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.