(Written after receipt of a copy of the concurring opinion filed.)
The facts in this case are as stated in the dissenting opinion, as any one who will carefully examine the record in an open-minded search for the truth will find for himself. What the "reasonable inferences" are, depend on the reasoning faculties of the person or persons drawing those inferences.
The averment that "all laundries in the City and County of Philadelphia" are parties to the agreement is ignored in the dissenting opinion for the sufficient reason that it is whollyimmaterial to this issue. Each and every laundry in Philadelphia has an undoubted legal right to refuse to accept laundry work from "bobtail" solicitors exactly as it would have an undoubted legal right, if it cared to exercise it, to refuse to accept laundry from solicitors who used horses and buggies instead of automobiles in going around soliciting laundry.
In paragraph one of the concurring opinion there is quoted the statements in the dissenting opinion to the effect that the "bob-tails" can collect laundry wherever they will "and send it to any laundry anywhere which will take it," and "any other laundry company [to which a "bob-tail" may sell his business] does not have to be one of the laundries which is a party to the agreement." The concurring opinion then adds: "This failure to recognize the facts averred in the bill causes the fallacious argument which permeates the dissenting opinion that there is no such complete monopoly as to warrant criticism *Page 389 of the contracts as affecting an unreasonable restraint of trade." I submit with confidence to every trained mind in this Commonwealth that the foregoing excerpt from the concurring opinion is one of the most perfect examples of "fallacious" reasoning to be found anywhere. The two statements quoted in the concurring opinion from the dissenting opinion are from two entirely different portions of that opinion, and therefore are not directly related to each other as the concurring opinion would lead one to believe. However, both statements are statements of facts and are in no way, shape, form or manner in conflict with any averments in plaintiffs' bill or defendants' answer, as anyone who examines this record can quickly determine. Any bob-tail who collects laundry can send it to any laundry anywhere which will take it. Any bob-tail wishing to sell his "route" can place his own price on it and if the company with which he has been dealing does not accept his offer, he can then offer his route "to any other bob-tail who is a member of the union or to any other laundry doing wholesale work, upon the same terms and conditions" (quoted from paragraph 24, of the agreement challenged by plaintiffs). Plaintiffs' charge is that they, the bob-tails, will, unless they join the union, "be unable to have their customers' wearing apparel, linens and fabrics washed and laundered by any laundry company in Philadelphia." The answer to the "monopoly" charge made in the concurring opinion is that the "bob-tails" do not charge that they cannot send their collected "wash" to laundries outside of Philadelphia and since Philadelphia comprises only 128 square miles of Pennsylvania's 44,832 square miles, and since "trade" knows no municipal bounds in the United States, it is ridiculous to hold that the contract in question is in restraint of trade. If a group of men had the exclusive license to sell cars in Philadelphia, such a license could not be looked upon as a restraint of the automobile trade.
The concurring opinion is wrong again when on page *Page 390 2 it says: "The dissenting opinion . . . evidently seeks to convey the wholly unjustified impression that the majority opinion holds that the bob-tails cannot be unionized." Thedissenting opinion does nothing of the kind, as even a superficial but open-minded reading of it will disclose to anyone. The concurring opinion then says: "The dissenting opinion says: 'The workers have no right (under the court's decision) to enter into a contract with the laundries to make the bob-tails stop lowering these working and wage standards, etc.' " The "etc.," in the concurring opinion is substituted for "on pain of having the laundries refuse to accept their services." That is exactly what the majority opinion means. But the concurring opinion says: "On the contrary, the decision of the court is that the contract of the union with the laundries is valid in its provision that the bobtails shall, if permitted to do so, become members of the union." Of what avail would it be to the unionized laundry solicitors to have the bob-tails"join the union" but to continue their practice of solicitinglaundry at a rate which would mean putting the union solicitors out of business unless they accepted a lower remuneration inorder to meet the competition of the bob-tails? The concurring opinion then adds: "The [majority] opinion distinctly states that 'in so far as it is designed to restrict the "bob-tails" in the operation of the trucks which they themselves drive, and in their collection of laundry, to hours and working conditions prescribed by the union and embodied in its agreement with the laundry companies, the union has a legitimate interest in thus seeking to protect the laundry employees against the loweringof working standards on the part of those who themselves, although in a different legal capacity, perform to some extent the same kind of labor.' " It will be observed that the majority opinion uses the phrase "the union has a legitimate interest" in seeking to protect the laundry employees, etc., as just quoted. If by that phrase the majority opinion means that the union has *Page 391 an interest which it and its members can protect bycontract, then why does the majority opinion strike down as illegal this contract whose purpose is to protect that "legitimate interest" by making the bob-tails conform in working conditions, including remuneration, to the standards of the "Laundry Linen Supply Drivers' Union's" closed shop?
The concurring opinion says: "The employees of the bob-tails are members of a union." The concurring opinion should in fairness enlighten the people of Pennsylvania as towhat employees are members of what union; otherwise, the statement is misleading. The bob-tail solicitors are not members of any union, and that is precisely why this controversy is in the courts. The dissenting opinion points out that there are a few inside workers for the bob-tails who belong to "an inside hand workers' laundry" union. That union is as distinct from the defendant union as the railway trainmen's union is distinct from the Brotherhood of Locomotive Engineers.
Paragraph 3 of the concurring opinion is completely answered in the dissenting opinion. Calling the bobtails "customers" of the steam laundries cannot disguise the fact that they are active, underselling competitors of the unionized laundry solicitors, just as the employees of "contract miners" in the coal fields were competitors of the union miners until by agreement the coal operators and the mine workers put an end to such contract mining, because it was being done for a remuneration less than that paid the union miners.
The concurring opinion says that "the dissenting opinion directs an attack upon an imaginary decision which is the very opposite of what the court is holding." The majority opinion declares "part II [which is the vital part] of the agreement between the union and the laundry companies, except for the provision as herein discussed in regard to the bob-tails becoming members of the union, is invalid because it effects an illegitimate *Page 392 restraint of trade." In other words, this court says to the union laundry solicitors "we will let the bob-tails join your union but they can do as they please in respect to undersellingyou in their business of soliciting laundry." That is thedecision I am attacking in this dissent and if the writer of the concurring opinion thinks that is imaginably let him ask the union laundry solicitors whose wage standards are being put in jeopardy by the majority decision whether or not they see anything "imaginary" in having their wages reduced and their "Laundry Linen Supply Drivers' Union" made a mockery of by the admission to it of bob-tails who, under the majority decision, are at liberty to ignore its rules as to wages and working conditions. Paragraph 28 of part 2 of the contract, and that is the part the majority opinion declares invalid, provides as follows: "The Union agrees on behalf of its bob-tail members, that their retail prices in selling laundry services shall not be lower than those charged by the Company to its own retail customers." Part 2 also says in its preamble: "Said bob-tails are in direct competition with the retail route salesmen employed by the laundry performing such service, and for the protection of said retail route salesmen and to enable the Company to fulfill its obligations under this agreement, it is necessary to stabilize the conditions under which said bob-tails shall operate and prevent unfair advantages which they now have over the said retail route salesmen." It is too clear to require argument that if part 2 of this agreement is struck down, there is nothing to stop the cut-throat competition of the bob-tails with the retail route salesmen of the laundries.1
The concurring opinion refuses to recognize the analogy set out in the dissenting opinion between the "independent *Page 393 contractors," who formerly ran sweat shops in New York until stopped by the labor unions and the "independent contractors" who as bob-tails undercut the wages of the laundry route salesmen. The writer of the concurring opinion thinks he avoids the analogy by calling those who patronize the bob-tails "customers." The answer to that is those who bought the products of the sweat shops were also "customers." The analogy drawn in the dissenting opinion is that the "sweat shops" were not permitted to ignore decent standards of wages and working conditions and thus undersell others engaged in the same work, by hiding under the cloak of "independent contractors" and likewise the bob-tail collectors of laundry should not be permitted to undersell unionized collectors of laundry by hiding under the cloak of "independent contractors." The "cloak" in each case is too transparent to hide the "cut-throat" competition which is behind it. The fact is that nearly every one of the sixteen cases cited in the majority opinion, beginning with the case of Bobbs-Merrill Co. v.Straus, 210 U.S. 339, and ending with the Master Barbers case in 27 Northampton County, are except those few cases where price-fixing was charged in the bill (as pointed out in the dissenting opinion) cases where the thing in controversy was a commodity of commerce, like Ford automobiles in Ford Motor Co.v. Quinn, 70 Pa. Super. 337, cited in the majority opinion, or Dr. Miles' medicine cited in the Dr. Miles Case,220 U.S. 373, cited in the majority opinion and discussed in the dissenting opinion. After the writer of the concurring opinion says that he "fails to discover" in the majority opinion "any suggestion contrary" to the idea expressed in the Clayton Act that labor is not a commodity, he then attempts to argue that the bob-tails are not selling their labor service but are "re-selling" laundry service. Since the bob-tails do exactly the same work as the laundry solicitors and their remuneration consists of the difference between what they get from their "customers" and *Page 394 what they pay the laundry, it is obvious that this difference is their pay for their work, exactly as a newsboy's one cent profit on each paper for selling his papers is his pay for hiswork as a newsboy. The concurring opinion says: "Once the" laundry companies "have fixed their own price for such service to the bob-tails they are precluded by every principle of decisional law, from combining to compel the bob-tails to charge a fixed minimum price by which this service is turned over, supplemented to some extent, to the customers of the bob-tails." If that argument is sound newspaper publishers would be powerless to refuse to turn newspapers over to newsboys who went out on the streets selling for two cents papers whose fixed price was three cents. The phrase "supplemented to some extent," in the concurring opinion, is indeed a mild and innocent looking recognition of the fact that this bob-tail "supplementing" of laundry service is his work as a laundry collector just as a newsboy's "supplementing" of newspaper service is his work in selling papers. If a newsboy sold for two cents a newspaper which a unionized newsboy sold for the regular price of three cents, the first newsboy would be underselling the second newsboy and no fallacious verbiage about a newsboy "reselling" news service could disguise thatfact. As Chief Justice SHAW said in Com. v. Hunt et al.,45 Mass. 111 (which was a labor case): "The law is not to be hoodwinked by colorable pretences; it looks at truth andreality through whatever guise it may assume [italics supplied]."
The case of Atlantic Cleaners Dyers v. U.S., 286 U.S. 427, referred to in both the majority and the concurring opinions, is, as pointed out in the dissenting opinion, wholly inapplicable here as that case arose under the Sherman Anti-Trust Act and that Act has not the slightest relation tothis case.
It is a sufficient answer to paragraph five of the concurring opinion to say that there is not the slightest allegation in plaintiff's bill that anybody is trying to *Page 395 drive anybody out of business "by boycotting him." The cases cited in the dissenting opinion conclusively answer the proposition of the concurring opinion that it is illegal for the laundries to agree to accept laundry from any but union solicitors. One of the greatest appellate courts in the land, the Supreme Court of Massachusetts, decided unanimously inSmith v. Bowen, 121 N.E. 814, that "an agreement by an employer with a union to give all his work to members of the union is a legal and valid agreement," and may be lawfully enforced by a strike. See also Judge LACOMBE'S opinion cited in the dissenting opinion. The Court of Appeals of New York has taken exactly the same position, as the cases cited in the dissenting opinion, and many other cases familiar to the legal profession, show. See Exchange Bakery Restaurant, Inc., v. Rifkin,245 N.Y. 260, 157 N.E. 130, and Williams v. Quill et at., 227 N.Y. 1, 12 N.E.2d 547.
Paragraph six of the concurring opinion is based on the irrelevancies that the bob-tails call themselves "independent business men" and "proprietors of stores." The women who made garments at low wages in their own homes in the tenements of New York City were equally "independent business women" and "proprietors of shops," but unionized "closed shops" recognized by the courts of New York not merely in principle but also inpractice, put an end forever to the competition of "independent contractors" operating in their own independent shops. If this court is going to permit these bob-tail solicitors of laundry to strike down this contract as illegal, by according them the status of "independent contractors," then all similar contracts in this state are illegal. To be consistent this court when the matter is brought before it, must declare illegal the contract entered into between the Anthracite Mine Operators and the Anthracite Mine Workers of America, for that contract declares that "special and individual contracts in the mining of coal where now in use shall be eliminated." I hold, as do the courts of Massachusetts, *Page 396 New York and numerous other states, such contracts legal. There is no difference in principle between the contract this court is now striking down and the just referred to contract between the Anthracite Coal Operators and the Anthracite Miners of Pennsylvania.
Paragraph seven of the concurring opinion about restraint of trade is conclusively answered by what the present Chief Justice of the United States said in Dr. Miles Medical Co. v.Park Sons Co., 220 U.S. 373, quoted in the dissenting opinion.
The following statement appears in paragraph seven of the concurring opinion: "But the Fair Trade Act [of 1935] is limited to the sale of articles under other peoples' trade-marks." If that is meant to imply that thepurpose of the Fair Trade Act is to protect buyers againstdeception, it is erroneous. The purpose of the act is set forth in its title as follows: "To protect trademark owners, distributors, and the public against injurious and uneconomic practices in the distribution of articles of standard quality under a distinguished trademark, brand or name." This court said in Bristol-Myers Co. v. Lit Bros., Inc.,The act and our decisions 336 Pa. 81, 85: "The purpose of the Fair Trade Act is obvious, it being to prevent the cutting by any dealer, of the established price of any commodity identified by the trade-mark, brand or name of the producer. This price cutting which confers a slight pecuniary advantage to the buyer has nevertheless been adjudged by the lawmakers of forty states to be prejudicial to the public interest." In other words, the act was designed to prevent competition in commodities identified by the producer of them. The act and our decisions do show that "restraint of trade" is no longer looked upon as an evil by the legislature and the courts. There are similar Fair Trade Acts in 44 states. They have been declared constitutional by the Supreme Court of the United States as well as by state courts and they have been shielded from conflict with the federal antitrust laws by the Miller-Tydings amendment, 50 Stat. 693. *Page 397
The eighth paragraph of the concurring opinion challenges the statement in the dissenting opinion that if the Philadelphia laundries attempt arbitrary price-fixing, laundry could be sent with ease elsewhere. I am sure that few others share the doubt of the writer of the concurring opinion as to the practicable difficulties in sending laundry out of Philadelphia to near-by places. Camden, New Jersey, with a population of 116,309 people and New Jersey with its 4,000,000 people and Pennsylvania with its 8,000,000 people outside of Philadelphia, have enough laundries to take care of the laundry requirements of Philadelphians, if the Philadelphia laundries should boost their prices too high. High prices would also cause other laundries to be established in Philadelphia. Besides, there is no charge in this bill of any attempted price-fixing by the Philadelphia laundries.
The ninth paragraph of the concurring opinion is completely answered by the dissenting opinion. I answer it further by saying that when a man buys a share of stock to which is attached a condition that if he wishes to sell it he must first offer it to the company or to other stockholders, he cannot plead that he is being illegally coerced and boycotted. Likewise, when a bob-tail laundry solicitor signs the contract challenged here, which provides that he must first offer his route for sale to the laundry company, and if the offer is not accepted, he must then offer it to another bob-tail who is a member of the union, and if it is not accepted, he can offer his route to any laundry anywhere, cannot complain that he is being illegally coerced and boycotted.2 In the first *Page 398 place, he is not legally obliged to sign the contract. He is not even economically coerced because he can take his collected laundry to laundries in the dozens of towns and cities within an easy distance of Philadelphia, none of which are affected by the agreement challenged.
The 10th paragraph of the concurring opinion refers to the dissenting opinion's reference to the Nebbia case. That case was referred to in the dissenting opinion as showing that the courts took an advanced position by declaring the sale of milk was affected with a public interest and that the state could therefore fix the price of milk. In the instant case there is not even a charge of price fixing. This is a plain case of a contract for a "closed shop" and such contracts have been legalized by the state and federal governments and have been almost universally recognized judicially. In the instant case the majority opinion recognizes the closed shop in principle but strikes down a contract as illegal which would permit the closed shop to operate in practice among the laundries and laundry solicitors of the City of Philadelphia. That is why I dissent from the majority opinion. *Page 399
The dissenting opinion does not, as charged, "denounce the decision of the court in this case." The dissenting opiniondisagrees with the decision of the majority just as the writer of this dissenting opinion disagreed with the majority of this court in the so-called "Yellow Dog" Contract case, 305 Pa. 206, at 225. The view expressed in the lone dissenting opinion in that case over the vehement protest of the writer of the concurring opinion, is now the law of the land, as both the state and federal governments have declared such anti-union, "Yellow Dog" contracts to be outlaws in any court. In my dissenting opinion in the "Yellow Dog" Contract case, I denounced these anti-union ("Yellow Dog") contracts as "outlaws" in any court. I said (p. 236): "This anti-union contract is so at war with the public welfare as to disentitle it to legal recognition." I said (p. 237): "These essentially coercive anti-union contracts are socially wrong and legally indefensible. They are a vestige of economic bourbonism — a cult that is now outmoded." The writer of the concurring opinion in this case now before us utterly disagreed with those views I expressed in the "Yellow Dog" Contract case and he disagrees with them now. He and I now differ in our views as to this "closed shop" case.
This case goes to the very vitals of the "closed shop" question, and it cannot be side-tracked as a case of an illegal "restraint of trade." It restrains trade only as all closed shop contracts restrain trade in labor and such restraint is both legislatively and judicially regarded as being for the public good. The concurring opinion says: "Certainly, if an itinerant grocer, or butcher, driving his own wagon from house to house to supply his trade, were denied the right to purchase his commodities, by an agreement among all the wholesalers in Philadelphia and the labor unions of the wholesale trade not to sell to him, such combination would be enjoinable as in restraint of trade and would in no sense involve a question *Page 400 of closed shop, or the rights of organized labor. The case before us is just such a one in principle." That statement might have been supportable under the philosophy prevailing fifty or one hundred years ago but it is utterlyunsupportable under the enlightened and humane philosophy of the 1930s and 1940. The Restatement of Contracts, Vol. 2, p. 1000, says this: "A, a manufacturer, makes agreements with a number of agents for the sale of his goods, each of the agents being authorized to sell A's goods in specified territory only. As part of the agreements the manufacturer promises that each of these agents shall have the exclusive privilege of selling A's goods in the territory assigned to him. The agreements are legal unless they are part of a scheme whereby it is sought to establish a monopoly." It is ridiculous to charge that the contract here establishes a monopoly. It is too limited both in space and in time. This court in Monongahela Co. v. Jutte,210 Pa. 288, in which it was charged that a certain contract created a monopoly in coal in a certain area, said that the old common law rule as to contracts in restraint of trade was now "much relaxed and the first modification of the doctrine was the recognition of the validity of contracts of this nature where the restraint was limited as to space or time and reasonable in its nature. . . . This is the general current of decision in this day." In the instant case the contract now struck down as illegal and in restraint of trade is limited in its space to the 128 square miles of Philadelphia and is limited in time to "a period of one year subsequent to April 11, 1942, unless thirty days' notice, in writing, be given by either party to the other party prior to that date of a desire to cancel, change or modify either part of this agreement, and so on for additional terms of one year unless either party shall give the other party notice of such intention thirty days prior to the end of any such subsequent year." InHarbison-Walker R. Co. v. Stanton, 227 Pa. 55, this court refused to hold a certain contract as being in restraint of trade and Justice ELKIN, speaking for this court, quoted with *Page 401 approval the following from the opinion of Justice HOLMES inCincinnati, etc., Packet Co. v. Bay, 200 U.S. 179: "A contract is not assumed to contemplate unlawful results unless a fair construction requires it upon established facts." "To constitute the offense of monopolizing or attempting to monopolize, . . . it is necessary to acquire, or attempt to acquire, an exclusive right in such commerce by means whichwill prevent others from engaging therein [italics supplied]"In re: Greene, 52 Fed. Rep. 104.
The learned court below was right in its conception of the law and was in accord with the overwhelmingly prevailing judicial thought in this country and in England when it held as it did (quoting from its opinion): "The plaintiffs have no right to demand that the laundry companies accept their work and the latter are free to engage in business relations as they deem advisable. . . . Is it unusual or illegal for a business organization to enter into a contract to purchase all its supplies from a single source, or to confine its distribution in a given area to a particular agency upon whom exclusive rights are conferred? Could not the laundry companies confine the distribution of their service to a single organization? They have chosen to restrict distribution to those persons or organizations that solicit and sell laundry service to the consumers who are members of the defendant association. . . . The policy of our law, however, recognizes the legality of a closed shop and permits the employer and his employees to agree that no person not a member of the employee's association shall be permitted to work in the industry. . . . Plaintiffs perform the same economic functions as the employees who are members of the association." In the latter pages of the dissenting opinion are examples of contracts now in operation affecting meat dealers and other contracts affecting fur coat workers which contracts are analogous to the contract now struck down by the majority opinion after the court below upheld it. *Page 402
The argument in the last paragraph before the final three line paragraph in the concurring opinion, is completely demolished in this supplemental dissenting opinion and in the dissenting opinion filed before I saw the concurring opinion filed. The bob-tails are competitors of the unionized laundry solicitors and if their competition is not restrained by making them conform, as the contract this court now strikes down attempted to do, to the Laundry Linen Supply Drivers Union's standard of wages, they will either force the unionized solicitors to accept less wages or go out of business. The vital rights of union labor are involved in this case just as much as they were involved in the "Yellow Dog" Contract Case, supra.
It is significant indeed that the concurring opinion does not cite a single case or an excerpt from any judicial opinion or from any writer to sustain the view that the contract challenged here is illegal. No judicial decision except the decision of the majority of this court from which I dissent can be found which declares such a contract illegal unless one goes back to the days when labor unions were treated by many courts as outlaws and their activities suppressed by injunction.
I agree with the learned court below that the contract in question is legal and the injunction asked for by plaintiffs should be refused. The decision of the court below can be reversed only by going back to the philosophy of the decision in the famous Cordwainers case of 134 years ago. In that case (Com. v. Pullis et al., Jan. Sessions, Court of Quarter Sessions of Philadelphia), the indictment charged Pullis and certain other boot and shoemakers of Philadelphia with a combination to raise their wages. The rationale of that case is today as obsolete as the rationale of the Dred Scott decision. The trial judge in charging the jury in that case said: "These defendants belong to an association, the object of which is that every person who follows the trade of a journeyman shoemaker must be a member of their *Page 403 body. If the journeymen who come here from distant places do not join the body, the members of the body will not work with them. The consequence is that everyone is compelled to join the society. It is in evidence that the defendants all took a part in the last attempt to raise their wages. Is there any reason to suppose that the laws are not competent to redress an evil of this magnitude? The laws of this society are grievous to those not inclined to become members — they are injurious to the community, but they are not the laws of Pennsylvania. . . . It is now therefore left to you upon the law and the evidence to find the verdict." The jury returned the following verdict: "We find the defendants guilty of a combination to raise their wages."
In the instant case a majority of this court says in effect: The contract between the Philadelphia laundries and the unionized laundry solicitors providing that the laundries will not accept laundry collected by the bobtail solicitors unless the latter join the union and conform in the matter of wages and working conditions to the union scale and union rules, is illegal and its enforcement will be enjoined. I submit to the people of Pennsylvania who have the right to pass judgment on the official acts of every judge they commission that the decision in this case is as repugnant to modern conceptions of right and justice in labor cases as is the above quoted charge and verdict of the jury in the Philadelphia Cordwainers case in 1806.
1 In the "News of Business" section of the New York daily "PM." of June 23, 1940, there appears this statement: "Generally agreed upon pest [in the laundry business] is the bob-tailer."
2 The concurring opinion says in a footnote that "the charge in the dissenting opinion that the majority opinion does not quote all of the provision regarding the sale by a bob-tail of his route is without foundation." Let us see about that. Paragraph 4 (p. 360) of the majority opinion reads as follows: "If the provision that a 'bob-tail' desiring to sell his 'route' shall first offer it for sale to the laundry company of which he is a customer has no penalty to support it, a 'bob-tail' may, of course, ignore it entirely, but if, as is apparently intended, his obtaining service from a laundry company is conditioned upon his submitting to it, it is a wholly arbitrary and illegal restriction upon his right to sell his property to whomsoever he desires. . . ." In making that argument the majority opinion ignored and did not quote the provision that the bob-tail can, if his offers to his laundry and his fellow bob-tails are not accepted, offer his route to any laundry anywhere. The writer of the majority opinion based his argument andconclusion that the restriction on the sale of the route was "arbitrary and illegal" on the part of the provision he quoted in that argument. He should then and there have quoted all of the provision so that a reader of the opinion might come to his own conclusion as to whether or not the argument was sound. The writer of the concurring opinion well knows that the writer of the dissenting opinion was not attempting to conceal the obvious fact that the majority opinion in the earlier parts of it which contain a summary of certain provisions of the contract, did give the substance of the provision about resale of routes.