In the enactment of chapter 215, 1933 Session Laws, page 452, the legislature declared the public policy of the state of Idaho regarding labor organizations and employer's organizations. Section 1 of the statute provides:
"In the interpretation and application of this Act, the public policy of this state is declared as follows:
"Negotiations of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers the individual unorganized worker is helpless to exercise actual *Page 521 liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of employment, and that he shall be free from the interference, restraint or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
Section 6 provides:
"No court nor any judge or judges thereof shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, 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 all the following facts by the court or judge or judges thereof;
(a) . . . . . . . .
(b) . . . . . . . .
(C) . . . . . . . .
(d) . . . . . . . .
(e) . . . . . . . .
(f) That the public officers charged with the duty to protect complainant's property have failed or are unable to furnish adequate protection.
. . . ."
The Norris-LaGuardia Anti-Injunction Act (Title 29, U.S.C.A., approved by President Herbert Hoover March 23, 1932), is substantially the same as the Idaho statute (chap. 215,supra). Section 107 (Norris-LaGuardia Anti-Injunction Act,supra), provides:
"No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court *Page 522 (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) . . . . . . . .
(b) . . . . . . . .
(c) . . . . . . . .
(d) . . . . . . . .
(e) . . . . . . . .
(f) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection.
. . . ."
The above-quoted provisions of the Idaho and federal statutes are identical in purpose and intent.
In the case at bar respondent Boise Street Car Company did not allege nor prove the public officers charged with the duty to protect its property had failed or were unable to furnish adequate protection.
While this court has not construed the above-quoted provisions of the Idaho statutes (chap. 215, supra), the federal courts have passed upon identical provisions of the Norris-LaGuardia Act, supra. In Grace Co. v. Williams et al.,96 Fed. (2d) 478 (C.C.A., 8th Cir.), it was held an employer's complaint (seeking an injunction to restrain labor union representatives from picketing, intimidating employees, destroying property, and otherwise interfering with employer's business and with relationship between employer and another union organized by majority of employees), was dismissible where it failed to allege facts necessary to be found under the Norris-LaGuardia Act precedent to granting of an injunction in cases involving labor disputes, including inability orunwillingness of officers to protect complainant's property.
In Heintz Mfg. Co. v. Local No. 515 of United AutomobileWorkers, 20 Fed. Supp. 116, the court held the statute (Title 29, U.S.C.A., supra) restricting a federal court's jurisdiction of injunction cases arising out of labor disputes, is intended to abolish jurisdiction of the courts except where police authorities fail or refuse to act, since preservation of order *Page 523 and protection of property are primarily police and executive, rather than judicial problems.
The United States Circuit Court of Appeals, Third Circuit (Wilson Co. v. Birl, 105 Fed. (2d) 948), held the provisions of the Norris-LaGuardia Act, under which injunctive relief to an employer is authorized if public officers charged with the duty to protect employer's property are either unable or unwilling to furnish adequate protection, permits the court to grant an injunction only where the police cannot or will not dotheir ditty of protecting the physical property of theemployer. (See, also, Knapp-Monarch Co. v. Anderson, 7 Fed. Supp. 332, cited with approval.)
And the United States Circuit Court of Appeals, Ninth Circuit (International Brotherhood of Teamsters, etc., v. InternationalUnion of United Brewery, etc., 106 Fed. (2d) 871, 877), held:
"Since the acts enjoined were committed in the course of and for the purposes of furthering, the Teamsters' aims in a labor dispute as defined in the Norris-LaGuardia Act, it was beyond the power of the court to enjoin any of them, so far as they are lawful. Insofar as the acts are found to be unlawful, the Norris-LaGuardia Act permits injunctive relief only if it be shown, inter alia, that `the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection.' (Sec. 7 (e), Stats. 71, 29 U.S.C.A., section 107 (e)."
"Neither the pleadings nor findings mention the public officers, much less any inability or unwillingness on their part to furnish such protection."
In National Labor Relations Board v. Jones Laughlin SteelCorp. (1937), 301 U.S. 1, 57 Sup. Ct. 615, 622, 81 L. ed. 893, 108 A.L.R. 1352, Chief Justice Charles E. Hughes said:
"Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents. Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent *Page 524 legislative authority. Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that, if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; that union was essential to give laborers opportunity to deal on an equality with their employer. American Steel Foundries v. Tri-CityCentral Trades Council, 257 U.S. 184, 209, 42 S. Ct. 72, 78,66 L. Ed. 189, 27 A.L.R. 360. We reiterated these views when we had under consideration the Railway Labor Act of 1926, 44 Stat. 577. Fully recognizing the legality of collective action on the part of employees in order to safeguard their proper interests, we said that Congress was not required to ignore this right but could safeguard it. Congress could seek to make appropriate collective action of employees an instrument of peace rather than of strike. We said that such collective action would be a mockery if representation were made futile by interference with freedom of choice. Hence the prohibition by Congress of interference with the selection of representatives for the purpose of negotiation and conference between employers and employees, 'instead of being an invasion of the constitutional right of either, was based on the recognition of the rights of both.' "
On the question of damages it was testified by respondent's manager in response to an inquiry as to what damages the company suffered by reason of the operation of "courtesy cars":
"Well, in several ways. The first way, of course, the major way, is in the loss of revenue as we have actually experienced it to date. The other that is to be done, that we can expect hereafter, assuming a settlement was made today, is by passengers who otherwise would have been customers having made transportation available to them for the rest of the year; in other words, people who buy automobiles to take care of their transportation problems because to ride the bus may be directly or indirectly to that man injurious to them in their *Page 525 business, and the "Courtesy Cars" were unable to give them the service they are after. We are compelled to suffer additional expense that we thought we were compelled to incur in the face of this particular action, and financial loss making it impossible to make our payments as required by contract endangers the whole thing by a possible loss of the busses."
It will be noted respondent's manager testified the company experienced a loss of revenue due to those who purchased "automobiles to take care of their transportation problems." In addition to that, there is testimony to the effect union men would have refused to ride in the busses even though no "Courtesy Cars" had been provided. It is well settled where damages result from independent causes as well as from the acts of the defendants, plaintiff must show what portion of the damages sustained are attributable to defendant's acts, since defendant cannot be held liable for the total damage. (First Nat. Bank v. Peterson, 47 Idaho 794, 803, 279 P. 302;Wade v. Thorsen, 5 Cal.App. (2d) 706, 43 P.2d 592, 595;Priest v. Nichols, 116 Mass. 401; Lemley v. Golden Censer Co.,16 Ill. App. 457.) Undoubtedly respondent Boise Street Car Company is entitled to recover whatever damages (in the form of anticipated profits) it can prove with reasonable certainty it sustained because of the operation of the "Courtesy Cars" by appellants (City of Corning v. Iowa-Nebraska Light Power Co.,225 Iowa, 1380, 282 N.W. 791, 796; Krikorian v. Dailey, 171 Va. 16,197 S.E. 442), but where, as here, the evidence shows damages resulting from the operation of "Courtesy Cars" as well as from the above-mentioned independent causes, respondent must show (which it failed to do) what portion of the damages is attributable to the acts of appellants, for instance, by the operation of the "Courtesy Cars." Furthermore, there is no proof as to whether, prior to the operation of the "Courtesy Cars," respondent made a daily (or any) profit, and if so, how much. Hence, there was nothing upon which to base a recovery of anticipated profits.
As pointed out in the majority opinion, "after the contract between the Association and the Company was cancelled, the discharging of eight of the employees, and the strike which *Page 526 resulted therefrom, constituted a labor dispute within the meaning of Chapter 215, supra," And as also pointed out, "no reference is made in the complaint, or findings, to picketing or acts of violence, or threatened violence, or intimidation, and there is no evidence to support the portions of the decree relating thereto. The inclusion in the decree of the portions printed in italics is erroneous," and some of the portions printed in italics are erroneous for the further reason it was not alleged nor proven the public officers charged with the duty to protect respondent had failed or were unable to furnish adequate protection.
Appellants Paul Bennett, Steve Sabin, Cecil B. Howell, Willard D. Bell, Owyhee Cab Company, Al E. Knapton, W.R. Stoddard, Beulah McIntire, as well as appellant Ralph Roth (the latter not having been served with process) were erroneously included in the judgment and decree.
I concur with Mr. Justice Morgan in holding that "for the purpose of giving publicity to, or communicating information of, the facts involved in the labor dispute, appellants had a right to patrol the public streets of the city of Boise with automobiles carrying placards, transparencies or banners, but they could not engage in the business of carrying passengers, as in the case at bar, because they had no franchise and had not complied with the requirements of I. C. A., section 59-806. However, the injunction must not be so construed as to prohibit or otherwise interfere with appellants' lawful use of the streets for the purpose of giving publicity to, or communicating information of, the facts involved in their dispute."
For the reasons herein stated the judgment for damages should be reversed and the cause remanded to the trial court with directions to grant a new trial, and costs should be awarded to appellants.