I dissent and vote for affirmance for the same reasons that I did in Reardon, Inc., v. Caton, decided by us simultaneously herewith, and beg to refer to my memorandum of dissent therein. It seems to me that the prevailing opinion upon this appeal serves to accentuate the intolerable condition which that opinion would create or sustain, as I pointed out in my memorandum there. In that appeal that opinion denies the right of injunction against the employees so that they may not refuse to accept freight tendered by non-union men, and this one denies the right to such an injunction against the carrier itself. With the two effective, the obligation of common carriers would be entirely gone. By parity of such reasoning a common carrier of passengers could deny passage to nonunion workmen and their families, as well as to the employers of non-union men.
Here the defendants do not dispute the right of the trucking concerns, individual, firm or corporation, to have their freight handled at the piers by the employees of the defendants without any discrimination against those of them who are not *520members of any union; but the defendants contend that they should not be enjoined because they do not authorize any such discrimination by their employees, but on the contrary forbid their employees to make it, and because if they were to discharge such employees for such discrimination they would be unable to fill their places and so would be prevented from at all performing their duties as common carriers. This amounts to a plea by defendants that because their employees will not, in that regard, obey their directions, they, the defendants, should be excused from performing, to that extent, their full duty as common carriers. That plea seems to me to be thoroughly bad. The naked fact that the men, their employees, disobeyed the law before the determination making its meaning and effect plain does not at all warrant the conclusion that those men will disobey after such determination has been made, as it now has in this case at Special Term. Ours is “ a government of laws and not of men,” and at least until the contrary has been demonstrated upon due trial we must proceed upon the assumption that all men, in any and every position, will obey the law after it has been judicially declared by the constitutional authority for that purpose. If it should prove that the defendants are unable to employ men to discharge the various functions involved because of the legal requirement that those men cannot, in the discharge of those functions, refuse to extend the same service to non-union men as to union men, that fact would no doubt be considered upon any application to punish the defendants for actual disobedience of the injunction.
Our decision in Reardon, Inc., v. Caton, being made simultaneously herewith, is not to be deemed an authority governing the decision in this appeal. I regard the two cases as being practically one. It is plain, I think, that the two actions might well have been brought as one against all the defendants in both.
Rich, J., concurred in part.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.