I dissent from the order entered by the Court in this case. Because of the importance of the principle involved, a statement of the views impelling my action seems not inappropriate.
Before entering upon that, however, it may be helpful to a correct understanding of what the matter for decision at this stage of the case really is (as I apprehend it to be) to point out that the sole question here involved is whether an injunction may be issued in a case "involving or growing out of a labor dispute" solely upon a complainant's ex parte affidavits and without a hearing on the merits of the complaint and answer thereto by the parties sought to be enjoined. That question is all that has yet been before this Court.
It should go without saying, — lawlessness can never be made the predicate of a legal right; and a legal right, where one already exists, may be completely forfeited because of the unlawful conduct of the one attempting to assert it. No sensible person would think of suggesting to the contrary for a moment. But, any such generalizations, valid though they be, relate to substantive *Page 437 rights and responsibilities and are wholly immaterial to theprocedural question around which the litigation in this case to date has exclusively revolved.
Nor was the competency or probative value of the complainant's ex parte affidavits established in this case because counsel for the defendants had not, either in his brief or in his oral argument, "asserted that the affidavits in response to which this injunction was issued wereuntrue." Of course, counsel did not so assert and very properly so. There is not yet in the record in this case any refutation by the defendants of the averments of the complaint or the affidavits and, for the all-sufficient reason, that the temporary injunction, now here on appeal, was issued before an opportunity to answer and be heard was accorded the defendants. Actually, from a legal standpoint, it would not have been proper for the defendants' counsel to have asserted on the appeal that the affidavits were untrue. Upon an appeal from a temporary injunction, the facts as averred by the complainant are assumed to be true for the purpose of treating with the legal questions raised. Whether the affidavits in this case are true or untrue in fact, no court can adjudicate in advance of a hearing on the merits and that, admittedly, has not been had.
Whether any one is "offended" by the issuance of the injunction in this case is equally beside the point. No one has any right to be "offended" by what the law directs even when erroneously construed and applied. There is always a way open under our system of government for the correction of legal error by lawful and orderly procedure. Only by pursuing that course can "the supremacy of the law", which is so essential to the rights and liberties of all, be maintained. There is no difference between the majority and myself as to that. Our one crucial difference in this case is as to whether the pertinent law, as written, requires a hearing before an injunction may be issued in any case "involving or growing out of a labor dispute". To that question I shall now address myself. *Page 438
Section 9 of the Act of June 2, 1937, P. L. 1198 (43 P. S. § 206i), commonly known as the Anti-Injunction Act, provides that, — "No court of this Commonwealth shall issue any restraining order or a temporary or permanent injunction in any case involving or growing out of a labor dispute, 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 — [as follows] . . .".
Then follows a specification of the essential findings that a trial court must be able to make, after the required hearing, before issuing a restraining order or a temporary or permanent injunction in any case "involving or growing out of a labor dispute." A further paragraph of Section 9 contains a provision that ". . . no affidavits shall be received in support of anyof the allegations of the complaint." (Emphasis supplied).
In certain specified circumstances in cases "involving or growing out of a labor dispute" injunctions may be issued under the Act of 1937 but only "on the basis of findings of fact made and filed by the court", as provided by Section 12, consequent upon the hearing required by Section 9.
Such was the state of the law under the Anti-Injunction Act of 1937. That the instant case is one "involving or growing out of a labor dispute" is not denied nor could it well be. It follows, therefore, that under the Act of 1937, as originally enacted, the court below was without "jurisdiction or power" to issue an injunction such as was done in this case, no hearing as required by the Act of 1937 having been had. In fact, as I understood counsel for the complainant at bar, he frankly, and I think correctly, conceded as much.
However, the Act of 1937 was amended by the Act of June 9, 1939, P. L. 302, Section 1 (43 P. S. § 206d) by adding to Section 4, which is retained intact, a proviso in part here material as follows: *Page 439
". . . Provided, however, That this act shall not apply in any case —
"(a) Involving a labor dispute, as defined herein, which is in disregard, breach, or violation of, or which tends to procure the disregard, breach, or violation of, a valid subsisting labor agreement arrived at between an employer and the representatives designated or selected by the employes for the purpose of collective bargaining, as defined and provided for in the [Pennsylvania Labor Relations] act [1937, P. L. 1168], . . . or as defined and provided for in the National Labor Relations Act, approved the fifth day of July, one thousand nine hundred and thirty-five. . . ."
* * *
"(d) Where in the course of a labor dispute as herein defined, an employe, or employes acting in concert, or a labor organization, or the members, officers, agents, or representatives of a labor organization or anyone acting for such organization, seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining."
The court below, on the basis of the complainant's ex parte affidavits, found that a valid labor agreement subsisted between representatives of the employer and officers of the local union, which the defendants had breached, and thereupon concluded that by virtue of the 1939 amendment the Anti-Injunction Act of 1937 was inapplicable and interposed no limitation in this case upon the court's equity jurisdiction or power as it exists without the Act of 1937. It was on that ground alone that the court below based the temporary injunction here involved. With respect to the complainant's allegations that its "plants, equipment, machinery and property" had been seized and were being held adversely through the operation of mass picketing, the court below *Page 440 specifically found that "this situation does not yet exist." (Emphasis supplied).
The alleged "labor agreement" so found by the court, as above stated, was manifestly not of the character of agreement either contemplated or specified by the amendment of 1939. It had not been entered into by "the representatives designated or selected by the employes for the purpose of collective bargaining" as defined either by the Pennsylvania Labor Relations Act or by the National Labor Relations Act, which the 1939 amendment requires. Not only did counsel for the complainant substantially so concede at bar but the bill itself avers, — "Fourth: For some years the International Union has been recognized by the plaintiff pursuant to the provisions of the National Labor Relations Act, as the exclusive representative, for purposes of collective bargaining of all employees of the plaintiff employed in and about the plaintiff's steel-manufacturing and by-product coke plants, . . ." No agreement with the International Union, the bargainingagent thus pleaded by the complainant, is averred in either the bill or the affidavits. The agreement found and acted upon by the court below was a purely local arrangement with reference to the maintenance personnel needed to take care of the company's plant and property during the strike. It was notsubsisting at the time the labor dispute arose. It followed the dispute by several months and was not arrived at until after the strike had already been called for a subsequent date. It was a consequence of the dispute and was designed to accommodate conditions expected to result from the impending strike.
Consequently, even imputing to the amendment of 1939 the effect which the court below gave it with respect to the Act of 1937, there is no ground apparent to me upon which the injunction can be sustained on the findings and conclusions made by the court below from the complainant's bill and its ex parte affidavits. *Page 441
But, beyond that, the broad fundamental question here involved is whether the inhibitions of a statute of the State can be completely avoided by ex parte representations to the court that the circumstances, which render the Act inoperative, exist. I think not.
The amendment of 1939 adds but a proviso to one section of the Act of 1937. It does not seem admissible to impute to the legislature an intent in the amendment of 1939, thereby to work a virtual repeal of the mandate in the Act of 1937 that a hearing must precede the issuance of an injunction in any case "involving or growing out of a labor dispute." In fact, the legislative intent appears to be quite the contrary. Nor am I unmindful that the amendment of 1939 provides "That this act shall not apply in any case" involving one or more of the situations described in the immediately ensuing paragraphs (a), (b), (c) and (d). Until the legislature speaks more plainly and directly than it has to date, that it is its intention to do away with the hearing required by the Act of 1937, I have no alternative but to abide by the law as, in my opinion, it is written.
The Act of 1939 purports to be no more than an amendment. For that situation, the legislatively prescribed rules of statutory construction, by which we are bound, pertinently provide that "Whenever a section or part of a law is amended, the amendment shall be construed as merging into the original law, become a part thereof, and replace the part amended and the remainder of the original law and the amendment shall be read together and viewed as one law passed at one time; . . .". See Statutory Construction Act of May 28, 1937, P.L. 1019, Art. V, Sec. 73, 46 P. S. § 573. The amendment of 1939 is, therefore, to be interpreted and applied in the light of the public policy declared by the Act of 1937 which the amendment of 1939 in nowise repudiates. Indeed, the amendatory Act of 1939 expressly confirmed the procedure for the issuance of injunctions (where permissible) in cases growing out of *Page 442 labor disputes, as well as the public policy declared by the Act of 1937.
Thus, in amending the Act of 1937 by adding paragraphs (a), (b), (c) and (d) to Section 4 thereof, the amendment of 1939 specifically re-enacted Section 4, as it originally stood, without change, so that Section 4, since the amendment of 1939 just as before, provides that "No court of this Commonwealth [has] jurisdiction to issue any restraining order or temporary or permanent injunction in a case included within [the 1937] act, except in strict conformity with the provisions of [that] act, nor shall any such restraining order or temporary orpermanent injunction be issued contrary to the public policydeclared in [the 1937] act. . ." (Emphasis supplied).
And what was the public policy so declared? In part here important, it was that "Equity procedure that permits a complaining party to obtain sweeping injunctive relief that is not preceded by . . . notice to and hearing of the responding party . . . or that permits sweeping injunctions . . . upon written affidavits alone and not . . . upon examination, confrontation and cross-examination of witnesses in open court is peculiarly subject to abuse in labor litigation. . . ." In effectuation of the public policy thus declared, the legislature thereupon directed that no order or temporary or permanent injunction should be issued by a court of this State in a case growing out of a labor dispute except after the hearing provided for by Section 9 to which reference has already been made. No one will deny that the right to declare and, within constitutional bounds, to subserve public policy lies exclusively with the legislature.
What the amendment of 1939 did, therefore, was to add four instances in which injunctions could be issued if the essential facts in support thereof were established and found as a result of the hearing required by the Act of which the amendment is an integral part. That is the *Page 443 only way in which the Act and the amendment can be "read together and viewed as one law passed at one time", as we are required to read and view them, without doing violence to either.
After the amendment of 1939, just as prior thereto, anyone entering a court to seek an injunction in a case growing out a labor dispute is at once confronted with the Act of 1937. To overcome its restrictions on the court's power to grant the relief sought in such instance, the complainant must establish the existence of the conditions said to make that Act's restraints inapplicable. The merit of such matters is to be determined after a full hearing of all parties to the record in open court as provided for by the Act. Until that is done, no court can competently adjudicate that there are present the conditions which render inoperative the restrictions of the Act of 1937 on the court's jurisdiction or power. It is not enough simply to aver that such conditions are present. To say that a court can remove itself from the restrictions of the Act of 1937 on the basis of ex parte affidavits and so obviate the hearing required by the Act is a "bootstrap-lifting" proposition.
And, the same may be said for the requisite proof of a seizure, holding, damaging or destruction of an employer's plant in order to render the Act of 1937 inapplicable. The amendment of 1939 does not say that, upon an averment of such seizure, etc., the Act of 1937 shall not apply. The Act provides that, "Where in the course of a labor dispute . . . employes . . . seize, hold, damage, or destroy the plant . . ." of the employer, then the Act of 1937 shall not apply. But, until the existence of that condition is found by the court as a result of the hearing required by the Act, the Act of 1937 continues to obtain in full force and effect; and a preliminary restraining order or temporary injunction may not be issued on ex parte affidavits.
It may well be that, upon such a hearing, the court could justifiably find that the employer's plant has been *Page 444 seized, is being held or is threatened with damage or destruction. Upon such finding, competently made after the required hearing, the Act of 1937 by its terms, as amended, allows for the issuance of an injunction for the protection of property and the owner's right to the use of it. Picketing to be lawful must be peaceful. Where picketing consists of people massed about a plant or its entrance gates with the compactness of a Macedonian phalanx, the fact that the picketing remains peaceful may be so only because no one can with safety attempt to go through the line. In such circumstances, it could hardly be thought a violent legal conclusion to hold that the plant had been seized and was being held against the owner's right to it. But, failing the hearing required by the Act, that condition has not yet been shown to exist in this case as the court below actually found.
The interpretation now given the amendment of 1939 returns us in Pennsylvania to the practice of issuing injunctions in cases growing out of labor disputes upon ex parte applications supported by no more than self-serving injunction affidavits. Henceforth the Anti-Injunction Act of 1937 can be by-passed at any time by a mere averment in an untested affidavit in an ex parte proceeding, regardless of whether the affidavit is ultimately sustained by proof or not. If it is not so sustained, the abortive injunction will none the less have created and maintained an unwarranted status in the meantime. The majority opinion plainly states that "The [amendatory] Act of June 9, 1939 . . . completely restores to the courts of common pleas the equitable powers exercised by them since the Act of June 16, 1836 . . . for causes which fall within the terms of the 1939 Amending Act." It follows, therefore, that any affidavit drawn to depict a situation that may be ascribed as fitting "the terms of the 1939 Amending Act" (even an allegation of an agreement which, as here, is not requisitely shown to exist), is sufficient to justify the issuance *Page 445 of an injunction upon ex parte affidavits in a case growing out of a labor dispute. Thus, by an amendment of the Anti-Injunction Act of 1937, that Act, as now construed, becomes for all practical purposes a dead letter. That, I think is regrettable, and especially so, as I am unable to perceive any basis in law or logic for the construction now placed upon the amended Act.
The effect of the decision now made is not hard to foresee. Without a hearing on the merits of the material issues of fact involved, the courts will again be called upon to throw the weight of their power on one side of the balance in an economic controversy arising out of the employer and employee relationship. That situation will help no one, — labor, management or the public.1 Industrial disputes will never be settled justly or satisfactorily by the arbitrary exertion of power by anyone; and that means employers, employees and the courts as well.
A hearing need not unnecessarily delay a disposition of a matter such as the present. If irreparable injury or damage to property or to the employer's use of its property is being done or threatened, a hearing on an injunction application could be had speedily. It would be up to the trial court to see that the hearing was conducted expeditiously so that the court could adjudicate the material issues promptly and grant or refuse the injunctive relief sought as the findings warranted.
I should reverse the decree of the court below and thereby enforce the inhibition on equity's power to issue an injunction in a case growing out of a labor dispute except upon a hearingof both sides (with the right of cross-examination) andfindings thereafter by the court on the material issues of factinvolved as I think existing law requires.
1 For a well-considered and thought-provoking discussion of the subject, see address of Honorable George Wharton Pepper before the American Bar Association in 1924, 49 American Bar Association Reports 174. *Page 446