Truax v. Corrigan/Dissent Brandeis
Mr. Justice BRANDEIS dissenting.

The first Legislature of the state of Arizona adopted in 1913 a Civil Code. By title 6, chapter 3, it sets forth conditions and circumstances under which the courts of the state may or may not grant injunctions. Paragraph 1464 contains, among other things, a prohibition against interfering by injunction between employers and employees, in any case growing out of a dispute concerning terms or conditions of employment, unless interposition by injunction is necessary to protect property from injury through violence. Its main purpose was doubtless to prohibit the courts from enjoining peaceful picketing and the boycott. With the wisdom of the statute we have no concern. Whether Arizona in enacting this statute transgressed limitations imposed upon the power of the states by the Fourteenth Amendment is the question presented for decision.

The employer has, of course, a legal right to carry on his business for profit, and incidentally the subsidiary rights to secure and retain customers, to fix such prices for his product as he deems proper, and to buy merchandise and labor at such prices as he chooses to pay. This right to carry on business-be it called liberty or property-has value, and he who interferes with the right without cause renders himself liable. But for cause the right may be interfered with and even be destroyed. Such cause exists when, in the pursuit of an equal right to further their several interests, his competitors make inroads upon his trade, or when suppliers of merchandise or of labor make inroads upon his profits. What methods and means are permissible in this struggle of contending forces is determined in part by decisions of the courts, in part by acts of the Legislatures. The rules governing the contest necessarily change from time to time. For conditions change, and, furthermore, the rules evolved, being merely experiments in government, must be discarded when they prove to be failures.

Practically every change in the law governing the relation of employer and employee must abridge, in some respect, the liberty or property of one of the parties-if liberty and property be measured by the standard of the law therefore prevailing. If such changes are made by acts of the Legislature, we call the modification an exercise of the police power. And, although the change may involve interference with existing liberty and property of individuals, the statute will not be declared a violation of the due process clause, unless the court finds that the interference is arbitrary or unreasonable or that, considered as a means, the measure has no real or substantial relation of cause to a permissible end.  Nor will such changes in the law governing contests between employer and employee be held to be violative of the equal protection clause merely because the liberty or property of individuals in other relations to each other (for instance, as competitors in trade or as vendor and purchaser) would not, under similar circumstances, be subject to like abridgment. Few laws are of universal application. It is of the nature of our law that it has dealt, not with man in general, but with him in relationships. That a peculiar relationship of individuals may furnish legal basis for the classification which satisfies the requirement of the Fourteenth Amendment  is clear. That the relation of employer and employee affords a constitutional basis for legislation applicable only to persons standing in that relation has been repeatedly held by this court.  The questions submitted are whether this statutory prohibition of the remedy by injunction is in itself arbitrary and so unreasonable as to deprive the employer of liberty or property without due process of law, and whether limitation of this prohibition to controversies involving employment denies him equal protection of the laws.

Whether a law enacted in the exercise of the police power is justly subject to the charge of being unreasonable or arbitrary can ordinarily be determined only by a consideration of the contemporary conditions, social, industrial and political, of the community to be affected thereby. Resort to such facts is necessary, among other things, in order to appreciate the evils sought to be remedied and the possible effects of the remedy proposed. Nearly all legislation involves a weighing of public needs as against private desires, and likewise a weighing of relative social values. Since government is not an exact science, prevailing public opinion concerning the evils and the remedy is among the important facts deserving consideration, particularly when the public conviction is both deep-seated and widespread and has been reached after deliberation.  What, at any particular time, is the paramount public need, is necessarily largely a matter of judgment. Hence, in passing upon the validity of a law charged as being unreasonable, aid may be derived from the experience of other countries and of the several states of our Union in which the common law and its conceptions of liberty and of property prevail. The history of the rules governing contests between employer and employed in the several English-speaking countries illustrates both the susceptibility of such rules to change and the variety of contemporary opinion as to what rules will best serve the public interest. The divergence of opinion in this difficult field of governmental action should admonish us not to declare a rule arbitrary and unreasonable merely because we are convinced that it is fraught with danger to the public weal, and thus to close the door to experiment within the law.

In England a workingman struggling to improve his condition, even when acting singly, was confronted until 1813 with laws limiting the amount of wages which he might demand.  Until 1824 he was punishable as a criminal if he combined with his fellow workmen to raise wages or shorten hours or to affect the business in any way, even if there was no resort to a strike.  Until 1871 members of a union who joined in persuading employees to leave work were liable criminally, although the employees were not under contract and the persuasion was both peaceful and unattended by picketing.  Until 1871 threatening a strike, whatever the cause, was also a criminal act.  Not until 1875 was the right of workers to combine in order to attain their ends conceded fully. In that year Parliament declared that workmen combining in furtherance of a trade dispute should not be indictable for criminal conspiracy unless the act, if done by one person, would be indictable as a crime.  After that statute a combination of workmen to effect the ordinary objects of a strike was no longer a criminal offense. But picketing, though peaceful, in aid of a strike, remained illegal,  and likewise the boycott.  Not until 1906 was the ban on peaceful picketing and the bringing of pressure upon an employer by means of a secondary strike or a boycott removed.  In 1906, also, the act of inducing workers to break their contract of employment (previously held an actionable wrong)  was expressly declared legal.  In England improvement of the condition of workingmen and their emancipation appear to have been deemed recently the paramount public need.

In the British dominions the rules governing the struggle between employer and employed were likewise subjected to many modifications; but the trend of social experiment took a direction very different from that followed in the mother country. Instead of enabling the worker to pursue such methods as he might deem effective in the contest, statutes were enacted in some of the dominions which forbade the boycott, peaceful picketing, and even the simple strike and the lockout;  use of the injunction to enforce compliance with these prohibitions was expressly sanctioned;  and violations of the statute was also made punishable by criminal proceedings.  These prohibitions were the concomitants of prescribed industrial arbitration through administrative tribunals by which the right of both employer and employee to liberty and property were seriourly abridged in the public interest. Australia  and New Zealand  made compulsory both arbitration and compliance with the award.  Canada limited the compulsion to a postponement of the right to strike until the dispute should have been officially investigated and reported upon.  In these dominions the uninterrupted pursuit of industry and the prevention of the arbitrary use of power appear to be deemed the paramount public needs.

In the United States the rules of the common law governing the struggle between employer and employee have likewise been subjected to been made mainly through judicial decisions. The legal right of workingmen to combine and to strike in order to securer for themselves higher wages, shorter hours and better working conditions received early generaly recognition.  But there developed great diversity of opinion as to the means by which,  and also as to the persons through whom,  and upon whom  pressure might permissibly be exerted in order to induce the employer to yield to the demands of the workingmen. Courts were required, in the absence of legislation, to determine what the public welfare demanded, whether it would not be best subserved by leaving the contestants free to resort to any means not involving a breach of the peace or injury to tangible property, whether it was consistent with the public interest that the contestants should be permitted to invoke the aid of others not directly interested in the matter in controversy, and to what extent incidental injury to persons not parties to the controversy should be held justifiable.

The earliest reported American decision on peaceful picketing appears to have been rendered in 1888 ; the earliest on boycotting in 1886.  By no great majority the prevailing judicial opinion in America declares the boycott as commonly practiced an illegal means  (see Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 Sup. Ct. 172, 65 L. Ed. 349), while it inclines towards the legality of peaceful picketing.  See American can Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 Sup. Ct. 72, 66 L. Ed. 189. But in some of the states, notably New York, both peaceful picketing and the boycott are declared permissible.  Judges being thus called upon to exercise a quasi legislative function and weigh relative social values, naturally differed in their conclusion on such questions. 

In England, observance of the rules of the contest has been enforced by the courts almost wholly through the criminal law or through actions at law for compensation. An injunction was granted in a labor dispute as early as 1868.  But in England resort to the injunction has not been frequent and it has played no appreciable part there in conflict between capital and labor. In America the injunction did not secure recognition as a possible remedy until 1888.  When a few years later its use became extensive and conspicuous, the controversy over the remedy overshadowed in bitterness the question of the relative substantive rights of the parties. In the storms of protest against this use many thoughtful lawyers joined.  The equitable remedy, although applied in accordance with established practice, involved incidents which, it was asserted, endangered the personal liberty of wage earners. The acts enjoined were frequently, perhaps usually, acts which were already crimes at common law or had been made so by statutes. The issues in litigation arising out of trade disputes related largely to questions of fact. But in equity issues of fact as of law were tried by a single judge, sitting without a jury. Charges of violating an injunction were often heard on affidavits merely, without the opportunity of confronting or cross-examining witnesses.  Men found guilty of contempt were committed in the judge's discretion, without either a statutory limit upon the length of the imprisonment, or the opportunity of effective review on appeal, or the right to release on bail pending possible revisory proceedings.  The effect of the proceeding upon the individual was substantially the same as if he had been successfully prosecuted for a crime; but he was denied, in the course of the equity proceedings, those rights which by the Constitution are commonly secured to persons charged with a crime.

It was asserted that in these proceedings an alleged danger to property, always incidental and at times insignificant, was often laid hold of to enable the penalties of the criminal law to be enforced expeditiously without that protection to the liberty of the individual which the Bill of Rights was designed to afford; that through such proceedings a single judge often usurped the functions not only of the jury but of the police department; that in prescribing the conditions under which strikes were permissible, and how they might be carried out, he usurped also the powers of the Legislature; and that incidentally he abridged the constitutional rights of individuals to free speech, to a free press, and to peaceful assembly.

It was urged that the real motive in seeking the injunction was not ordinarily to prevent property from being injured nor to protect the owner in its use, but to endow property with active, militant power which would make it dominant over men; in other words, that under the guise of protecting property rights, the employer was seeking sovereign power. And many disinterested men, solicitous only for the public welfare, believed that the law of property was not appropriate for dealing with the forces beneath social unrest; that in this vast struggle it was unwise to throw the power of the state on one side or the other, according to principles deduced from that law; that the problem of the control and conduct of industry demanded a solution of its own; and that, pending the ascertainment of new principles to govern industry, it was wiser for the state not to interfere in industrial struggles by the issuance of an injunction. 

After the constitutionality and the propriety of the use of the injunction in labor disputes was established judicially, those who opposed the practice sought the aid of Congress and of state Legislatures. The bills introduced varied in character and in scope. Many dealt merely with rights; and, of these, some declared, in effect, that no act done in furtherance of a labor dispute by a combination of workingmen should be held illegal, unless it would have been so, if done by a single individual, while others purported to legalize specific practices, like boycotting or picketing. Other bills dealt merely with the remedy; and, of these, some undertook practically to abolish the use of the injunction in labor disputes, while some merely limited its use either by prohibiting its issue under certain conditions or by denying power to restrain certain acts. Some bills undertook to modify both rights and remedies.  These legislative proposals occupied the attention of Congress during every session but one in the 20 years between 1894 and 1914.  Reports recommending such legislation were repeatedly made by the judiciary committee of the House or that of the Senate, and at some session by both.  Prior to 1914, legislation of this character had at several sessions passed the House,  and in that year Congress passed and the President approved the Clayton Act, section 20 of which is substantially the same as paragraph 1464 of the Arizona Civil Code. Act Oct. 15, 1914, c. 323, 38 Stat. 730, 738.

Such was the diversity of view concerning peaceful picketing and the boycott expressed in judicial decisions and legislation in English-speaking countries when in 1913 the new state of Arizona, in establishing its judicial system, limited the use of the injunction, and when in 1918 its Supreme Court was called upon to declare for the first time the law of Arizona on these subjects. The case of Truax v. Bisbee Local, No. 380, 19 Ariz 379, 171 Pac. 121, presented facts identical with those of the case at bar.  In that case the Supreme Court made its decision on four controverted points of law. In the first place, it held that the officials of the union were not outsiders with no justification for their acts. 19 Ariz. 379, 390. 171 Pac. 121.  In the second place, rejecting the view held by the federal courts and the majority of the state courts on the illegality of the boycott, it specifically accepted the law of New York, Montana, and California, citing the decisions of those states. 19 Ariz. 379, 388, 390, 171 Pac. 121.  In the third place it rejected the law of New Jersey, Minnesota, and Pennsylvania that it is illegal to circularize an employer's customers, and again adopted the rule declared in the decisions of the courts of New York, Montana, California, and Connecticut, 19 Ariz. 379, 389, 171 Pac. 121.  In deciding these three points the Supreme Court of Arizona made a choice between well-established precedents laid down on either side by some of the strongest courts in the country. Can this court say that thereby it deprived the plaintiff of his property without due process of law?

The fourth question requiring decision was whether peaceful picketing should be deemed legal. Here, too, each of the opposing views had the support of decisions of strong courts.  If the Arizona court had decided that by the common law of the state the defendants might peacefully picket the plaintiff, its decision, like those of the courts of Ohio, Minnesota, Montana, New York, Oklahoma, and New Hampshire, would surely not have been open to objection under the federal Constitution; for this court has recently held that peaceful picketing is not unlawful. American Steel Foundries v. Tri-City Central Trades Council, supra. The Supreme Court of Arizona Found it unnecessary to determine what was the common law of the state on that subject, because it construed paragraph 1464 of the Civil Code as declaring peaceful picketing to be legal. In the case at bar, commenting on the earlier case, the court said:

'The statute adopts the view of a number of courts which have      held picketing, if peaceably carried on for a lawful purpose, to be no      violation of any legal right of the party whose place of      business is picketed, and whether as a fact the picketing is      carried on by peaceful means, as against the other view taken      by the federal courts and many of the state courts that      picketing is per se unlawful.'

Shortly before that decision the Criminal Court of Appeals of Oklahoma had placed a similar construction upon a statute of that state, declaring that--

'The doctrine [that picketing is not per se unlawful]      represents the trend of legal thought of modern times, and is      specifically reflected in the statute above construed.' Ex      parte Sweitzer, 13 Okl. Cr. 154, 160, 162 Pac. 1134.

See St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30, 124 Am. St. Rep. 750.

A state, which despite the Fourteenth Amendment possesses the power to impose on employers without fault unlimited liability for injuries suffered by employees,  and to limit the freedom of contract of some employers and not of others,  surely does not lack the power to select for its citizens that one of conflicting views on boycott by peaceful picketing which its legislature and highest court consider will best meet its conditions and secure the public welfare.

The supreme Court of Arizona having held as a rule of substantive law that the boycott as here practiced was legal at common law, and that the picketing was peaceful, and hence legal under the statute (whether or not it was legal at common law), necessarily denied the injunction, since, in its opinion, the defendants had committed no legal wrong and were threatening none. But even if this court should hold that an employer has a constitutional right to be free from interference by such a boycott, or that the picketing practiced was not in fact peaceful, it does not follow that Arizona would lack the power to refuse to protect that right by injunction. For it is clear that the refusal of an equitable remedy for a tort is not necessarily a denial of due process of law. And it seems to be equally clear that such refusal is not necessarily arbitrary and unreasonable when applied to incidents of the relation of employer and employee. The considerations which show that the refusal is not arbitrary or unreasonable show likewise that such refusal does not necessarily constitute a denial of equal protection of the laws merely because some, or even the same property rights which are excluded by this statute from protection by injunction, receive such protection under other circumstances, or between persons standing in different relations. The acknowledged legislative discretion exerted in classification, so frequently applied in defining rights, extends equally to the grant of remedies.  It is for the legislature to say-within the broad limits of the discretion which it possesses-whether of not the remedy for a wrong shall be both criminal and civil and whether or not it shall be both at law and in equity.

A state is free since the adoption of the Fourteenth Amendment, as it was before, not only to determine what system of law shall prevail in it, but also by what processes legal rights may be asserted, and in what courts they may be enforced. Missouri v. Lewis, 101 U.S. 22, 31, 25 L. Ed. 989; Iowa, Central Railway Co. v. Iowa, 160 U.S. 389, 16 Sup. Ct. 344, 40 L. Ed. 467. As a state may adopt or reject trial by jury, Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678; or, adopting it, may retain or discard its customary incidents, Hayes v. Missouri, 120 U.S. 68, 7 Sup. Ct. 350, 30 L. Ed. 578; Brown v. New Jersey, 175 U.S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119; Maxwell v. Dow, 176 U.S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597. As a state may grant or withhold review of a decision by appeal, Reetz v. Michigan, 188 U.S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563; so it may determine for itself, from time to time, whether the protection which it affords to property rights through its courts shall be given by means of the preventive remedy or exclusively by an action at law for compensation.

Nor is a state obliged to protect all property rights by injunction merely because it protects some, even if the attending circumstances are in some respects similar. The restraining power of equity might conceivably be applied to every intended violation of a legal right. On grounds of expediency its application is commonly denied in cases where there is a remedy at law which is deemed legally adequate. But an injunction has been denied on grounds of expediency, in many cases where the remedy at law is confessedly not adequate. This occurs whenever a dominant public interest is deemed to require that the preventive remedy, otherwise available for the protection of private rights, be refused and the injured party left to such remedy as courts of law may afford. Thus, courts ordinarily refuse, perhaps in the interest of free speech, to restrain actionable libels. Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69, 19 Am. Rep. 310; Prudential Insurance Co. v. Knott, L. R. 10 Ch. App. 142. In the interest of personal liberty they ordinarily refuse to enforce specifically, by mandatory injunction or otherwise, obligations involving personal service. Arthur v. Oakes, 63 Fed. 310, 318, 11 C. C. A. 209, 25 L. R. A. 414; Davis v. Foreman, [1894] 3 Ch. 654, 657; Gossard v. Crosby, 132 Iowa, 155, 163, 164, 109 N. W. 483, 6 L. R. A. (N. S.) 1115. In the desire to preserve the separation of governmental powers they have declined to protect by injunction mere political rights, Giles v. Harris, 189 U.S. 475, 23 Sup. Ct. 639, 47 L. Ed. 909; and have refused to interfere with the operations of the police department, Davis v. American Society for the Prevention of Cruelty to Animals, 75 N. Y. 362; Delaney v. Flood, 183 N. Y. 323, 76 N. E. 209, 2 L. R. A. (N. S.) 678, 111 Am. St. Rep. 759, 5 Ann. Cas. 480. Compare Bisbee v. Arizona Insurance Agency, 14 Ariz. 313, 127 Pac. 722. Instances are numerous where protection to property by way of injunction has been refused solely on the ground that serious public inconvenience would result from restraining the act complained of. Such, for example, was the case where a neighboring landowner sought to restrain a smelter from polluting the air, but that relief, if granted, would have necessitated shutting down the plant, and this would have destroyed the business and impaired the means of livelihood of a large community.  There are also numerous instances where the circumstances would, according to general equity practice, have justified the issue of an injunction, but it was refused solely because the right sought to be enforced was created by statute, and the courts, applying a familar rule, held that the remedy provided by the statute was exclusive. 

Such limitations upon the use of the injunction for the protection of private rights have ordinarily been imposed in the interest of the public by the court acting in the exercise of its broad discretion. But in some instances, the denial of the preventive remedy because of a public interest deemed paramount, has been expressly commanded by statute. Thus the courts of the United States have been prohibited from staying proceedings in any court of a state, Judicial Code, § 265 (Comp. St. § 1242); and also from enjoining the illegal assessment and collection of taxes, Revised Statutes, § 3224 (Comp. St. § 5947); Snyder v. Marks, 109 U.S. 189, 3 Sup. Ct. 157, 27 L. Ed. 901; Dodge v. Osborn, 240 U.S. 118, 36 Sup. Ct. 275, 60 L. Ed. 557. What Congress can do in curtailing the equity power of the federal courts, state Legislatures may do in curtailing equity powers of the state courts, unless prevented by the Constitution of the state. In other words, states are free since the adoption of the Fourteenth Amendment, as they were before, either to expand or to contract their equity jurisdiction. The denial of the more adequate equitable remedy for private wrongs is in essence an exercise of the police power, by which, in the interest of the public and in order to preserve the liberty and the property of the great majority of the citizens of a state, rights of property and the liberty of the individual must be remolded, from time to time, to meet the changing needs of society.

For these reasons, as well as for others stated by Mr. Justice HOLMES and Mr. Justice PITNEY, in which I concur, the judgment of the Supreme Court of Arizona should, in my opinion, be affirmed: First, because in permitting damage to be inflicted by means of boycott and peaceful picketing Arizona did not deprive the plaintiff of property without due process of law or deny him equal protection of the laws; and, secondly, because, if Arizona was constitutionally prohibited from adopting this rule of substantive law, it was still free to restrict the extraordinary remedies of equity where it considered their exercise to be detrimental to the public welfare, since such restriction was not a denial to the employer either of due process of law or of equal protection of the laws. 

Notes