legislation. Many of the boycotts were prosecuted by the distribution of handbills, and an effort was made to deal with the subject by passing an ordinance forbidding all such distribution.22 Though a number of arrests were made for the violation of this ordinance, it does not seem to have been effective as a means for preventing the continuation of the boycotts.23

It remained for a Sacramento judge to put an effective weapon in the hands of the boycotted employers by issuing the first injunction in a California labor dispute. The striking printers of the Sacramento Bee were conducting a vigorous boycott of the paper, with the assistance of members of the Federated Trades Council, who were sent to Sacramento to give advice about the conducting of the boycott. For its more effective promotion, a little paper called the Trade Union was issued for the purpose of presenting the cause of the strikers to the public. Judge Armstrong, of the Superior Court, granted an injunction forbidding the boycotters from doing any of the acts complained of as injurious to their former employers. The order included in the forbidden acts all advertising of the boycott in the newspaper or printed circular,24

Judge Armstrong's decision, which attracted much attention, was based on the common law and on provisions of the California Political and Civil Codes. He argued, (1) that every person is bound to abstain from the injury of the person or property of another, or from infringing on his rights;25 (2) that the good-will of a business is property;26 (3) that the defendants were responsible for all injuries due to their willful acts.27 The defendants claimed the right to speak and print what they wished under the State Constitution, but the Constitution also held them responsible for the abuse of that right.28 Since the

22 Alta, December 3, 1890, p. 8, report of meeting of the Board of Supervisors.

23 Minutes of Federated Trades Council in Coast Seamen's Journal, March 13, June 3, 1891; January 8, 1892.

24 Alta, November 20, 1890; Coast Seamen's Journal, November 26, 1890. 25 Civil Code, Sec. 1708.

26 Ibid., Secs. 992, 655, 663.

27 Ibid., Sec. 1714.

28 In a recent Supreme Court decision it was held that this section of the Constitution would prevent an injunction restraining freedom of speech, but that the person exercising this right could be punished for its abuse. Daily v. Superior Court, 112 Cal. 94.

defendants were insolvent and could not pay damages, they must be restrained by injunction, otherwise the plaintiffs would not be safe-guarded in their right of acquiring, possessing, or protecting their property, guaranteed in the Constitution.29

The injunction does not seem to have abated the zeal of the boycotters. The Sacramento Federation of Trades held a mass meeting and made plans to carry the decision to the Supreme Court, and to start a rival evening paper.30 Six of the more active of the trade-unionists, among them G. W. McKay, the president of the Federated Trades Council of San Francisco, were soon brought to trial for the violation of the injunction. The president of the Typographical Union, the manager of the Trade Union, the boycott paper, and his assistant were found guilty of the violation of the injunction, and fined twenty dollars each. Three months later the printers were still prosecuting the boycott, and had appealed the case to the Supreme Court.32 We have been unable to find any report of a decision in this court, so it is probable that, as in so many other cases of this kind, the controversy was settled and the case withdrawn.

31

The San Francisco employers hastened to make use of this new remedy. We have found but scanty records of these cases, as no attempt was made to carry them to the Supreme Court. In the meeting of the Federated Trades Council of November 28, 1890, the shoe clerks reported that they had been victorious in the contempt cases against their members. In June, 1891, the officers of the Council were enjoined from boycotting one Westerfield.33

At about this time the Employers' Association was organized in San Francisco, and the campaign which it conducted against the unions proved so successful that, by the end of 1892, there was no longer any need of injunctions to protect the business of the employers. As the San Francisco organizations had led in 29 Alta, November 20, 1890.

30 Minutes of the Federated Trades Council of November 28, reported in Coast Seamen's Journal of December 3.

31 Alta, December 14, 1890.

32 Pacific Union Printer, January and February, 1891.

33 Minutes of the Federated Trades Council, November 28, 1890, and June 5, 1891, in Coast Seamen's Journal, December 3, 1890, and June 18,

planning the more aggressive policies, there was a general decline in trade-union activity. The economic depression that prevailed in 1893-4 also discouraged all efforts to improve the conditions of work. These circumstances explain the absence of injunction cases in the California courts during a period when the use of this means of restraining boycotts and strikes was being rapidly developed in the Eastern states.

THE DEVELOPMENT OF THE USE OF THE INJUNCTION IN LABOR CONTROVERSIES IN OTHER PARTS OF THE

UNITED STATES, 1888-1900.

In order to appreciate fully the significance of the later period of development of the use of the injunction by the California courts, it will be necessary to review some of the precedents set between 1888 and 1900 by the courts of Eastern states and by the federal courts. We find that the California experiences with the boycott, leading up to the issuance of the first injunction in a labor dispute, were being duplicated in other sections of the country. In 1888 the Supreme Court of Massachusetts held that, banners displayed in front of a person's premises with inscriptions calculated to injure his business and to deter workmen from entering into or continuing in his employment constitute a nuisance which equity will restrain by injunction. In the same year a Pennsylvania court enjoined a boycott which showed many of the tactics which had been adopted by the San Francisco labor organizations in their controversies with the Wellington Coal Company, and with certain breweries and bakeries. The defendants were restrained from requesting others to boycott the plaintiff, from threatening to boycott those who patronized him, from following his wagons through the streets and requesting the public to boycott him.35

34

On the other hand, in 1890 there were several decisions in which the courts of different states refused to enjoin the publication of boycott circulars and letters, or to prevent a newspaper from advising workmen to break their contracts of employment. It was declared that there were adequate remedies

34 Sherry v. Perkins (1888), 147 Mass. 212, 214. 35 Brace v. Evans (1888), 5 Pa. Co. Ct. R. 163.

at law for the circulation of libelous statements,36 and that the publications which led the employees to violate their contracts did not come within the common-law prohibition of the enticement of servants.37

In 1891 a decision was rendered in the United States Circuit Court of the Southern District of Ohio which completely abandoned this more conservative point of view. This was a case similar to the one which had called forth the first injunction restraining a California trade-union. The decision sustained the issuance of an injunction quite as radical in its terms as the one which had aroused the indignation of the Sacramento printers. The court granted an injunction prohibiting the publi cation and circulation of posters, handbills, circulars, etc., printed and circulated in pursuance of a combination or conspiracy to boycott.38

In the period between 1891 and 1900, during which the injunction was rarely used to restrain the California tradeunions, many radical precedents were set in the courts of Eastern states, among the most important of which were the following:

(1) The Pennsylvania Supreme Court sustained an injune: tion in 1893 which restrained striking employees and persons sympathizing with them from gathering at and about the plaintiff's place of business, from following the workmen whom he employed to and from their work, from gathering at and about the boarding places of said workmen, and from any and all manner of threats, menaces, intimidations, opprobrious epithets, ridicule, and annoyance to and against said workmen or any of them, for or on account of their working for the plaintiffs.3

39

(2) In 1894 a New Jersey court enjoined the Essex Trades Council from issuing circulars calling upon members of the unions and the public to cease patronizing a certain newspaper that was boycotted because it used stereotyped or plate matter."

(3) A Massachusetts court refused to permit a patrol of

30 Mayer v. Journeymen Stone-cutters' Association (1890), 47 N. J. Eq. (2 Dick.) 519.

37 Rogers v. Evarts, 17 N. Y. Supp. 264 (1891).

38 Casey v. Cinn. Typo. Union No. 3, 45 Fed. 135; 12 L. R. A. 193.

39 Murdock v. Walker, 152 Pa. St. 595.

40 Barr v. Essex Trade Council, 53 N. J. Eq. 101.

two men for the purpose of persuading workmen from entering into the employment of the complainant who was granted an injunction for the protection of his business against strikers. 11

(4) The courts repeatedly decided that acts which threatened irreparable or continuing injury to property would be enjoined, even though such acts were also punishable as crimes. The decisions regarded business as property.42

(5) Mere persuasion to abandon employment, unaccompanied by threats or acts of intimidation, was enjoined."

(6) In other cases the rulings where the circumstances were similar were the reverse of those already cited: the courts refused to intervene to prevent the sending of boycott circulars to the plaintiff's customers, or to prohibit the use of the streets for displaying malicious placards, or to forbid the inducing of others, by entreaty and persuasion, to leave their employment.46

45

It is evident from this brief summary, that the decisions in the state courts of the East and Middle West during this period show a rapid development of the use of the injunction to restrain the activities of labor organizations. Much of this development was made possible by precedents set in the federal courts.

PRECEDENTS FOR THE USE OF THE INJUNCTION SET BY THE FEDERAL COURTS.

In the earlier federal court injunction cases, the more radical departures from former well-recognized limitations in the use of the writ of injunction were justified by the claim that they were necessary to protect property in the hands of receivers, who had been appointed by the court, or by the need of protecting adequately the mails and interstate commerce. Some of these decisions made such unprecedented use of these special

41 Vegelahn v. Guntner, 167 Mass. 92. See also Wick China Co. v. Brown, 164 Pa. St. 449.

42 Perkins v. Rogg, 28 Wkly. Law Bul. 32; Davis v. Zimmerman, 36 N. Y. Supp. 303; Hamilton Brown Shoe Co. v. Saxey, 131 Mo. 212.

43 Beck v. Railway Teamsters' Protective Union, 77 N. W. 13; 42 L. R. A. 407.

44 Sinsheimer v. United Garment Workers of America, 77 Hun. 215; 28 N. Y. Supp. 321.

45 Riggs v. Cinn. Waiters' Union, 5 Ohio N. P. 386.

46 Reynolds v. Everett, 144 N. Y. 189.