(Dissenting).—The plaintiffs in this case are nine of the largest and strongest jewelry firms of the City of Portland, associated together for the purpose of bringing this suit.
The defendants are certain labor organizations and their officers. The principal defendant is Local Union No. 41 of the International Jewelry Workers’ Union. This defendant is an organization of the jewelry workers of the City of Portland, employed in the manufacture and repair of jewelry. The suit was brought to enjoin the defendants from picketing the respective places of business of the plaintiffs, in the course of a labor controversy between the labor union, representing the employees, and the plaintiffs, their employers.
This controversy centers around the right of the labor union to insist upon collective bargaining by the *33union, on behalf of its members, who are employees of these respective jewelry firms. There is no controversy presented in the case, in relation to the “closed or open shop,” and while the question of wages and hours was, at one time, in controversy between plaintiffs and their employees, yet it seems that they would have been able to agree in relation to that matter, if the question of collective bargaining could have been disposed of.
The history of the controversy, as admitted by all the parties, is in brief as follows: The plaintiffs had some disagreement, in the first place, with their employees, who are members of the defendant union, in relation to the matter of wages and hours. After some negotiations and discussion an agreement was about to be reached as to these matters, when the question came up as to whether the final contract should be enter.ed into by the plaintiffs with the Jewelers’ Union, as representing its members in the employ of the respective plaintiffs, or between the plaintiffs and each individual employee.
The defendants desired to have this arranged by a collective bargaining between the Jewelers Union, representing its members, while the plaintiffs refused to recognize the union, and insisted that the agreement should be directly between them and the individual employees. Both sides were obstinate, and the controversy finally resulted in the plaintiffs being declared “unfair” by the labor unions, who installed a system of picketing the places of business of two of the plaintiffs, and threatened to likewise picket the other plaintiffs.
The picketing was mostly done by young women wearing sashes, upon which were the words “Unfair to Organized Labor.” These pickets marched up and *34down the sidewalk in front of plaintiffs’ places of business, and urged people entering these stores not to patronize the plaintiffs, because they were unfair to organized labor.
There is no serious claim that there was any violence or physical interference with the customers of the plaintiffs, and the contention of the plaintiffs is frankly placed upon the theory, that such picketing, even if peaceful, is unlawful.
It was alleged in plaintiff’s complaint, and is stipulated to be true, that some of the employees of each of the plaintiffs were members of the Jewelers’ Union, prior to the time of. the controversy.
As I view it, the questions presented in this case, when reduced to their last analysis, resolve themselves into this: Has a union, composed partly or wholly of the employees of the plaintiffs, the right to go upon the sidewalk in the vicinity of plaintiffs’ places of business, and there persuade people, including their friends and sympathizers, to abstain from patronizing the plaintiffs, for the purpose of bringing the moral pressure of public opinion, and the influence of their friendship and patronage, to bear upon the plaintiffs, to induce them to deal with their employees collectively as a body instead of one by one individually? If they have this right, then the picketing in this case was lawful and should not be enjoined. If they have not, the picketing was unlawful.
If we view this question independently of the statutory provisions, and as a matter of common law, it resolves itself naturally into two propositions:
First. Have such employees, organized in a union, the general right to persuade their friends, and any others who may listen to them, to quit the patronage of the plaintiffs for the purposes set forth above?
*35Second. If they have that right generally, and it is lawful for them to exercise such persuasion in a general way, was their action rendered unlawful on account of the place where it occurred, viz.: on the sidewalk in front of plaintiffs’ places of business?
Upon the first question—the general right of labor unions to persuade their friends and others to desist from patronizing a firm which seems to them to be unfair in its relations to organized labor—the author!-( ties are in a hopeless and irreconcilable conflict. They are so numerous upon each side and so equally divided, that it would be an idle and useless task to attempt to discuss them individually, case by case. Almost every decision upon the question, whether one way or the other, has been made by a divided court; and the conflict between those where a majority of the court has held one way, and the cases where a majority of the court has held the other, is so absolute that about all one can say is, that in the aggregate the decisions; throw no light of authority upon the question, anc leave us to pass upon the matter as our individual! judgment may direct.
Upon principle, it seems to me that the cases holding that the members of the labor union have such a right have much the stronger reasoning behind them, and are far more in accord with the general principles of law which may apply under similar conditions.
It is now universally conceded that the workingmen in any employment may organize and combine into labor unions, for the purpose of securing better conditions, and they may (in the absence of statutory provision) strike in concert and as a body for the purpose of persuading the employer to raise their wages, or to recognize collective bargaining.
*36I can see absolutely no reason why the members of the labor union, or the union as á body, have not the same right, for the same purposes, to peaceably and quietly persuade their friends and sympathizers, and such others as will listen to them, to patronize exclusively firms and business establishments which are friendly to the labor people and to their cause, and who are willing to deal with them as a body—to recognize the principles of collective bargaining, and any other principles for which they have a lawful right to contend, and to refuse to patronize such firms as are unfriendly to labor or to any of the principles for which their organization is contending.
All of us practice a similar right every day of our ordinary lives. If one of us buys a suit of clothes from a tailor, and thinks he treats him unfairly in any way, he tells his friends, about it, and advises them and persuades them, if he can, to go to some other tailor to buy their clothes. If five or six'of us, or twenty of us, or any number. of us, think we have been treated unfairly by the same firm, we talk the •matter over among ourselves, and go among our friends in the same way, and I can see no reason why we have not the same right to do so. If we go to a restaurant or a hotel and are not treated as we think we should be, we exercise the same right. ’Why should we deny to the labor people the same right to advise with and persuade their friends that we, ourselves, are constantly exercising?
It is frequently urged that the action of labor organizations, and their members, in such regard is coercive in its nature and for the purpose of compelling the employer to do something that he does not want to do, and would not otherwise do. No doubt there is an element of moral coercion, and one of the purposes *37(but by no means all or tbe only purpose) upon tbe part of the labor union, is to compel the employer to do something which they think he ought to do, but which he would not otherwise do.
But it must be remembered and kept in mind that all moral coercion is not wrongful or unlawful. The very purpose of every organization of labor unions is always to compel the employer to accord them better wages and better conditions and to meet them upon fairer grounds. The concerted strike of laborers in an employment is always coercive in its purposes—to compel the employer to do something which he would not otherwise do. Yet ah the authorities agree that both the organization and the strike are in themselves perfectly legitimate. Indeed, there is an element of moral coercion involved in almost every transaction in life where the interests of two or more people conflict.
If we refuse to buy sugar (as the fruit preservers have lately done) or dress in cheap garments for the purpose of lowering the price, in either case our purpose is coercive in exactly the same sense—to compel the dealer to sell at a lower price than he wishes to sell.
In this case Mr. Heitkemper was clearly using the same kind of coercion, when he refused to treat with his employees,'because, as he says in his testimony:
“I didn’t think our watchmakers would go out, to tell the truth. None of them were in a position to he idle, I didn’t thinlc.”
He was taking advantage of their necessities to compel them to work under conditions dictated by him—under conditions which they did not deem fair and which they did not want to accept.
*38Our criminal laws are based upon the idea of moral coercion. We punish a man to compel him and to compel others, to do things which they do not want to do, and to leave undone things which they would like to do. All of this is coercive in its purpose, but nevertheless there is no question but what the principle of such laws is right.
It follows, therefore, that the mere fact that steps taken by the labor organization are coercive, or undertaken for the purpose of compelling the plaintiffs to do something, in the manner of their dealing with their employees, which they do not want to do, does not show, or even tend to show, that such action by the labor union was wrongful or unlawful.
There are many things which a good man ought to do, which the law does not compel—many things which he ought not to do, which the law does not prohibit.
I The pressure of public opinion to compel persons to do things which they ought to do, but which the law does not compel them to do, is only second to the law itself in its power for good. And I see no reason why the labor union should not have a perfect right to appeal to that public opinion, and bring its great moral pressure to bear upon the employers, in the constant conflict between capital and labor—employers and employees—and to ask and persuade everyone who is within their reach to be on their side, and to throw their influence and the influence of their patronage into the scale on behalf of the workingmen.
The employers have the same right to appeal to the public with their side of the controversy—a right which we all know they constantly exercise in many different ways.
Neither can we inquire here, as it seems to me, as to who is right and who is wrong, as to the principle *39of collective bargaining. That is a moral question with which we have nothing to do, and which we ought to leave to the bar of the public opinion and public judgment, giving to each side of the controversy the right to fully present its claim and use all of its powers of peaceful persuasion. In this Bepublican land, there is no other power by which such questions can be adjudicated.
It is frequently urged, in cases arising out of controversies of this kind, that the combination of the strong association of members of the labor union, make that which would be entirely lawful on the part of the individual, unlawful on the part of the labor union.
This argument, it seems to me, can only be based on the ineffectiveness of such action on the part of an individual, and its effectiveness in the hands of a combination. In other words, the argument reduces itself j to this: the action of an individual in persuading others to abstain from patronizing a given firm is lawful because it is too weak and ineffective to have cm appreciable result; but, the action of a combination of workers is unlawful, because it is (or may be) strong enough to be effective, and accomplish its purpose.
I cannot see that there is very much of reason in such a doctrine. It seems to me, if it is perfectly lawful for an individual laborer to inaugurate a peaceful boycott against his employers, or for a number of individual laborers to engage in such a boycott, it cannot be made unlawful, because the members engaged are large enough, or the combination strong enough, to have some chance to make their boycott and persuasion effective and successful.
*40It would be idle and foolish—a cat and a mouse proposition—and make a plaything of the rights of laboringen, to say that they may do a thing, for the purpose of winning better conditions for themselves, with perfect right and lawfulness as long as they are too weak to win their cause, or to effect their purpose, but, as soon as they are combined in such a way and with sufficient strength to have a chance to win—sufficient strength to be likely to cause the employer to. yield, and give them the better conditions asked for—it immediately becomes unlawful. It seems to me entirely clear that if they have the right as individuals to institute a boycott against their employers and persuade others to quit his patronage, for the purpose of bringing a moral pressure to bear upon him, to give them better conditions and to recognize their union, or to consent to collective bargaining (which mean the same thing), then they have a right to resort to every peaceful influence that is within their power, and to every possible means which does not involve any act otherwise unlawful. I see no reason why they may not appeal to the public generally to take their side of the controversy and throw the weight of its patronage in their favor.
It would seem to follow that the general right of employees belonging to labor unions, to declare a peaceful boycott against their employer, and at proper times and places, appeal to their friends and persuade everyone they can, to assist them in such peaceful boycott, for the purpose of establishing, if they can, the principle of collective bargaining, and the recognition of their union for that purpose, is incontrovertible, and must, upon principle, be sustained.
This brings us to the second question, namely: is it lawful for such unions to exercise their general right, *41at the places where they did in this instance—that is, on the sidewalk in front of the employer’s place of business? Here, again, it is plain that this would be the most effective place, and therefore the most desirable, from their standpoint, for reaching and persuading persons who would otherwise be customers of their employers. In a large city one could not do much effective persuading in a matter of this kind, except in the vicinity of the employer’s place of business—at least it would seem, by means financially and otherwise, within the power of an organization of laborers. In the very nature of things, if they could hot go in the vicinity of their employer’s place of business to exercise this persuasion, they might as well yield the controversy, for their efforts would be entirely useless, and the pressure they could bring to bear upon their employer would be so weak that he could snap his fingers at them with impunity.
The streets of the city are public highways. They do not belong to the owner of the adjoining property. He or his predecessor in interest had dedicated .them to the public use. They belong to the public and are. under the control of the public authorities. Subject to regulation by ordinance of the city council, or act of the state legislature, any member of the public may use them in a proper way and for all proper purposes.
It is true that the owner of the adjoining property is oftentimes and generally assessed for the improvement of the same. But this is not because he owns or controls the sidewalks or streets, but because the improvement is supposed to be an especial benefit to his property, which he really does own; and to make it more valuable.
He has a right, no doubt, to insist upon an open and unobstructed way from his building and place of busi*42ness, to the street and sidewalk, for himself, his employees, and his customers. His rights' are just the same as the rights of a riparian proprietor of the land along a navigable river, or the proprietor of land lying along a county road. If anyone obstructs the right of ingress and egress so that he cannot get out or in to his place of business, or so that any of his customers cannot do so, such person would be committing a wrong, and if the wrongdoer insisted, he could no doubt maintain injunction.
But otherwise than this, he has no more right- on the sidewalk than any other member of the public. He cannot jostle some other person away and take his 'place, and he must exercise his right to go upon the sidewalk and the street with just the same regard for the rights of other persons as any other member of the public’ would have to exercise.
As has been said, the city council and the state legislature have the authority to regulate the use of the street. They can no doubt confine the use to certain specific purposes. They can prevent loitering and can prevent any acts which cause large crowds to gather and unnecessarily obstruct the streets. Under their power to regulate the streets, they might perhaps have a right to make it unlawful for any person to use the streets or sidewalks for picketing, or to stand in one place or vicinity, for more than a given-length of time, just as they can provide against the parking of automobiles in certain localities for more than a given period.
In this ease it does not appear that there is any ordinance against picketing, or any ordinance against the use of the sidewalks for that purpose. Neither is there any act of the legislature making picketing unlawful. On the contrary, such legislation as there has *43been seems to countenance and approve of the use of the public highways for such purposes.
In the absence of any legislation making it unlawful, I do not see why the members of a labor union do not have a right to go upon the sidewalk, near their employer’s place of business, and there exercise their rights to peaceably persuade their friends or other persons not to patronize the firm in question, and in so doing, to use any quiet, orderly and peaceable means of such persuasion. Of course, if, while there, they engage in any disorderly conduct, they would be liable for a violation of the city ordinances in that regard; and if they indulge in intimidation of any kind, or violence or physical interference with the plaintiffs or their customers, another question would arise and the court would enjoin them from such action. But here, as we have seen, there is no serious claim that there was any violence or physical interference or disorderly conduct or threatening or intimidating words or actions.
It is sometimes urged that the very purpose of the picketing at such a place is, in effect, intimidation, and intended for that purpose; and upon this assumption is based the holding in some cases that there can be no such thing as peaceful picketing. But there seems to be no reason why the carrying of a banner by one or two youug ladies in front of a place of business should be construed as in any way intimidating. It seems to me that, until the contrary is shown, we must assume that these young women were there for the purpose of persuasion, and not for the purpose of intimidation. If they were peaceful and orderly and quiet in their conduct, their banners and arguments would only appeal to those who sympathized with their cause and were friendly to it. It is true *44that some persons might be kept from patronizing any particular firm that was being thus picketed, by reason of their desire to keep the goodwill of the labor organization, or their fear that by taking the other side of the controversy, they might make enemies of such organization. But that is an asset which properly and justly belongs to the labor people, just as the personal influence of the employer belongs to him.
It is sometimes urged that the employer has a right to run his business as he sees fit—to pay the wages that he sees fit—and to • deal with his employees individually, rather than collectively, if he wishes so to do.
No doubt this is true—just as it is true with every business man in every way, that he can run his business just as he pleases, without regard to the wishes of those with whom he comes in contact-—if he is willing to pay the price.
It is a question for any business man how far he can afford to yield to the wishes and whims and demands of his customers, or his employees. If the demands of his employees are unreasonable and unjust (as they no doubt often are) the employer may safely refuse them and reasonably expect that the public will ultimately support him, and that he will suffer, at most, no more than temporary loss; and he may, indeed, reap a just reward, by way of increased patronage and support, for his manly courage and independence.
If, on the other hand, their demands are reasonable, and his own position selfish and unfair, he may still stand upon his legal right to do with his own as he may see fit, and to run his business to suit himself. But he must then expect to pay the price, in loss of *45goodwill and withdrawal of public support, and the resulting injury to his business. The time has probably passed when any man or firm can run a great business, employing many men, successfully, and stand strictly upon his legal rights, to the extent of disregarding the welfare of his employees, their reasonable demands or even their just wishes.
The goodwill of a business depends much upon the way the particular business man is liked—upon his accommodating disposition—upon his fairness to the public and to his employees. He cannot expect to hold this goodwill unless he oftentimes gives up his own wishes, and manages the business in such a way as to please and satisfy his employees, as well as-., other customers. It is for him to say in • all cases just how far he will do this in order to keep their, goodwill, but if he does not do so and stands upon! his rights in the matter, he can hardly complain because his employees quit their patronage and persuade others so to do.
It seems to follow—if the foregoing reasoning is accurate and logical—that the defendants had a right to go upon the sidewalk in the vicinity of plaintiffs’ places of business, in such numbers as not to obstruct the access to their stores, and without interfering physically with the plaintiffs or their customers, and without creating any disturbance, or indulging in any disorderly conduct,—there exercise their right, in a peaceful and quiet way, to persuade" their friends and sympathizers and any others whom they could thus influence, to withdraw their patronage from the plaintiffs, for the purpose of obtaining from the plaintiffs a recognition of their union, and inducing them to consent to collective bargaining with the union, on behalf of such employees.
*46This brings us to the consideration of Chapter 346 of the Laws of 1919, as to whether or not it gives any added assurance to the right of the defendants to indulge in a peaceful boycott of this character and for this purpose, and whether or not it expressly prohibits the issuing of the injunction asked for in this case.
Section 2 of.-the act seems to be only important in so far as it leads up to Section 3, immediately succeeding. It provides:
“No restraining order or injunction shall be granted by any court of this state * * in any case between an employer and- employee or between employers and employees * # growing out of a dispute concerning terms or conditions of employment. * * ”
Section 3, which is the important section, is as follows, in so far as it bears upon this case:
“No restraining order or injunction shall prohibit any person or persons, whether singly or in concert, '* * from recommending, advising or persuading others by peaceful means so to do; or from attending at any place where any person or persons may lawfully be, for the purpose of peacefully * * persuading any such person to abstain from working; or from ceasing to patronise any party to such disputes; or from recommending, advising, or persuading others by peaceful or lawful means so to do * * or shall any of the acts specified in this section be considered or held to be illegal or umlawful in any court of the state.”
It seems to me that the simple reading of this statute is sufficient to show, without further discussion, that it was the intention of the legislature to cover, and that the act does cover, disputes exactly like the one in controversy here.
It seems to ine that to hold that this statute only applies in cases where the employees were still actually engaged in working for their employer, and that *47it was not intended to be effective in cases where the relation of employer and employee are temporarily suspended by a strike, as in this case, would be altogether too narrow—so narrow as to be absolutely absurd. Such a construction would entirely defeat the obivous purpose of the statute. It is not to be supposed that employees who are still actually engaged in working for their employer would picket his establishment, or attempt to do so, or that their continued employment would be tolerated by the employer for a day or an hour, if they did. It is plain, therefore, upon principle, that the statute, in speaking of employer and employee, refers to the general relation, even though that relation has been suspended or even destroyed by a strike or lockout, and that it is not limited to cases where the employee is still engaged in active work.
If seems to me that the opinion of Mr. Justice Johns, in the companion case of Greenfield v. Central Labor Council, 192 Pac. 783, and in which it is held that the statute applies to a dispute between an employer and an employee, even when that relation is temporarily discontinued by a strike, is absolutely conclusive both upon reason and authority, and it is unnecessary here to go further than to refer generally to the cases of Tri-City Cent. Trades Council v. Am. Steel Foundries 238 Fed. 728 (151 C. C. A. 578); Duplex Printing Press Co. v. Deering, 252 Fed. 722 (164 C. C. A. 562); and Iron Moulders’ Union v. Allis-Chalmers Co., 166 Fed. 45 (91 C. C. A. 631, 20 L. R. A. (N. S.) 315), all of which are cited in, and fully support the reasoning of, the opinion of Mr. Justice Johns in that regard.
*48It seems to me equally impossible to reach the conclusion in this case that there was no dispute between the employers and the employees, or that the dispute was not in relation to labor conditions.
It is alleged in the complaint by the plaintiffs, and stipulated by both parties to be true, that “some of the members of said union [Jewelers Union No. 41] were, prior to the twenty-eighth day of July, 1919 [the date when picketing commenced], employed as such by each of the plaintiffs.” The testimony of the plaintiffs themselves show that there was a dispute between these employees, who were members of the union, and their employers, the plaintiffs, and that a strike resulted.
Prank Heitkemper, one of the plaintiffs, testified:
“I didn’t think our watchmakers would go out, to tell the truth. None of them were in a position to be idle, I didn’t think. At.11 o’clock Monday morning they laid down their tools and walked out. I considered it a joke for awhile. After two or three days of this I realized I hadn’t taken the thing up with them, except in an ordinary way, demonstrated my position to them, and I asked them to come in and talk it over. We met with five of the men. I discussed the matter with them.”
Then, after testifying that there was no controversy. over the hours of wages and no personal dislike,—
“Q. I said, ‘What is the trouble?’
“A. ‘Well, we belong to the Union. We can’t work here until you sign this Union agreement.’ ”
So it seems entirely clear that there was a dispute between the employers and their employees. It is true that the employees were acting largely through the union, of which they were members. But this was in accordance with their aim and desire for col*49lective bargaining, under which they believed that their rights could be best conserved, and can make no difference. The essential conflict was between the employers and the employees.
It is impossible to distinguish in this regard between the rights of the employees, and the rights of the unions which represent them and of which they are members. The unions and their officers are the agents of the employees, chosen by the employees to represent them in the controversies with their employers. They occupy the position of any other agent. Their relation is much the same towards their members as that of an attorney towards his client. The client does not feel able by reason of temperament, or lack of education, to take care of his own interests, and he employs an attorney, who is supposed to have more experience and natural aptitude. The arrangement between the labor union and its members is similar. There is no reason why the officers of the labor union, when they are thus selected, and the matter is turned over to them by the employees, should not have the same rights as the employees themselves, and it would be foolish to attempt to treat them as strangers, or to say that they could be enjoined from exercising any right on behalf of the employees, which belonged to them. The sole and only purpose of a labor union is to strengthen the hands of the employees, who are its members and represent them in such disputes.
It also seems impossible to avoid the conclusion that the dispute in this case was under the terms of the statute, “A dispute concerning terms or conditions of employment."
The dispute was clearly over the question of collective bargaining, and the recognition of the right of the union to represent the employees of the different *50plaintiffs who belong to their union, in making the contract under which the employees were to work, and also in the matter of adjusting any grievances or misunderstandings which might arise.
It seems it would be a narrow holding, indeed, that this right of collective bargaining, and to have their unions represent them in their contracts, and intervene to represent and protect them in the matter of any grievances or misunderstanding which might arise, did not affect the terms and conditions of their employment. The importance of this right to an employee who is a member of a union, cannot be overestimated. It is far greater than any mere temporary matter of wages, or hours of labor. If the employees must act as mere individuals, then as a rule they are \not secure in their employment or in any right, or in the performance of any wage, or any limitation of their hours.
Laboring men, acting individually, are nearly always in an essentially weak position. As a rale,' they have no large savings. Many of them are actually poor and have dependent families. .They cannot well risk the loss of their employment. Some of them are ignorant, and hardly capable of driving any close bargains in their own behalf. They are hardly in a position to obtain the best terms, or to maintain and enforce a good contract when once obtained.
The employer, on the other hand, is generally well to do and is a trained business man. The loss of an individual employee means nothing to him. He can drive a hard close bargain with each individual employee and if by any chance.some employee does secure a good contract, he can safely break it, as seems to have been done in the Greenfield case, and trust to the necessities of the men to keep on working even as *51Frank Heitkemper naively admits lie was doing in this case, when he testified that he paid no attention to the demands of his men at first, because he thought that “none of them were in a position to be idle.”
On the other hand, “In union there is strength,” and if the employees can deal collectively, through their union, they always have an agent, who is capable and can contract as closely as their employer in the first instance, and they always have the strength of the union behind them if the contract is broken.
Both the employers and the employees fully realize the advantage which collective bargaining gives to the latter, and this is no doubt the reason why the employers fight so hard against it on the one hand, and the employees are so persistent in demanding it upon the other. At any rate, it is an object which the laboring people, who belong to labor unions, deem of the utmost importance, and they have surely a right to struggle for it, and to take any steps to achieve it, which would be lawful to secure other beneficial advantages, and it surely affects the conditions of their employment.
I can see no distinction between this case and the G-reenfield case. In both cases the employees were animated by a lawful purpose to benefit themselves in a lawful way, and in both cases the controversy was over the terms and conditions of their employment. If the statute applies in the one case, it clearly does also in the other. ,
It will be noticed that the prohibition of any injunction, made by Section 3, is not limited to the employees only, but restrains the court from issuing an injunction against “my person or persons, whether *52singly or in concert,” and the section winds up with the potent declaration,—
“Or shall any of the acts specified in this section he considered or held to be illegal or unlawful in any court of the state.”
It seems to me there can be no question but what this law was intended to be, and' was, addressed to the action of labor unions, as well as their members, and that it not only prohibited an injunction against doing the.things specified, but positively decreed that they should not be held or construed by the courts to be “illegal” or “unlawful.” And among those things declared lawful by the statute are clearly the very things that the defendants were sought to be enjoined from doing in this case.
There is one other question made in the brief of respondent, and that is as to constitutionality of this act. In this regard I concur entirely in the opinion of Mr. Justice Johns in the companion case of Greenfield v. Central Labor Council, 192 Pac. 783, in which it is held that the, act is constitutional. The opinion of Justice Johns in that case seems to me so clear in its reasoning upon this point and so supported by the authorities presented in that opinion, that nothing further need be added.
It must be remembered, however, that at the time the legislative act in question was passed the law in the United States was in a state of great uncertainty, as to the right of employees and their unions to engage in peaceful picketing. It is probable that the preponderance of authority even then rather favored the rule that peaceful picketing was lawful, at least when engaged in for the honest purpose of bettering the condition of the employees. See authorities cited by Mr. Justice Johns in the Greenfield case. But *53even this was in doubt. To show how great was the conflict, we have only to analyze the authorities cited in this case in the briefs of the respective parties. Of the eight cases from the courts of last resort, in the different states, cited by the plaintiffs, to sustain the proposition that peaceful picketing was unlawful, the decision was made in five by a divided court. In Velgahan v. Gunther, 167 Mass. 92 (44 N. E. 1077, 57 Am. St. Rep. 443, 35 L. R. A. 722), five to two; in Pierce v. Stablemen’s Union, 156 Cal. 70 (103 Pac. 324), four to three; in St. Germain v. Bakery & Conf. W. Union, 97 Wash. 282 (166 Pac. 665, L. R. A. 1917F, 824), six to one; In re Langell, 178 Mich. 305, five to three; in Barnes & Co. v. Chicago Typ. Union, 232 Ill. 424 (83 N. E. 940, 13 Ann. Cas. 54, 14 L. R. A. (N. S.) 1018), five to two.
It is only fair to say that there are a number of cases not cited in the briefs holding the same doctrine, but generally also by a divided court.
On the other hand, at the time of this legislation, the courts in the following cases had held directly to the contrary: Sinsheimer v. United Garment Workers, 77 Hun, 215 (28 N. Y. Supp. 321); National Protective Assn. of Steamfitters and Helpers v. Cumming, 170 N. Y. 315 (63 N. E. 369, 88 Am. St. Rep. 648, 58 L. R. A. 135); Glass v. Glass, 59 N. J. Eq. 49 (46 Atl. 208); Union Pacific v. Ruef (C. C.), (120 Fed. 124); Standard Tube Co. v. Union, 7 Ohio N. P. 87; Everett v. Richmond, 105 Va. 188 (53 S. E. 273, 8 Ann. Cas. 798, 5 L. R. A. (N. S.) 792); Lindsay & Co. v. Montana Fed. of Labor, 37 Mont. 264 (96 Pac. 127, 127 Am. St. Rep. 722, 18 L. R. A. (N. S.) 707); Jones v. Van Winkle, 131 Ga. 336 (62 S. E. 236, 127 Am. St. Rep. 235, 17 L. R. A. (N. S.) 848); Karges v. Wood Workers, 165 Ind. 421 (75 N. E. 877, 6 Ann. Cas. 829, 2 L. R. A. (N. S.) 788); *54State v. Van Pelt, 136 N. C. 633 (49 S. E. 177, 1 Ann. Cas. 495, 68 L. R. A. 760); Town of Neola v. Reichart, 131 Iowa, 492 (109 N. W. 5); Truax v. Bisbee, 19 Ariz. 379 (171 Pac. 125), and many other cases.
Most of these, also, had been decided by a divided court.
This court had recognized this state of uncertainty of the law in Hall v. Johnson, 87 Or. 21, 31 (169 Pac. 515, 518, Ann. Cas. 1918E, 49), in which Mr. Justice Benson, delivering ‘the opinion of the court, said:
“The question of peaceable picketing is one that has been discussed frequently and for many years past, by the courts. The judicial opinions have been conflicting, and it is difficult to determine accurately where the weight of authority falls.”
In this state of uncertainty, as to the law it would seem very startling doctrine to me that the legislature had not a right to fix this uncertainty by legislation, and declare what the rule in this state should be, as to whether such picketing was lawful or unlawful.
As is said by Mr. Justice Johns in the Greenfield case, this law was by no means an experiment or a novelty, nor was this state a pioneer in such legislation.
In England in 1906 the following statute was enacted, contrary to the statutory law as it had previously existed there:
“It shall be lawful for one or more persons, acting in their own behalf, or on behalf of a trade union, or an individual employer, or firm, in contemplation of the furtherance of a trade dispute, to attend at or near a house or place where a person resides or. works or-carries on business, or happens to be, if they so attend merely for the purpose of peaceably obtaining or communicating information, or of peace*55fully persuading any person to work or abstain from working”: L. Rep. Stat. 1906, Edw. VII, Chap. 47, § 2.
And this statute, it is said by Mr. Martin in his work on the Modern Law of Labor Unions, at page 241, “might well be termed a codification of the law relating to peaceful picketing, as laid down by a majority of the American courts.” That law had stood unchallenged by the courts of England for thirteen years at the time the Oregon legislation was enacted. It had been followed in this country in 1913 and 1914 by the.Arizona statute, and by the.federal statute, known as the Clayton Act, with both of which the act in question is substantially identical. The federal act has been uniformly sustained by the federal courts, as shown in the opinion of Mr. Justice Johns in the G-reenfield case, and the Arizona act was also sustained by the Supreme Court of that state, against a direct attack upon its constitutionality.
Under these conditions we would be going a long way, and, as it seems to me, usurping the authority of the legislature, if we should undertake to hold this act unconstitutional.
It cannot be said, in view of the uncertain condition of the law before the passage of this act, that it even changed the law or the rights of the parties in any way. And if it had changed their rights, as regards each other, it would be no more than the legislatures are constantly doing, in thousands of instances, in relation to the rights, duties and liabilities of employers and employees, and in every other relation where the affairs of men bring their interests in conflict, and where, in the judgment of the legislature, good public policy and the just exercise of the police power requires a change.
*56As to the power of the court to issue an injunction in such cases, it follows of course that if the employees had the lawful right, either under or independent of the statute, to persuade their friends and sympathizers to withhold their custom from plaintiffs, in order to secure the principle of collective bargaining, and induce the employers to consent thereto; then the legislature would have an unquestioned right to prohibit an injunction against such lawful acts. And in any event and without regard to the rightfulness of the action of the employees, the matter of issuing an injunction is a matter of remedy —a matter of procedure which is unquestionably entirely within the control of the legislature.
In 15 C. J., Section 275, page 901, it is said:
“It is within the power of the legislature, subject to such provisions as may be incorporated in the Constitution, to establish the procedure by which courts shall exercise their jurisdiction, and, where a positive rule of practice is established by statute, the courts have no discretion in the matter.”
The equitable powers of the court in this state are not derived from the Constitution. They are created and defined by act of the legislature: See Chap. 1, Title VI, p. 331, L. O. L. The power to issue injunctions and the limitation of such power and the conditions thereof are also creatures of statute: Chap. 4, Title VI, p. 348, L. O. L., et seq. What the legislature has given, the legislature can take away, or restrict and modify. The legislature in this state has always exercised the right to modify or restrict any power of the court which is not directly granted or limited by the Constitution. It cannot take away the right of trial by jury because that is protected by an explicit constitutional provision, but it can and has modified the equity practice—abolished bills of re*57vivor and bills of review, and made hundreds of other radical changes in the practice as it was both before and after the adoption of the Code.
We have no authority to set aside a solemn act of the legislature, either in the matter of defining the absolute rights of the parties, or in defining or restricting the procedure; simply because it may not accord with our ideas of natural justice.
In Lewis’ Sutherland on Statutory Construction, page 137, it is said:
“An act cannot be annulled because, in the opinion of the court, it violates the best public policy, or does violence to some natural equity, or interferes with the inherent rights of freemen, nor upon the idea that it is opposed to some spirit of the Constitution not expressed in its words, nor because it is contrary to the genius of a free people. And hence the wisdom, policy, and desirability of such acts are matters addressed to the general assembly, and must rest upon the intelligence, patriotism, and wisdom of that body, and not upon the judgment of the court.”
To epitomize this lengthy opinion, it seems to me that the defendants in this case had a right, in the absence of some legislative prohibition, to go upon the streets and into public places, even in the vicinity of plaintiffs’ places of business, and there peaceably and quietly and in an orderly manner, without disturbing the peace, or doing any violent act, or indulging in any intimidation, persuade their friends and others with whom they might be able to reason, to abstain from patronizing the plaintiffs, in order to induce the plaintiffs to deal with them collectively and in a body, through their union.
If they should try to induce anyone having business relations with the plaintiffs to break their contacts with them, or if they picketed in such num*58bers as to interfere with ingress and egress to plaintiffs’ places of business, or if they indulged in any intimidation or violence, another question would be presented.
When I speak of intimidation I mean unlawful intimidation. In Cooke on Monopoly and Labor Unions, page 7, it is said:
“In law a threat is a declaration of an intention or determination to injure another by the commission of some unlawful act, and an intimidation is the act of making one timid or fearful by such declaration. If the act intended to be done is not unlawful, then the declaration is not a threat in law, and the effect thereof is not intimidation in a legal sense. ’ ’
In my judgment the decree of the court below should be modified so as to permit the defendants in a reasonable number to go wherever they may wish, upon the public streets, and there peaceably and quietly persuade, if they can, their friends and sympathizers to abstain from patronizing any firm who may be deemed to be unfair to labor, because it refuses to contract and deal with labor collectively and in a body.