179 Mo. App. 639 | Mo. Ct. App. | 1913
(after stating the facts). — There can he no doubt that a number of persons, confederated together in combination, as through a conspiracy, may he restrained by a court of equity from interfering with the business of another so as to entail a substantial injury upon him, as by persuading his patrons, against their will, or by means of violence or threats
There can be no doubt that the circuit court possesses jurisdiction of the subject-matter when the case is one in equity involving injunctive relief against an unlawful conspiracy, such as a boycott, and it is true, too, that these petitioners were parties defendant to a suit in equity in which the St. Louis Catering Company was plaintiff and injunctive relief was sought to restrain them from interfering with the plaintiff’s business, as by prosecuting a boycott against it. But because a court is possessed of jurisdiction over the subject-matter — that is, cases of the general class of actions — and the person, is no reason why it should transcend its powers and enjoin something which may not be inhibited by the law. If a conspiracy be found, or even conceded, it is obvious the court is without power to enjoin the conspirators, on that ground alone, from merely walking along the street or conversing with others, unless the restraining order connects such acts with the unlawful conspiracy and forbids it in furtherance thereof. In this view, the rule of decision is
The inquiry touching this matter is to be had in the instant case by reviewing the commitment, which contains a copy of the judgment of conviction and is conclusively presumed to set forth the facts on which it must rest. We say the commitment is conclusively presumed to set forth the facts on which the judgment of contempt is predicated, for the reason that our statute requires the facts and circumstances to be fully stated and for the reason, too, that the offense of contempt is criminal in its nature. The statute pertaining to habeas corpus (Sec. 2472, R. S. 1909) directs the court to remand the petitioner "when he is restrained of Ms liberty “for any contempt, specially and plainly charged in the commitment, by some court, officer or body, having authority to commit for a contempt so charged.” This implies that the contempt for which the prisoner is withheld is to be pointedly charged and set forth in the commitment.
But this is not the only statutory provision touching the matter in judgment here, for another section is to be found as parcel of the provisions on contempt. Section 3884, Revised Statutes 1909, touching commitment for contempt, provides, “Whenever any person shall be committed for any contempt specified in this chapter, the particular circumstances of Ms offense shall be set forth in the order or warrant of commitment.” It is true the contempt involved here falls ■within the category of civil contempts, for the pun
Viewed under this rule of decision, the judgment of conviction and the commitment issued thereon are wholly insufficient to justify the punishment as for contempt of the three petitioners for the reason, first, that the court was without power to make the broad and sweeping’ order for a violation of which petitioners Heffron and Ringler are convicted; and, second, because it does not appear from the finding of facts, that petitioner Close violated the terms of the order on which he was convicted.
There can be no doubt of the proposition that one imprisoned as for contempt for violating an order which the court possessed no authority to make, may be released on habeas corpus. [See Ex Parte Craig, 130 Mo. 590, 32 S. W. 1121; Ex Parte Arnold, 128 Mo. 256, 30 S. W. 768, 1036; In re Ayers, 123 U. S. 443; 15 Am. & Eng. Ency. Law (2 Ed.), 178.]
Looking to the commitment and judgment, it appears that on October 6th a temporary injunction was granted, restraining the petitioners and others who were defendants in the injunction suit, “their servants, agents, associates and representatives, and each of them, from either singly or in numbers stationing themselves or congregating upon the sidewalk adjoining and in front of plaintiff’s place of business, the southeast corner of Sixth and St. Charles street, for the purpose of distributing cards or circulars containing statements concerning plaintiff [that is, the St. Louis Catering Company] or its business, or of addressing remarks concerning plaintiff or its business to persons passing along the sidewalk; from either singly or in numbers patrolling the sidewalk adjoining plaintiff’s said place of business; from preventing or attempting by the use of force, violence, threats, menaces or intimidations, any person from patronizing plaintiff’s said place of business; from compelling
Obviously so much of this injunction as merely re-1 strains defendants, singly or in numbers, from stationing themselves or congregating upon the sidewalk adjoining and in front of plaintiff’s business for the purpose of distributing cards or eirculars'concerning plaintiff or its business, or of addressing remarks concerning plaintiff or its "business, to persons along the sidewalk avails nothing. The court was without power to restrain the parties from thus using the sidewalk, unless they did so with a view of interfering with plaintiff’s- business, its employees or patrons throughy threats, violence, intimidation, or by persuading persons desiring to patronize it or causing them to desist therefrom against their will, except to restrain the free ingress and egress about plaintiff’s premises as a private nuisance through continual trespass. Persons have a right to congregate upon and use the sidewalks in a public street, in the absence of a nuisance appearing, as by continual trespass, provided they do not injure, or do so with a view of injuring, the property or business "of another.
Here the injunction restrains the petitioners from, singly or in numbers, stationing themselves or congregating upon the sidewalk adjoining and in front of plaintiff’s place of business, without regard whatever to their conduct and as if any such congregating or standing violated plaintiff’s property rights. It in no sense is restrictive of a use of the sidewalk that is-unlawful, for it is not directed against the use of the sidewalk by the petitioners with a view of interfering with plaintiff’s business, its employees or patrons, through threats, violence, intimidation, or by persuad
There can be no doubt that one and all may use the sidewalks for lawful purposes, and it is certain that an obstruction or interference with such free use operates a public nuisance. But thoug’h such be true, a private person, such as an abutting proprietor, is without remedy to restrain such public nuisance unless he suffer damages peculiar to him which are different in kind, and not merely in degree, from those sustained by other members of the public. In such cases, and such cases alone, is redress afforded to the private individual, either in law or equity, on the ground of public nuisance. [See Rude v. City of St. Louis, 93 Mo. 408, 6 S. W. 257; Fairchild v. City of St. Louis, 97 Mo. 85, 11 S. W. 60; Bailey v. Culver, 84 Mo. 531; Patton v. Forgey, 171 Mo. App. 1, 153 S. W. 575.] But there can be no doubt that an adjoining proprietor or occupant of the adjacent building possesses such a property right in the sidewalk in front of his premises as authorizes him to enjoin others from so using it as to prevent the free ingress and egress to and from the property, for though such use may constitute a public nuisance, it obviously entails a private nuisance as well and inflicts a peculiar injury upon him, different in kind, and not merely in degree, from that sustained by the members of the community at large. Even though a public nuisance does not appear, a private nuisance may be entailed, for it is clear that the right of an abutting owner, or one occupying such premises, to access to and from the street is a private right in
In accord with this principle, Mr. Eddy, in his work on Combinations (3 Ed.), sec. 1034, thus succinctly states the law on the subject:
“The owner or occupant of a house, store, mill or factory, or any building or piece of property legitimately occupied and used by him, has a right of property in the streets adjacent thereto and used as approaches to his premises. He has the right of free and uninterrupted ingress and egress, and all parties using the streets must use them subject to this right of the abutting property owner. Anyone who violates this right of the property .owner to the use of the streets that are appurtenant to his property by interferering with or impairing in any manner his free ingress and egress is liable for all damages occasioned by such interference, and the property owner may also abate such interference as a private nuisance by injunction.
“It is as much a nuisance to block up the street and impair the right of the property owner to ingress and egress by the continual presence of bodies of men as it would- be to build barricades and embankments in the street.
“This right of the abutting property owner to an unobstructed access to his property over the streets and highways is not inconsistent with the right of striking employees to use the same streets and highways for the*656 lawful conduct and the maintenance of their strike by intercepting anyone going to work for the parties, and peaceful persuasion or argument against such parties taking the places of the striking employees.
“It is the right of every workingman to pass freely through the streets and highways to the place of his employment. This right is guaranteed by the law of every free country, wherever the right to work as one pleases and to contract for labor as one chooses is permitted by law; it is a part of the liberty which every man enjoys in this country as his birthright.”
See, also, American Steel & Wire Co. v. Wire Drawers, etc., 90 Fed. 608.
While it was competent for the court to enjoin the defendants from congregating and stationing themselves upon the sidewalk in front of the premises of the catering company so as to interfere with the free ingress and egress from its place of business, no such inhibition is to be found in the order, but instead it proceeds in broad and sweeping language as though any congregation or standing upon the sidewalk by them was unlawful. In this the injunction exceeded the power of the court in that behalf, unless such conduct to be prohibited on other grounds.
In further discussing the right of members of labor unions to assemble in the street, Mr. Eddy, in work on Combinations, sec. 536, says:
“It is unlawful for the employees who are out on a strike to patrol the streets adjacent to employers? premises both day and night, and to keep within call at all times a large number of men for the nominal purpose of dissuading other workmen from taking the place of the striking employees, where it is- clear from the circumstances that the patrolling was for the purpose of intimidating workmen seeking to enter the premises. ’ ’
It therefore appears that this branch of the law on the subject requires the elements of. force, threats,
It is urged that the case of Marx & Haas, etc., Co. v. Watson, 168 Mo. 133, 67 S. W. 391, is essentially overruled by the more recent one of Lohse Door Co. v. Fuelle, 215 Mo. 421, 114 S. W. 997, but to the extent above stated, the two are not inconsistent. Indeed, the Supreme Court so said in the latter case, as-will appear by consulting the opinion. It is true, when the facts of the Marx & Haas case are thoughtfully considered, the judgment of the court seems to be incon
It is certainly true, under the authorities above cited, that the court is without power to enjoin the distribution of “cards or circulars containing statements concerning plaintiff or its business or of addressing remarks concerning plaintiff or its business to persons passing along said sidewalk,” unless it appears that such cards, circulars and remarks concerning plaintiff’s business were detrimental in character and used to injure it, and, even then, we decline to say that they, ■standing alone, could be enjoined, for the question is not made in the ease. No such limitation is prescribed in the injunction, and in any view it exceeds the power of the court in that behalf for this reason. [See, too, Iron Molders’ Uuion v. Allis-Chalmers Co., 166 Fed. 45-50.]
So much of the injunction as purports to enjoin the petitioners, “either singly or in numbers,” from patrolling the sidewalk adjoining plaintiff’s business avails nothing, for it does not appear what the court
So much of the injunction as inhibits the defendants from preventing, or attempting, by. the use of force, violence, threats, menaces or intimidation, to prevent any person from patronizing plaintiff’s place of business is certainly valid and within the power of the court. So, too, is that portion of the order which forbids petitioners from compelling or attempting to compel, by threats, intimidation or acts of force or violence, any of the employees of plaintiff to fail to perform their duties as such employees. [See Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, 32 S. W. 1106.] But it does not appear from the finding of facts set forth in the judgment of contempt and the commitment that this portion of the order was violated by the petitioners. The finding of facts goes to the effect that George Ringler, along with others, was a
Obviously this finding of fact against the two petitioners is insufficient to sustain their conviction as for contempt in violating the injunction, even though the injunction were comprehensive enough, and we have pointed out. its insufficiency above. As before said, patrolling in and of itsélf, unaccompanied by other elements which render it obnoxious, is not un
The Supreme Court of Indiana, in the case of Karges Furniture Co. v. Amalgamated, etc., Union, 165 Ind. 421, declared picketing in and of itself to be entirely lawful. The court said: “Whether picketing is lawful or unlawful, depends in each particular case upon the conduct of the pickets themselves.” In Iron Molders’"Union v. Allis-Chalmers Co., 166 Fed. 45, the United States Circuit Court of Appeals for the Seventh Circuit asserted the same doctrine and modified the decree restraining “picketing” by adding such words as were essential to render the act obnoxious, the words so added being “in a threatening or intimidating manner.” [See, also, to the same effect Mills v. U. S. Printing Co., 99 App. Div. N. Y. 605; Everett Waddey v. R. T. Union, 105 Va. 188; Jones v. Van Winkle G. & M. Works (Ga.), 17 L. R. A. (N. S.), 848; Perkins, Campbell & Co. v. Rogg, 28 Weekly L. Bull. 32.]
So, it appears tbat though these petitioners were found to have been engaged in patrolling and picketing, these words in and of themselves imply nothing unlawful, and there is no finding tbat, in pursuing the patrolling and picketing they interfered with tbe free access as by ingress and egress to tbe premises of tbe catering company or threatened, intimidated, or coerced either plaintiff, any of its officers, employees or patrons, or in any wise conducted themselves in a manner obnoxious to tbe law.
It is clear that both the judgment of contempt and the commitment thereon are insufficient to justify the conviction and imprisonment of the petitioners and they should, therefore, be discharged. It is so ordered,