CASEY V. CINCINNATI TYPOGRAPHICAL t1NION No.3.
135
fice of Hawkins county, Tenn., etc. But the court deems ,a discussion of these questions unnece1lsary, inasmuch as it holds that' the deficiency in the quantity and quality of the land sold by the, plaintiff to the defendant constitutes sufficient cause for the court to refuse to decree a specific performance of the contract between the plaintiff and the defendant. The bill must be dismissed, at the costs of the plaintiff, and a decree will be entered accordingly. '
,ASEY 11. CINCINNATI TYPOGRAPHICAL UNION No.3
et ale
(airel/lit Oourt, S. D. Ohio, W. D. January 81, 1891.)
1. 9.
INJUNOTION-BoYCOTTING NEWSPAPBR.
A combination or a conspiracy, by a trades union1 to boycott a newspaper for refusing to unionize its office, is illegal and unlaWlul. and will be enjomed by a court of equity. ' Equity will enjoin the publication and circulation of posters, hand-bills. circulars, etc., printed and circulated in pursuance of such combinatwn or conspiracy to boycott. ' Such a suit is not a suit to enjoin the pUblication of a libeL
SUIB.
8. 'SAKE.
'" SAME-EvIDBNOE.
Statements of defendants, repeated by an advertiser to a solicitor seeking 8 renewal of advertisements,at the time he refuses to renew the same, as the reasons for such refusal, may be given in evidence as part of the res gestw, by such solicitor upon the hearing of a motion for an injunction. ' ,
5. SAME.
Upon the hearing' of a motion for a temporary injunction, hearsay evidence may be competent, inasmuch as probability of right is often sufficient to call for the exercise of an injunction pendente Ute.
In Equity. The complainant, proprietor and publisher of the Commonwealth, a daily and weekly newspaper published at Covington, Ky., sues to restrain the defendant, the Cincinnati Typographical Union No.3, which, the bill avers, is a corporation organized under the laws of Ohio as a trades union or labor organization, composed of type-setters and printers, and the individual defendants, who, it is averred, are its officers and managing agents, from "boycotting" the complainant and his newspaper. A restraining order to remain in force until the hearing and disposi. tion of complainant's motion for a temporary injunction having been granted when the bill was filed, the cause is now before the court upon that motion. It appears from the bill that in September, 1890, and at various other times, the defendant, the union, demanded that com" plainant should unionize hIs office, that is to say, publish and conduct his paper according to the customs, rules, and regulations laid down and
136
FEDERAL REPORTER,
vol. 45.
prescribed by said typographical union, and that he should pay his employes wages at such rates as should be fixed from time to time by said union, and discharge from his employment all persons not members thereof. The bill further avers that upon complainant's refusal to comply with said demands, defendants illegally and unlawfully and with intent to injure complainant, and to destroy the circulation of his newspaper, and its value as an advertising medium, conspired and combined to boycott him and his newspaper, and to that end caused to be printed and posted, in conspicuous places, large hand-bills, calling upon all persons to withdraw their patronage from complainant.'s newspaper, and issued circulars, signed by said typographical union and addressed to advertising patrons of the complainant, requesting them to withdraw their advertisements from his said newspaper. threatening that upon failure to do so they would be visited with the ill will and incur the enmity of all organized labor, and that they would induce all members of labor associations to withdraw all patronage from them. It is also averred that said typographical union sent circulars to the news agents handling and selling complainant's newspaper, threatening that unless they ceased selling said paper they would in like manner lose the patronage of and be antngonized by the members·of all labor organizations. The bill further sets forth that said typographical union, through its agents and employes, visited persons regularly advertising in complainant's newspaper, and threatened them that unless they withdraw their advertisements they would incur the enmity, ill will, and antap;onism of all organized labor and of the friends of such labor, who would withdraw from them their entire business patronage. The answers of the defendants have not yet been filed. The hearing of the motion was upon the bill, and upon affidavits filed oil behalf of the complainant, and on behalf of the defendants. There is not much dispute as to the facts. Excepting the averment that the typographical union, through its agents, visited the advertising patrons of the Commonwealth, or any other patrons of the complainant, and threatened to · boycott them unless they withdrew their patronage, the averments of the bill are substantially admitted. The complainant, in his affidavit, states that compliance with the demand made upon him in September by the individual defendants who acted in that behalf as a committee from the typographical union, that he should unionize his office. would have necessitated the discharge of all the printers employed by him and the substitution and the exclusive employment of what are known as "Union Printers," that is, members of some typographical union, and that there was not then, nor is there now, any complaint upon the part of his employes. He says that he refused to comply with the demands so made, and continued to run his office as before, paying his printers the price agreed upon, which was satisfactory to them. The complainant further sets .forth in his affidavit particulars of the boycott thereupon inaugurated against him, and his paper and job office,
CASEY V. CINCINNATI TYPOGRAPHICAL UNION No.3.
137
as set forth in the bill. Copies of the hand-bills and circulars referred to are filed with the affidavits, and the names of customers to whom they were sent are given. __ The following is a copy of the hand-bill referred to in complainant's affidavit: "To Workingmen and All Persons Interested in Organized Labor: The Covington Daily Commonwealth, after two years' promising repeatedly to unionize their office, stated to a committee from the typographical union that they would not employ union printers on ,their paper. '.rherefore the typographical union asks all workingmen and women who sympathize with labor,. ers to let the Commonwealth severely alone, and patronize those who employ union men, and who believe' the laborer is worthy of his hire.' ..
The following is a copY' of a circular: "To Wotkingmen: The proprietor of the Covington Commonwealth (daily and weekI,) after two years of opposition to organized' labor, he havingre',. peatedly promised to unionize his office, now refuses to keep his word. says that he will not employ union printers. All working men and women who believe that thelaborer iii worthy ()f his hire will confer a favor on typagraphical union by Withdrawing their patrqnage from the Covington mon wealth," J r .
In the Union Bulletin of October 1, 1890, issued under .the auspicejJ of Cincinnati Typographical Union No.3, and published at Cincinnati, is to be found the following: "TAKE NOTICE. .
"It. is ri.lquested of all who are friendly to organizelI labor that they buy nothirig from the following firms: '" '" '" The Commonwealth, (newspaper and job,office,) Covington. Kentucky." . A like notice is published in the Union Bulletin of October 29, 189(}. The complainant attaches to his affidavit a copy of a communication which, he stated, was sent by the union to Messrs. Griffin, agents for salf'l of complainant's paper, and which reads as follows: .
No.3. uNovem ber 3, 1890. "Mess"" (Jrii/in-DEAR SIBS: About two years ago the union compositors employed on the Covington Daily Commonwealth qUit working because Col. Case)', the proprietor, would not live up to the scale of prices of this union. Mr. Casey afterwards promised to employ union men and the union, relying on the promise, for the fulfillment of the s a m l ! " " "On Monday, September 22, 1890, a committee from Typographical Uniqn No.3, waited upon Mr. Casey, and asked him to keep the promise he had so often made. Col. Casey informed the committee that he would not employ Union printers: t "The committee then reported his answer to the union. The union now appeals toil.U in sympathy w'ithlabor to use' their influence with Mr. Casey: try to show him the error of his way, and, failing in that, to withdraw their patronage from the · rat' or 'scab' Commonwealth until it is unionized. ' "Very respectfully, "OFFIOE OF TYPOGRAPHIQAL UNION "TYPOGRAPHICAL UNION
No.8.
union will consider it a.great favor for you to give up the agency Of th"eCdmmonwealth. If you do .not _do so, we will have to consider 1(>u an '. . . enemy to organized labor."
138
'" This to Griffins' Novelty Bazar, 101 York 03tre,et"Newpprt, Ky., " . . . Complainant also attaches a copy of the Union Bulletin of December ,.1, ,1890, 'Y:llich cpntaips .the following article: "BOYCOTT THE COMMONWEALTH."
. "We,undl'rstand thi\t"M:r.'Casey is and telling his advertisers andsubsclJibers that his office is now a union office; that the difficulty with the Union No.3 has been adjusted. ,'·S.well is 'not the case,bbwever. The bovcott isetill on, and will be until thiq>r6pnetorofthat 'rat' sheet employs union men.'. . ";We'reqYilst aU K. of L. assemblies; unions, and working men to bear in organized mind that Mr.' Casey refuses to employ, or in any way labor. We ask your aid in compelling Oasey to recognize the rights of labor· ., your patronage from the' scab' QOlllmoll wealth, and, if pos.sible, Itlt'!!1;r. Casey know wby you stop hill' rat' paper.. .... . . ' ·' a merchant who advertises in the 'rat'Common wealth. papeHri,any place,o( refuse. to buy goods unless ·the, immediatelysto,.lls the I ):at, '.' .. , 'I'J.'YI1ographical Uni<,ln No.3, both in hitterandspbit, has performed its part of the'contract with Mr. Casey; and equal good faith is expected from the proprietor of he pel'sistentlyrefuses to live up to promIses ,made.. '',' ' . "Members ,of; labor organizations, in. Covington. Newport. Dayton, Bellevue, and Ludlow are requested to take a personalintere,stinoQuftlghtagainst the' rat' Commonwealth. ." . . · 10,u C?inmonweal,thimprint on /lny work, .in your locality, or run abrdss any work that you think has been done in Cbving19n, please inqUire into the matter, and servethe.interests of all "The merchant who will patronize 'the · rat' CODllllonwealth,'a.fter the decideq stand the proprietor (Mr. Casey) has taken againllt organized labor, ;'... · .'. ' ' does not deserve your "We call upon' every friend of orgarijzoo labor to get his printing done in the union printing"offices.Beware of that ·rat' trap at Fifth and Scott streets, Covington, Ky. "Mr. Casey states that he publishes the Only daily ,paper in Covington, and should notbe discrilninated against by the citizens. "DWMr. Casey think of discrimination when be shllt out his union print(three 'of them l'esiMnts of Covin$ton,) in 18SS;andcompelled them to ".' , , 'seek employment The complainant filed the affidavit of J. Plaut, a member of a firm of jewelers at Cincinnati; Ohio. He states the firm received by mail on or about' December 1, 1890, the following circular: ,"DE4n.:,E¥ll,:, We beg leave to call your attention tpthe trouble between the Covington Daily Commonwealth and Typographical Union N(). 3. In the springpf 1888 the proprj,etor the Commonwealth refused ,to pay the scale of wages ,and ,the, union men ,,:orking. Mr. Casey afterwardflpromis\l4,to pay scale, but keptputtmg Ito1T,andnow rllfuses to keep hispromis6.,. ' . '. ". '" " .' "The Typographical UniQnNo. 3 has lived up 19 its part of the contract, bu,t .aa:r·.ofseY;fefuS6s tO,recognize labor in any way. Therefore we request your aia in unionizing theCo.mmon wealth. , . ,'. .' .', . . . ' ,'. a bUlliiless nian, ,and no doubt rely upon the for sbme If you WiSh'to retain tha'good-will Qf}abor, withdra,w you,r, ad-
CASEY V. cnroINNATI, T·YPOORAPl1WAL' UNION No.3.
vertis:ing 'frord 'tbe-"ComrnOlJ;wealth, refuse to subscribe for the sheet, and your aid ill our behalf will be highly. "Very respectfully. ' "TYPOGRAPHICAL
UNIO;N No.3,"
The complainant also presents to 'the court the affidavits of sundry of his advertising patrons, prominent business men of the city of Cincinnati, and of the cities of Covington and Newport, Ky., showing the receipt by them of: the· circulars above. These affidavits make it clear that by concerted action complainant's advertising patrons, who furnished him the bulk of his business in that line, were plied, through the mails, up to tbe issuance of the restraining order berein, with circulars calling upon them to withdraw their advertisements. under penalty of the loss of the' trade and the good-will of members of labor unions, ando! all in sympathy with them. There is also the affidavit of Henry M. Davis, advertising solicitor in' Cincinnati for complainant. He states that Mabley & Carew and Fechheimer Bros. & Co" business firms in Cincinnati,wre up to the 1st of October, 1890, regular advertisers in the Commonwealth, and that their advertisements were of the value of about $150 per month to complainant; Early in October, 1890, he visited said firms, and, as usual, solicited their advertisements, which were refused, for the reason, as stated by their advertising managers, that they had been visited bya committee of said typographical union,and threatened that unless they withdrew their advertisements no member of any trades union or labor association would purchase from them, and that he had since then repeatedly visited and solicited them, and in each case met with the same ason, and that the advertising patrefusal, stated to be for the same r ronage of said firms had been wholly withdrawn from said paper because of said threats. The affiant mentions several other firms of Cincinnati, advertising in the Commonwealth, who reported to him that they were in like manner threatened. On behalf of the defendants there was presented the joint affidavit of the defendants J. B. Stoop, Oscar Bailey, and Frank L. Rist, who say that they are members of said typographical union, and connected with its management,and well acquaintedwitb all the facts and acts of said union, so tar as they relate to matters alleged by the complainant. They further say that in the fall of 1888, and at'divers times between thatdnte, and September 2\), 1890, committees of the union, whereof one or more of the affiants in each instance were members, called upon complainant and urged and requested him to employ members of the union in. the publication of his newspaper and the on of his business of job printing,and to pay tbe prices, which were fair and tea-' sonable, fixed by the scale adopted by said union, and that the plainant from time to time promised said committees, and in divers ways induced them to believe, that he would comply with their request. They admit that they visited the complainant in September, 1890, as he allegeein' his affidavit.; and tbey saythll.t' they then reminded bim '6£ his promises as; above: stl1ted, 'and requested him to comply with them,:
140-
REPORTER,VOI.
45.
which he refused to do, and informed them that he would not employ union printers, that is to say, members of said typographical union, in .. his office at all. They further deny that any of the circulars or other publications mentioned by complainant in his affidavit misrepresent the facts as they existed. They further say that none of the firms mentioned in complainant's affidavit were at any time visited by a committee from said typographical union; that no such committee was ever appointed by said union; and that the members of said union individually, so far as is known to affiants; and known to the defendants named in the bill of complaint, have not at an)' time visited said firms or any other persons in regard to the differences between the complainant and the said union, or its members. Nor has said union, or its members, in any manner, through its QOrnmittees or agents, threatened said firms or any other persons as comhas alleged in his affidavit; nor has said union, or any committeetherefrom, or any ofits members, so far as is known to affiants, in· any wise interfered with the printers employed by the complainant, Of: with any of his employes. ,They deny that any committee, officer, or agent of the union has at anytime visited .the firm of Mabley & Carew, or the firm of Fechheimer Bros. &; Co., in respect to said differences. or threatened said firms, or of them, in any manner, through committees or agents, as is Charged upon hearsay in the affidavit of Henry M. Davis· .They further deny that the posters, circulars, and other publications mentioned in complainant's affidavit contained or were intenued to express any threats or to seek by intimidation to interfere with the business of the complainant. They affirm that said posters and circulars and other publications were intended to present, and did in fact present, reasonS 'Why they should give their patronage to, and employ the membersor said typographical union; and to those employers who were friendly to and willing to employ members of said union and like unions of organized labor. Defendants also file the affidavit of Henry Curtin, the advertising manager ofMabley & Carew, and of Ed Renau, advertising manager of Fechbeimer Bros., who say that they have read the affidavit of Henry M. Davis, and that it is not true that they or their firm were threatened by said union, or any committee thereof, with the loss of patronage if tbey continued to advertise in the Covington Commonwealth, and they deny that they so stated to Davis. Appended to the affidavit of Renau is the affidavit of Jacob S. Fechheimer, of the firm of Fechheimer Bros. & Co., and with Renau in charge advertising matters of said firm. He states that he has read Renau's affidavit, and that it is true in its statements of facts. SimraU e:t- Mack and Mr. Bryan. for complainant. Kittredge e:t- Wilby, for defendant. SAGE, J., (after stating the facts as above.) After the presentation of the facts upn the hearing of the motion, the court called upon counsel for
CASEY'll. CINCINNATI TYPOGRAPHICAL UNION No.3.
'141
the defendants to state the grounds of their objections to the granting of an injunction. They first challenged the jnrisdiction in equity, citing Kidd v. Harry, 28 Fed. Rep. 773; Society v.,Roosevelt, 7 Daly, 188, 190; Assurance 00. 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 Stearn-Ship Co. v. McGregor 15 Q. B. Div. 476; and MOOTeIJ v. Brick-Layers Union, 23 Wkly. Law Bul. 48. Eidd v. Harry 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 com· plainants' letters patent or their title thereto, or concerning their busi. ness, during the pendency of a suit to restrain the infringement of said patents. Justice BRADLEY, who decided the case, 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 assuminK the jurisdiction. * ** We do not think that the existence of malice in publishing a or uttering slanderous words, can make any difference in the jurisdiction of the court. Malice is charged inaltnost every case of libel, and no cases of authority can be found, wethink, 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 00. 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 ManuJ'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 chusetts held in Whitehead v. Kitson, 119 Mass. 484, that there was ri.!!diction in equity to restrain a person falsely 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 injUDCtion, which had been granted, restraining the defendants, as members visitors of the sta:teboard of charities, from publishing the proceedings before them in their inspection and examination, under the statute, of the affail'sand conduct of the complainant and -its: OffiCel'$, which pro-
or
REPORTER,
creedings, it was averred, were secret and e.r.: parte, the society having been excluded from being present by counsel, and not allowed to cross-exon its own behalf, or to know amine witnesses or produce 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 beingrepugnl}nt to the constitutional prvvision that every citizen may fairly speak, write"and publish his sentiments on all responsible for the abLUle of that right, and that no law subjects, should be passed to restrain the liberty of speech and of the press. In A88urance Co.v. Knott the court was asked to restrain the publication of a pamphlet which, it was charged, contained false statements of the rates of premium charged by complainant, and represented the companyas being managed with reckless extravagance, and as Leing in a state of insolvency, and unable to fultill its engagements; and it was averred ,that the continued pu blication would be very injurious to the company's credit, and collld not fail greatly to damage its business and diminish, its profits. HALL, V. C., refused to grant an ,injunction, and the plaintiff, by way ofappeal, applied to Lord CAIRNS, J.J. C., who held that there was no ground whatever for the interference of the court; that if the publications did not amount to libels, and, were therefore in. pocu,ousand justifiabjein the eye of the court of common law, he was at a loss to understand upon what principle the court of chancery could 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 , ' In Richter v. Tailors' U1fion, a similar rule was applied. In that case forth that,the defendants unlawfully combined and con· the an<l destroy plaintiff's busin.ess, and that in order spired to to accomplish that purpose they maliciously compelled plaintiff's emthem, and prevented others from working for ployes to quit working them. The 'means by which this was accomplished were not specified. "Whetherit was done by moral suasion, by argument, by reason, or by intimidation and violence, is not shown by either the. petition or the !l,vidence.". All that did appear was .that the defendants printed and circulars, and that the plaintiff had lost cu/?tomers because .the hltterhad heard that pJlilintiff was employing scab or inferior tailors. It. was not shown from what source the alienated <mstomers derived their information, but it was assurned by counsel for the plaintiff' that it was the circulars. Thecoul't held the only question hefore it was whether it (:ould enjoin the publication of a libel, and that the only remedy against sucllp\lblication was at law. To the same effect is Mayer v. ;ABiJoGiqi,w'rl' .Indeed, the law as stated in all these cases is, so to..be qeY<lJ;ld contr9versy,and it. is not neces..
CASEY V. CINCINNATI TYPOGBAPHICAL>'UNION No.3.
143
sllry to refer more particularly to other cases cited in support of it. Francis v. Flinn, 118 U. S. 385, () Sup. Ct. Rep. 11:48, is quite as ' , strong an authority as any cited. The question with which we have to deal is whe,ther ,this case falls within the rule. That the defendant,'the typographical union, set on foot a boycott against the.complainant, as stated in the bill, and' in the affidavits on file, is not denied. That this boycott was to be enforced by threatening loss of business to those who, having no connection with the union, should continueW advertise with; or in anyway the is clearly shown. True; it is claimed: that, 'no threats were used i but the language of the circulars has no doubtful meaning; The affidavits on file shQwthatit was perfectly understood bythose whO received them; and ,the circumstances indicate that it was intended that it should be so understood. In Bra.ee v. Evans, 3 Ry;& Corp.'L; (J"; 561, it was held that the word "boycott" is in itself a thrllat.· "Ifiipdp.. ular acceptation it is an otganized effort to exclude a perSon frob1 bueii. ness ,relations with others', by persuasion, intimidation';· and other acts which tend to violence, and. thereby coerce him) through felif'oft&suIting injury, to submit to'dictation in the managemehtof bi\!l !alfaits." ,But it is ,insisted for' the'defandantS thllt every representation Of facteonl. taineddntheir .and circulars true'llhatisJ' to i Say; that the complainant had, in 188&', broken-,with· 'the typograIiliicffl'l uni5n,dig. charged all union employes, and had since that date :etbployed6'rlly those wl;lo; ..were, I/.otmembel'13',of the ,union;: 'lludthat ,after ,repeatedly promising to unionize hisoffioe her'had tinillly, fused to do so, he would ,wasqonnected' with un19u.; ;irecor,leeW4','fa;Cts: . rare; argue coi;ln$el only a declared that .. /lny member .of the, union, 'the, union had a rightto,saiy,that' Vers would not complainant. Nobodydispuw!l'try'llt'proposition. If that were all that is involved, in .this caae,'tbere1wOrildbe ',tpiiothing for the courpo act upon. .But itisnot stead of sharp alld bitter, as 1>Y coun,sel; it was an attempt, by coercion, to all. competition affecting the union. It was an organized conspiracy:to.fOl;cethe plainant to yield his rightto select his own workmen,andstibrilitbitil. ' self to the control of union, and allow him, imd to determ,ine whOm he should employ andwllOm In other words, it was and is an organized efl'ort to force come into the union, or be driven from their calling for want o(eDtP!9Yment, and to makethed8struction of! the complainant's b\isihess'the penalty for his refusingto surrender to th:e'union: 'Whate\"etrndriklobiligation may haYEl'been incurred by complainant hiS'IPt:omises to 'unionize his th'eJ wete''Whallywithaut consideraddri, 'and theyl\;1l10unt to nothing whatever in law.lW in equity. ;':1':: No ease has been cited .wllere"up-6n a'proper shinving .pf fllCuI; l!luccesliful appeal has ;been' mllde to'S ;c6\1rt;df Chancery t8 'ii.
is
144
PDEl\AL REPORTER,
boycott. The authorities are all the o.ther 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. WiTzig, 4 N. Y. Crim. ;R. 403; People v. Kostka, Id. 429. So, also, in Virginia: Oom. v. Shelton, 11 Va. Law J. 324. And in Connecticut: State v. Glidden,3 Atl. Rep. 890. And in England: Reg. v. Ba1Tett, 18 L. R. Ir. 430. In Emn.ck v. Kane, 34 Fed. Rep. 47, the United States circuit court for the northern district of Illinois held that equity had jurisdiction td 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 deciE!ion, the auth()rity of Kidd v. Horry and Wheel 00. v. Bemia, cited for the defendants in this case, but said that the case before him was fairly different and distinguishable from thoseca8es 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 Emack v. Kane the gist of the complaint was that the publications were only means employed to carry into effect & malicious injure and destroy the complainant's business. Judge BLODGETT ·said: "I cannot·believe that a man is remediless against persistent and continued attacks uJll>n his busines8, such as have been perpetrated by these defendant. against the complainant, 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 imp,ly aml1ltiplicity 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 conld Dot be fully redressed by a verdict and ju6gment 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. from dealing with him, may wholly break up and ruin him financially 'wit'h no adequate remedy if a court of eqUity cannot afford pr9tection by its restraining writ." This is a clear andforciQle statement of the law, and is in accord with general current of authority. How strongly it applies in this case may be readily seen by referring to the editorials in the organ of the union, and. to the hand.. billS 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 of the 'raV sheet emplol s union men." It
CASEY t1. CINCINNATI TYPOGRAPHICAL UNION No.3.
145
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 1t 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." These are fair samples, and they indicate the method by which the boycott was to be made effljctive. Yet counsel say that there were ri9 threats; that tbe defendants were only exercising their constitutional right to freely speak and publish their opinions; that what defendants have done is a necessaryand natural and proper incident of bitter,but yet lawful, petition,' 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 defendantswere indicted for conspiling 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 tlle indictment ought to have stated the acts that were committed to erish 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 hearing the prosecution, said that that was certainly not necessary. "The offense does not consist in doing the acts by which the mischief is eflected,-for they may be perfectly indiflerent,-but the conspiring with a view to effect the intended mischief by any means. The illegal combi.nation 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 areceiver appointed by the United States circuit court: .. ·June 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 case are you to cOllsider 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 thewritershould be It · _ _ ,
.. · OFFIOE OF LOOAL· COMMITTEE·
punished."
The court, in passing upon the case, said: v.45F.no.3-10
146
FEDERAL REPORTER, vol. 45.
"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 be was violating the 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 pleases, 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 wiahesto stay. The discharged workman comes with a large party of his friends, armed with revolvers and muskets, and says:>"Now my friends arehere;-,.yop better leave;-1 request you to leave.". In terms there :no threat, bt;lUt is a req\lestbacked by adl:lmonstration of force, intended and calculated to intimidate, and the 'man ,leaves really because pe is Again, armed ro,bbers,stop.ll,cpach. One of their to step out,;mq'hand their ,nulllbel'politely villullb,IEls;anp they:d0so. To of robbery, the .defense lsmada tnerewas no therewer.e, no only a politereqiiest, was complied'withe rna, :cptirt saiil'thatany ,'Yhowduldrecogn,ize such a defensedeserve,d ·to be de&pised, anA the court waltH ht. , { t '..... . . . , ' '., · . . . .·.... ' . . '.',' .. " .'" In Srote;; ,Gliilaen, cited' berei'nb'hfore,. i ,'sveaidrtg for the ,84 pre,trie ,couitof t;., states WaX th,13 .defendapts. said in efteonb'tlie 'ubl'ishin com' an : . ,,, .' . '. .. J'. ,.,.. .... ,. ,.,. '., ".P, . . ' g ... P.Y·. ,.. ,.". ,.... :..... , ., ·. , ..··' " · .·.. ::'X;o,ltsbi¥l have:. '. !
employ. only Sllch men :name.It"s mterest W yourbnsiness; we have no capitallllvested. tbel'l'lfi; we arain sibl6Jfor Its flosses or (aildre: "we are not :directly benefited!by its suecess; and we do not partlcipate:inits profits;..:.:.;yet"·,we have aright to control its man" agement. and'cplIlpelyou to Bubmitto onrdictatiom"
'in'
The Cbllrfs4id thlltthe bafe of' such a #gh;t, was startling; all pusiness were' alife 'stipj!lct to the that, if it tation BnQ cotltrol of th.ose who Bsse;r.:tEld it, and upOn same principle and for the same reason the right to' determine what business men shall 'engage, in, lind whena.nd where it shall be on, will be must coneaded to associlltionsof workingmen of the ·.CIMsofth6se whom it 'would be necessary to .·· ,The opinion in conspirthis case, aHpough the cas,e itself arose upon an acy; is n well-C6tlsidered discussion of the' law with relation to b()ycotRep. 48.' ting. See, also, Steam-Ship Co. v. McKenna, 30 In the ,light qf.these a.uthorities it is Idle to talk about the defendants' S(lts and ai$'lllere incid.ents a competition set on foot by declara'tfon..that he ,,:,opld not employ union printers; that by ()Onstitutional arthat, viewed in the most unfavorable light, they are nothing IDOle' than,libels,snd the only' remedy for an'ydnj'ury resulting 'is 'by fin action at 10. , It is claHnedthat tha(relJital in the affidavit 'ofDavls of'l\'hatwilssaid to him by the managers of the advertising department of MableY'&'Cd. rewand of Fechheimer Bros;>&Co.,when th6,Y)withdr{l,wdheirpatronage
{J ,
.f,
'f'
CASEY "'.
TYPOGRAPHICAL UNION
No.3.
147(
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 hear. . say. There are two answers to this claim: First. What was said is clearly admissible .as part of the res gestm, to show the state of mind of the persons in doing the act which their declarations accompanied. Secorid:Upon the hearing of a motion for a preliminary injunction, the rules 6fevidence are applied less strictly than upon theiinal hearing of the cause, and consequently evidence that would not be competent in support of an application for a perpetual injullction shOl,lld be admitted. Buckv. Hermance, 1 Blatchf. 322; Matthews v. Manufacturing 00., 19 E'ed. 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 pendenlly of a suit in which the rights to it. are to be decided, and that without expressing, and Oftentimes without having the means of forming any opinion as to such rights. Great WesternRy. Co. v. Birmingham &: O. J. By. eo;, 2 Phil. Ch. 597. 'rhe rllJe, with the reason tor it, applies with peculiar force when it is sought to exclude the statements reJerred to from consideration. The advertising managers made haste to deny that any threats were uttered to them by anybody representing the typographical union. 'l'heydid not,however, set forth whitt 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. That should be reserved until the final hearing, alter full opportunity to crossupon the one hand, and the advertisingmansgers who denials upon the other hand, and to present to the court a full made showingofall, that was said wh.en called upon by the committee of the Accordjng to the logic of counsel for dehm(lants,lllmost anytQing might have been said without precluding the denial!!. 11,la:ve made the statement of the facts as they are Bet forth in the bill and affidavits quite full,and have entered somewhat at length upon the discussiouof the questions involved, because of therequest by:counsel on. both sides for a full statement of the case, with the reasons of the court (mits conclusions, inasIJ:1uch as. the decision upon the motion may settle the entire controversy betwe.en the parties. The m()tj;on for .80 temporary)njunction, to continue in force this cause, will be granted.
'.1, ;
148
:rEDERAL REPORTER,
voL 45.
ALLIS
'I).
JONES et al. 'I).
SKEEN et al.
ALLIS.
(Oircuit Court, D. Nebraska. lS91.)
1.
CORPORATION-MoRTGAGE-ULTRA VIRES.
Where the indebtedness that a corporation is authorized by its oharter to oontract is limited, the objection that a mortgage for a sum in excess of this amount is ultra vires cannot be successfully urged by an unsecured creditor, who became such after the mortgage was executed, and whose claim is open to the same objection.
2. SAME-OMISSION OF SEAL.
Where a mortgage is given by a corporation to secure a bonafide debt" and in a proceedil!g by an unsecured creditor to set it aside its execution is admitted, and its validity asserted by the company and all the stockholders and officers thereof, the mere omissicn to attach the corporate seal will not have the effect to invalidate it. ..
8.
SAME-CORPORATE AUTHORITY-PAROL EVIDENOE.
Upon an issue as to whether the execution of a mortgage by the president and $ecretaryof a corporation was authorized by its board of directors, in whom the Control and management of its aibirs was vested, parol evidence is admissible to prove the action of the board, when the record of the meeting fails to state it. A mortgage given for a bona fide debt by a creditor in failing circumstances; but containin,e; no trust, secret or expressed, in favor of anyone elSe,though in effect a,preference, is not invalid under the Nebraska assignment laws. '
INSOLVENCY--PREFERENOE.
In Equity. Harwood. Amell &: KeUy, for complainant and cross-complainant Skeen. A. J. Poppleton, for cross-complainant Red Cloud National Bank. G. M.; Lambertson and Case &: McNeny, for cross-complainants First National Bank of Denver and Red Cloud National Bank. CALDWELL, J. The plaintiff, alleging that he is a general creditor of the defendant corporations the Red Cloud Milling Company and the Alma Milling ,Company in the stim of $11,950, files this bill to annul certain mortgages executed by these milling companies to the Red Cloud National Bank and the First National Bank of Denver, and prays that the affairs of the milling companies may be wound up, and their assets distributed. The plaintiff holds as collateral seCurity for his debt certain shares of the capital stock of the milling companies belonging to the defendant Jones, and by him pledged as security for the plaintiff's debt against the companies. The defendant Skeen filed a cross-bill, making the same allegations and praying for the same relief as the plaintiff; but confessedly, on the pleadings and proofs, his debt is the individual indebtedness of the defendant Jones, and not the debt of the milling companies, and his cross-bill must for that reason be dismissed. The fact that he holds stock of the milling companies belonging to and pledged by his debtor, Jones, as collateral security for his debt gives him no standing in court on the proofs in this case, for, in any event, it is conceded the companies are hopelessly insolvent, and the stock worthless. The simple pledge of the stock by its owner, Jones, did not affect his right to vote and act in good
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