(dissenting).
The employes of complainant’s plant at Union Hill, being dis-' satisfied with the terms of their employment, refused to return to work, and sent for Victor Bausch, one of the defendants, to consult and advise with. He advised them to draw up- a statement of their demands as to horn’s and wages, and submit it to their employer, the complainant, for consideration. A committee of employes waited upon complainant for that purpose, but the complainant refused to listen to them. The strikers then resorted to the complainant’s plant at Hoboken, by sending some of their number with circulars to distribute among the employes, calling their attention to the fact of the Union Hill strike for “higher wages” and against “intolerable conditions,” and urging them] to attend a public meeting at a public hall at 107 Washington street, Hoboken, under the auspices of the International Association of Machinists, at which one of the Union Hill employes would be the principal speaker, and Bausch would also speak.
This meeting was attended by over three hundred men and women, only twelve of whom were identified with any labor union. The hall itself is located about one mile and a half from the Union Hill plant, in another municipality, and is located over six city blocks from the Hoboken plant. As a result of' that and a subsequent meeting, another committee of complainant’s workmen was appointed to wait upon complainant, and to present a request for ten per cent, increase in wages. As in the former instance, the complainant refused to confer with the committee. When this report was made to the employes at the meeting, a resolution was passed unanimously declaring a strike a-t the Hoboken plant. As a result of this declaration the employes who struck lingered about the streets adjacent to the plant, ob*440serving those who entered1 and left the place, for the purpose, as the hill of complaint alleges, of intimidating and coercing them to quit their employment. Affidavits accompany the bill which show that efforts at intimidation were practiced in many instances, and the learned vice-chancellor then properly granted a preliminary injunction to suppress that illegality. George Jonas Glass Co. v. Glass Blowers Association, 77 N. J. Eq. 219.
The' restraining order is directed not only against the employes but against Bausch and the labor organization, and this appeal is taken only by these two defendants. In their behalf Bausch presented an affidavit denying the truth of the allegations of the bill as to himself and the association, and alleging that neither he nor the association did any picketing, and that the association had nothing to do with calling the strike, or formulating the demands of the employes. Upon the presentation of that issue of fact the injunction as against these two defendants should not have gone.
The rule is settled, since the determination of this court, speaking by Chief-Justice Beasley, in Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299, that when the equity of the complainants’ bill is disproved by the answer and affidavits, a preliminary injunction is not proper. In that case, as in this, the injunction went not upon the allegations of the pleadings, but upon the sworn statements annexed thereto. “The general rule,” says the distinguished chief-justice, “subject to but few exceptions, is that if the facts constituting the claim of the complainant for the immediate interposition of the court are controverted under oath bjr the defendant, the court will not interfere at the initial stage of the cause.” Instances of the application of this rule by this court have been frequent, the latest case being Brunette v. Montclair, 87 N. J. Eq. 338, where Mr. Justice Trenehard, speaking for the court, reiterated the doctrine and amplified it to the extent of declaring that “a preliminary injunction will not be granted merely to allay the fears and apprehensions of individuals. They must also show the court that the acts against which they seek protection are not only threatened but will in all probability be committed to their injury.”
*441The bill in this ease charges that the active picketing was done by the other defendants, who have not appealed, and charges only against these two appellants an active propaganda to induce the complainant’s employes to join the labor union. Neither the association nor Bausch approached the plant, or were at all active in picketing. Upon that subject, under these decisions, we must accept the affidavit of Bausch as true. The injunction, therefore, as against these appealing defendants should not have been ordered at this stage of the proceedings. The appeal is directed to the provisions of the restraining order wherein it prohibits them —first, parading in the neighborhood, bearing placards, and secondly, picketing the loms in quo. As to the first provision of the restraint prohibiting walking the streets, it is unnecessary to repeat the views I expressed in this court, at the last term, in thé case of Bijur Motor Appliance Co. v. International Association of Machinists, 114 Atl. Rep. 802. The facts in this case, however, do not warrant such a provisional restraint, because neither the bill nor the affidavits shows any such action upon the part of any of the appealing defendants; and the answering affidavit of Bausch shows that neither he nor the association approached the premises nearer than the public halls. As against the association such a mandate would necessarily be futile, and must prove to be mere brutum- fulmen, because not possessing the legal characteristics of a corporation, it has neither a body to be cuffed nor a soul to be consigned to an inferno. In any event, it was simply the formal vehicle through which Bausch as its representative addressed the employes, urging them to 'become members, with which advice they apparently complied in large numbers.
Who was Valentine Bausch? When the exodus from the Union Hill plant began, the employes sought him as a Moses, to advise and lead them from the hill top, not into a promised land, but into Hoboken, and then the trouble began. He is pictured to us in all the pungent putridity, of a labor agitator. Were he a religious or a political agitator, it may be assumed that he would not be accorded the prominence with which the bill invests him; but even as a labor agitator he could invoke the companionship of Lincoln, Wendell Philips and Henry Ward Beecher, not to speak of the immortal Gracchi of Republican Rome. His crown*442ing vice, however, seems to be that he is a Socialist agitator, who associates with a political pariah named Victor Berger, who was expelled from, congress, for the American offence of holding wax-views that differed from the views of the majority of his colleagues. But since the Socialist body constitutes a legally existing political party in the nation and state, and since the dawn of historj', great men have associated with Pharisees and sinners, Bausch seems to be not a fit subject, for legal or political excoriation in these times. But the atmosphere of the bill is not sufficiently lurid without the introduction of another celebrity, Patrick Muso. If it were not for the meticulous description of his industrial activities contained in the bill, we would be inclined, from his terpsichorean nomenclature, to assume that he was a lineal product of a league of nations, in which an apostle of the faith militant, combined with the Muses in sponsoring him. But we are disillusioned in this respect by the information that the only distinction he enjoys is that “he is the business agent of Local 351. International Association oí Machinists,” and that he was convicted for contumacious conduct by the court of chancery ixx another case, “and was sentenced toi three months in the Mercer county jail.” Facilis descensus Averni.
The head aixdi front of the offending-of these men seems to be that they discussed and advised with the employes in neighboring halls the merits of their industrial demand and the legal modus oferandi for attaining it. This offence, in the contemplation of the bill, seems to be comprehended in the generic offence of “picketing;” axxd, generally, they are enjoined from consulting, parading, visiting or advising the employes against continuing in their employment.
In this situation we are asked to define “picketing,” so that counsel may be in a position to advise their clients regarding their constitutional rights as citizens. This, manifestly, we cannot attempt, since we must deal with each case upon the facts as it is presented.
- Some judges have attempted a definition, and as a result we axe presented with an illogical and confusing medley of obiter dicta, that attempt to define the illegality of what may be a perfectly legal and constitutional act. One learned judge simply *443hurdled the inquiry by petitio pñncipii, declaring that all picketing is illegal. It might as well be said that all illegal picketing is illegal and the logical circle is thus complete. As well might it be declared that all debating or athletic sports, or boxing exhibitions, are illegal, because some of the participants are occasionally injured, as a result of the contests. This ipse dixit is occasionally followed as a precedent, to the utter abandonment of all consideration of our constitutional guarantees. The fact, of course, is as has been observed by Lord Bacon, that an opinion is as good as the reason upon which it is founded. Cessat ration,e cessat ipsa lex.
There are, however, in this state, satisfactory and reasoned views in the light of personal rights, our legal fundamentals and the constitutional guarantees which extend to every citizen, regardless of employment. , Notable among these is that of Vice-Chancellor Stevenson in Fletcher v. International Association, &c., 55 Atl. Rep. 1077; Vice-Chancellor Pitney in Frank v. Herold, 63 N. J. Eq. 443; Vice-Chancellor Reed in Cumberland Co. v. Glass, &c., Association, 59 N. J. Eq. 49, and Vice-Chancellor Green in Mayer v. Journeymens Association, 47 N. J. Eq. 519.
The trend of legislation indicating the popular will is in the same direction. Thus we have the act of 1883 (at p. 36, Comp. Stat. 2344) entitled “An act relative to combining and encouraging other persons to combine,” which makes it not unlawful for persons “to persuade, advise or encourage by peaceable means any person or persons to enter into any combination for or against leaving or entering into the employment of any person, persons or corporation.” This act was held in the Jonas Glass Company Case to relieve such an act of the character of a conspiracy, so as to be the subject of indictment, but was held to afford no justification for an illegal attack upon the property of another. The so-called “Clayton act” (U. S. Stat. 38 chap. 323 L. 1914 §§ 20, 38; Barnes Federal Code; § 7963) is to the same effect, and it is therein declared inter alia: “Nor shall such organizations or the members thereof be held or construed to be illegal combinations or conspiracies in restraint of trade under the anti-trust laws.”
*444President, now Chief-Justice Taft, when sitting as United States circuit judge in Phelan's Case, 62 Fed. Rep. 803, declared: “The employes have the right to organize into or join a labor union which would take action as to the terms of their employment. The officers they appoint, or any other person they choose to listen to, may advise .them as to the proper course to be taken in regard to their common employment; or if they choose to appoint any one, he may order them, on pain of expulsion, from the union, peaceably to leave the employ of their employer because any of the terms of the employment are unsatisfactory.”
This recital of a sensible, constitutional, legal rule of action in these industrial disputes requires no explanation and no illumination, and, obviously, eliminates the necessity for a more definitive expression upon the subject, either for-courts or litigants.
The recent adjudication by the United States supreme court in the Tri-City Central Trades Council Case, referred to in the majority opinion, simply elaborates and elucidates this conception of a sensible and constitutional role, declared by the writer of the opinions in both cases.
The conclusion we1 have reached in this case, it will be observed, but serves to mark another step' in the cycle of judicial legislation which, beginning with an appropriate effort to curb agitation of a forceable character, has concluded with an edict which will be construed to put an end to peaceable and constitutional economic agitation. Thus, in Brennan v. United Hatters, 73 N. J. Law 749, ignoring constitutional limitations peculiar to American government, and basing our conclusion upon a line of English cases, evolved from class conditions, in a land where no constitutional limitations exist, we conceded that the feudal right of property in the man, and! his labor, still subsists in the hands of a master. The logical effect of .that enunciation has been to prevent by injunction an organization of workingmen (1) from interviewing their co-laborers on the way to work, or in their homes, or “in the neighborhood” of the plant; (2) from walking or parading on the public streets “in the neighborhood” of the plant; (3) from visiting co-laborers in their homes or contributing to a fund to sustain indigent or sick agitators, or from con*445tributing to' a fund to continue a strike; (4) from loitering on the streets “in the neighborhood” of the plant, and (5) by this adjudication from hiring a public hall and there publicly discussing a workingman’s grievances; and thus we have Prometheus bound.
Nothing further would seem to be necessary to complete the chaplet of judicial legislation, unless it be the invocation of the provisions of the statute of laborers (23 and 24 Edw. III), under which the laborer was effectually conscripted to the sendee of the master, and to that end was hounded as a helot and labeled with the brand of Cain.
In every other walk of life the peaceful activities condemned by these adjudications are .quiescently tolerated, if not approvingly recognized.
In an age when the workingman occupied the legal status of a villain or serf, and thus became an appurtenance of the freehold, the legal procedure invoked here was neither impracticable nor unworkable; but in an age of popular enlightenment and in a social order where men are theoretically free and equal, and occupy a legal status of sovereignty, in which schools, libraries and the daily press liberally disseminate an education which fructifies in an enlightened manhood, regardless of avocation, the duration of such an archaic system may be estimated by the passive willingness of an enlightened electorate to tolerate it. For, it is indubitable as a philosophic deduction from the progress of law, as well as from the progress of mankind, that an artificial legal status which thus attempts to environ human endeavor, instead of palliating an existing evil will, deplorable as it may seem, inevitably operate like the deliverance in the Dred Scott Case, to precipitate a popular demand for a radical remedy; and the danger of it is, as history attests, that in the evolution “the man with the hoe” very often assumes the not inconspicuous role of a Samson manacled in the temple.
The decree appealed from, so far as it seeks to enjoin the two appealing defendants- from exercising the right of free speech in a public hall, should be reversed.
*446For affirmampe — Swayze, Parker, Bergen, Kalisch, Katzenbach, White, Williams, Gardner, Ackerson — 9. For reversal — The Chiee-Justice, Trenchard, Minturn, Black, Van Buskirk — 5.