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their views is limited. See Duplex Hallam, J., dissenting: Printing Press Co. v. Deering, 254 I agree with Just.ce Dibell that U. S. 443, 65 L. ed. 349, 16 A.L.R. the Minnesota statute does not cover 196, 41 Sup. Ct. Rep. 172; Gompers this case.

Common-law principles v. Bucks Stove & Range Co. 221 U. may have justified an injunction in S. 418, 55 L. ed. 797, 34 L.R.A. this case, but the majority opinion (N.S.) 874, 31 Sup. Ct. Rep. 492. is not predicated on that theory, and

For the reasons stated, I think I do not discuss the question. that labor is not a commodity or article of commerce within the Anti

NOTE. trust Statute; that the statute does not apply to labor unions; and that The boycott as the weapon in inthe injunction, assuming that, under dustrial disputes is the subject of an the findings, one was proper ir- annotation in 6 A.L.R. 909, supplerespective of the statute and on mented in 16 A.L.R. 230, and in the common-law principles, went too far annotation following ROBISON V. HOin restricting the activities of the TEL & RESTAURANT EMPLOYEES, post, defendants in peaceably putting the 651. Specifically, as to the use of the situation as they claimed it before term “unfair," see V. d, of that annothe public, and in their advocacy of

Upon the question of the their claims and their views through right to injunctive relief against an their newspaper organ.

unlawful boycott, see VII. b, 1.

W. P. ROBISON et al., Respts.,

V.

HOTEL & RESTAURANT EMPLOYEES, LOCAL NO. 782, of Böise, et

al., Appts.

Idaho Supreme Court April 28, 1922,

(35 Idaho, 418, 207 Pac. 132.) Injunction — against "unfair to organized labor" sign.

1. The use of the words "unfair to organized labor," if truthful, will not be enjoined. The use of expressions in aid of a strike which convey covert implications, calculated to defame, coerce, or intimidate, will be enjoined.

[See note on this question beginning on page 651.] Prcperty right to conduct business. suasion, for public support, and to

2. A right to conduct a business, request the public to withhold its together with the incidental right to patronage from the other party to the the good will thereof, is property. labor dispute.

[See 22 R. C. L. 44, 45; 3 R. C. L. [See 16 R. C. L. 419, 434; 3 R. C. L. Supp. 1231.]

Supp. 567, 563.] Labor union right to form.

Conspiracy - combination to strike. 3. Laborers for wages have a right 4. A combination to strike to accomto form unions for the purpose of im- plish an object which is not regarded proving their economic and social con- as lawful, or the use of illegal means ditions. They have a right to strike in aid of a lawful strike, are wrongs in concert for a lawful purpose. In for which the law affords a remedy. aid of a lawful strike, they have a

[See 16 R. C. L. 444.] right to acquaint the public with the

Strike --- means employed - validity. fact of its existence and the causes thereof, and appeal, by peaceful per

5. The means employed in aid of a

lawful strike must be free from falseHeadnotes 1-10 by Rice, Ch. J. hood, libel, or defamation, and from

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(35 Idaho, 418, 207 Pac. 132.) physical violence, coercion, or moral Conspiracy anti-trust act strike. intimidation.

9. A lawful strike is not within the [See 16 R. C. L. 444. See also note purview of g 18, art. 11, of the Conin 6 A.L.R. 919.)

stitution, or SS 2531 and 8512 of - permissible persuasion.

Comp. Stat., commonly known as the 6. The persuasion which the law

anti-trust provisions of the Constitu

tion and the statutes of the state of permits in aid of lawful strike is such

Idaho. as appeals to the judgment, reason, or sentiment, and leaves the mind

Injunction - against picketing. free to act of its own volition.

10. Placing of pickets in the street, [See 16 R. C. L. 454, 455; 3 R. C. L.

in front of or near to a restaurant, Supp. 573. See also note in 6 A.L.R.

necessarily results in intimidation and 919 et seq.]

coercion of prospective customers,

and is properly enjoined. Constitutional law freedom of

[See 16 R. C. L. 455 et seq.; 3 R. C. speech.

L. Supp. 572 et seq. See also note in 7. The constitutional guaranty of 6 A.L.R. 928.] freedom of speech is not encroached

- against acts in furtherance of boyupon by affording appropriate reme

cott dies for the abuse of the privilege of

scope.

11. An injunction against picketing free speech.

in furtherance of a boycott is too Picketing - trespass.

broad in so far as it requires the de8. Posting of pickets on the street fendants absolutely to refrain from in front of a place of business does interfering in any manner with the not of itself constitute a trespass up- business of plaintiff, and in so far on the premises of the owner of the as it includes every species of exabutting property.

postulation or entreaty.

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lants :

duct.

APPEAL by defendants from an order of the District Court for Ada County (Reddoch, J.) refusing to dissolve an injunction restraining defendants from maintaining a picket patrol in front of and close to the entrance of plaintiffs' places of business. Remanded, with instructions to modify injunction.

The facts are stated in the opinion of the court.
Messrs. Perky & Brinck, for appel- v. Watson, 168 Mo. 133, 56 L.R.A. 951,

90 Am. St. Rep. 440, 67 S. W. 391; The use of the word “unfair" is not Vegelahn v. Guntner, 167 Mas3. 92, 35 in itself improper, as it means only L.R.A. 722, 57 Am. St. Rep. 443, 44 N. that the employers are unfriendly to E. 1077; Everett Waddey Co. y. Richthe organization, without any imputa- mond Typographical Union, 105 Va. tion of dishonorable or illegal con- 188, 5 L.R.A.(N.S.) 793, 53 S. E. 273,

8 Ann. Cas. 798; Master Builders' Meier v. Speer, 96 Ark. 618, 32 Asso. v. Domascio, 16 Colo. App. 25, L.R.A. (N.S.) 793, 132 S. W. 988; J. F. 63 Pac. 782; Christensen v. Kellogg Parkinson Co. v. Building Trades Switchboard & Supply Co. 110 III. Council, 154 Cal. 581, 21 L.R.A.(N.S.) App. 61; Cumberland Glass Mfg. Co. 550, 98 Pac. 1027, 16 Ann. Cas. 1165; v. Glass Blowers' Asso. 59 N. J. Eq. Steffes v. Motion Picture Mach. Oper- 49, 46 Atl. 208; National Protective ators Union, 136 Minn. 200, 161 N. W. Asso. v. Cumming, 170 N. Y. 315, 58

L.R.A. 135, 88 Am. St. Rep. 648, 63 Persuasion of prospective employ- N. E. 369; Jones v. Van Winkle Gin & ees and likewise of prospective cus- Mach. Works, 131 Ga. 336, 17 L.R.A. tomers is entirely lawful in aid of a (N.S.) 848, 127 Am. St. Rep. 235, 62

S. E. 236; Karges Furniture Co. v. Gray v. Building Trades Council, 91 Amalgamated Woodworkers Local Minn. 171, 63 L.R.A. 753, 103 Am. St. Union, 165 Ind. 421, 2 L.R.A.(N.S.) Rep. 477, 97 N. W. 663, 1118, 1 Ann. 788, 75 N. E. 877, 6 Ann. Cas. 829; Cas. 172; 18 Am. & Eng. Enc. Law, Iron Molders' Union v. Allis-Chalmers 2d ed. 87; Union P. R. Co. v. Ruef, Co. 20 L.R.A.(N.S.) 315, 91 C. C. A. 120. Fed. 102; Eddy, Combinations, s 631, 166 Fed. 45; L. D. Wilcutt & Sons 1031; Marx & H. Jeans Clothing Co. Co. v. Driscoll, 200 Mass. 110, 23

524.

strike.

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V.

L.R.A.(N.S.) 1236, 85 N. E. 901; Mar- Teamsters' Protective

Protective Union, 118 tin, Labor Unions, 1910, $$ 22, 62, 72; Mich. 497, 42 L.R.A. 407, 74 Am. St. 5 Pom. Eq. Jur. 2d ed. 8 2025.

Rep. 421, 77 N. W. 13. Such acts as were committed in

The picketing described in the comthe case at bar were lawful.

plaint, and admitted by the defend5 Pom. Eq. Jur. 2d ed. 88 2028, 2033; ants, is unlawful. Martin, Labor Unions, $ 169; Steffes Webb v. Cooks & Waiters' Union, v. Motion Picture Mach. Operators Tex. Civ. App. 205 S. W. 465; Union, supra; Foster v. Retail Clerks' Local Union v. Stathakis, 135 Ark. International Protective Asso. 39 86, 6 A.L.R. 894, 205 S. W. 450; Barr Misc. 48, 78 N. Y. Supp. 860; Tri-City v. Essex Trades Council, 53 N. J. Eq. Cent. Trades Council American 101, 30 Atl. 881; Beck v. Railway Steel Foundries, 151 C. C. A. 578, 238 Teamsters' Protective Union, supra; Fed. 728; Empire Theater Co. v. Parker Paint & Wall Paper Co. v. Cloke, 53 Mont. 183, L.R.A.1917E, 383, Local Union, 87 W. Va. 631, 16 A.L.R. 163 Pac. 107; Karges Furniture Co. 222, 105 S. E. 911; Rosenberg v. Rev. Amalgamated Woodworkers Local tail Clerks' Asso. 39 Cal. App. 67, 177 Union, 165 Ind. 421, 2 L.R.A.(N.S.) Pac. 864; Moore v. Cooks & Waiters & 788, 75 N. E. 877, 6 Ann. Cas. 829; Waitresses' Union, 39 Cal. App. 538, Everett Waddey Co. v. Richmond 179 Pac. 417; St. Germain v. Bakery Typographical Union, 105 Va. 188, 5 & C. Workers' International Union, 97 L.R.A.(N.S.) 792, 53 S. E. 273, 8 Ann. Wash. 282, L.R.A.1917F, 824, 166 Pac. Cas. 798; Re Heffron, 179 Mo. App. 665; Barnes v. Chicago Typographical 639, 162 S. W. 652; Jones V. Van Union, 232 Ill. 424, 14 L.R.A.(N.S.) Winkle Gin & Mach. Works, 131 Ga. 1018, 83 N. E. 940, 13 Ann. Cas. 54. 336, 17 L.R.A.(N.S.) 848, 127 Am. St. Rep. 235, 62 S. E. 236; Truax v. Bis

Rice, Ch. J., delivered the opinion

of the court: bee Local, 19 Ariz. 379, 171 Pac. 121; White Mountain Freezer Co. v. Mur

Respondents are proprietors of phy, 78 N. H. 398, 101 Atl. 357.

certain restaurants in Boise. The Messrs. Henry Z. Johnson and C. C. appellants are members and officers Cavanah, for respondents:

of the Hotel and Restaurant EmPlaintiff's business is a property ployees, Local No. 782, of Boise, right under the Declaration of Rights which is a voluntary unincorporat(Const. art. 1, § 1), the right to prose

ed association or labor union. cute which has always been recognized and is always subject to the pro

In their complaint, respondents

allege: "That the defendants did on tection of the courts. Coppage v. Kansas, 236 U. S. 1, 59

or about the 20th day of March, L. ed. 441, L.R.A.1915C, 960, 35 Sup. 1920, order all of the employees of Ct. Rep. 240; Cooley, Torts, p. 278; the plaintiffs then belonging to the Gulf Bag Co. v. Suttner, 124 Fed. 468; said Hotel and Restaurant EmCoeur d'Alene Consol. Min. Co. v. ployees, Local No. 782, of Boise, Miners' Union, 19 L.R.A. 382, 51 Fed. Idaho, to strike and cease at once 260; Barr v. Essex Trades Council, 53

working for or continuing in the N. J. Eq. 101, 30 Atl. 881; Local Union

employment of the plaintiffs at the v. Stathakis, 135 Ark. 86, 6 A.L.R. 894, 205 S. W. 450; Adair v. United

plaintiffs' said places of business, States, 208 U. S. 161, 52 L. ed. 436,

and, in compliance with said order, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764.

all of the said employees of the Defendants' acts constitute a nui- plaintiffs left the plaintiffs' emsance.

ployment and places of business. Hughes v. Kansas City Motion That since said date the plaintiffs Picture Mach. Operators, 282 Mo. 304, have endeavored to carry on their 221 S. W. 95; Moore v. Cooks, Waiters, said business, and to employ other & Waitresses' Union, 39 Cal. App. 538, men and women to fill the places of 179 Pac. 417; Truax v. Corrigan, 257 those who left the employ of the U. S. 312, 66 L. ed. 254, ante, 375, plaintiffs, but the defendants, their

, 42 Sup. Ct. Rep. 124; 1 Elliott, Roads & Streets, 3d ed. | 500; Donovan v.

agents, and servants, have, in purPennsylvania Co. 61 L.R.A. 140, 57 C.

suance of said order and a conspir. C. A. 362, 120 Fed. 215; Adams v.

acy and a confederation and combiRivers, 11 Barb. 390; Beck v. Railway

nation entered into by and among

(35 Idaho, 418, 207 Pac. 132.) them to carry out said strike, did for the purpose of engaging in the unlawfully, wilfully, and malicious- employment of the plaintiffs, and ly on the 20th day of March, 1920, the patrons and prospective patrons establish and ever since have main- of the plaintiffs and persons passtained a boycott of the plaintiffs' ing by said places of business, which said business by placing and main

is and has deterred such persons taining immediately in front of and from entering and patronizing the close to the entrances of the plain plaintiffs' said places of business, tiffs' said places of business on the and entering the employ of the sidewalk, a picket patrol during the plaintiffs, and is calculated and inhours of from 7 to 9 o'clock A. M., tended to give notice, and does give and from 11 A. M. to 2 o'clock P. M., notice, to such persons passing the and from 5 P. M. to 8 o'clock P. M., plaintiffs' said places of business or which are and were the hours of the intending to patronize the same, day when the greatest number of that said places of business were unmeals are served by the plaintiffs to der boycott, and that its patronage their patrons. That the pickets of was opposed by organized labor. said picket patrol are now and have That, by reason of the presence of been during said hours unlawfully, said pickets and the unlawfully, wilwilfully, and maliciously wearing a fully, and maliciously maintaining badge consisting of a plain white of the said picket patrol and the placard pinned upon their clothing, threats and intimidations as aforewhere the same can plainly be seen, said by the defendants, a great with the words, "This house is un- many of the plaintiffs' patrons have fair to organized labor,' and have been intimidated, and in consebeen and are during said hours car- quence thereof have ceased to and rying the same back and forth on refrained from patronizing the said sidewalks immediately in front plaintiffs' said places of business, of and close to the entrances of the and that they will continue so to do plaintiffs' said places of business, as long as said pickets are mainand while doing so are now and tained in front of the plaintiffs' said have been during said hours, unlaw. places of business and said boycott fully, wilfully, and maliciously call- continues, and have diverted a large ing out in a raucous voice to the pa- part of plaintiffs' said business, retrons and prospective patrons of the ducing their daily receipts by large plaintiffs and persons passing by sums, averaging from $180 to $75 and to patrons when entering and per day of the said business of the leaving the plaintiffs' said places of plaintiffs W. P. Robison and 0. C. business: This house is unfair to Robison, and from $350 to $200 per · organized labor. Why patronize an day of said business of the plaintiffs unfair house! Why not patronize a Charles Peroni, Vincent Peroni, and house with organized labor! This Earnest Jaeger, and from $175 to house is unfair to organized labor. $75 per day of said business of the Why not patronize a union house! plaintiffs E. Wood and H. D. Mix, Go where they have all white help. and from $250 to $150 per day of This beanery is on the bum. Why said business of the plaintiff Jim not patronize a union house, and Kelly, and from $90 to $50 per day you won't have to turn your back to of said business of the plaintiff Jake the public and you will not be Geb, and from $200 to $85 per day ashamed! This house is unfair and of said business of the plaintiffs will be unfair to you.' And that by Jack Troy, W. E. Reber, and A. W. reason thereof the defendants are Liedloff. now and have been during said “That all of said acts and conhours unlawfully, wilfully, and ma

ducts of the defendants were and liciously threatening and intimidat- are a part of a scheme to prevent ing persons who desire to enter the persons from entering the employplaintiffs' said places of business ment of the plaintiff, and continuing

in their employment, and from pat- them with insults, gibes, or jeers, ronizing them at their said places of or language importing the same, or business. That the defendants displaying on their person or aloft threatened and intend to continue placards or banners or other emtheir said unlawful, wrongful, wil. blems or insignia containing covert ful, and malicious acts and con- or open or other threats or intimiducts, and that they and their dations or the like to the annoyance agents and servants are now, and of plaintiffs' patrons or prospective have been ever since said boycott patrons, or other person or persons, and picketing were established, a while going about their business to nuisance and obstruction to the or from or with plaintiffs, or each plaintiffs and to persons in their and every of them; and from parademploy, or intending to trade with ing in front of or congregating, or patronize the plaintiffs at their whether singly or collectively, in the said places of business."

vicinity of the entrance to or at or Appellants demurred to the com- near the premises of the plaintiffs plaint. Upon the filing of the com- herein and each and every of them, plaint, the court issued an order to as follows, to wit,

for the show cause why an injunction pen- purpose of intimidating or threatdente lite should not be granted, and ening, whether by force or fraud or also entered a restraining order re- coercion or expostulation, plaintiffs' quiring that appellants". ab- employees or patrons or prospective solutely desist and refrain from in patrons or any other person or perany manner interfering with or sons from trading with or continuhindering or obstructing plaintiffs ing in the employment of, or seeking and each and

and every of them, employment with plaintiffs or either whether by picketing or otherwise, of them; and from engaging in what in the free use and enjoyment and is commonly known and designated occupancy of their several proper- as picketing, or establishing and ties, property rights, and business maintaining a picket patrol in any and the conduct thereof; and from manner whatever, whether singly or entering thereon or therein or in collectively, the entrances to the any manner coercing or compelling several premises hereinbefore deor inducing or attempting to co- scribed of the plaintiffs herein or erce or induce by any species of adjacent thereto or in the vicinity threat, intimidation, force, or fraud thereof." or violence from any employees of Upon the return day of the order plaintiffs or either of them from to show cause, appellants filed affiperforming their several duties davits to the effect that pickets within the scope of their several were instructed to and did walk at employments or service; and from least 10 feet away from the buildpreventing or attempting to pre- ings wherein the business of revent by any species of threat, in- spondents was conducted, and that timidation, force, or fraud or vio- they were instructed to and did lence any person or persons from make no remarks except in an ordientering the employment or service nary tone of voice; that not more of plaintiffs or either of them; and than two pickets were so engaged at from preventing or attempting to any one time and place; and that prevent by any species of threat, in- for the most part the pickets were timidation, force, or fraud or vio- waitresses belonging to appellants' lence, expostulation or entreaty, organization. . The affidavits furpatrons or prospective patrons of ther stated that appellants were not plaintiffs or either of them, or any actuated by malice against respondother person or persons, from trad- ents, and that the picketing was not ing with or transacting business conducted with the purpose or inwith plaintiffs or either of them, tent of destroying the business of and from harassing or annoying respondents, or damaging the same, ,

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