If the facts in this case, and any reasonable inferences therefrom, were as stated in the dissenting opinion, undoubtedly all the members of the Court would have agreed with the view there taken. But the facts upon which our decision must rest are those contained in *Page 382 the amended bill in equity, since the case is presented to us on demurrer to that bill, and the facts as there stated are not those which the dissenting opinion erroneously assumes. It is not my present intention to restate the principles of law enunciated in the majority opinion, with which I am in entire accord, but merely to point out a few of the many instances of factual and legal misconceptions which I find in the dissenting opinion.
1. Both the original bill and the amended bill aver thatall laundries in the City and County of Philadelphia are parties to the agreements with defendant union. This averment is completely ignored in the dissenting opinion, which contains such statements as "they [the "bobtails"] 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 "bobtail" may sell his business] does not have to be one of the laundries which is a party to this agreement." 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 of the contracts as effecting an unreasonable restraint of trade.
2. The dissenting opinion dwells at length upon the subject of the legality of closed shops, and evidently seeks to convey the wholly unjustified impression that the majority opinion holds that the "bob-tails" cannot be unionized. 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. 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 "bob-tails" shall, if permitted to do so, become members of the union, and the opinion distinctly states that "In so far as it is designed to restrict the 'bob-tails' in the operation of the trucks which they *Page 383 themselves drive, and in their collection of laundry, to hoursand 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 lowering of working standards on the part of those who themselves, although in a different legal capacity, perform to some extent the same kind of labor." Moreover, the employees of the "bob-tails" are members of a union. The dissenting opinion directs an attack upon an imaginary decision which is the very opposite of what the court is holding.
3. In the same vein as the foregoing, the dissenting opinion represents the court, at least by implication, as being opposed to principles which the dissenting opinion takes this occasion to champion and which not only are not at issue in the present case but with which all the members of the court are no less in sympathy than the writer of the dissenting opinion. One such illustration is in regard to the right of picketing, and another in regard to the evil of women doing "piece-work on garments and hats in their own tenement houses in New York," in other words, sweat-shops. Sweat-shops are non-union institutions, working under unsanitary conditions and for extremely low rates of compensation; the work is done for a manufacturing establishment which pays for it. It is perfectly clear that in the present case the "bob-tails" do not work for the steam laundries, and receive no compensation from them whatever; on the contrary, they are customers of the steam laundries and pay them for the work the laundries do for them, and their own customers are not customers of the laundries. There is not the slightest foundation in this case, therefore, for the analogy which the dissenting opinion attempts to draw between the "bob-tails" and sweat-shops.
4. The same sort of attack upon a proposition in no way controverted in the majority opinion is made by *Page 384 the dissenting opinion against the doctrine that labor is not in the nature of a commodity to be sold, and in this connection it is dramatically stated that "there was a time when human labor was regarded as a commodity," and that "the earlier doctrine that labor was a commodity in the sale of which there should be unrestrained competition . . . has completely given way to the modern idea expressed in the federal Clayton Act." I fail to discover in the opinion of the court any suggestion to the contrary. The dissenting opinion states that the resale price-fixing cases applied to commodities, whereas here we are dealing with the sale of labor. But what the "bob-tails" are in fact reselling is the service of the laundry companies, and once the latter 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 "bobtails." In this connection it was held in the AtlanticCleaners Dyers case, cited in the majority opinion, that prices could no more be fixed for services rendered in the business of cleaning and dyeing than for commodities. The dissenting opinion confuses the doctrine of the AtlanticCleaners Dyers case with the principle that, of course, it is perfectly legal for employees to combine in order to obtain an increase of wages and such combinations do not fall within the ban of a restraint of trade. It fails to distinguish between the sale of labor in the sense of a transaction by which the owner of a business enterprise sells to his customers services performed by the employees of his establishment, and the sale of wages, meaning the compensation paid by an employer to his employees for the services rendered by them to him; the former — for example, the sale of laundry service — is analogous to the sale of a commodity, while the latter — that is, the fixing of wages — is not. *Page 385
5. The dissenting opinion says that no laundry in Philadelphia "is obliged to accept any business from 'bob-tails' or from anybody else," and therefore the provision in the contracts that a laundry company may not accept work from any "bob-tail" with whom it is not now dealing adds nothing to their present right to refuse to trade with "bob-tails." It is so elementary a doctrine of the common law that, while any business concern may deal with whomever it pleases, a combination or agreement by many concerns, and especially by all of them in the community, is an illegal restraint of trade if aimed to drive another out of business by boycotting him, that no added comment would seem necessary.
6. The dissenting opinion persists in ignoring throughout, not only the statement in the bill in equity that the "bob-tails" are "independent business men," and not employees of the laundries or of anybody else, but also the facts upon which that characterization is based, namely, that they are the proprietors of stores, are themselves employers of labor, and have substantial capital investments in their enterprises. It is the failure of the dissenting opinion to recognize these averments that leads to the irrelevancies in that opinion to which I have already referred, namely, those concerning closed shops and the relations in general between employers and employees, as well as to its insistence that the question of restraint of trade is not involved.
7. The dissenting opinion says that the fact that " 'restraint of trade' is no longer looked upon in this Commonwealth as per se anti-social," is illustrated by the passage of the Fair Trade Act of June 5, 1935, P. L. 266. But the Fair Trade Act is limited to the sale of articles under other people's trade-marks. It would seem from the tenor of the dissenting opinion that the doctrine of "restraint of trade" has become practically obsolete. Its effect would be to sweep aside one of the oldest and most fundamental doctrines of the law, the subject of treatment in scores of current cases throughout the nation *Page 386 and in the Restatement of the Law of Torts by the American Law Institute.
8. The dissenting opinion states that "it would be impracticable for the laundries to attempt any such arbitrary price-fixing because of the ease with which laundry can be sent elsewhere." I cannot imagine anything that would bemore impracticable than for the people of Philadelphia to send their weekly laundry elsewhere in the United States in order to obtain a competitive rate. Moreover, if the implication of this argument were accepted, no restraint of trade could ever be said to exist unless it affected, in its results, the entire country.
9. The dissenting opinion evidently sees no difference between an agreement by an owner of shares of stock to first offer it for sale to the company, and a case where two parties by agreement attempt to force a third person, not a party to the agreement, to offer his property for sale to certain interests before offering it to others. It seems to me scarcely necessary to say that an owner of property may agree to give an option to buy it to whomever he pleases, but I know of no precedent for holding that an owner may be obliged to give such an option involuntarily because other parties by agreement attempt to compel him to do so under penalty of a boycott that insures the destruction of his business. In fact, the dissenting opinion fails throughout to appreciate the difference between being put out of business by what it calls "the march of progress," that is, by social changes, as distinguished from being put out by coercion, illegal combination and boycott.*
10. The dissenting opinion refers to the Nebbia case as an illustration of the contention that price-fixing of commodities is not illegal. That the regulation by the government of the rates in an industry affected by a *Page 387 public interest is different from the fixing of prices by private combination is so elementary in the law that nothing more is required in this connection than thus to refer to it.
On the whole, it seems to me that the dissenting opinion is utterly unjustified in denouncing the decision of the court in this case as challenging the rights of unions, or closed shops. Most of it seems to me to be an attempt at defense of principles which are in no way attacked. We are dealing here only with a peculiar situation in a particular industry. In a word, it may be said that, as represented in the bill of equity, the "bob-tails" are not, as the dissenting opinion would have it, employees similar to those of the laundry companies, but persons conducting, as employers, a legitimate business enterprise, and that the contracts here involved raise the legal question, not of a labor problem, but of a restraint of trade affecting the entire laundry industry in Philadelphia. 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 of closed shop, or the rights of organized labor. The case before us is just such a one in principle.
The fundamental misstatement of the dissenting opinion is in treating the "bob-tails" as wage earners, as employees. They are not. They are in business on their own account; not employed by anyone. No one pays them wages. In instances where they operate alone, what they make is not a wage, but a profit, just as in the case of any other individual storekeeper. Where they employ others, such employees are all members of a union and subject to its rules. So no question of the rights of union labor or of a closed shop is involved in the case. *Page 388
I, therefore, disagree with both the facts and the law as stated in the dissenting opinion, and concur in the majority opinion and the decision of the court.
Mr. Justice DREW, Mr. Justice LINN, and Mr. Justice BARNES concur in this opinion.
* 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.