Empire Theater Co. v. Cloke
| Decision Date | 25 January 1917 |
| Docket Number | 3707. |
| Citation | 163 P. 107,53 Mont. 183 |
| Parties | EMPIRE THEATER CO. v. CLOKE ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. M. Clements Presiding Judge.
Action by the Empire Theater Company, a corporation, against Harry Cloke, Silver Bow Trades and Labor Council, and others. From a judgment of dismissal, plaintiff appeals. Affirmed.
J. B Roote and H. C. Hopkins, both of Butte, W. T. Pigott, of Helena, and Enos E. Alley, of Butte, for appellant.
J. E Healy, of Butte, for respondents.
The essential facts in this case are as follows: That the plaintiff (appellant here) is a domestic corporation engaged, since November 20, 1914, in conducting a theater and moving picture show on Montana street, in the city of Butte, called the Empire Theater, an enterprise dependent upon patronage of the public for its success; that the defendants consist of the Musicians Mutual Union, Local No. 241, American Federation of Musicians, with all its members, not specially named, the Silver Bow Trades & Labor Council, with all its members, not specially named, and certain named persons (39 in number) sued individually and as officers and members of either the Musicians Union or the Trades & Labor Council; that the Musicians Union and the Trades & Labor Council are voluntary, unincorporated associations, the former of the character known as a labor union formed for the purpose of advancing the condition of its members, the latter a sort of central body composed of delegates from the various labor unions of Butte, the purpose of which is to give to them coherence, solidarity, and concert of action, with the power and influence which flow therefrom; that the combined membership of the unions affiliated to the Trades & Labor Council is more than 1,000, and such entire membership is affected whenever that body acts, as it is authorized to do, in the ordering, prosecution, and furtherance of strikes and boycotts, its activities in that behalf being binding upon all and enforced by means of fines, expulsion, and other penalties; that prior to November 17, 1914, the Musicians Union made demand upon the manager of the Empire Theater that he employ 5 members of said union, at a wage rate fixed by it, to play at every show or exhibition of pictures given in said theater; that this demand was refused and the union, in order to enforce compliance therewith, declared a boycott against the said theater, and caused to be, from that date until and including November 29, 1914, carried by a man in a conspicuous place on the sidewalk, immediately in front of said theater during the performances therein, a canvas banner about three by four feet in size, on each side of which was printed in large letters the words, "Notice: The Empire Theater is unfair to organized Labor;" that for the purpose of making its boycott effective, the union solicited and secured the co-operation of the Trades & Labor Council, so that on November 29th, said union, said Trades & Labor Council, and their respective members combined to boycott the plaintiff and its business, and thus to prevent it from securing sufficient patronage to successfully carry on the same unless it would yield to said demand; that in furtherance of such combination the said Trades & Labor Council did, on November 29, 1914, order and declare such boycott, and have caused the banner above mentioned to be carried in a conspicuous place, immediately in front of the Empire Theater and within eight or ten feet of and in front of the entrance thereto every day since the 29th day of November, 1914, on which a show or exhibition of any kind was produced therein, and have also, on almost every day since November 29, 1914, publicly announced and openly published orally to the public in general in Butte that persons who patronized said theater would be regarded by the labor unions of Butte as unfair to organized labor, and have also caused, on every day since November 29, 1914, and until the service of the restraining order herein, one or more men to stand on and walk along the street in front of and near the Empire Theater to say, and who did say, to persons about to enter said theater and desiring to do so, that the said theater was unfair to organized labor, and to request, and who did request, such persons not to patronize the same; that these things were intended and done by the defendants and understood by the public as a threat that all persons patronizing the said Empire Theater would be regarded by the defendants as unfair to union labor, would be listed as such, and would be compelled to pay money to the said union as a penalty, or else be themselves boycotted by the respondents; and the respondents propose to continue these acts, save as prevented or restrained by order of court; that the result of these acts has been to prevent many thousands of persons, desiring to patronize said theater, from doing so, to irritate, annoy, and vex the plaintiff and its employés, to prevent the profitable conduct of plaintiff's business and almost destroy the same, and to cause the plaintiff great, irreparable, and incalculable damage.
Upon these facts, as alleged with much elaboration, the plaintiff sought a decree, perpetually enjoining the defendants and all persons acting for or under them, or any of them, "from further continuing any of the acts" above referred to, "from further boycotting the plaintiff and its business," "from boycotting any person who may hereafter patronize the said Empire Theater," and "from in any manner interfering with the business of the plaintiff or with any of the employés of the plaintiff in the discharge of their duties"; but the trial court, though finding the facts to be substantially as above stated, held the plaintiff not entitled to any relief, and entered a judgment of dismissal, from which this appeal was taken.
The denial of any relief was expressly based upon the prior decisions of this court in Lindsay & Co. v. Montana Federation of Labor, etc., 37 Mont. 264, 96 P. 127, 18 L. R. A. (N. S.) 707, 127 Am. St. Rep. 722, and Iverson v. Dilno, 44 Mont. 270, 119 P. 719, and the plaintiff, contending that the second part of the Lindsay opinion is obiter, insists that so much of both decisions as are really effective, as well as the later case of Peek v. Northern Pacific Ry. Co., 51 Mont. 295, 152 P. 421, L. R. A. 1916B, 835, command, upon the facts found, a result exactly opposite.
The portion of the Lindsay opinion asserted to be obiter holds that injunction does not lie to restrain the publication of a circular denouncing an enterprise as unfair to organized labor, whether such publication emanate from one or from many persons, a conclusion which is assailed as altogether wrong. Considering how that case was presented, we cannot regard the part referred to as obiter. A comprehensive injunctional decree had been entered in the court below, which the respondents sought to sustain upon two contentions, viz. that the boycott was itself unlawful, but that, if lawful, news of it could not be conveyed by circulars scattered broadcast and so phrased as to invite or advise all union men and their sympathizers to withhold their patronage from Lindsay & Co., and from any one else who patronized that concern. Obviously the matter could not be settled by deciding, as was done, that a boycott could lawfully be declared, but it became necessary to say whether the publication of it in the manner stated could be enjoined. The answer, necessarily negative, might have been put upon a different, and possibly better, ground than the one chosen; but this does not affect the decisional character of the answer itself or of the ground assigned for it. Clark v. Thomas, 4 Heisk. (51 Tenn.) 419, 421. "An obiter dictum is a gratuitous opinion, an individual impertinence which, whether it be wise or foolish, right or wrong, bindeth none--not even the lips that utter it." The second portion of the Lindsay opinion does not come within this definition.
Counsel urge, however, that the conclusion is unsound because the constitutional provision postulated as the basis of it (State Const. art. 3,§ 10) is addressed to the Legislature and not to the courts, because it in some way interferes with the power of courts of equity in cases of nuisance, and because it is contrary to the stand repeatedly taken by the Supreme and other courts of the United States. The answer is not difficult. This court founded its decision upon the language of the provision above cited, which not only forbids the passage of any law impairing the freedom of speech, as does the national Constitution, but which also proclaims, as the national Constitution does not, that "every person shall be free to speak, write or publish whatever he will on any subject. being responsible for all abuse of that liberty." We thought, as we still think, that this second clause of our provision conveys the idea of liberty unchecked as to what...
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