted. In the one, when the acts complained of consist of such misrepresentations of a business that they tend to its injury, and damage to its proprietor, the offense is simply a libel; and in this country the courts have, with great unanimity, held that they will not interfere by injunction, but that the injured party must rely upon his remedy at law. On the contrary, when the attempt to injure consists of acts or words which will operate to intimidate and prevent the customers of a party from dealing with or laborers from working for him, the courts have, with nearly equal unanimity, interposed by injunction." 18 13 Cœur D'Alene Consolidated & Mining Co. v. Miners' Union, 51 Fed. 260, 267; 19 L. R. A. 382, 386 (C. C. Idaho, 1892). Thus in Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 527; 77 N. W. 13, 24; 42 L. R. A. 407, 418; 74 Am. St. Rep. 421 (1898), where an injunction against the distribution of a boycotting circular containing false statements was allowed against the objection that equity will not restrain the publication of a libel, it was said: "If all there was to this transaction was the publication of a libelous article, the position would be sound. It is only libelous in so far as it is false. Its purpose was not alone to libel complainants' business, but to use it for the purpose of intimidating and preventing the public from trading with the complainants." See further, as illustrating this distinction, Sherry v. Perkins, supra (§ 92); Emack v. Kane, 34 Fed. 46 (C. C. III., 1888); Casey v. Cincinnati Typographical Union, 45 Fed. 135; 12 L. R. A. 193 (C. C. Ohio, 1891. Here the authorities were quite carefully considered). See also Vegelahn v. Guntner, 167 Mass. 92; 44 N. E. 1077; 35 L. R. A. 722; 57 Am. St. Rep. 443 (1896); Shoemaker v. South Bend Co., 135 Ind. 471; 35 N. E. 280 (1893); Francis v. Flinn, 118 U. S. 385; 6 Supm. 1148; 30 L. Ed. 165 (1886); Arthur v. Oakes, 63 Fed. 310, 320; 11 C. C. A. 209, 220; 25 L. R. A. 414, 428 (7th C., 1894); Farquhar Co. v. National Harrow Co., 102 Fed. 714; 42 C. C. A. 600; 49 L. R. A. 755 (3d C., 1900); Adriance v. National Harrow Co., 98 Fed. 118 (C. C. N. Y., 1899). The illogical character of the distinction was fully demonstrated in an article in 31 Am. Law Reg. & Rev. 782 (1892) by W. D. Lewis. § 95. Injunction against boycott.-Injunctions against boycotts, or inducing a refusal to deal (or threats thereof) have been rather freely granted.14 14 Thus, in Hopkins v. Oxley Stave Co., 83 Fed. 912; 28 C. C. A. 99 (8th C., 1897); Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 451; 41 S. E. 553, 563; 57 L. R. A. 547, 558; 90 Am. St. Rep. 126 (1902); Hey v. Wilson, 128 Ill. App. 227 (1906); Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 518; 77 N. W. 13, 21; 42 L. R. A. 407, 415; 74 Am. St. Rep. 421 (1898); Walsh v. Association of Master Plumbers, 97 Mo. App. 280, 293; 71 S. W. 455, 459 (1902); Lohse Patent Door Co. v. Fuelle, 114 S. W. 997 (Supm. Ct. Mo., 1908); Martin v. McFall, 65 N. J. Eq. 91; 55 Atl. 465 (1903); Brace v. Evans, 3 Ry. & Corp. L. J. 561 (Allegheny Co., Pa., Com. Pl., 1888); Hawarden v. Youghiogheny & L. Coal Co., 111 Wis. 545; 87 N. W. 472; 55 L. R. A. 828 (1901). For other instances, see §§ 25, 34, 62. So in Toledo, Ann Arbor, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. 730, 744; 19 L. R. A. 387, 394 (C. C. Ohio, 1893), where the court said: "The interstate business of complainant will be interrupted and interfered with at every hour of the day and at every point within a radius of many miles." The case against the party seeking to enforce the rule was strengthened by the fact that, at the time he issued or was about to issue his order, the injunction under consideration in 54 Fed. 746; 19 L. R. A. 395 (see § 98), had issued. A notable decision under this head is Barr v. Essex Trades Council, 53 N. J. Eq. 101, 127; 30 Atl. 881, 890 (1894), where an injunction was allowed against the boycott of a daily newspaper by an extensive combination of labor unions. The court said: "Representations calculated to reduce the paper's circulation with the public, or to influence, by fear of loss of customers, the number or extent of advertisements, operate, not once for all, but, as it were, day by day, as the paper goes to and comes from the press, and each loss will be a distinctive cause of action. When opposition through the agency of already-established organizations, reaching in their locality every part of the county, and in their membership almost every industry in prominent operation-comprising, in the territory in which the paper must look for its support, operatives of a purchasing power of $400,000 a week, is put on foot,-when such an organization, not satisfied with its potential authority over its own members, appeals to the public to boycott the paper, to cease buying or advertising in it, with the significant suggestion that disregard of the appeal will bring upon such person the like opposition of the organizations-who can estimate or approximate the natural damage short of ruin? The legal remedy in this case thus not only involves multiplicity of suits, but the threatened damage seems irreparable." So the boycott of a newspaper was enjoined under similar conditions in Matthews v. Shankland, 25 Misc. 604; 56 N. Y. Suppl. 123 (Supm. |