Truax v. Corrigan/Dissent Pitney
Mr. Justice PITNEY, with whom concurred Mr. Justice CLARKE, dissenting.

The Supreme Court of the state of Arizona sustained, against objections raised by plaintiffs in error under the 'due process of law' and 'equal protection' clauses of the Fourteenth Amendment, a statutory provision found in paragraph 1464, Arizona Civil Code 1913, which restricts the employment of the process of injunction against what are called peaceful picketing and boycotting under certain circumstances, in terms similar to those found in section 20 of the Clayton Act of Congress (Act Oct. 15, 1914, c. 323, 38 Stat. 730, 738 [Comp. St. § 1243d]).

Plaintiffs in error, who were plaintiffs in the trial court and appellants in the Supreme Court of the state, were engaged in the business of conducting a restaurant in Bisbee, enjoying and dependent for success upon the good will, custom, and patronage of the public; defendants had been employed, in one capacity or another, in the restaurant, and were members of a local labor union. A dispute arose concerning the terms and conditions of the employment, and in the course of it demands were made upon plaintiffs by the union, with which plaintiffs refused to comply. Because of this the union ordered a strike of all its members then employed by plaintiffs, and defendants joined in the strike and left plaintiffs' employ. Thereupon, for the purpose of winning the strike and coercing plaintiffs into complying with the demands of the union, defendants and numerous other persons unknown combined to inaugurate and did inaugurate a boycott of plaintiffs and their restaurant business, in order to induce plaintiffs' customers and patrons to refrain from patronizing the restaurant. In furtherance of the boycott defendants caused persons to walk back and forth along the street in front of the restaurant and near to the entrance during business hours, carrying banners bearing conspicuous notices denouncing plaintiffs as unfair to organized labor, etc., and caused printed handbills to be distributed among plaintiffs' customers and patrons recommending and attempting to persuade them to refrain from patronizing the restaurant. Having sustained serious pecuniary loss, and being threatened with further and irreparable damage, plaintiffs brought suit for injunction, setting up that defendants were relying upon the provisions of paragraph 1464 of the Civil Code, and praying that this might be held violative of the Fourteenth Amendment and that they might have an injunction and other relief.

The Supreme Court, conceding that prior to the enactment of paragraph 1464 picketing carried on in any manner, even in a concededly peaceable manner, was unlawful by the law of Arizona, nevertheless, upon authority of a previous case decided by it upon substantially identical facts (Truax v. Bisbee Local, No. 380, 19 Ariz. 379, 392, 171 Pac. 121), held that relief was barred by the statute (Truax v. Corrigan, 20 Ariz. 7, 176 Pac. 570).

Upon the facts, it hardly could be said that defendants kept within the bounds of a 'peaceful' picket or boycott. They appear to have gone beyond mere attempts to persuade plaintiffs' customers to withdraw their patronage, and to have resorted to abusive and threatening language towards the patrons themselves. The court declared, however, that the statute established a new rule of evidence for determining whether picketing was peaceful and not otherwise unlawful, and that, measured by the standard thus prescribed, defendants were not subject to injunction. by this construction we are bound, and the only question is whether by the statute as so construed, and as applied to the facts of the case, plaintiffs are deprived of rights secured to them by the Fourteenth Amendment.

As to this, I regret that I am not in accord with the views of the majority of the court. Expressing no opinion as to the wisdom, or policy, or propriety in the general sense of paragraph 1464-with neither of which is our duty concerned-I consider first, whether, as construed and applied, it has the effect of depriving plaintiffs in error of their liberty or property without due process of law.

It is beside the question to discuss whether under the rules of the common law or the general principles of justice, picketing or boycotting, or the conduct of defendants however described, is lawful. The Supreme Court of Arizona virtually conceded that in that state, in the absence of statute, they were not. The question is whether in this respect the law might be altered by act of legislation, to the extent of depriving a party aggrieved, and threatened with irreparable injury, of relief by injunction.

That the right to conduct a lawful business, and thereby acquire pecuniary profits, is property, is indisputable. That the state of society, and the existing condition of good order, or the opposite, surrounding the business, and its liability to or immunity from interruption through particular forms of disorder, affect its profitableness, likewise is plain. But it seems to me clear that, so far as these result from the general operation of the laws and regulations established by authority of the state for maintaining the peace, good order, and tranquility of its people and affording protection against disturbing elements and ill-disposed persons, those laws and regulations, as rules of conduct and measures of relief, are subject to be changed in the normal exercise of the legislative power of the state. That no person has a vested interest in any rule of law, entitling him to have it remain unaltered for his benefit, is a principle thoroughly settled by numerous decisions of this court, and having general application, not confined at all to the rights and liabilities existing between employers and employees, or between persons formerly occupying that relation. Munn v. Illinois, 94 U.S. 113, 134, 24 L. Ed. 77; Hurtado v. California, 110 U.S. 516, 532, 4 Sup. Ct. 111, 292, 28 L. Ed. 232; Second Employers' Liability Cases, 223 U.S. 1, 50, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Chicago & Alton R. R. v. Tranbarger, 238 U.S. 67, 76, 35 Sup. Ct. 678, 59 L. Ed. 1204; New York Central R. R. 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.

The use of the process of injunction to prevent disturbance of a going business by such a campaign as defendants here have conducted, is in the essential sense a measure of police regulation. And just as the states have a broad discretion about establishing police regulations, so they have a discretion, equally broad, about modifying and relaxing them. They may adopt the common law, or some other system, as their own judgment of the interests of their people may determine. They have general dominion, and saving as restricted by particular provisions of the federal Constitution, complete dominion over all persons, property, and business transactions within their borders; and in regulating its internal affairs a state may establish by legislation a policy differing in one or more respects from those of other states, just as it might establish a like difference through the decisions of its courts.

Hence I have no doubt that, without infringing the 'due process' clause, a state might by statute establish protection against picketing or boycotting however conducted, just as many states have done by holding them to be contrary to the common law recognizing a property value in a going business, and applying equitable principles in safeguarding it from irreparable injury through interference found unwarranted. Vegelahn v. Guntner, 167 Mass. 92, 97, 98, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443; Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 520, 521, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421; Barnes v. Typographical Union, 232 Ill. 424, 435, 437, 83 N. E. 940, 14 L. R. A. (N. S.) 1018, 13 Ann. Cas. 54; Jensen v. Cooks' & Waiters' Union, 39 Wash. 531, 536, 81 Pac. 1069, 4 L. R. A. (N. S.) 302; St. Germain v. Bakery & C. Workers' Union, 97 Wash. 282, 289, 295, 166 Pac. 665, L. R. A. 1917F, 824; Jonas Glass Co. v. Glass Bottle Blowers' Ass'n, 77 N. J. Eq. 219, 222-224, 79 Atl. 262, 41 L. R. A. (N. S.) 445. And, just as one state might establish such protection by statute, so another state may by statute disestablish the protection, even as states have differed in their judicial determination of the general law upon the subject. In neither case can I find ground for declaring that the state's action is so arbitrary and devoid of reasonable basis that it can be called a deprivation of liberty or property without due process of law, in the constitutional sense. In truth, the states have a considerable degree of latitude in determining, each for itself, their respective conditions of law and order, and what kind of civilization they shall have as a result.

Paragraph 1464 does not modify any substantive rule of law, but only restricts the processes of the courts of equity. Ordinary legal remedies remain; and I cannot believe that the use of the injunction in such cases-however important-is so essential to the right of acquiring, possessing and enjoying property that its restriction or elimination amounts to a deprivation of liberty or property without due process of law, within the meaning of the Fourteenth Amendment.

Secondly, it is said that paragraph 1464, Arizona Civil Code, denies to plaintiffs in error the 'equal protection of the laws'; but it seems to me evident that it does not offend in this regard. Examination shows that it does not discriminate against the class to which plaintiffs belong in favor of any other. It applies not only to cases between employers and employees, irrespective of who is plaintiff and who defendant, but to cases between employees, and between persons employed and those seeking employment. And it applies equally to all persons coming within its reach.

It is said that because, under other provisions of the Arizona statute law, plaintiffs would have been entitled to an injunction against such a campaign as that conducted by defendants, had it been in a controversy other than a dispute between employer and former employees-for instance, had competing restaurant keepers been the offenders-refusal of relief in the particular case by force of paragraph 1464 is undue favoritism to the class of which defendants are members. But I submit with deference that this is not a matter of which plaintiffs are entitled to complain under the 'equal protection' clause. There is no discrimination as against them; others situated like them are accorded no greater right to an injunction than is accorded to them. Whatever complaint the competing restaurant keepers might have, if in the case supposed they were subject to be stopped by an injunction where former employees were not, it would not be a denial of equal protection to plaintiffs. Cases arising under this clause of the Fourteenth Amendment, pre-eminently, call for the application of the settled rule that before one may be heard to oppose state legislation upon the ground of its repugnance to the federal Constitution he must bring himself within the class affected by the alleged unconstitutional feature. Rosenthal v. New York, 226 U.S. 260, 270-271, 33 Sup. Ct. 27, 57 L. Ed. 212, Ann. Cas. 1914B, 71; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576, 35 Sup. Ct. 167, 50 L. Ed. 364; Arkadelphia Co. v. St. Louis S. W. Ry. Co., 249 U.S. 134, 149, 39 Sup. Ct. 237, 63 L. Ed. 517; Middleton v. Texas Power & Light Co., 249 U.S. 152, 156-157, 39 Sup. Ct. 227, 63 L. Ed. 527.

A disregard of the rule in the present case has resulted, as it seems to me, in treating as a discrimination what, so far as plaintiffs are concerned, is no more than a failure to include in the statute a case which in consistency ought, it is said, to have been covered-an omission immaterial to plaintiffs. This is to transform the provision of the Fourteenth Amendment from a guaranty of the 'protection of equal laws' into an insistence upon laws complete, perfect, symmetrical.

The guaranty of 'equal protection' entitles plaintiffs to treatment not less favorable than that given to others similarly circumstanced. This the present statute gives the. The provision does not entitle them, as against their present opponents under present circumstances, to protection as adequate as they might have against opponents of another class under like circumstances. I find no authority for the proposition that the guaranty was intended to secure equality of protection 'not only for all but against all similarly situated,' except as between persons who properly belong in the same class. The familiar expression, in Barbier v. Connolly, 113 U.S. 27, 32, 5 Sup. Ct. 357, 360 (28 L. Ed. 923), 'Class legislation, discriminating against some and favoring others,' refers to a discrimination which at the same time favors others similarly situated. The same is true of what was said in Hayes v. Missouri, 120 U.S. 68, 71-72, 7 Sup. Ct. 350, 352 (30 L. Ed. 578), to the effect that the Amendment 'merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.' Other decisions are to the same effect. Nothing in the Arizona statute under consideration, either as written or as construed and applied, operates to discriminate against plaintiffs in favor of others similarly circumstanced and conditioned. Neither class of supposed offenders-those exempt from or those subject to injunction-stands in like case with plaintiffs who seek an injunction.

But, assuming plaintiffs were entitled to assert, as a denial of equal protection, the alleged discrimination arising from a denial of equitable relief in one class of cases which would be granted in another, I am unable to see that the statute creates an arbitrary and unreasonable discrimination in this regard.

It is going far-too far, I submit-to assume that there is any discrimination in fact. Such a campaign as that conducted by defendants, the Legislature foresaw, was likely to be resorted to by employees or former employees, in the case of a dispute with the employer concerning terms or conditions of employment. In such a case, for reasons deemed sufficient, the Legislature declared there should be no injunction. That such picketing or boycotting ever was conducted in Arizons, or that the Legislature had reason to anticipate that it would be undertaken in the future, by competitors in business or any others than participants in a labor dispute, does not appear and cannot be assumed. Without this, the supposed discrimination is but theoretical, not practical.

But were there actual discrimination, granting immunity from injunction to laboring men who resort to unlawful conduct in the way of picketing, boycotting and the like, seriously interfering with the employer's business, while denying the like immunity to other classes who may resort to similar unlawful and harmful conduct, but with what the Legislature probably regarded as a slighter claim to indulgence, I cannot agree that this demonstrates the classification to be so arbitrary and unreasonable as to render the act a denial of the equal protection of the laws. Doubtless the Legislature, upon a review of the subject in the light of a knowledge of conditions in their own state that we do not possess, concluded that in labor controversies there were reasons affecting the public interest for preventing resort to the process of injunction and leaving the parties to the ordinary legal remedies, which reasons did not apply generally. The simple truth is they merely singled out, as properly they might, a particular kind of controversy for what they regarded as appropriate treatment; and, as already shown, they acted upon it in a manner consistent with due process of law. There is here no denial of equal protection. Legislation almost of necessity proceeds subject by subject, with classification as an essential part of the process. In adjusting their laws to the needs of the people, the states have a wide range of discretion about classification; the equal protection clause does not require that all state laws shall be perfect and complete, nor that the entire field of proper legislation shall be covered by a single act; and it is not a valid objection that a law made applicable to one subject might properly have been extended to others. Rosenthal v. New York, 226 U.S. 260, 270-271, 33 Sup. Ct. 27, 57 L. Ed. 212, Ann. Cas. 1914B, 71; Missouri, Kan. & Texas Ry. v. Cade, 233 U.S. 642, 649-650, 34 Sup. Ct. 678, 58 L. Ed. 1135. All employers' liability and workmen's compensation laws proceed upon the basis that the responsibility of employers for injuries sustained by employees forms a proper subject for separate treatment. See Second Employers' 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. And I see no adequate reason for denying the authority of a state to deal separately with those controversies between employer and employees or between persons employed and those seeking employment, which experience has shown to be a characteristic outgrowth of disputes over the terms and conditions of employment.

I am unable to conclude that paragraph 1464 either deprives plaintiffs in error of liberty or property without due process of law, or denies to them the equal protection of the laws, within the meaning of the Fourteenth Amendment.

Mr. Justice CLARKE concurs in the above opinion. 

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