Having before me both the majority and the minority opinions in this case, I am forced to concur with the views of GOODE, J., as expressed in his opinion, modified only so far as herein expressed. It is conceded throughout this case, and in the minority opinion, that in putting into force a picket of plaintiffs' business, the purpose of the local union was to carry into effect a rule of such union, to the effect that no owner of a picture show should operate his own machine. The effect of that rule was that the business of the owner was to be run by the local union, or not at all. They went so far as to suggest to Hughes that if he re-instated himself in the union, then they would permit him to operate a machine in some other man's show, whilst the union put a man in charge of his show. In other words, the local union would permit him to run some other man's business, but not his own. The real question in this case is, whether or not a man, under the law, can run his own business, or shall it be run for him by a local union? There is a mass of stuff in this case, *Page 324 that has no place in it. From this mass excerpts have been made in the minority opinion. This local union proceeded upon the theory that Hughes was the joint owner of the business. The bona-fides of his ownership cannot be questioned under this record. The gist of the complaint against him was two-fold: (1) that he operated his own machine, and (2) that he had one Brown operating it, who was not a member of the union. The evidence conclusively shows that Brown was a mere student under Hughes. To find otherwise would be against the undisputed evidence of the record. So that as to one ground for interference with Hughes' business, there was no foundation in fact. As to the other, i.e. that he was operating his own machine, there is no question; Hughes admits it.
Going to the real purpose of the picketing and destruction of plaintiff's business, let us take the evidence of Wm. H. Weston, the business agent (sometimes called manager) of the local union. It was like drawing eyeteeth to get from him the real facts, but the Circuit Judge took hold of the witness and by a question or two cleared the atmosphere. In answer to his own counsel he said:
"I talked to Mr. Hughes with reference to this man Brown running his machine out there, after he had been suspended from the organization, and I talked to him along the line I would like to get Mr. Hughes to straighten up with the organization, and Mr. Hughes said he bought the show and he could not afford to pay an operator, and I told Mr. Hughes to let his wife run the show and I would give him employment at some other theater; that the attitude he was taking caused considerable trouble with other exhibitors, and it was unfair for him to run the show himself."
Notice the complaint from this business representative of the local union is two-fold, just as we have stated. When Hughes informed him that he had bought the show, he did not say to him, "You are mistaken about that Mr. Hughes, and you are shamming it." No, *Page 325 he proceeds upon the theory that Hughes was the owner, but that his attitude of running his own business was giving them trouble with other picture show owners. Following this and again following the trend of his own counsel, Weston says:
"Q. What is your attitude towards employers with reference to them operating motion picture machines themselves? A. We have agreements with each of the Exhibitors' League here that they will employ union operators and they will not operate the machines themselves.
"Q. And the employers won't permit it themselves? A. No, they do not.
"Q. Did, you have complaints from time to time about that? A. Yes, sir.
"Q. Claiming their contracts were being violated in that way? A. Yes, sir."
In the use of the term "we" the witness referred to Local Union No. 170, one of the defendants. Pressed on cross-examination the defendant Weston further said:
"Q. That is, your union had a contract now with the individual theater owners, and they were complaining to you about this man Hughes's conduct? A. Yes, sir.
"Q. Who were these people and how many of them were they that this local union of operators, the journeymen operators, were discussing with the theater owners with reference to this man Hughes and his business? A. Well there was two gentlemen — three gentlemen — ran a show at Southwest Boulevard and Summit. They let the operator go and one of them began operating the machine at times. That is, when we were not watching. He had a boy in there, and there was a gentleman in Kansas City, Kansas, who did the same thing at the Vendome.
"Q. That isn't what I really asked you about. A. I didn't understand the question.
"Q. I was trying to find out who it was complaining to you people. *Page 326
"Mr. AYLWARD: I don't think anybody complained in particular, except there was the general complaint about running machines in this way.
Q. "I thought the employers and your union had some talk about Mr. Hughes? A. No, sir.
"Q. Did these employers of labor come to you at any time and complain about Mr. Hughes? A. No, sir; they simply let their operators go and I asked the reason why, and they said they were going to run the machine themselves if other people were permitted to do it.
"Q. So that other theater owners talked with your committee — A. (Interrupting): No, sir; not with the committee.
"Q. But with you? A. With me.
"Q. As the business manager? A. Yes, sir.
"Q. That they were going to do so and so if Mr. Hughes did so and so? A. They did it; they discharged the operator."
Then after side-stepping the question of why he, as business manager for the union, put on the pickets, the witness further said:
"Q. When Brown went, then what did you do? A. We continued picketing the theater.
"Q. Why? A. We wanted the people to know the theater was unfair to organized labor.
"Q. What was he doing that was unfair? A. He had this man and I told you he claimed he is a partner. I don't know that he is a partner; merely he is there.
"Q. Who? A. Mr. Hughes. Said he was operating the machine.
"Q. If you had known as a matter of fact that he did own the machine, that he was a partner, then you would not have botheredhim; is that the idea? A. I could not say. I don't know postively whether we would have bothered him or not. We considerany theater unfair to the motion-picture operators who do notemploy union men.
"Q. Whether they own it or not? A. Yes, sir. *Page 327
"Q. You won't tolerate that, you say? A. No, sir. We have been — the privilege has been abused so much, you understand, that the managers will take and hire boys or men and offer them — say they have an interest in the show when they have none. There is really no interest whatever, because these men have gone out and worked under the conditions and later on becoming disgusted and come down to our organization and say, `I had no interest whatever; it was merely a hoax to get by the operators' association.'
"Q. Just in order to take the matter in your own hands youhave adopted the rule that the owner of the machine can't operateit?
"Mr. AYLWARD: I object to that remark.
"Q. You have adopted that rule? A. We are doing it to save ourorganization.
"Q. You have adopted that rule? A. Not altogether.
"Q. You say "not altogether;" what do you mean by that? A. Well, I don't know. I have never seen a case where a man who was really an owner has operated his own machine and hasn't went around and employed somebody when we were not there, under the pretext of being a partner.
"The COURT: Just a minute.. State whether or not it is aviolation of the purpose of your organization for a man tooperate his own machine? A. We consider it so; yes, sir.
"Q. That is all."
It took the strong voice of the court to get the real fact, supra, i.e., that it was against the rule and doctrine of this union for the real owner of a picture machine to run his own machine, and conduct his own business. And this it the rule and doctrine to which the minority opinion gives special assent. Such opinion says:
"The rule referred to was not a reasonless one, was adopted in good faith, had a substantial relation to the advancement of the legitimate purposes of organized labor, was not unlawful in itself, and its violation would *Page 328 have justified the statement that the violator was `unfair.'"
That labor organizations are proper, no one denies. That they have helped humanity by the elevation of labor, no one denies. That the organization can do many things to further the interests of labor, no one denies. That they can strike and quit employment, no one denies. But all these questions are not in this case. The question here is, can a business man of limited means, whether farmer or manufacturer, picture show operator or well digger, who understands the use of all the appliances connected with his business, operate such appliances, and thereby run his own business, without having it destroyed by the silent and insidious force of a system of "picketing?" We say force, because picketing is a force, for otherwise it would not be used.
All classes of labor have the right to organize for self-protection, but self protection does not mean the unlawful destruction of property, or business, which is property. Farm laborers have as much right to organize as do picture show operators. It takes two weeks to teach a man to operate a picture show machine. It would take longer to make a good plowman. Let us suppose a case and then apply the rule endorsed by the minority to the facts. There is in a given community a "Local Union of Farm Laborers." In the same community John Jones, with a wife and six children, owns ten acres of ground for truck farming, from which the bread, meat and clothing for the household comes. Jones has a team, a plow and other appliances for the conduct of the business, and he knows how to use all these appliances, just as Hughes knew how to run a picture machine. "The Local Union of Farm Laborers," duly resolve that the owner of a farm, large or small, must not work thereon. He must go to such union for all labor. Jones can't hire help and support the family, and he follows his team and plow. Notice is served on him that he can join the union, and then be assigned by the union to plow for Smith, but he must *Page 329 hire a member of the union, other than himself, to plow at home. Jones refuses, and when he takes his load of farm truck to the adjacent town for market, the union follows the wagon to the market with two pickets, who say to all his prospective customers, "Don't buy from Jones; he is unfair to union labor." Yet under the rule duly approved by the minority, Jones, who was trying, by the sweat of his brow, to earn a meager living for his wife and children, finds his products refused, because the place of his market chances to be a city where men belonging to other unions are predominant. If equity cannot relieve such a situation, we have departed from all the ancient landmarks. The supposed case is not different from the case at bar.
The differentiation of case law, most of which has no application to this case, will serve no useful purpose here. There is but one simple question to be answered, and that question is, can a man, whose business will not justify the employment of outside labor, and who is able to run his own business, be put out of business, because he cannot or will not follow the rule of a union which demands that he join the union, and go work for another, whilst the union puts in a man to run his business. I will go as far as the law will permit to encourage and help labor to ameliorate its condition, but I can't go as far as my brothers do in the specific endorsement of the rule which this local union was trying to enforce in the instant case. I therefore concur with the majority opinion by GOODE, J. I bespeak a careful reading of the record facts, to the end that the wheat may be separated from the chaff. The meat of this case lies in the one fact that this local union could not legally enforce its rule to the effect that no owner of a picture show business could operate his own machine, and therefore to enforce such rule they resort to such picketing as will result in the destruction of the business of any owner who would not assent to the rule.
Enjoining free speech has not been put into this case by the majority opinion. It is a "straw man" *Page 330 erected by astute counsel for defendants, with the view that this court would spend its force knocking it down, to the exclusion of the real issue. Much has been written, and much more might be well written, on the constitutional right of free speech. An individual may write and speak what he pleases, and only becomes liable for the falsity of his utterances. But that is not this case. What may be lawful for an individual to do may be entirely illegal if done by a number of individuals acting in concert and in pursuance of a conspiracy, to injure the person or property rights of another. In other words, there may be (as recognized by equity for innumerable decades) an illegal conspiracy to do what would be a lawful act, if done by the individual, when the same act is done by the conspirators acting in concert, for an illegal and wrongful purpose. The destruction of property or property rights would be an illegal purpose. The right of free speech as guaranteed by the Constitution means that the individual citizen, in the ordinary and usual way, may write and speak what he pleases, so long as he adheres to the truth, and is only responsible when he departs from the truth, and damage thereby has been occasioned. But this right of the individual citizen does not mean that a hundred or more individuals can meet behind closed doors and conspire and agree to destroy either reputation or property rights, by their concerted action in the exercise of what they conceive to be free speech. The ordinary and usual way of exercising the right of free speech is not by walking back and forth in front of a place of business. In other words, there may be an unlawful conspiracy by a number to do what would be perfectly lawful, if done in the ordinary and usual way, by the individual. This court, by a concurrence of six of the seven members, so ruled in State ex rel. v. Assurance Companies, 251 Mo. l.c. 291, whereat we said:
"Since writing the above, it has occurred to my mind that the writer had occasion to consider the principle underlying this case, in the case of Lohse Patent Door *Page 331 Company v. Fuelle, 215 Mo. 421. That case involved the questions of unlawful conspiracies to injure others, and the authority of the court to resort to injunctive relief in aid thereof.
"Counsel for respondent, in that case, cited the case of Hunt v. Simonds, 19 Mo. 583, which seems to hold to the contrary, but we refused to follow the doctrine announced in that case, and followed the better considered cases, which are as old as the common law, which hold that two or more persons, have no legal right to unlawfully conspire to injure another, even though each separately had the legal right to do what the combination had agreed to do."
We there expressly overruled Hunt v. Simonds, 19 Mo. 583, and the limited reference to such case by Division No. 2, in Darrow v. Briggs, 261 Mo. l.c. 276, does not change the rule of Court in Banc, if there should be conflict.
So in this case the majority might have well said that the evidence in this case showed an unlawful conspiracy upon the part of the members of Local Union No. 170, to destroy the property rights of the plaintiff, by their conspired and concerted act of free speech. But the majority opinion places the ruling upon the ground that the continuous acts of the pickets in front of the plaintiffs' place of business, constituted a nuisance, from which equity would grant relief. In other words the acts of the pickets, made an intolerable nuisance. The writer may have had in mind the speechless pickets at the White House some months ago. So that in writing this concurrence, we have in view the fact, that only the dissenting opinion injects the idea of free speech.
In justice to both the majority and minority opinions, I ask that the whole record evidence in this case, being pages 23 to 102 inclusive, of the abstract of record, be printed as an appendix to this concurring opinion. Woodson, Goode andWilliamson, JJ., concur in these views; Williamson, J., in separate opinion. *Page 332