Trade Press Publishing Co. v. Milwaukee Typographical Union No. 23, 180 Wis. 449

180 Wis. 449 | Wis. | 1923

Lead Opinion

Eschweiler, J.

Defendants contend in support of their demurrer that the several plaintiffs, each carrying on his own establishment and each being financially independent of the others, cannot be properly joined as plaintiffs.

By sec. 2602, Stats., it is provided that

“All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided by law.”

Parts of sec. 2604, Stats., so far as here material, are as follows:

“And when the question is one of a common or general interest of many persons . . . one or more may sue or defend for the benefit of the whole.”

We gather from the face of the complaint that this is an equitable proceeding to enjoin the defendants from further carrying out a conspiracy alleged to exist between them as a class with the avowed purpose of interfering with legal rights of plaintiffs. Such conspiracy is aimed at a class of persons, namely, the employing printers of the city of Milwaukee, rather than at individuals. The subject of the action, therefore, presents a question of a common or general interest of many persons, and is a situation where one or more of a class may sue for their own benefit and for the benefit of others having a similar interest in obtaining the relief demanded.

We deem this squarely within and controlled by the holding as to the second cause of action alleged in the case of Hawarden v. Youghiogheny & L. Coal Co. 111 Wis. 545, 87 N. W. 472. The defendants in that case were wholesalers, certain foreign corporations and their agents at Superior as of one class and some of the retail coal dealers of another class. The plaintiff, a retail coal dealer, alleged that he sought equitable relief by way of perpetual injunction to restrain the continuance by defendant of the alleged conspiracy; that he was suing on his own behalf and on behalf of all other retail coal dealers who might desire to become parties to the action and who were situated as he was. It was held upon demurrer (p. 552) that he alone might property bring such action in equity and on behalf of others, recognizing thereby that more than one might property have joined as plaintiffs as is done in this case. To the same effect are such cases as R. R. Kitchin & Co. v. Local Union No. 141, 91 W. Va. 65, 112 S. E. 198; Baldwin L. Co. v. Local No. 560, 91 N. J. Eq. 240, 109 Atl. 147.

We may say in passing that while in the prayer for relief in the present case plaintiffs ask that an accounting may be had of the damages already’ occasioned by the defendants and each and all of them ordered to pay the plaintiffs such damages as may be so ascertained, yet there is nothing in the body of the complaint showing a state of facts upon which it might be construed such an action at law for damages as was the first count in the Hawarden Case, supra, where an action for damages was held improperly joined with the separately stated cause of action for equitable relief. The prayer for relief being no substantive part of the complaint (Williams v. Oconomowoc, 167 Wis. 281, 284, 166 N. W. 322), that plaintiff asks for more relief than that which his pleaded facts entitle him to have is not reached by demurrer. Neacy v. Drew, 176 Wis. 348, 360, 187 N. W. 218.

Appellants also argue that, this being an action for injunc-tional relief in a labor dispute, the complaint is not sufficient to comply with the requirements of cli. 211, Laws of 1919, which was before this court in A. J. Monday Co. v. Automobile, A. & V. Workers, 171 Wis. 532, 177 N. W. 867, or with the terms of secs. 2774 and 2776, Stats., containing the general provisions for the granting of injunctions, in that (1) the complaint is not properly verified and therefore the court lacks jurisdiction to proceed; (2) that there is a lack of necessary particularity as to the property or property rights threatened to be injured.

The verification is given in full in the statement of facts and we deem it a compliance with sec. 2666, Stats., which provides that, if there be several parties united in interest and pleading together, the verification must be made “by one at least of such parties acquainted with the facts.” The same section also provides that “when a corporation is a party the verification may be made by any officer thereof.” The verification here was made by an officer of a plaintiff corporation and is a proper one in that respect. It is made by an officer of one of the parties plaintiff, who swears that he knows the contents of the complaint and that the same is true to his own knowledge except as. to those things stated therein on information and belief and as to those he believes it true, and that his source of knowledge is the actual observance of the matters set forth in the complaint, inspection and knowledge of documents .therein described, and reports made to him by subordinates in the usual course of business. We find nothing lacking in any of the statutory requirements for such a verification.

The objection as to want of particularity in this complaint we also deem not well taken. There is sufficient disclosed as to the property and property rights involved to meet any reasonable interpretation to be given to the statutes relied upon by appellant and cited supra. Anything further, should be more properly reached by a motion for a bill of particulars or one to make the complaint more definite and certain.

On the appeal from the order continuing the modified temporary injunction, defendants urge, in addition to the objections to the complaint above discussed and determined, that the complaint is without proper supporting proof by affidavits, and that the plaintiffs, by their contract of August 9th, are not in court with clean hands and for that reason should be denied relief. We deem that so far as the questions of fact are involved there is sufficient support in the record to warrant the conclusion arrived at by the trial court, and do not consider it necessary to recite or consider them in detail.

Defendants insist that the agreement between the plaintiffs and other printing establishments of August 9th, the substance of which is set forth in the statement of facts supra, shows upon its face a violation of either sec. 1747e, Stats., prohibiting contracts or combinations in restraint of trade or commerce; or sec. 4466a, prohibiting combinations for the purpose of injuring any one in his trade or business; or'sec. 4466b, prohibiting blacklisting or coercion; or sec. 4568, relating to common-law conspiracy; or, finally, that the purpose .of such contract is contrary to good public policy; and that for any and all of such reasons the plaintiffs ought not to be heard in a court of equity to obtain relief against defendants charged with a conspiracy to injure plaintiffs when the plaintiffs themselves are parties to a contract which should equally merit the condemnation of the court.

Of possible constructions of such contracts, that must be adopted which would make it lawful rather than one making it unlawful. Pulp Wood Co. v. Green Bay P. & F. Co. 157 Wis. 604, 617, 147 N. W. 1058. We can find nothing on the face of the contract here presented which can be reasonably construed to be a violation of any one of the specific statutes just above cited. It is in effect an agreement that there shall be by the employer no individual but only collective bargaining with the union or other labor unions. On its face it does not show a purpose to unlawfully interfere with, impair, or impede the individual defendants or other individual workmen so as to require a holding that it is a violation of public policy. Booker & Kinnaird v. Louisville Board, etc. 188 Ky. 771, 224 S. W. 451, 21 A. L. R. 531.

It follows from what has been said that each of the orders appealed from must be affirmed.

By the Court. — Orders affirmed.

Jones, J., dissents.

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Dissenting Opinion

Crownhart, J.

{dissenting). I regret I cannot concur in the opinion of the court. It seems to me that we have here a judicial sanction by a court of equity of an unlawful boycott in an aggravated form. It is a universal rule of equity that the plaintiff must come into a court of equity — a court of conscience — with clean hands. The plaintiff must be able to appeal to the conscience of the court because he is free from -wrong himself and has right and justice on his side. It is' in such cases, and such cases only, that this court, under its equity jurisdiction, will grant relief. We are not called upon to approve the acts of the defendants. We may concede for the purposes of this case that they /are wrong and that if the plaintiffs are without fault they are entitled to relief. So we will look to the plaintiffs to see if they are innocent of wrong doing.

The plaintiffs are ten separate corporations engaged in the printing business. They combined and confederated with substantially all the other employing printers of Milwaukee into a union or monopoly of’ employers to deal with their employees, and in this resulting combine they agree to boycott the union of their employees. This union of employees is a voluntary organization of workmen and is lawful in itself, and as such recognized by the statutes of the state and its public policy. The plaintiffs and their confederates agree, under severe penalties for failure to stand by the agreement, to refuse to deal in any manner as individuals with the union of their employees for the term of one year, and having so agreed they seek from this court, sitting in equity, an injunction against their employees alleged to be engaged in wrongful acts against their employers, the plaintiffs here. Now, as I take it, this court does not deny the universal doctrine of equity that if the plaintiffs are themselves engaged in an unlawful combine they should be thrown out of a court of equity and relegated to a court of law. If we look back of the pretentious recitals preceding the agreement the purposes of the combine cannot be mistaken. It is to utterly destroy the workmen’s union, which is a lawful organization, and force the employees to deal with the combine as individuals. It has long been recognized that in such a position the workman is forced to accept his employer’s terms. No individual workman can bargain on an equal footing with organized capital.

To clearly understand the effect of the ruling of the court it is well to divorce the case from the prejudice against workmen’s unions growing out of strikes, and plant the ruling on a supposititious case. Suppose, then, that the bankers of the state should confederate into a monopoly of credit and should agree that as individual bankers they would have nothing to do with any farmers’ co-operative society, which would mean the ruin of the'farmers’ co-operative societies because of lack of credit. Will any one say that such a conspiracy on the part of the bankers would be lawful ? 'Again, suppose all the newspapers in Milwaukee should confederate and agree that for the space of one year or more they would not have any dealings with some particular store. They, then, would not accept advertising from that store, with the result that its business would be ruined. Would such a conspiracy be legal? One more illustration: Suppose all the packers should confederate and conspire to drive some meat market out of business, and to that end they should refuse to deal with such market for the space of a year. What would happen to the market? Would it not be driven out of business, and would such an agreement be legal? Either case would bring the conspirators under the ban of the common law. Such a combine is against public policy.

The mere statement of the case applied to the possibilities under the ruling of the court should be enough to show this.

“As often declared, law is not alone the product of abstract reasoning, but of experience as well. It is the outcome of logic of the mind confirmed by the logic of events. The consequences of the application of a rule often furnish the most potent argument in its support or are most persuasive in its condemnation.” Dawson v. Nat. L. Ins. Co. 176 Iowa, 362, 157 N. W. 929.

But the court is not driven to the extremity of formulating a public policy, for that has been done by the legislature. Sec. 4466a, Stats., provides:

“Any two or more persons who shall combine, associate, agree, mutually undertake or concert together for the purpose of wilfully or maliciously injuring another in his reputation, trade, business or profession b)r any means whatever, or for the purpose of maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act shall be punished by imprisonment in the county jail not more than one year or by fine not exceeding five hundred dollars.”

The effect of the unlawful agreement’ made by the employing combine is: to prevent the workmen from collective bargaining; to reduce them to the position of individual bargaining, which is recognized by law and by sound economic principles as inadequate to the welfare of workmen or society as a whole; and to destroy the union of workmen, which is undoubtedly the prime purpose of the illegal combine. •' ■ - C cf [ ]

This brings the case squarely within the anti-boycotting statute just quoted.

It should be unnecessary to discuss these propositions at length. ' It seems clear that the combine of employers is illegal and criminal. It follows that the plaintiffs are improperly joined as plaintiffs in the action, and that they are not entitled to equitable relief. This court should refuse to recognize the plaintiffs and should dismiss the action. For these reasons I respectfully dissent.