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4 Monthly Bull. Int'l Jurid. Ass'n 1 (1935-1936)

handle is hein.journals/injasmb4 and id is 1 raw text is: INTERNATIONAL JURIDICAL ASSOCIATION MONTHLY BULLETIN Vol. 4, No. I V JUNE, 1935 q4W209 Price, $1 a year THE NEW YORK ANTI-INJUNCTION LAW IN OPERATION In the two months in which the New York Anti-Injunc- tion Act' has been in effect, only two injunctions in labor disputes have been granted. One was a temporary re- straint in favor of the employer2 and the other an injunc- tion after trial in favor of a labor union. This is in marked contrast to the conditions existing prior to the pas- sage of the law, particularly in Kings County.! Some of the judges, however, have revealed attitudes ranging from open defiance' to grudging acceptance. EFFECT ON PENDING INJUNCTION SUITS Immediately upon passage of the statute, unions in- voked its favorable provisions in suits previously instituted against them. Among the authorities relied upon were the two decisions of the Supreme Court of the United States applying on appeal the anti-injunction provisions of the Clayton Act' even though it had been enacted after the granting of the original d&crees.' More recently the United States Circuit Court of Appeals for the Second Circuit has held' that the Norris-LaGuardia Act' was controlling in an injunction suit instituted prior to its passage. The Louisiana Court of Appealso in a decision sustaining the constitutionality of the state anti-injunction law1 modelled upon the Norris-LaGuardia Act and similar to the New York statute also decided that the law was applicable to an injunction which was being appealed when the law was passed.12 A week before the New York anti-injunction law be- came effective, the Micamold Radio Corporation secured a temporary injunction against the Radio Factory Workers' Union Local 18609. The employer not regarding the re- straint as broad enough moved for modification. The union made a cross motion to vacate the injunction on the (Continued on page 7) 1. Laws of 1935, t. 477, adding section 876a to the Civil Practice Act, effec- tive April 25, 1935. 2. Bainsky v. Schein, N. Y. L. J., June 17, Sup. Ct. N. Y. Co., Sp. III, Cotillo, J., see note 34, infra. 3. Dubinsky v. Hirsam Knit Sportswear Inc., N. Y. L. J., June 20, Sup. Ct., N. Y. Co., Sp. V. The labor union sued for enforcement of a collective bargaining agreement. The employer counterclaimed for an injunction against picketing and other strike activities. The labor union was successful in all respects. Neither side raised the question of the applicability of the anti-injunction legislation. 4. See e.g., Brooklyn, The Injunction Reno, I. J. A. Bull., Vol. 2, No. 11, p. 6 Labor Injunctions Upon Conflicting Affidavits, I. J. A. Bull., Vol. 2, No. 11, p. 5; The Injunction Menace, I. J. A. Bull., Vol. 3, No. 1, p. 5. 5. See notes 33 and 34, infra. 6. 29 U. S. C., sec. 52, 38 Star. 738, Oct. 13, 1914, c. 323, sec. 20. 7. Duplex Printing Press Co. v. Deering, 254 U. S. 433 (1921); American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 (1921). 8. Levering & Garrigues v. Morrin, 71 Fed. (2d) 284 (1934). Certiorari denied, 293 U.S. 595 (1934). 9. 29 U. S. C., secs. 101-115; 47 Stat. 70-73; Mar. 23, 1932. 10. Dehan v. Hotel & Restaurant Employees Association, 159 So. 635, April, 1935. 1i1. Act. 203, 1934 Laws of Louisiana. 12. The court decided that the changes in the anti-injunction law were reme- dial and procedural in nature, and therefore, retroactive. For application of this doctrine in New York, see Sackheim v. Pigueron, 215 N. Y. 62, 109 N. E. 109 (1915); Lazarus v. Metropolitan E. R. Co., 145 N. Y. 581, 40 N. E. 240 (1895); Peace v. Wilson, 186 N. Y. 403, 79 N. E. 329 (1906); Southwick v. Southwick, 49 N. Y. 510 (1872); Dieterich v. Fargo, 194 N.Y. 359, 87 N. E. 518 (1909); People v. City of Syracuse, 128 A. D. 702, 113 N. Y. S. 707 (1908); Cahill v. Wisner, 183 A. D. 659, 170 N. Y. S. 1000 (1918); Laird v. Carton 196 N. Y. 169, 89 N. E. 822 (1909); Eagle-Picher Lead Co. v. Mansfield Paint Co., Inc., 201 A. D. 223, 194 N. Y. S. 386 (1922); Matter of Stickney, 185 N. Y. 107, 77 N. E. 993 (1906). See also, holdings that there is no right vested in any par- ticular remedy, Paine Lumber Co. v. Neal, 244 U. S. 459 (1917); New York Central R. R. v. White, 243 U. S. 188 (1917). RECENT ITEMS OF INTEREST POLITICAL bRIMINAL CASES Mooney Granted Habeas Corpus by the California Supreme Court. On June 17, the California Supreme Court granted a writ of habeas corpus to Tom Mooney' in apparent accord with the opinion of the United States Supreme Court that to do otherwise would constitute de- privation of liberty without due process of law.2 The California court distinguished its previous refusals to con- sider the charge of subornation of perjury on the ground that the prior appeals did not permit it to go beyond the record. Contrary to newspaper reports, the burden of proof that the prosecution knowingly used perjured testi- mony will rest on Mooney. However, technical rules of burden of proof will not be of great importance before a court which has three times indicated its belief in Mooney's guilt. If the court should persist in its attitude in these habeas corpus proceedings, Mooney may find its present decision to grant a hearing a bar rather than an avenue to freedom. It is extremely doubtful whether the United States Supreme Court would reverse a finding of fact, supported by the prosecutor's testimony that he did not know of the perjured evidence.3 Had the California court refused the writ, Mooney could have gone into the federal courts where his evidence would be independently reviewed. Riot Charge Fails. On May 24, after a trial lasting ten days, a jury in the Circuit Court in Portland, Oregon, acquitted Art Shearer, first of 32 longshoremen to be tried on charges of riot.4 On May 29, on motion of the Dis- trict Attorney, the charges against the other 31 were dis- missed.' The indictments were based on an alleged attack during the West Coast strike last summer by members of the International Longshoremen's Association upon 80 members of the Columbia River Longshoremen's Associa- tion, a company union, who had gathered in a hiring hall. The defense claimed that the visit to the hiring hall had been a peaceful effort to persuade the company-union men to join the strike and that the latter had been instructed by the Maritime Federation to provoke the disturbance. James Conner, a member of the company union, was killed during the fight that ensued.' Prosecution for murder became out of the question when during the investigation one of the company-union men testified that the shot had been fired by a foreman among the strikebreakers. Four former members of the company union, called by the prose- 1. N. Y. Times, June 18. The lower California courts had refused the writ. See I. J. A. Bull., Vol. 3, No. 11, p. 1. 2. Mooney v. Holoban, 79 L. ed. (adv.) 347, which was discussed in The Mooney Case and Constitutional Safeguards against Unfair Trials, I. J. A. Bull., Vol. 3, No. 9, p. 5. The opinion rested the violation of the Fourteenth Amend. ment on the charge that the prosecution knew of the perjury. 3. There does not appear to be any possible proof that testimony at the trial was not perjured, but the prosecutor, James F. Brennan, may be able to convince the California Court that he was innocent of its production. 4. Daily Worker, May 28. 5. Industrial Worker, June 8. 6. Daily Worker, May 28.

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