illustrates both the susceptibility of such rules to change and the variety of contemporary opinion as to what rules will best serve the public interest. The divergence of opinion in this difficult field of governmental action should admonish us not to declare a rule arbitrary and unreasonable merely because we are convinced that it is fraught with danger to the public weal, and thus to close the door to experiment within the law.1

In England, observance of the rules of the contest has been enforced by the courts almost wholly through the criminal law or through actions at law for compensation. An injunction was granted in a labor dispute as early as 1868. But in England resort to the injunction has not been frequent, and it has played no appreciable part there in the conflict between capital and labor. In America the injunction did not secure recognition as a possible remedy until 1888. When, a few years later, its use became extensive and conspicuous, the controversy over the remedy overshadowed in bitterness the question of the relative substantive rights of the parties. In the storms of protest against this use many thoughtful lawyers joined. The equitable remedy, although applied in accordance with established practice, involved incidents which, it was asserted, endangered the personal liberty of wage-earners. The acts enjoined were frequently, perhaps usually, acts which were already crimes at common law or had been made so by statutes. The issues in litigation arising out of trade disputes related largely to questions of fact. But in equity, issues of fact, as of law, were tried by a single judge, sitting without a jury. Charges of violating an injunction were often heard on affidavits merely, without the opportunity of confronting or crossexamining witnesses. Men found guilty of contempt were committed in the judge's discretion, without either a statutory limit upon the length of the imprisonment, or the opportunity of effective review on appeal, or the right to release on bail pending possible revisory proceedings. The effect of the proceeding upon the individual was substantially the same as if he had been suc

1 Justice Brandeis discussed the development of the law as to the liability of workingmen for strikes, picketing, and the boycott, in England, the British Dominions, and the United States, showing the different principles which had been applied in various times and jurisdictions, notably the several state courts.

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Courts were required, in the absence of legislation, to determine what the public welfare demanded; whether it would not be best subserved by leaving the contestants free to resort to any means not involving a breach of the peace or injury to tangible property; whether it was consistent with the public interest that the contestants should be permitted to invoke the aid of others not directly interested in the matter of controversy; and to what extent incidental injury to persons not parties to the controversy should be held justifiable. . . . Judges, being thus called upon to exercise a quasi legislative function and weigh relative social values, naturally differed in their conclusions on such questions."

cessfully prosecuted for a crime; but he was denied, in the course of the equity proceedings, those rights which, by the Constitution, are commonly secured to persons charged with a crime.

It was asserted that, in these proceedings, an alleged danger to property, always incidental and at times insignificant, was often laid hold of to enable the penalties of the criminal law to be enforced expeditiously without that protection to the liberty of the individual which the Bill of Rights was designed to afford; that through such proceedings a single judge often usurped the functions not only of the jury, but of the police department; that, in prescribing the conditions under which strikes were permissible and how they might be carried out, he usurped also the powers of the legislature; and that. incidentally, he abridged the constitutional rights of individuals to free speech, to a free press, and to peaceful assembly.

In

It was urged that the real motive in seeking the injunction was not ordinarily to prevent property from being injured, nor to protect the owner in its use, but to endow property with active, militant power which would make it dominant over men. other words, that, under the guise of protecting property rights, the employer was seeking sovereign power. And many disinterested men, solicitous only for the public welfare, believed that the law of property was not appropriate for dealing with the forces beneath social unrest; that in this vast struggle it was unwise to throw the power of the state on one side or the other, according to principles deduced from that law; that the problem of the control and conduct of industry demanded a solution of its own; and that, pending the ascertainment of new principles to govern industry, it was wiser for the state not to interfere in industrial struggles by the issuance of an injunction.

After the constitutionality and the propriety of the use of the injunction in labor disputes was established judicially, those who opposed the practice sought the aid of Congress and of state legislatures. The bills introduced varied in character and in scope. Many dealt merely with rights; and, of these, some declared. in effect, that no act done in furtherance of a labor dispute by a combination of workingmen should be held illegal, unless it would have been so if done by a single individual; while others purported to legalize specific practices, like boycotting or picketing. Other bills dealt merely with the remedy; and of these, some undertook practically to abolish the use of the injunction in labor disputes, while some merely limited its use, either by prohibiting its issue under certain conditions, or by denying power to restrain certain acts. Some bills undertook to modify both rights and remedies. These legislative proposals occupied the attention of Congress during every session but one in the twenty years between 1894 and 1914. Reports recommending such legislation

were repeatedly made by the Judiciary Committee of the House or that of the Senate; and at some sessions by both. Prior to 1914, legislation of this character had at several sessions passed the House; and in that year Congress passed and the President approved the Clayton Act,1 § 20 of which is substantially the same as 1464 of the Arizona Civil Code.

Such was the diversity of view concerning peaceful picketing and the boycott, expressed in judicial decisions and legislation in English-speaking countries when, in 1913, the new state of Arizona, in establishing its judicial system, limited the use of the injunction.2

The Supreme Court of Arizona, having held as a rule of substantive law that the boycott, as here practised, was legal at common law; and that the picketing was peaceful, and, hence, legal under the statute (whether or not it was legal at common law), necessarily denied the injunction, since, in its opinion, the defendants had committed no legal wrong and were threatening none. But even if this court should hold that an employer has a constitutional right to be free from interference by such a boycott, or that the picketing practised was not in fact peaceful, it does not follow that Arizona would lack the power to refuse to protect that right by injunction. For it is clear that the refusal of an equitable remedy for a tort is not necessarily a denial of due process of law. And it seems to be equally clear that such refusal is not necessarily arbitrary and unreasonable when applied to incidents of the relation of employer and employee. The con

1 Act of Oct. 15, 1914, c. 323, § 20, forbids an injunction to be granted by any United States court in specified industrial disputes, "unless necessary to prevent irreparable injury to property, or to a property right, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application." Such an injunction must not prohibit various specified acts, such as termination of employment; "peacefully persuading" others not to work, etc.; ceasing to patronize or employ a party to such a dispute, or persuading others by peaceful and lawful means so to do; peacefully assembling in a lawful manner, and for lawful purposes; doing any act or thing which might be lawfully done in the absence of such dispute." Such acts are not to be held violations of any law of the United States.

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2 Justice Brandeis reviewed the Arizona cases which declared the law of that state on industrial disputes, including the case at bar. These held the circularizing of an employer's customers and the boycott to be legal, choosing between precedents in strong courts elsewhere. This should not be considered a deprivation of the plaintiff's property without due process of law. As to the legality of peaceful picketing, if the Arizona court had decided by common law, it might have properly followed strong decisions elsewhere on either side of the question. It found it unnecessary to determine the Arizona common law, because of the statute. Justice Brandeis then cited U. S. Supreme Court cases upholding Arizona legislation imposing serious restrictions on employers. A state with such powers "surely does not lack the power to select for its citizens that one of conflicting views on boycott by peaceful picketing which its legislature and highest court consider will best meet its conditions and secure the public welfare."

siderations which show that the refusal is not arbitrary or unreasonable show likewise that such refusal does not necessarily constitute a denial of equal protection of the laws merely because. some, or even the same, property rights which are excluded by this statute from protection by injunction, receive such protection under other circumstances, or between persons standing in different relations. The acknowledged legislative discretion exerted in classification, so frequently applied in defining rights, extends equally to the grant of remedies. It is for the legislature to say within the broad limits of the discretion which it possesses whether or not the remedy for a wrong shall be both criminal and civil, and whether or not it shall be both at law and in equity. A state is free since the adoption of the 14th Amendment, as it was before, not only to determine what system of law shall prevail in it, but, also, by what processes legal rights may be asserted, and in what courts they may be enforced. As a state may adopt or reject trial by jury, or, adopting it, may retain or discard its customary incidents, as a state may grant or withhold review of a decision by appeal, so it may determine for itself, from time to time, whether the protection which it affords to property rights through its courts shall be given by means of the preventive remedy or exclusively by an action at law for compensation.

Nor is a state obliged to protect all property, rights by injunction merely because it protects some, even if the attending circumstances are in some respects similar. The restraining power of equity might conceivably be applied to every intended violation of a legal right. On grounds of expediency its application is commonly denied in cases where there is a remedy at law which is deemed legally adequate. But an injunction has been denied on grounds of expediency in many cases where the remedy at law is confessedly not adequate. This occurs whenever a dominant public interest is deemed to require that the preventive remedy, otherwise available for the protection of private rights, be refused, and the injured party left to such remedy as courts of law may afford. Thus, courts ordinarily refuse, perhaps in the interest of free speech, to restrain actionable libels. In the interest of personal liberty they ordinarily refuse to enforce specifically, by mandatory injunction or otherwise, obligations involving personal service. In the desire to preserve the separation of governmental powers they have declined to protect by injunction mere political rights and have refused to interfere with the operations of the police department. Instances are numerous where protection of property by way of injunction has been refused solely on the ground that serious public inconvenience would result from restraining the act complained of. Such, for example, was the case where a neighboring landowner sought to restrain a smelter from polluting the air; but that relief, if granted, would have necessitated shutting down the plant, and this would have destroyed

the business and impaired the means of livelihood of a large community. There are also numerous instances where the circumstances would, according to general equity practice, have justified the issue of an injunction, but it was refused solely because the right sought to be enforced was created by statute, and the courts, applying a familiar rule, held that the remedy provided by the statute was exclusive.

Such limitations upon the use of the injunction for the protection of private rights have ordinarily been imposed in the interest of the public by the court, acting in the exercise of its broad discretion. But, in some instances, the denial of the preventive remedy because of a public interest deemed paramount has been expressly commanded by statute. Thus, the courts of the United States have been prohibited from staying proceedings in any court of a state; and also from enjoining the illegal assess[ment and collection of taxes. What Congress can do in curtailing the equity power of the Federal courts, state legislatures may do in curtailing equity powers of the state courts, unless prevented by the Constitution of the state. In other words, states are free since the adoption of the 14th Amendment as they were before, leither to expand or to contract their equity jurisdiction. The denial of the more adequate equitable remedy for private wrongs is, in essence, an exercise of the police power, by which, in the interest of the public, and in order to preserve the liberty and the property of the great majority of the citizens of a state, rights of property and the liberty of the individual must be remolded, from time to time, to meet the changing needs of society. . . .

MR. JUSTICE HOLMES, dissenting:

The dangers of a delusive exactness in the application of the 14th Amendment have been adverted to before now. . . . Delusive exactness is a source of fallacy throughout the law. By calling a business "property" you make it seem like land, and lead up to the conclusion that a statute cannot substantially cut down the advantages of ownership existing before the statute was passed. An established business no doubt may have pecuniary value, and commonly is protected by law against various unjustified injuries. But you cannot give it definiteness of contour by calling it a thing. It is a course of conduct; and, like other conduct, is subject to substantial modification according to time and circumstances, both in itself and in regard to what shall justify doing it a harm. I cannot understand the notion that it would be unconstitutional to authorize boycotts and the like in aid of the employees' or the employers' interest by statute when the same result has been reached constitutionally without statute by courts with whom I agree.

I think, further, that the selection of the class of employers and