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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