(dissenting).
The proposition presented by the particular facts before us and which cannot be watered down is whether the attempted unionization of a trucking corporation by a bona fide labor organization, which had for its sole objective the employment of a qualified union helper to unload the truck at the platform of a corporation .having a closed shop agreement with the union, and which was accompanied by violence, is within t'he scope of the Hobbs Act of 1946 which is the successor of the original Federal Anti-Racketeering Act of 1934. This is unqualifiedly a labor dispute in which the union was participating or interested as is shown by the insistence of the majority opinion on t'he quality of proof as to the union, which of course is applicable only in a labor dispute. Section 6, Norris-LaGuardia Act. There is nothing in this case to justify the statement that the defendant Kemble tried to compel payment from the trucking company. Kemble’s entire purpose, as far as this record goes, was to obtain the employment of a competent union helper by the trucker 5 to do the unloading. This is not a question of degree or semantics. There is no inference fairly or unfairly permissible from the facts that the union or Kemble was at all interested in the trucking company paying protection money. The Government concedes this and faced the issue squarely both at the trial6 and .on appeal. Its complete position as is that of the court majority is that, even though the purpose of the defendants was as above outlined, because violence did ensue Congress has decreed them guilty of racketeering under the Hobbs Act by, as is said in the Government brief, “ * * * simply omitting the exclusionary provisions in the amended Act.”
From the scant facts it is inferable that the defendant union had a contract with RCA-Victor whereby the unloading of deliveries to the latter’s Camden plant was to be performed by members of that union. The contract was not in evidence. That there was some such agreement appears from the Government testimony and is not contradicted. The defense rested without affirmatively presenting any evidence, relying on its motion for acquittal. Defendant Kemble, it will be recalled, was the union’s business agent. The evidence at most showed that the defendants sought to induce Doehler-Jarvis Corporation, a trucking concern, to hire a member of the union as a helper to take care of that company’s unloading of its delivery at RCA and that in the course of the episode there was a threat or threats by Kemble and also that the air was let out of the front tires of the truck involved.
Admittedly, for the defendants to be convicted under the indictment they must have been shown to have been guilty of planning to obtain the property of the trucking corporation with its “ * * * consent induced by wrongful use of actual or threatened force, violence or fear * * The majority opinion flatly states that because there was evidence of violence and threats and because the 1946 law does not contain the exception that appeared in the 1934 Act regarding payment of wages by a bona fide employer to a bona fide employee, Kem-ble is guilty under the Hobbs Act indictment against him. The sole reason for this holding is the legislative history of that Act. The proposed anti-racketeering legislation which later resulted in the Hobbs Act *895did come before Congress in 1945 because of the then recent Supreme Court decision in United States v. Local 807, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004. But the main interest of the Congress in that opinion was not in the conclusion of the Court to the effect that if the objective was to become bona fide employees and to obtain wages in that capacity, even if accompanied by violence, the objective was within the exception to the 1934 Act. The Government had frankly and categorically admitted in that matter that "Those who use coercion to secure genuine employment are engaged in a legitimate labor objective; their activities, although perhaps constituting breaches of the peace, do not partake of the nature of extortion(Emphasis supplied.) United States v. Local 807, supra, 315 U.S. at page 522. The real quarrel of Congress with the decision was that the Supreme Court had also held within the exception the situation where the services were tendered in good faith and rejected and the union still required an employer to pay the equivalent of the prevailing union wage. The Government had argued in the 807 litigation that such payment was to be classed as a payment for protection rather than for services and was to be grouped with payments where the unions did not offer to work or actually refused to work. With the above in mind the statement of Congressman Hancock quoted in the majority opinion becomes readily understandable and clearly indicates that what he and the other members of Congress were disturbed about was the always vicious practice of compelling protection payments which had again raised its ugly head.
The Supreme Court in the Local 807 opinion had no occasion to and did not pass upon the problem confronting us, namely, whether, absent the 1934 Act exception, the present situation is to be construed as viola-tive of the federal anti-racketeering statute or specifically, is it a plan or purpose to extort the property of the trucking company. In the 807 decision the Supreme Court of necessity considered, construed and applied the exception to the statute which at that time existed. But there is not the slightest suggestion in the opinion that without the exception the court would have held the present facts within the 1934 federal law. Indeed, carefully reading that decision, the definite impression conveyed is to the contrary.
Admittedly the Hobbs Act is just as exclusionary of legitimate labor objectives as was the 1934 law. See Title II of the Hobbs Act. 60 Stat. 420. The original Act, even without its exception, did not pretend to characterize such an obj ective as the instant one, though accompanied by violence, as attempted extortion. Unquestionably the exception did specifically eliminate from the scope of the 1934 Act the payment of wages by a bona fide employer to a bona fide employee. That provision was inserted in an excess of caution because it was feared that without it serious injury to labor might result. United States v. Local 807, supra, 315 U.S. at page 529, 62 S.Ct. 642, 86 L.Ed. 1004. However, the statute itself was never intended to cover the conceded situation before us for it was aimed directly at “ * * * the elimination of ter-roristic activities by professional gangsters * * United States v. Local 807, supra, 315 U.S. at page 530, 62 S.Ct. at page 646, 86 L.Ed. 1004. The Supreme Court in that same opinion quotes the Senate report on the legislation pending at that time which states its purpose to be “ * * * to close gaps in existing Federal laws and to render more difficult the activities of predatory criminal gangsters of the Kelly and Dillinger types.” 7
We are dealing with a problem peculiar to labor. It is important to have in mind that it arose prior to the Taft-Hartley statute, 29 U.S.C.A. § 141 et seq., where for-the first time Congress imposed sanctions upon unfair labor practices by unions. It arose from a reputable union’s genuine attempt to organize a trucking corporation. The sole purpose of the defendants was to procure work for capable union men. The employment sought was neither spurious nor superfluous. In this instance it was only because the driver of the truck was not a *896member of the union that the question of a union helper arose at all. The Hobbs Act as it stands is obviously a general Federal criminal statute directed to a certain class of crimes known as racketeering. Its history and that of its predecessor show a real need for that type of Federal legislation. Its purpose is clear. Its definition of extortion is free from ambiguity. That definition does not include the bona fide seeking of employment on behalf of a union despite possible violence in connection therewith. That was the effort in this occurrence and that kind of effort was never blackmail, and it is blackmail at which the Hobbs Act is directed. If Congress had finally desired the instant circumstances to be covered it could readily have widened the conditioned impact of the statute. We have no power to do so. The majority opinion designates the sought for unionization of this trucking company as an ex-tortive effort to impose unnecessary services upon that employer. When Congress wished to prevent that sort of coercion in the Lea Act (which has to do with “Coercive practices affecting broadcasting; * * * ”) it carefully so stated, 47 U.S. C.A. § 506(a) (1), (2), (3), (4), and made a violation punishable by imprisonment for not more than one year, Section 506(d). The maximum prison term upon conviction of a Hobbs Act transgression is twenty years. Common sense repels the conclusion that Congress would have a teamster face a possible twenty year prison term for that type of offense which if committed by a musician would result in a sentence of not more than one year. When the musicians union challenged the constitutionality of the section of the Lea Act forbidding the use of force, violence, etc. to coerce a licensee to employ any person in excess of the number of employees needed to perform actual services, the union inter alia argued that the section violated due process “ * * * because it singles out broadcasting employees for regulation while leaving other classes of employees free to engage in the very practices forbidden to radio workers.” United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. If the Hobbs Act is to be construed as interpreted by the majority opinion it is strange to find that the Supreme Court in June 1947 did not make use of what would have been a ready answer to such claim, namely, that Congress, to the limit of its constitutional power over interstáte commerce, had by the Hobbs Act forbidden those practices to all workers. Instead of so replying what the Court did say was, “But it is not within our province to say that because Congress has prohibited some practices within its power to prohibit, it must prohibit all within its power.” Ibid.
The above construction does not mean that the Hobbs Act condones violence just as long as the violence is connected with a legitimate goal. It means rather that under those facts the violence or other misconduct is left to state supervision as it should be. As the Supreme Court said in the Local 807 opinion, 315 U.S. at page 536, 62 S.Ct. at page 648, 86 L.Ed. 1004, “The power of state and local authorities to punish * * * violence is beyond question. It is not diminished or affected by the circumstance that the violence may be the outgrowth of a labor dispute. The use of violence disclosed by this record is plainly subject to the ordinary criminal law.”
I would therefore reverse the judgments of conviction as to both defendants.
While I do not think the Government has made out a case within the Hobbs Act against the defendants, I do think the proofs satisfy the requirement of the Norris-LaGuardia Act with reference to the union’s responsibility for Kemble’s acts and conduct. Under those proofs if a violation of the Hobbs Act had been established the trial court would have been justified in submitting the indictment of the union to the jury. In other words, there was in evidence the needed “clear proof” that the union actually participated in or .authorized what Kemble did and said and what happened under his direction. Section 6 of the Norris-LaGuardia Act, as construed by the Supreme Court in United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973, does not impose practically unrealizable conditions which must be met before a union may be held to liability. The *897majority opinion in that matter, 330 U.S. at page 409, 67 S.Ct. at page 783, 91 L.Ed. 973, was careful to say that, “There is no implication in what we have said that an association or organization in circumstances covered by § 6 must give explicit authority to its officers or agents to violate in a labor controversy the Sherman Act [15 U.S. C.A. §§ 1-7, 15 note] or any other law or to give antecedent approval to any act that its officers may do. * * * And the custom or traditional practice of a particular union can also be a source of actual authorization of an officer to act for and bind the union.” The proof called for by Section 6 need not be the equivalent of a union resolution to violate the Hobbs Act or convincing beyond any doubt.
The evidence below, including justifiable inferences from it, was sufficient to satisfy the ordinary intelligent conscientious juror, of the union’s authorization of and participation in Kemble’s activities during the critical period. Section 6 of the Norris-LaGuardia Act requires no more than that.
. See the evidence of Kemble’s purpose quoted in the majority opinion. In addition, Lafferty testified that “Mr. Kemble wanted him [the truck driver] to go down to the local and get a local man, a helper to unload the truck, * * An KB.I. agent testified that “Kemble said that he told the driver that he could not unload without a union book because it was a closed shop at ROA, * * *. He said that they have a lot of trouble with the Doehler-Jarvis trucks because they were non-union and were trying to unload without union help.”
. The District Attorney, in concluding the opening remarks of Ms summation, said to the jury: “How many of you would get away with it if you went to a truck driver who came, even in to your private place of business, and you threatened to beat Mm up if he didn’t hire somebody you wanted him to liire to unload a truoh?” (Emphasis supplied).
. See S.Rep.No.1440, 73d Congress, Second Session.