VI. INJUNCTIONS IN LABOR CASES.

Outline of Illinois statute. The Illinois statute provides that the superior court of Cook County and the circuit courts in term time and any judge thereof in vacation shall have power to grant injunctions. No injunction is to be granted without previous notice to the defendants unless it appears from the bill or affidavit that the right of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice. In all cases other than those enjoining a judgment the complainant is required to give bond before an injunction is issued, but the statute provides that bond need not be required when, for good cause shown, the court is of opinion that the injunction ought to be granted without bond. Where an injunction is dissolved the court may before finally disposing of the case hear evidence and assess damages to the party damnified by such injunction. An action upon the injunction bond, if one is required, will also lie.

Any person violating an injunction may be punished for contempt.

Operation of injunction procedure. The Illinois practice with respect to injunctions is similar to that in other states, and a summary should here be made of the manner in which injunctions operate in labor cases. Several points should be particularly noted:

(a) Where there are several judges who may issue an injunction, as there usually are in a populous community, the applicant for the injunction has a discretion as to the judge to whom he may apply.

(b) The Illinois statute does not require notice, and the giving of a bond by the applicant for the injunction lies within the discretion of the judge.

(c) The so-called "blanket" injunction has become common in this country in labor cases. Upon this matter the law is well summed up by Burdick's Law of Torts."

"In this country the practice has grown up of directing the injunction against all persons engaged in the illegal conduct complained of, although some may not be formally named as defendants in the suit, or served with process. This is done on the principle that if the persons are numerous, certain ones may be made parties defendants as representatives of the class."

1 Burdick's Law of Torts, Third Edition, p. 578.

(d) Appeals may be taken from the action of the court granting an injunction, but an appeal does not suspend the operation of the injunction, and the court issuing the injunction may punish violators of it for contempts committed during the pendency of the appeal, even though upon the appeal the injunction is dissolved.

From this it necessarily results that until an appeal is taken and an injunction issued by a lower court held improper, the determination of the lower court is controlling. Even though the determination of the lower court that an injunction should have issued is reversed on appeal, it is still true that the punishment for contempt will hold. That is, even though an injunction was illegally issued by a lower court, the violator of such an injunction is punishable for contempt so long as the injunction remains in force and the action of the lower court is not reversed.

What has just been stated is the law of this country with respect to contempts, and the doctrine of this matter has recently been stated in a very clear manner by the supreme court of Illinois in the case of Lyon & Healy v. The Piano, Organ and Musical Instrument Workers' International Union. In this case Chief Justice Dunn said:

"Where a court has before it a party complainant asking that an injunction issue on a bill, stating a case belonging to a class within the. general equity jurisdiction of the court, and also the party against whom the injunction is asked, the court has jurisdiction to decide whether an injunction ought to issue and the character of the injunction, and should the court err in ordering an injunction to issue when one ought not to issue or in ordering an injunction broader in its terms than is justified by the bill, its decree will be reversed, but the error will be no defense to an attachment for contempt for violating the injunction. The error does not deprive the court of its jurisdiction and the decree is binding upon the defendant until vacated or set aside. A party may refuse to obey an order where the court had no jurisdiction to make it, but not on the ground that it was erroneously made. An order made in the exercise of jurisdiction, though erroneous, must be obeyed until modified or set aside by the court making it or reversed by an appellate court."

In this case Justices Carter and Stone specially concurred, saying: "Under repeated decisions of this court on similar, if not identical questions raised here, we think the judgment of the lower court on this, a collateral attack, must be confirmed. We reach this conclusion with reluctance, because we are firmly convinced that the injunction order entered was entirely too sweeping in its provisions, particularly the provision enjoining appellants, or those associating with them, from interfering or attempting to hinder the appellee from carrying on its business in the usual and ordinary way. Furthermore, we are disposed to think that the restraining order is too broad in its phraseology in reference to picketing appellee's place of business, but in view of our conclusion that these questions were not raised in a direct proceeding and cannot

289 Ill. 176 (1919).

be raised in a collateral attack on a decretal order, we do not deem it necessary to discuss this question at length."

Two justices dissented without opinion from the decision of the court. Three justices concurred in Chief Justice Dunn's statement that the court having jurisdiction to issue the injunction, a punishment for contempt could not be relieved from. The two other justices agreed with Chief Justice Dunn's conclusions, but took occasion to say that the injunction in this case. was an im

proper one.

If an injunction has been issued, and an appeal is taken from a punishment for contempt for the violation of the injunction, it is proper, however, for the supreme court to pass upon the question as to whether the act sought to be punished as a contempt was actually a violation of the injunction; and if the act is held not to have been a violation of the injunction, the party will on appeal be relieved from punishment.3

cases.

Conditions under which injunctions will be issued in labor, The law as to this matter laid down by the Illinois supreme court is unsettled, and this statement may also be made regarding the law of substantially all of the other states. The law with respect to labor controversies is one of relatively recent development, and, as in all cases where the law is being first developed, a great deal of uncertainty exists. In labor controversies, injunctions will issue to prevent actions which the court may regard. as unlawful, but not for the purpose of enjoining the actual cessation of work. What will be regarded as unlawful depends, in the present unsettled state of the law, primarily upon what the court may regard in a particular case as improper conduct. The law of injunctions in labor cases revolves primarily upon the notion that an act which is lawful if done by one person may become coercive and unlawful if done by a number in combination. In the application of this general principle the tendency of the courts is to adopt the element of motive as the controlling one, and to regard the conduct by a group of persons as lawful if such conduct does not unduly interfere with the rights of others and if the purpose of the conduct is primarily to benefit the group which is acting rather than that of injuring others. However, the determination as to whether the motive is proper or improper rests in the first instance with the court granting the injunction. The supreme court of Illinois has passed upon a number of matters. and it may be proper to indicate here the results in the more important cases. In the case of O'Brien v. People1 the court said through Justice Wilkin:

"No person or combination of persons can illegally, by direct or indirect means, cbstruct or interfere with another in the con

Illinois Malleable Iron Company v. Michalek, 279 Ill. 221.

216 Ill. 354 (1905).

duct of his lawful business and any attempt to compel an individual, firm or corporation to execute an agreement to conduct his or its business through certain agencies or by a particular class of employes is not only unlawful and actionable but is an interference with the exercise of the highest civil right

. there can be no doubt that any attempt to coerce the Kellogg Switchboard and Supply Company into signing said agreements by threats to order a strike was unlawful. It was violative of the clear legal right of the company and was unjust and oppressive as to those who did not belong to the labor organizations."

This decision, while involving other matters, was based primarily upon the view that a strike for the closed shop is unlawful, and that actions in connection therewith, even though otherwise lawful, might be enjoined. The case of Barnes v. Chicago Typographical Union is directly in line with the view expressed in the case of O'Brien v. People. In the Barnes case, however, there are two dissents as against one dissent in the O'Brien case. The case of Franklin Union No. 4 v. People is also in line with the two cases just referred to, the court there saying: "It will be readily conceded by all that labor has the right to organize as well as capital, and that the members of Franklin Union No. 4 had the same legal right to organize said union as the members of the Chicago Typothetae had to form that association, and that the members of Franklin Union No. 4 had the legal right to quit the employment, either singly or in a body, of the members of said association, with or without cause, if they saw fit, without rendering themselves amenable to the charge of conspiracy and that the courts would not have been authorized to enjoin them from so doing, even though their leaving the employment of the members of the association involved a breach of the contract. While such is the law, it is equally true that upon the members of Franklin Union No. 4, either singly or in a body, leaving the employment of the Chicago Typothetae, the members of the association had the right to employ other persons in their places, and when Franklin Union No. 4, its officers and members, agreed together that by calling a strike and by force, threats, intimidation and picketing they would prevent the members of said association from employing other persons in their places, then they entered into an unlawful undertaking, the carrying into effect of which might be enjoined by a court of equity."

These earlier cases, just referred to, proceed upon the assumption. that employes had no specific interest in the undertaking in which they were employed, and that once they decided to leave such employment, they might do so, either singly or as a group, but that they could not leave for the purpose of coercing the employer, and that leaving or threatening to leave for the purpose of obtaining a closed shop was illegal. The court, however, in the case of Kemp v. Division No. 241, Amalgamated Association of Street Electric Railway Employes of America, took a different view with respect to this matter. In this

5232 T. 425 (1908).

220 Ill. 355. 7255 Ill. 213 (1912)

case, the court was divided, three judges concurring in one opinion, Justice Carter specially concurring, and three judges dissenting. The court through Justice Cook said:

"No contract rights being involved, the Union employes had a right to quit the service of the railway company either singly or in a body, for any reason they chose, or for no reason at all. If the only purpose of the union employes was to quit the service and permanently sever their connection with their employer, appellees would in no wise be damaged and could have no grounds for injunctive relief. The bill discloses, however, that this was not the only purpose of the members of the union. They did not propose absolutely to sever their connection with their employer, but by means of a strike to withdraw temporarily their service, and then by such means as might be proper and permissible seek to induce their employer to accede to their demands and reinstate them in the service under the conditions they sought to impose. By thus combining it becomes necessary to inquire whether the purpose of the combination was a lawful one Neither can it be said that any actual malice has been disclosed towards the appellees or an intent to commit a wrongful or harmful act against them. No threats are made and no violations threatened. The members of the union have simply said to their employer that they will not longer work with men who are not members of their organization and that they will withdraw from their employment and use such proper means as they may to secure employment under the desired conditions. While this is not a combination on the part of the union employes to maintain their present scale of wages, to secure an advance in the rate of wages or to procure shorter hours of employment, all of which have been universally held to be proper and lawful objects of a strike, it cannot be said that this is not a demand for better conditions and a legitimate object for them to seek to attain by means of a strike."

Justice Carter in a concurring opinion said:

"In my judgment, union workmen, not bound by contract, who inform their employer that they will strike unless he discharge non-union workmen in the same line of employment, should be held to be merely dictating the terms of their own employment; that it is not unlawful for members of a labor union to seek by peaceful means to induce those engaged in the same occupation to become members of such union, and as a means to that end to refuse to allow union laborers to work in the same line of employment in a place where non-union laborers are employed. The proposed purpose of the strike not being unlawful, it necessarily follows that an injunction should not issue as prayed for in the bill."

Three judges vigorously dissented from the views presented by Justice Cook and Justice Carter, urging that the law had been differently established in this state and that "the right of every laborer to dispose of his labor as he may choose for the support of himself and those dependent upon him is as sacred as the right to carry on any lawful business or any other lawful right of a citizen. Governments and courts would be useless if they failed to pro tect the laborer in the enjoyment of such a right. It can only