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6 Monthly Bull. Int'l Jurid. Ass'n 1 (1937-1938)

handle is hein.journals/injasmb6 and id is 1 raw text is: INTERNATIONAL JURIDICAL ASSOCIATION MONTHLY BULLETIN Vol. 6, No. I JULY, 1937 gM Price, $1 a year STATE ANTI-INJUNCTION LAW SUSTAINED BY SUPREME COURT On May 24, the United States Supreme Court in a five to four decision, upheld the constitutionality of the Wiscon- sin anti-injunction statute which the Supreme Court of Wisconsin had construed and applied to deny an injunc- tion against peaceful picketing.1 This is the first case involv- ing state anti-injunction legislation to come before the United States Supreme Court since Truax v. Corrigan,2 decided in 1921. Paul Senn, a contractor engaged in the tile laying busi- '!ie`s in Milwaukee, although willing to unionize his busi- ness, had refused to enter into contracts with locals of the tile layers' and tile helpers' unions because of a provision in the union contract that no contractor should himself work as a tile layer or helper. He had applied for an in- junction against union picketing of his premises, contend- ing that the conduct of the unions infringed his constitu- tional right to work and that if the Wisconsin statute pur- ported to make such conduct lawful, it constituted a denial of the due process and equal protection clauses of the Four- teenth Amendment. The Wisconsin Supreme Court, in an opinion discussed at length in an earlier article of the Bulletin affirmed the judgment of the trial court refusing an injunction4 and the United States Supreme Court al- lowed an appeal. A brief amicus curiae was filed on behalf of the American Civil Liberties Union and the Internation- al Juridical Association.5 The Wisconsin statute involved6 not only contains the typical anti-injunction provision curtailing the jurisdiction of a court or judge to issue an injunction in labor disputes, except after a finding that the injunction will not prohibit peaceful picketing; it also specifically declares that peaceful picketing shafl be lawful, differing in this respect from the federal Norris-LaGuardia Act7 regulating the issuance of injunctions in federal courts and from other state statutes p'+t-ri'ed upon the federal law.8 The United States Su- preme Court, therefore, in discussing the Wisconsin statute, recognized that it legalizes picketing as a substantive mat- ter and does not merely curtail the remedy by injunction as (Continued on page 14) 1. Senn v. Tile Layers Protective Union, Local No. 5 (May 24, 1937), U. S. Law Week, May 25, 1937, Index 1211. 2. 257 U.S. 312. 3. Two Wisconsin Decisions on the Anti-Injunction Act, 5 I.J.A. Bull. 59. 4. 268 N.W. 270 (1936), rehearing denied, 268 N.W. 872 (1936). 5. Signatories of the brief were Francis Biddle, Lloyd K. Gar- rison, Osmond K. Fraenkel, Nathan Greene and V. Henry Roth- schild, II. 6. Wis. Laws, 1931, c. 376; Laws, 1935, c. 551, § 5; Wis. Stat. § 103.51-103.63. Only Section 103.53, subdivision 1 (e) (1) and subdivision 2, and, by implication, subdivision (h) (i) and (k) and §103.56, subdivision (d), were directly involved. 7. 47 Stat. 70, c. 90; 29 U.S. C. § 101-115. 8. In addition to the statutes cited in 5 I.J.A. Bull. 59, 68, supra note 3, see Md. Laws, 1935, c. 574. A recent anti-injunction statute was enacted on June 2, 1937, in Pennsylvania replacing Pennsylvania Laws, 1931, c. 311, page 926, discussed in 3 I.J.A. Bull., No. 4, p. 4. RECENT ITEMS OF INTEREST STRIKES AND PICKETING Federal Court Holds Sit-Down Illegal. On June 21, Judge J. Warren Davis writing for the Circuit Court of Appeals for the Third Circuit, reversed the decision of District Judge William H. Kirkpatrick and ordered an in- junction issued in favor of the Apex Hosiery Company of Philadelphia against Branch 1 of the American Federation of Hosiery Workers which had staged a sit-down strike in the plant.' Judge Kirkpatrick had ruled that the federal court had no jurisdiction, because there was no diversity of citizenship and no direct evidence of intent to inter- fere with or restrain interstate commerce and so no viola- tion of the federal anti-trust laws.2 The Appellate Court relying on the recent decisions of the United States Supreme Court upholding the Wagner Labor Relations Act3 issued the injunction ordering the sit-downers to vacate the plant and restore it to its rightful owner. In so doing the court stretched the recent opinions sustaining the Wagner Act-which went no further than to hold that Congress had the power to pass legislation, i.e. the Wagner Act, regulating labor disputes affecting interstate com- merce-into holdings that the meaning of interference with interstate commerce in the earlier anti-trust laws had been changed. Prior to the enactment and judicial sanction of the Wagner Act the United States Supreme Court had plainly limited interference with interstate commerce punishable under the Sherman and Clayton Acts to direct and intentional interference, and had ruled that a strike against a mill which received its raw material from outside the state and shipped most of its finished products into other states was not, in the absence of a purpose to inter- fere with interstate commerce, such interference within the meaning of the Sherman and Clayton Laws.4 Thus the recent rulings under an entirely different act, an act sup- posedly passed to benefit labor, were used to further limit the rights of labor under the old Clayton and Sherman Acts which Congress had not and presumably would not at this time amend to provide what Judge Davis held them to mean. Not only did Judge Davis use the Wagner Act to pervert the meaning of the Clayton and Sherman Acts, he used it to support his conclusion that the sit-down strike of the American Federation of Hosiery Workers was illegal. This 1. N.Y. Times, June 22; C.C.H. Labor Law Service, par. 16,391. 2. Apex Hosiery Company v. Leader, President of American Federation of Hosiery Workers, Branch #1, June 5, 1937, D.C. E.D. Pa. March Term, 1937, #9741 and information from the union's attorney. 3. National Labor Relations Board v. 7ones & Laughlin Steel Corp. 81 L. ed. (Adv.) 563, with the other four related cases, decided on the same day and all upholding the constitutionality of the National Labor Relations Act, discussed in The Labor Board Decisions, 5 I.J.A. Bull. 125. 4. Levering & Garrigues Co. v. Morrin, 61 Fed. (2d) 115 (C.C.A.2, 1932), aff'd 289 U.S. 103; United Leather Workers' International Union No. 66 et al. v. Herkert & Meisel Trunk Co. et al, 265 U.S. 457 (1924) ; United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344 (1922). 1

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