Hansen v. Com.

• Decision Date: 20 April 1962
• Citation: 181 N.E.2d 843,344 Mass. 214
• Parties: Erling N. HANSEN et al. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 843

181 N.E.2d 843

344 Mass. 214

Erling N. HANSEN et al. v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 17, 1962.

Decided April 20, 1962.

Arthur J. Flamm and Stanley H. Rudman, Boston (Lewis G. Pollock, Boston, with them), for petitioners.

John R. Kewer, Boston, amicus curiae, argued by leave of court (Lawrence E. Cooke, Asst. Atty. Gen., for the Commonwealth, and William F. Joy, William J. Fitzsimons, Philip A. Brine, Jr., and John M. Hogan, Boston, amici curiae, with him).

Lawrence M. Kearns, Boston, joined in a brief as amicus curiae.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.

SPALDING, Justice.

This is a petition for a writ of error to reverse eight judgments for contempt in the Superior Court. The case was reserved and reported by a single justice, without decision, upon the petition, the return of the Superior Court, the Commonwealth's plea in nullo est erratum, and certain documentary and oral evidence, ¹ for the determination of the full court.

The effect of the plea in nullo est erratum is to admit facts well pleaded. Jones v. Commonwealth, 331 Mass. 169, 170, 117 N.E.2d 820.

The facts are these. On March 29, 1962, the Metropolitan Transit Authority (Authority) filed a bill of complaint in the Suffolk Superior Court against Michael J. Gormley and others, individually and as officers of Division 589 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America (Division 589), to obtain injunctive relief to insure the continuance of public transportation in the fourteen cities and towns served by the Authority. A short order of notice issued returnable on March 30, 1962. At an ex parte hearing held on March 30 a temporary restraining order was issued against the officers of Division 589 in their individual capacities and against all the members of Division 589, enjoining them from 'engaging in a strike, partial strike, or concerted refusal to perform services or assignments under the Petitioner's Spring Schedule for its operating employees on and after such schedule becomes effective on March 31, 1962.' The restraining order was to continue in force and effect until April 9, 1962, or until the further order of the court.

On March 31, 1962, the Authority filed a petition for contempt against nine members of Division 589 for wilful violation of the temporary restraining order by refusal to perform services or assignments pursuant to the Authority's spring schedule for 1962. The petition for contempt was heard on April 9 and 10 before the judge who had issued the temporary restraining order. A motion by the respondents (petitioners here) to quash the contempt proceedings was denied. On April 11 eight of the respondents (petitioners here) were adjudged to be in contempt and each was sentenced to a term in jail.

Thereafter, on April 12, 1962, this petition for a writ of error was brought in the county court seeking to have the judgments for contempt set aside. After a hearing, the single justice reported the case to this court as indicated above. The Commonwealth was substituted for the Authority as the party respondent.

1. The Commonwealth argues that since these judgments for contempt arose out of an equity proceeding they cannot be reviewed on a writ of error. In support of this contention it cites Scola v. Scola, 318 Mass. 9, 12, 59 N.E.2d 773. This case holds that a writ of error is not the appropriate remedy to review a proceeding for civil contempt; it is not authority for the proposition that a criminal contempt which stems from an equity proceeding cannot be reviewed by writ of error. The proceedings both in the court below and in this court have been argued on the footing that the contempts were criminal. It is settled that criminal contempts can be reviewed by writ of error. This is so well established that further discussion is unnecessary. Hurley v. Commonwealth, 188 Mass. 443, 74 N.E. 677; Blankenburg v. Commonwealth, 260 Mass. 369, 374-375, 157 N.E. 693; Dolan v. Commonwealth, 304 Mass. 325, 332-333, 23 N.E.2d 904; New England Novelty Co. Inc. v. Sandberg, 315 Mass. 739, 747-748, 54 N.E.2d 915; Scola v. Scola, 318 Mass. 9, 12, 59 N.E.2d 773.

2. General Laws c. 214, § 9A (inserted by St.1935, c. 407, § 4) (popularly referred to as the Anti-Injunction Act), provides that: '(1) No court shall have jurisdiction to issue a preliminary or permanent injunction in any case involving or growing out of a labor dispute, as defined in section twenty C of chapter one hundred and forty-nine, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court, to the effect--(a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restraining order shall be issued porary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association or organization making the threat or committing the unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; (b) That substantial and irreparable injury to the complainant's property will follow; (c) That as to each item of relief granted greater injury will be inflicted upon the complainant by the denial of relief than will be inflicted upon the defendants by the granting of relief; (d) That the complainant has no adequate remedy at law; and (e) That the public officers charged with the duty to protect the complainant's property are unable or unwilling to furnish adequate protection.' Any 'action or proceeding' arising under the Anti-Injunction Act is to be heard by three associate justices of the Superior Court designated by the chief justice of that court. G.L. c. 212, § 30 (inserted by St.1959, c. 600). It is urged by the petitioners that the failure to convene a three-judge court and the neglect to comply with the procedural safeguards provided by G.L. c. 214, § 9A, were errors of law, and that the single judge had no jurisdiction to issue a temporary restraining order under G.L. c. 214, § 9. Since, the petitioners contend, the order was issued by a court without jurisdiction, it is a void order for violation of which no one can be held in contempt.

We are of opinion that the single judge had jurisdiction to issue the order. Whether the Anti-Injunction Act applies (and consequently the three-judge court statute) depends upon whether the controversy involves or grows out of a 'labor dispute' as that term is defined in G.L. c. 149, § 20C (inserted by St.1935, c. 407, § 1, as amended by St.1950, c. 452, §§ 1, 2). The relevant portion of § 20C provides: '(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft or occupation; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a 'labor dispute' (as hereinafter defined) of 'persons participating or interested' therein (as hereinafter defined).' It seems to be conceded by the parties, and we assume, that the present case would involve a 'labor dispute' if the controversy were between a private employer and the petitioners' union. But the Commonwealth argues that the Anti-Injunction Act was not intended to apply where employees of the Authority are threatening to strike. We agree.

That the employees of the Authority are public employees we have no doubt. The Authority was established by St.1947, c. 544, and it is expressly stated in § 1 that it is 'hereby made a body politic and corporate and a political subdivision of the commonwealth.' It is true that in § 19 it is expressly provided that 'with respect to hours of employment, rates of wages, salaries, hours, working conditions, health benefits, pensions and retirement allowances' the employees of the Authority shall be governed by the laws relating to 'street railway companies' rather than the laws governing 'public employees.' But this, we think, only serves to strengthen our conclusion that the Legislature intended the Authority to be considered a public body. The language of a New York court describing the New York City Transit Authority is pertinent here: 'Whatever may be the case elsewhere, and under other conditions, whatever may have been the case in other times, here and now, and for this city, the operation of the rapid transit facilities is a basic governmental service indispensable to the conduct of all other governmental as well as private activities necessary for the public welfare.' New York City Transit Authority v. Loos, 2 Misc.2d 733, 738, 154 N.Y.S.2d 209, 215, affirmed in 3 A.D.2d 740, 161 N.Y.S.2d 564 (without opinion).

The statute defining a 'labor dispute' speaks of 'persons who are engaged in the same industry, trade, craft or occupation.' Such language is not apt to describe public employers and public employees. See United States v. United Mine Wkrs. of America, 330 U.S. 258, 275-276, 67 S.Ct. 677, 97 L.Ed. 884; Jewish Hosp. of Brooklyn v. Doe, 252 App.Div. 581, 583-584, 300 N.Y.S. 1111. Further, it is a widely accepted rule of statutory construction that general words in a statute such as 'persons' will not ordinarily be construed to include the...