Truax v. Corrigan/Opinion of the Court
The plaintiffs in error, who were plaintiffs below, and will be so called, own, maintain and operate, on Main street, in the city of Bisbee, Ariz., a restaurant, known as the 'English Kitchen.' The defendants are cooks and waiters formerly in the employ of the plaintiffs, together with the labor union and the trades assembly of which they were members. All parties are residents of the state of Arizona.

In April, 1916, a dispute arose between the plaintiffs and the defendants' union concerning the terms and conditions of employment of the members of the union. The plaintiffs refused to yield to the terms of the union, which thereupon ordered a strike of those of its members who were in plaintiffs' employ. To win the strike, and to coerce and compel the plaintiffs to comply with the demands of the union, the defendants and others unknown to the plaintiffs entered into a conspiracy and boycott to injure plaintiffs in their restaurant and restaurant business, by inducing plaintiffs' customers and others, theretofore well and favorably disposed, to cease to patronize or trade with the plaintiffs. The method of inducing was set out at length, and included picketing, displaying banners, advertising the strike, denouncing plaintiffs as 'unfair' to the union, and appealing to customers to stay away from the 'English Kitchen,' and the circulation of handbills containing abusive and libelous charges against plaintiffs, their employees, and their patrons, and intimations of injury to future patrons. Copies of the handbills were set forth in exhibits made part of the complaint.

In consequence of defendants' acts, many customers were induced to cease from patronizing plaintiffs, and their daily receipts, which had been in excess of the sum of $156 were reduced to $75. The complaint averred that if the acts were continued, the business would be entirely destroyed, and that the plaintiffs would suffer great and irreparable injury; that for the plaintiffs to seek to recover damages would involve a multiplicity of suits; that all the defendants were insolvent, and would be unable to respond in damages for any injury resulting from their acts, and the plaintiffs were therefore without any adequate remedy at law.

The complaint further averred that the defendants were relying for immunity on paragraph 1464 of the Revised Statutes of Arizona of 1913 (Civ. Code), which is in part as follows:

'No restraining order or injunction shall be granted by any      court of this state, or a judge or the judges thereof, in any      case between an employer and employees, or between employers      and employees, or between employees, or between persons      employed and persons seeking employment, involving or growing      out of a dispute concerning terms or conditions of      employment, unless necessary to prevent irreparable injury to      property or to a property right of the party making the      application, for which unjury there is no adequate remedy at      law, and such property or property right must be described      with particularity in the application, which must be in      writing and sworn to by the applicant or by his agent or      attorney.

'And no such restraining order or injunction shall prohibit      any person or persons from terminating any relation of      employment, or from ceasing to perform any work or labor, or      from recommending, advising, or persuading others by peaceful      means so to do; or from attending at or near a house or place      where any person resides or works, or carries on business, or      happens to be for the purpose of peacefully obtaining or      communicating information, or of peacefully persuading any      person, to work or to abstain from working; or from ceasing      to patronize or to employ any party to such dispute; or from      recommending, advising, or persuading others by peaceful      means so to do. * * *'

The plaintiffs alleged that this paragraph, if it made lawful defendants' acts, contravened the Fourteenth Amendment to the Constitution of the United States by depriving plaintiffs of their property without due process of law, and by denying to plaintiffs the equal protection of the laws, and was therefore void and of no effect. Upon the case thus stated the plaintiffs asked a temporary and a permanent injunction.

The defendants filed a demurrer, on two grounds: First, that the complaint did not state facts sufficient to constitute a cause of action, in that the property rights asserted therein were not, under paragraph 1464, Revised Statutes of Arizona of 1913, of such character that their irreparable injury might be enjoined; and, secondly, that upon its face the complaint showed a want of equity.

The superior court for Cochise county sustained the demurrer and dismissed the complaint, and this judgment was affirmed by the Supreme Court of Arizona.

The ruling of the Supreme Court proceeded, first, on the assumption that the gravamen of the complaint was that the defendants were merely inducing patrons to cease their patronage by making public the fact of the dispute and the attitude of plaintiffs in it; and secondly, on the proposition that, while good will is a valuable factor in business success, 'no man has a vested right in the esteem of the public'-that, while the plaintiff had a clear right to refuse the demand of the union, the union had a right to advertise the cause of the strike. The court held that the purpose of paragraph 1464 was to recognize the right of workmen on a strike to use peaceable means to accomplish the lawful ends for which the strike was called; that picketing, if peaceably carried on for a lawful purpose, was no violation of the rights of the person whose place of business was picketed; that prior to the enactment of paragraph 1464, picketing was unlawful in Arizona, because it was presumed to induce breaches of the peace, but that plaintiffs had no vested right to have such a rule of law continue in that state; that under paragraph 1464 picketing was no longer conclusively presumed to be unlawful; that the paragraph simply dealt with a rule of evidence requiring the courts to substitute evidence of the nature of the act for the presumption otherwise arising; that the plaintiffs' property rights were not invaded by picketing, unless the picketing interfered with the free conduct of the business; that plaintiffs did not claim that defendants had by violent means invaded their rights; and that, if that kind of picketing were charged and established by proof, plaintiffs would be entitled to relief to the extent of prohibiting violence in any from.

The effect of this ruling is that, under the statute, loss may be inflicted upon the plaintiffs' property and business by 'picketing' in any form if violence be not used, and that because no violence was shown or claimed, the campaign carried on, as described in the complaint and exhibits, did not unlawfully invade complainants' rights.

The facts alleged are admitted by the demurrer, and, in determining their legal effect as a deprivation of plaintiffs' legal rights under the Fourteenth Amendment, we are at as full liberty to consider them as was the state Supreme Court. McKay v. Dillon, 4 How. 431, 11 L. Ed. 1038; Dower v. Richards, 151 U.S. 658, 667, 14 Sup. Ct. 452, 38 L. Ed. 305. Nor does the court's declaration that the statute is a rule of evidence bind us in such an investigation. Bailey v. Alabama, 219 U.S. 219, 238, 239, 31 Sup. Ct. 145, 55 L. Ed. 191; Chicago Railway Co. v. Minnesota, 134 U.S. 418, 10 Sup. Ct. 702, 33 L. Ed. 970; Mugler v. Kansas, 123 U.S. 623, 661, 8 Sup. Ct. 273, 31 L. Ed. 205; Corn Products Refining Co. v. Eddy, 249 U.S. 427, 432, 39 Sup. Ct. 325, 63 L. Ed. 689. In cases brought to this court from state courts for review, on the ground that a federal right set up in the state court has been wrongly denied, and in which the state court has put its decision on a finding that the asserted federal right has no basis in point of fact, or has been waived or lost, this court, as an incident of its power to determine whether a federal right has been wrongly denied, may go behind the finding to see whether it is without substantial support. If the rule were otherwise, it almost always would be within the power of a state court practically to prevent a review here. Kansas City Southern Ry. Co. v. Albers Commission Co., 223 U.S. 573, 591, 593, 32 Sup. Ct. 316, 56 L. Ed. 556; Cedar Rapids Gas Co. v. Cedar Rapids, 223 U.S. 655, 688, 669, 32 Sup. Ct. 389, 56 L. Ed. 594; Southern Pacific Co. v. Schuyler, 227 U.S. 601, 611, 33 Sup. Ct. 277, 57 L. Ed. 662, 43 L. R. A. (N. S.) 901. Another class of cases in which this court will review the finding of the court as to the facts is when the conclusion of law and findings of fact are so intermingled as to make it necessary, in order to pass upon the question to analyze the facts. Northern Pacific Ry. Co. v. North Dakota, 236 U.S. 585, 593, 35 Sup. Ct. 429, 59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1; Jones National Bank v. Yates, 240 U.S. 541, 552, 553, 36 Sup. Ct. 429, 60 L. Ed. 788. In view of these decisions and the grounds upon which they proceed, it is clear that in a case like the present, where the issue is whether a state statute in its application to facts which are set out in detail in the pleadings and are admitted by demurrer violates the federal Constitution, this court must analyze the facts as averred and draw its own inferences as to their ultimate effect, and is not bound by the conclusion of the state Supreme Court in this regard. The only respect in such a case in which this court is bound by the judgment of the state Supreme Court is in the construction which that court puts upon the statute.

The complaint and its exhibits make this case:

The defendants conspired to injure and destroy plaintiffs'      business by inducing their theretofore willing patrons and      would-be patrons not to patronize them, and they influenced      these to withdraw or withhold their patronage:

(1) By having the agents of the union walk forward and back      constantly during all the business hours in front of      plaintiffs' restaurant, and within five feet thereof,      displaying a banner announcing in large letters that the      restaurant was unfair to cooks and waiters and their union.

(2) By having agents attend at or near the entrance of the      restaurant during all business hours and continuously      announce in a loud voice, audible for a great distance, that      the restaurant was unfair to the labor union.

(3) By characterizing the employees of the plaintiff as scab      Mexican labor, and using opprobrious epithets concerning them in handbills continuously distributed in front of the      restaurant to would-be customers.

(4) By applying in such handbills abusive epithets to Truax,      the senior member of plaintiffs' firm, and making libelous      charges against him, to the effect that he was tyrannical      with his help, and chased them down the street with a butcher      knife; that he broke his contract and repudiated his pledged      word; that he had made attempts to force cooks and waiters to      return to work by attacks on men and women; that a friend of      Truax assaulted a woman and pleaded guilty; that plaintiff      was known by his friends, and that Truax's treatment of his      employees was explained by his friend's assault; that he was      a 'bad actor.'

(5) By seeking to disparage plaintiffs' resturant, charging      that the prices were higher and the food worse than in any      other restaurant, and that assaults and slugging were a      regular part of the bill of fare, with police indifferent.

(6) By attacking the character of those who did patronize,      saying that their mental caliber and moral fiber fell far      below the American average, and inquiring of the would-be      patrons: Can you patronize such a place and look the world in      the face?

(7) By threats of similar injury to the would-be patrons-by      such expressions as 'All ye who enter here leave all hope      behind;' 'Don't be a traitor to humanity;' by offering a      reward for any of the ex-members of the union caught eating      in the restaurant; by saying in the handbills: 'We are also      aware that handbills and banners in front of a business house      on the Main street give the town a bad name, but they are      permanent institutions until William Truax agrees to the      eight hour day.'

(8) By warning any person wishing to purchase the business      from the Truax firm that a donation would be necessary,      amount to be fixed by the District Trades As sembly, before the picketing and boycotting would be given      up.

The result of this campaign was to reduce the business of the plaintiffs from more than $55,000 a year to one of $12,000.

Plaintiffs' business is a property right (Duplex Printing Press. Co. v. Deering, 254 U.S. 443, 465, 41 Sup. Ct. 172, 65 L. Ed. 349), and free access for employees, owner, and customers to his place of business is incident to such right. Intentional injury caused to either right or both by a conspiracy is a tort. Concert of action is a conspiracy, if its object is unlawful or if the means used are unlawful. Pettibone v. United States, 148 U.S. 197, 203, 13 Sup. Ct. 542, 37 L. Ed. 419; Duplex Printing Press Co. v. Deering, supra. Intention to inflict the loss and the actual loss caused are clear. The real question here is: Were the means used illegal? The above recital of what the defendants did can leave no doubt of that. The libelous attacks upon the plaintiffs, their business, their employees, and their customers, and the abusive epithets applied to them, were palpable wrongs. They were uttered in aid of the plan to induce plaintiffs' customers and would-be customers to refrain from patronizing the plaintiffs. The patrolling of defendants immediately in front of the restaurant on the main street and within five feet of plaintiffs' premises continuously during business hours, with the banners announcing plaintiffs' unfairness; the attendance by the picketers at the entrance to the restaurant and their insistent and loud appeals all day long, the constant circulation by them of the libels and epithets applied to employees, plaintiffs, and customers, and the threats of injurious consequences to future customers, all linked together in a campaign were an unlawful annoyance and a hurtful nuisance in respect of the free access to the plaintiffs' place of business. It was not lawful persuasion or inducing. It was not a mere appeal to the sympathetic aid of would-be customers by a simple statement of the fact of the strike and a request to withhold patronage. It was compelling every customer or wouldbe customer to run the gauntlet of most uncomfortable publicity, aggressive and annoying importunity, libelous attacks, and fear of injurious consequences, illegally inflicted, to his reputation and standing in the community. No wonder that a business of $50,000 was reduced to only one-fourth of its former extent. Violence could not have been more effective. It was moral coercion by illegal annoyance and obstruction, and it thus was plainly a conspiracy.

It would consume too great space to refer to the mass of authority which sustains this conclusion. It is sufficient to cite the general discussion of the subject in Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 439, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. Well-known decisions on similar facts are Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307, 9 Am. St. Rep. 689. Barr v. Essex Trades Council, 53 N. J. Eq. 101, 30 Atl. 881; Purvis v. Local No. 500, 214 Pa. 348, 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 757, 6 Ann. Cas. 275; Wilson v. Hey, 232 Ill. 389, 83 N. E. 928, 16 L. R. A. (N. S.) 85, 122 Am. St. Rep. 119, 13 Ann. Cas. 82; Casey v. Cincinnati Typographical Union (C. C.) 45 Fed. 135, 12 L. R. A. 193; Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324.

A law which operates to make lawful such a wrong as is described in plaintiffs' complaint deprives the owner of the business and the premises of his property without due process, and cannot be held valid under the Fourteenth Amendment.

The opinion of the state Supreme Court in this case, if taken alone, seems to show that the statute grants complete immunity from any civil or criminal action to the defendants, for it pronounces their acts lawful. If, however, we are to assume that the criminal laws of Arizona do provide prosecution for such libels against the plaintiffs, though committed by this particular class of tort-feasors (Truax v. Bisbee Local, 19 Ariz. 379, 171 Pac. 121), still the tort here committed was not a mere libel of plaintiffs. That would not have had any such serious consequences. The libel of the plaintiffs here was not the cause of the injury; it was only one step or link in a conspiracy unlawfully to influence customers.

It is argued that, while the right to conduct a lawful business is property, the conditions surrounding that business, such as regulations of the state for maintaining peace, good order, protection against disorder, are matters in which no person has a vested right. The conclusion to which this inevitably leads in this case is that the state may withdraw all protection to a property right by civil or criminal action for its wrongful injury, if the injury is not caused by violence. This doctrine is supposed to find support in the case of New York Central Co. v. White, 243 U.S. 188, 198, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, and cases there cited. These cases, all of them, relate to the liabilities of employers to employees growing out of the relation of employment for injuries received in the course of employment. They concern legislation as to the incidents of that relation. They affirm the power of the state to vary the rules of the common law as to the fellow servant doctrine, assumption of risk, and negligence in that relation. They hold that employers have no vested right in those rules of the common law. The broad distinction between one's right to protection against a direct injury to one's fundamental property right by another who has no special relation to him, and one's liability to another with whom he establishes a voluntary relation under a statute is manifest upon its statement. It is true that no one has a vested right in any particular rule of the common law, but it is also true that the legislative power of a state can only be exerted in subordination to the fundamental principles of right and justice which the guaranty of due process in the Fourteenth Amendment is intended to preserve, and that a purely arbitrary or capricious exercise of that power whereby a wrongful and highly injurious invasion of property rights, as here, is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with those principles.

It is to be observed that this is not the mere case of a peaceful secondary boycott as to the illegality of which courts have differed and states have adopted different statutory provisions. A secondary boycott of this kind is where many combine to injure one in his business by coercing third persons against their will to cease patronizing him by threats of similar injury. In such a case the many have a legal right to withdraw their trade from the one, they have the legal right to withdraw their trade from third persons, and they have the right to advise third persons of their intention to do so when each act is considered singly. The question in such cases is whether the moral coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong. But here the illegality of the means used is without doubt and fundamental. The means used are the libelous and abusive attacks on the plaintiffs' reputation, like attacks on their employees and customers, threats of such attacks on would-be customers, picketing and patrolling of the entrance to their place of business, and the consequent obstruction of free access thereto-all with the purpose of depriving the plaintiffs of their business. To give operation to a statute whereby serious losses inflicted by such unlawful means are in effect made remediless, is, we think, to disregard fundamental rights of liberty and property and to deprive the person suffering the loss of due process of law.

If, however, contrary to the construction which we put on the opinion of the Supreme Court of Arizona, it does not withhold from the plaintiffs all remedy for the wrongs they suffered, but only the equitable relief of injunction, there still remains the question whether they are thus denied the equal protection of the laws.

The Arizona constitution provides that the superior court shall have jurisdiction in all cases of equity and, in pursuance of this provision, paragraph 1456 of the Revised Statutes of Arizona of 1913 (Civ. Code), declares:

'Judges of the superior courts may grant writs of injunction,      returnable to said courts, in the following cases:

'1. Where it shall appear that the party applying for such      writ is entitled to the relief demanded, and such relief or      any part thereof requires the restraint of some act      prejudicial to the applicant.

'2. Where pending litigation, it shall be made to appear that      a party is doing some acts respecting the subject of      litigation, or threatens, or is about to do some act, or is      procuring or suffering the same to be done, in violation of      the rights of the applicant, which act would tend to render      the judgment ineffectual.

'3. In all other cases where the applicant for such writ may      show himself entitled thereto under the principles of      equity.'

The necessary and resulting effect of these provisions and of paragraph 1464 is that the plaintiffs in error would have had the right to an injunction against such a campaign as that conducted by the defendants in error, if it had been directed against the plaintiffs' business and property in any kind of a controversy which was not a dispute between employer and former employees. If the competing restaurant keepers in Bisbee had inaugurated such a campaign against the plaintiffs in error and conducted it with banners and handbills of a similar character, an injunction would necessarily have issued to protect the plaintiffs in the enjoyment of their property and business.

This brings us to consider the effect in this case of that provision of the Fourteenth Amendment which forbids any state to deny to any person the equal protection of the laws. The clause is associated in the amendment with the due process clause and it is customary to consider them together. It may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. The due process clause brought down from Magna Charta was found in the early state constitutions and later in the Fifth Amendment to the federal Constitution as a limitation upon the executive, legislative and judicial powers of the federal government, while the equality clause does not appear in the Fifth Amendment and so does not apply to congressional legislation. The due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Hurtado v. California, 110 U.S. 516, 535, 4 Sup. Ct. 111, 28 L. Ed. 232. It, of course, tends to secure equality of law in the sense that it makes a required minimum of protection for every one's right of life, liberty, and property, which the Congress or the Legislature may not withhold. Our whole system of law is predicated on the general fundamental principle of equality of application of the law. 'All men are equal before the law,' 'This is a government of laws and not of men,' 'No man is above the law,' are all maxims showing the spirit in which Legislatures, executives and courts are expected to make, execute and apply laws. But the framers and adopters of this amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty.

The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile dis crimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process.

Mr. Justice Field, delivering the opinion of this court in Barbier v. Connolly, 113 U.S. 27, 32, 5 Sup. Ct. 357, 360 (28 L. Ed. 923), of the equality clause, said:

'Class legislation, discriminating against some and favoring      others, is prohibited; but legislation which, in carrying out      a public purpose, is limited in its application if, within      the sphere of its operation, it affects alike all persons      similarly situated, is not within the amendment.'

In Hayes v. Missouri, 120 U.S. 68, 7 Sup. Ct. 350, 30 L. Ed. 578, the court, speaking through the same Justice, said the Fourteenth Amendment--

'does not prohibit legislation which is limited either in the      objects to which it is directed or by the territory within      which it is to operate. It merely requires that all persons      subject to such legislation shall be treated alike, under      like circumstances and conditions, both in privileges      conferred and in liabilities imposed.'

Thus the guaranty was intended to secure equality of protection not only for all but against all similarly situated. Indeed, protection is not protection unless it does so. Immunity granted to a class however limited, having the effect to deprive another class however limited of a personal or property right, is just as clearly a denial of equal protection of the laws to the latter class as if the immunity were in favor of, or the deprivation of right permitted worked against, a larger class.

Mr. Justice Matthews, in Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 Sup. Ct. 1064, 1070 (30 L. Ed. 220), speaking for the court of both the due process and equality clause of the Fourteenth Amendment said:

'These provisions are universal in their application, to all      persons within the territorial jurisdiction, without regard      to any differences of race, of color or of nationality; and      the equal protection of the laws is a pledge of the      protection of equal laws.' The accuracy and comprehensive felicity of this description of the effect of the equality clause are shown by the frequency with which it has been quoted in the decisions of this court. It emphasizes the additional guaranty of a right which the clause has conferred beyond the requirement of due process.

With these views of the meaning of the equality clause, it does not seem possible to escape the conclusion that by the clauses of paragraph 1464 of the Revised Statutes of Arizona (Civ. Code) here relied on by the defendants, as construed by its Supreme Court, the plaintiffs have been deprived of the equal protection of the law.

It is beside the point to say that plaintiffs had no vested right in equity relief, and that taking it away does not deprive them of due process of law. If, as is asserted, the granting of equitable remedies falls within the police power, and is a matter which the Legislature may vary as its judgment and discretion shall dictate, this does not meet the objection under the equality clause which forbids the granting of equitable relief to one man and the denying of it to another under like circumstances and in the same territorial jurisdiction. The Fourteenth Amendment, as this court said in Barbier v. Connolly, already ready cited, intended--

'Lot only that there should be no arbitrary deprivation of      life or liberty, or arbitrary spoliation of property, but      that equal protection and security should be given to all      under like circumstances in the enjoyment of their personal      and civil rights; that all persons should be equally entitled      to pursue their happiness and acquire and enjoy property;      that they should have like access to the courts of the      country for the protection of their persons and property, the      prevention and redress of wrongs, and the enforcement of      contract; that no impediment should be interposed to the      pursuits of any one except as applied to the same pursuits by      others under like circumstances; that no greater burdens      should be laid upon one than are laid on others in the same calling and condition and      that in the administration of criminal practice no different      or higher punishment should be imposed upon one than such as      is prescribed for all for like offenses.'

If, as claimed, the Legislature has full discretion to grant or withhold equitable relief in any class of cases, indeed, to take away from its courts all equity jurisdiction and leave those who are wronged to suits at law or to protection by the criminal law, the Legislature has the same power in respect to the declaration of crimes. Suppose the Legislature of the state were to provide that such acts as were here committed by defendants, to wit, the picketing or patrolling of the sidewalk and street in front of the store or business house of any person and the use of handbills of an abusive and libelous character against the owner and present and future customers, with intent to injure the business of the owner, should be a public nuisance and be punishable by fine and imprisonment, and were to except ex-employees from its penal provisions. Is it not clear that any defendant could escape punishment under it on the ground that the statute violated the equality clause of the Fourteenth Amendment? That is the necessary effect of Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679, where an anti-trust act was held invalid under this same clause because it contained the excepting provision that it should 'not apply to agricultural products or live stock while in the hands of the producer or raiser.' That was a stronger case than this because there the whole statute was one dealing with economic policy, and was a declaration of mala prohibita that had theretofore been lawful, from which it was strongly argued that the exception was justified in the interest of agriculture, and was a proper exception by permissible classification. Here is a direct invasion of the ordinary business and property rights of a person, unlawful when committed by any one, and remediable because of its otherwise irreparable character by equitable process, except when committed by ex-employees of the injured person. If this is not a denial of the equal protection of the laws, then it is hard to conceive what would be. To hold it not to be would be, to use the expression of Mr. Justice Brewer in Gulf Ry. Co. v. Ellis, 165 U.S. 150, 154, 17 Sup. Ct. 255, 41 L. Ed. 666, to make the guaranty of the equality clause 'a rope of sand.'

In Missouri v. Lewis, 101 U.S. 22, 25 L. Ed. 989, we find one of the earlier and one of the most helpful discussions of the application of the equality clause to judicial procedure by Mr. Justice Bradley speaking for this court. In that case one who had been disbarred by the Court of Appeals of St. Louis sought to avoid the effect of this action by the contention that he was denied the equal protection of the laws because he was not given the right of appeal to the Supreme Court of the state, granted to litigants in the state, except in St. Louis and three other counties. It was held that the equality clause did not apply, because the state Legislature had the right to vary the system of courts and procedure in various parts of the state. Mr. Justice Bradley said (101 U.S. 30, 25 L. Ed. 989):

'The last restriction, as to the equal protection of the      laws, is not violated by any diversity in the jurisdiction of      the several courts as to subject-matter, amount, or finality      of decision, if all persons within the territorial limits of      their respective jurisdictions have an equal right, in like      eases and under like circumstances, to resort to them for      redress.'

'For as before said, it [i. e., the equality clause] had      respect to persons and classes of persons. It means that no      person or class of persons shall be denied the same      protection of the laws which is enjoyed by other persons or      other classes in the same place and under like      circumstances.'

To sustain the distinction here between the ex-employees and other tort-feasors in the matter of remedies against them, it is contended that the Legislature may establish a class of such ex-employees for special legislative treatment. In adjusting legislation to the need of the people of a state, the Legislature has a wide discretion, and it may be fully conceded that perfect uniformity of treatment of all persons is neither practical nor desirable, that classification of persons is constantly necessary, and that questions of proper classification are not free from difficulty. But we venture to think that not in any of the cases in this court has classification of persons of sound mind and full responsibility, having no special relation to each other, in respect of remedial procedure for an admitted tort been sustained. Classification must be reasonable. As was said in Gulf Ry. Co. v. Ellis, 165 U.S. 155, 17 Sup. Ct. 257, 41 L. Ed. 666:

'Classification * * * must always rest upon some difference      which bears a reasonable and just relation to the act in      respect to which the classification is proposed, and can      never be made arbitrarily and without any such basis.'

As was said in Magoun v. Illinois Trust Bank, 170 U.S. 283, 293, 18 Sup. Ct. 594, 598 (42 L. Ed. 1037):

'The rule [i. e., of the equality clause] is not a substitute      for municipal law; it only prescribes that that law have the      attribute of equality of operation, and equality * * * does      not mean indiscriminate operation on persons merely as such,      but on persons according to their relations.'

The same principle is repeated and enforced in Southern Ry. Co. v. Greene, 216 U.S. 400, 417, 30 Sup. Ct. 287, 291 (54 L. Ed. 536, 17 Ann. Cas. 1247):

'While reasonable classification is permitted, without doing      violence to the equal protection of the laws, such      classification must be based upon some real and substantial      distinction, bearing a reasonable and just relation to the      things in respect to which such classification is imposed;      and classification cannot be arbitrarily made without any      substantial basis.'

Classification is the most inveterate of our reasoning processes. We can scarcely think or speak without consciously or unconsciously exercising it. It must therefore obtain in and determine legislation; but it must regard real resemblances and real differences between things and persons, and class them in accordance with their pertinence to the purpose in hand. Classification like the one with which we are here dealing is said to be the development of the philosophic thought of the world and is opening the door to legalized experiment. When fundamental rights are thus attempted to be taken away, however, we may well subject such experiment to attentive judgment. The Constitution was intended-its very purpose was-to prevent experimentation with the fundamental rights of the individual. We said through Mr. Justice Brewer, in Muller v. Oregon, 208 U.S. 412, 28 Sup. Ct. 324, 52 L. Ed. 551, 13 Ann. Cas. 957, that--

'It is the peculiar value of a written constitution that it      places in unchanging form limitations upon legislative      action, and thus gives a permanence and stability to popular      government which otherwise would be lacking.'

It is urged that this court has frequently recognized the special classification of the relations of employees and employers as proper and necessary for the welfare of the community and requiring special treatment. This is undoubtedly true, but those cases-the Second Employer's Liability Cases, 223 U.S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; New York Central R. R. Co. v. White, 243 U.S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Hawkins v. Bleakly, 243 U.S. 210, 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. Cas. 1917D, 637; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642; Middleton v. Texas Power & Light Co., 249 U.S. 152, 39 Sup. Ct. 227, 63 L. Ed. 527; Arizona Employers' Liability Cases, 250 U.S. 400, 39 Sup. Ct. 553, 63 L. Ed. 1058, 6 A. L. R. 1537-as we have already pointed out in discussing the due process clause, were cases of the responsibility of the employer for injuries sustained by employees in the course of their employment. The general end of such legislation is that the employer shall become the insurer of the employee against injuries from the employment without regard to the negligence, if any, through which it occurred, leaving to the employer to protect himself by insurance and to compensate himself for the additional cost of production by adding to the prices he charges for his products. It seems a far cry from classification on the basis of the relation of employer and employee in respect of injuries received in course of employment to classification based on the relation of an employer, not to an employee, but to one who has ceased to be so, in respect of torts thereafter committed by such ex-employee on the business and property right of the employer. It is really a little difficult to say, if such classification can be sustained, why special legislative treatment of assaults upon an employer or his employees by ex-employees may not be sustained with equal reason. It is said the state may deal separately with such disputes because such controversies are a frequent and characteristic outgrowth of disputes over terms and conditions of employment. Violence of ex-employees toward present employees is also a characteristic of such disputes. Would this justify a Legislature in excepting ex-employees from criminal prosecution for such assaults and leaving the assaulted persons to suits for damages at common law?

Our conclusion, that plaintiffs are denied the equal protection of the laws, is sustained by the decisions in this court in Truax v. Raich, 239 U.S. 33, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas 1917B, 283; Atchison & Santa Fe Ry. v. Vosburg, 238 U.S. 56, 35 Sup. Ct. 675, 59 L. Ed. 1199, L. R. A. 1615E, 953; Southern Railway Co. v. Greene, 216 U.S. 400, 30 Sup. Ct. 287, 54 L. Ed. 537, 17 Ann. Cas. 1247; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679; Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92; Gulf Ry. Co. v. Ellis, 165 U.S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666. In the state courts, we find equal support for it. Bogni v. Perotti, 224 Mass. 152, 112 N. E. 853, L. R. A. 1916A, 831; Pearson v. Portland, 60 Me. 278, 31 Am. Rep. 276. Goldberg, Bowen & Co. v. Stablemen's Union, 149 Cal. 429, 434, 86 Pac. 806, 8 L. R. A. (N. S.) 460, 117 Am. St. Rep. 145, 9 Ann. Cas. 1219; Pieice v. Stablemen's Union, 156 Cal. 70, 74, 103 Pac. 324; Funkhouser v. Randolph, 287 Ill. 94, 122 N. E. 144; Houston v. Pulitzer Pub. Co., 249 Mo. 332, 155 S. W. 1068; Phipps Adm'r v. Wisconsin Ry. Co., 133 Wis. 153, 113 N. W. 456; Park v. Detroit Free Press Co., 72 Mich. 560, 40 N. W. 731, 1 L. R. A. 599, 16 Am. St. Rep. 544; C. N. O. & T. P. Ry. v. Clark, 11 Ky. Law Rep. 286.

It is urged that, in holding paragraph 1464 invalid, we are in effect holding invalid section 20 of the Clayton Act (Comp. St. § 1243d). Of course, we are not doing so. In the first place, the equality clause of the Fourteenth Amendment does not apply to congressional, but only to state, action. In the second place, section 20 of the Clayton Act never has been construed or applied as the Supreme Court of Arizona has construed and applied paragraph 1464 in this case.

We have but recently considered the clauses of section 20 of the Clayton Act, sometimes erroneously called the 'picketing' clauses. American Steel Foundries v. TriCity Trades Council, 257 U.S. 184, 42 Sup. Ct. 72, 66 L. Ed. 189, opinion announced December 5th. They forbid an injunction in labor controversies prohibiting--

'any person * * * from attending at any place where any such      person * * * may lawfully be, for the purpose of peacefully      obtaining or communicating information, or from peacefully      persuading any person to work or to abstain from working; or      from ceasing to patronize or to employ any party to such      dispute, or from recommending, advising, or persuading others      by peaceful and lawful means so to do.'

We held that under these clauses picketing was unlawful, and that it might be enjoined as such, and that peaceful picketing was a contradiction in terms which the statute sedulously avoided, but that subject to the primary right of the employer and his employees and would-be employees to free access to his premises without obstruction by violence, intimidation, annoyance, importunity, or dogging, it was lawful for ex-employees on a strike and their fellows in a labor union to have a single representative at each entrance to the plant of the employer to announce the strike and peaceably to persuade the employees and would-be employees to join them in it. We held that these clauses were merely declaratory of what had always been the law and the best practice in equity, and we thus applied them. The construction put upon the same words by the Arizona Supreme Court makes these clauses of paragraph 1464 as far from those of section 20 of the Clayton Act in meaning as if they were in wholly different language.

We conclude that the demurrer in this case should have been overruled, the defendants required to answer, and that if the evidence sustain the averments of the complaint, an injunction should issue as prayed.

Objection is made to this conclusion on the ground that as we hold certain clauses of paragraph 1464 of the Arizona Code, as construed, invalid, they cannot be separated from paragraph 1456, which must also be held invalid, and then there is no law in Arizona authorizing an injunction in this or any case. Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679, is cited to sustain this view. There a new anti-trust statute was enacted, making criminal and subject to injunction what before had not been so. The exception from its operation of products of the farm in the hands of the producers, contained in the law as enacted, was declared to be a denial of equal protection of the laws, and the whole law was declared invalid because the court, in view of the exception, could not assume that the Legislature would have enacted the law, had it known that the producers of farm products would have come within its terms. But here the case is quite different. Paragraph 1456 has been the statute law of Arizona, state and territory, since 1901. It was first adopted in the Code of the territory of 1901. It was continued in force, by virtue of the new Constitution of Arizona adopted by the people in 1912, which merely changed the name of the court, upon which general equity jurisdiction was conferred, from the district court to the superior court, and which provided that the authority, jurisdiction, practice, and procedure of the district courts should continue in force and apply and govern superior courts until altered or repealed. Arizona came into the Union with this Constitution February 14, 1912. At the session of 1912 provision was made for revision and codification of the laws. The present Code was adopted by the Legislature at its third special session of 1913. Paragraph 1464 was passed, as the Code itself states, at the second session of 1913. Thus paragraph 1464 was an amendment to paragraph 1456, and was included with the original section in the Code revision of 1913. To invalidate paragraph 1456 we must assume that, had the Legislature known that the clauses of paragraph 1464 here involved, construed as the Arizona Supreme Court has construed them, were unconstitutional, it would have repealed all the existing law conferring the equitable power of injunction on its first instance courts of general jurisdiction. We cannot make this assumption. The exception introduced by amendment to paragraph 1456 proving invalid, the original law stands without the amendatory exception.

The judgment of the Supreme Court of Arizona is reversed, and the case remanded for further proceedings not inconsistent with this opinion.

Mr. Justice HOLMES, dissenting.

The dangers of a delusive exactness in the application of the Fourteenth Amendment have been adverted to before now. Louisville & Nashville R. R. Co. v. Barber Asphalt Paving Co., 197 U.S. 430, 434, 25 Sup. Ct. 466, 49 L. Ed. 819. Delusive exactness is a source of fallacy throughout the law. By calling a business 'property' you make it seem like land, and lead up to the conclusion that a statute cannot substantially cut down the advantages of ownership existing before the statute was passed. An established business no doubt may have pecuniary value and commonly is protected by law against various unjustified injuries. But you cannot give it definiteness of contour by calling it a thing. It is a course of conduct and like other conduct is subject to substantial modification according to time and circumstances both in itself and in regard to what shall justify doing it a harm. I cannot understand the notion that it would be unconstitutional to authorize boycotts and the like in aid of the employees' or the employers' interest by statute when the same result has been reached constitutionally without statute by courts with whom I agree. See The Hamilton, 207 U.S. 398, 404, 28 Sup. Ct. 133, 52 L. Ed. 264. In this case it does not even appear that the business was not created under the laws as they now are. Denny v. Bennett, 128 U.S. 489, 9 Sup. Ct. 134, 32 L. Ed. 491.

I think further that the selection of the class of employers and employees for special treatment, dealing with both sides alike, is beyond criticism on principles often asserted by this court. And especially I think that without legalizing the conduct complained of the extraordinary relief by injunction may be denied to the class. Legislation may begin where an evil begins. If, as many intelligent people believe, there is more danger that the injunction will be abused in labor cases than elsewhere I can fell no doubt of the power of the Legislature to deny it in such cases. I refer to two decisions in which I have stated what I understand to be the law sanctioned by many other decisions. Carroll v. Greenwich Ins. Co., 199 U.S. 401, 411, 26 Sup. Ct. 66, 50 L. Ed. 246; Quong Wing v. Kirkendall, 223 U.S. 59, 32 Sup. Ct. 192, 56 L. Ed. 350.

In a matter like this I dislike to turn attention to anything but the fundamental question of the merits, but Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679, raises at least a doubt in my mind of another sort. The exception and the rule as to granting injunctions are both part of the same Code, enacted at the same time. If the exception fails, according to the Connolly Case the statute is bad as a whole. It is true that here the exception came in later than the rule, but after they had been amalgamated in a single act I cannot know that the later Legis lature WOULD HAVE KEPT THE RULE IF THE EXCEPTION could not be allowed. if labor had the ascendancy that the exception seems to indicate, I think that probably it would have declined to allow injunctions in any case if that was the only way of reaching its end. But this is a matter upon which the state court has the last word, and if it takes this view its decision must prevail. I need not press further the difficulty of requiring a state court to issue an injunction that it never has been empowered to issue by the quasi sovereign that created the court.

I must add one general consideration. There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the serveral states, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect. I agree with the more elaborate expositions of my Brothers PITNEY and BRANDEIS and in their conclusion that the judgment should be affirmed.

Mr. Justice PITNEY, with whom concurred Mr. Justice CLARKE, dissenting. 

Notes