tion on the liberty or burden upon the prop erty of individuals. Sanitary regulations are common, including the abolition of slaughter houses and other noxious places, and restrictions upon burial. Protection against fire and danger from explosions, the us of highways and speed of vehicles, the regulation of occupations, buildings, etc., are among the many instances where municipal action is upheld. An ordinance which on its face shows that such end was in contemplation will ordinarily be presumed to be valid. See 21 Am. & Eng. Enc. Law, p. 978, and cases cited; Booth, Street Railways, § 224; Cooley, Const. Lim. 6th ed. p. 241, note; Nellis, Street Surface Roads, 215. Not only will the burden of proof be upon one who attacks its validity, but the discretion of the council will not be interfered with upon light grounds, or where the regulation can fairly be said to tend toward a better and safer condition. being solved daily in the realm of mechanics. Moreover, there is proof that one or more small cars have been equipped and successfully run with them. The validity of an ordinance cannot be made to depend upon what a trial judge, a justice of the peace, or a jury may conclude from the testimony and opinions of such witnesses as may happen to be brought into court in the first case that arises, where, as in this case, its provisions, when viewed in the light of facts, of which the courts may take judicial notice, are reasonabie, and clearly within the discretion of the council, either by virtue of a reserved power resting in contract, or the police power. We do not feel called upon to say much about the claim that this ordinance should be held invalid upon the ground that it will require a large outlay, or that it takes property without due process of law. It is too well settled that the state or city may The ordinance in question punishes the enforce regulations clearly looking to the operation of a car not equipped with air or safety of the public, and reasonably adapted electric brakes. This ordinance is in har- to such end to make it necessary. All propmony with the statute (Comp. Laws, § erty is held subject to the exercise of the 6280), which for many years has required police power. See Carthage v. Frederick, the equipment of steam passenger cars with 122 N. Y. 268, 10 L. R. A. 178, 19 Am. St. air brakes. Before we should say that a Rep. 490, 25 N. E. 480; Atty. Gen. ex rel. similar requirement as to street cars is un- Rich v. Jochim, 99 Mich. 371, 23 L. R. A. reasonable, and therefore invalid, it should 699, 41 Am. St. Rep. 606, 58 N. E. 611. be made to appear clearly, either that there In Cooley, Const. Lim. p. 708, it is said: is no necessity for a more efficient brake than "All contracts and all rights, it is declared, a hand brake upon street cars, or that nei- are subject to this [police] power, and not ther an air nor an electric brake would be only may regulations which affect them be such; and if, as is contended, and apparent- established by the state, but all such reguly conceded, the hand brake is not to be lations must be subject to change from time dispensed with, it would be necessary to to time, as the general well-being of the show that a car equipped with both would community may require, or as the circumnot be safer than with the hand brake alone. stances may change, or as experience may Counsel urge that the uncontradicted evi- demonstrate the necessity." See cases cited dence shows that this ordinance is unrea- in note to last authority. It has been urged sonable. We think not, and, if it might that the proof shows that a light car can be be said that a preponderance of the oral tes- as effectively handled and controlled by hand timony supports that view, we think that as by power brakes, and there is proof to would be insufficient to justify us in nulli- that effect, and also that electric or air fying the ordinance. We may take judicial brakes are less reliable than hand brakes notice that atmospheric or vacuum brakes on such cars. This point is covered by what are in general use on passenger trains, that has been said. If the air brake or electric they are common upon freight cars and brake is more liable to get out of repair, and trains, and that they are rarely ineffective. there is difficulty in stopping the car at a The record shows that they are in use on given point, it is not shown that proper suelectric cars of the larger type, both on sub- pervision would not assure effective brakes urban lines and on city roads. If they at all times, and that the employment of were not, it is patent that they could be; skilled or experienced motormen would not and, while counsel contend that they could overcome the latter difficulty. But, if not, not be applied to small cars, it has not been the evidence as well as common experience satisfactorily proved. It is not improbable shows that a power brake is quicker in its that the exact device used on large cars action, and in emergencies where human life might not be adapted to use on a small one is involved in delay expeditious stopping of (especially where but one set of trucks is a car should not yield to possible inconused) without some modification; but that venience in the matter of stopping places. is not shown to be mechanically difficult, It is also said that the ordinance is inand everyone knows that such problems are valid even if air brakes can be said to be effective, because it does not designate be- | consideration the validity of the ordinance, tween air and electric brakes, which last the question is in no case a question for the are said to be clearly shown to be ineffec- jury; in other words, that it is to be detertive. We think there is no force in this mined as a question of law, and not as a point. It is not to be presumed that any question of fact. One of the strongest cases one will use the latter under such circum- supporting this view is that of Illinois C. stances. Defendant certainly is not required R. Co. v. Whittemore, 43 Ill. 420, 92 Am. to. Dec. 138. In that case it was said: "It was proper to admit testimony, as was done; but either with or without this testimony it The conviction is affirmed. Moore, Carpenter, and Grant, JJ., was for the court to say whether the regulaconcurred. Montgomery, J., concurring: It is the contention of defendant that the ordinance in question is unreasonable, and that for this reason it should not be cnforced. That there is a limitation upon the power of a municipal legislative body, which the courts have the right to enforce, and that an ordinance which is unreasonable in its terms is beyond the power of such legislative body to enact, is well settled. There can be no doubt, either, that where, upon the face of the ordinance, it is shown to be unreasonable, the question which the courts have to determire becomes purely a question of law. But that is not this case. In the present case the contention is that the ordinance is unreasonable, as shown by the testimony of the facts and circumstances; in other words, that, although the court would not be able to say on the face of the ordinance that it is unreasonable, yet, because of the existence of certain facts, which it is claimed the testimony establishes in the case, the court should hold that the ordinance is unreasonable. These facts are not facts of which the court can take judicial notice, but are facts claimed to be proved in the case, and the question is, Who is to determine these facts? It may be conceded that the authorities are not agreed upon the question, and it becomes necessary to look somewhat to the reason of the rule. tion was reasonable, and therefore obligatory upon the passengers. The necessity of holding this to be a question of law, and therefore within the province of the court to settle, is apparent from the consideration that it is only by so holding that fixed and permanent regulations can be established. If this question is to be left to juries, one rule would be applied by them to-day and another to-morrow. In one trial a railway would be held liable, and in another, presenting the same question, not liable. Neither the companies nor passengers would know their rights or their obligations." The reason assigned in this opinion appears to be the one upon which the rule rests so far as it has been adopted, viz., the idea that when, in a particular case, an ordinance is determined to be unreasonable, that determination will control in all future cases that may arise under the ordinance, whether the question arises between the same parties or not. If the reason of the rule fails, the rule should fail. It is certainly anomalous to hold that A may be concluded in a proceeding between B and C., to which A is not a party, when that judgment rests upon a determination by some one of a question of fact. The whole realm of adjudicated cases may be searched in vain for another instance of this character. The very reason upon which the rule rests refutes the rule. So far from its being true that in a proceeding depending upon a question of fact fuThe rule is stated in Dill. Mun. Corp. § ture litigants should be finally concluded, 327, as follows: "Whether an ordinance be the exact reverse is true, and an ordinance reasonable and consistent with the law or which may be declared upon a certain state not is a question for the court, and not the of facts proved to the court or jury to be jury, and evidence to the latter on this sub- invalid in a proceeding dependent between ject is inadmissible. But in determining A and B in which there may be involved a this question the court will have to regard trifling amount, cannot be held to conclude all the circumstances of the particular city C who may have vested rights to the amount or corporation, the objects sought to be at- of thousands or millions of dollars. To iltained, and the necessity which exists for the lustrate: Suppose in an action between ordinance." This statement of the law is third parties it had been determined that strictly accurate if it be limited to cases the original franchise granted to this defendin which the question depends upon facts ant was invalid as wholly unreasonable, can of which the court may take judicial cog- the vested rights of this corporation be said nizance. But there are cases which go fur- to have been devested in a proceeding to ther, and hold that, where the question of which it was not a party? Such a proposi reasonableness depends upon facts, while it tion shocks the sense of justice, and fortumay be competent for the court to take tes-nately we are not without authorities which timony as to these facts, and to take into have a direct bearing upon this question. In the case of State, Pennsylvania R. Co., | judgment depending upon a question of fact Prosecutor, v. Jersey City, 47 N. J. L. 286, has not concluded them? In the case of a proceeding was commenced for the purpose Brooklyn Crosstown R. Co. v. Brooklyn, 37 of having an ordinance of the city declared | Hun. 416, it was said: "The validity of invalid as unreasonable, and it was said: "This proceeding in error seeks the abolition of this ordinance in toto, and, as a whole, it is plainly not open to the imputation of unreasonableness. Its scope is to put upon a proper footing the use of railroad trains within the municipal bounds, and there is no pretense that it presses unduly upon any of such companies, except that it harasses the plaintiff in error in passing its numerous trains across three certain streets near its terminal depot. But, conceding this allegation to be true, that the business of the plaintiff in error at this particular locality is by that ordinance unreasonably embarrassed and burdened, such a vice in the bylaw would not render it generally, but only specially, inefficacious,—that is, the court would not vacate the entire ordinance, but merely refuse to put it in effect in that part of it that was thus unreasonable." And a somewhat analogous question has arisen in the Federal courts. As is well understood, the Federal courts have held that, under the 14th Amendment, a statute of a state regulating freight or passenger charges may, if it be unreasorable in its terms, be held unconstitutional and void in its application to a particular case. But the Federal Supreme Court has held, as we shall see, that the determination of this question in a particular case does not conclude the question for all time as between parties standing in a different relation to the public authorities. This is well illustrated in the case of Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418. That was a case in chancery, and the question of the reasonableness of the statute as applied to the complainant was determined upon a full review of all the facts of the case. It was held that the statute as applied to then conditions was unreasonable. But it is significant that in the very case the court fully approved of the provision in the decree of the circuit court that the defendants, members of the board of transportation, might, "when the circumstances have changed so that the rates fixed in said act of 1893 [Neb. Acts 1893, p. 164, chap. 24] shall yield to the said companies reasonable compensation for the services aforesaid," apply to the court by bill or otherwise, as they may be advised, for a further order in that behalf. If, then, it is possible that, as between the same parties who have litigated the reasonableness of a statute (or ordinance), the question may again be opened as a question of fact, how much more may it be said that, as between strangers to that litigation, the every ordinance or by-law of a corporation ability of the defendant to establish certain facts. This it undertook to do. The case was tried without a jury. The trial judge, however, stood in the position of a jury. He found as a fact that the ordinance was not unreasonable. It was, then, within the province of the defendant's counsel to call for more specific finding of facts. This they failed to do. Doubtless better practice would have been to have had a specific finding upon the particular facts which are claimed to But show the invalidity of the ordinance. the record is not so made up. In my view, unless we are able to say that the testimony all tends in one direction, and that is to show the unreasonableness of the ordinance, the plaintiff in certiorari has not put itself in position to review the decision of the trial judge. As I do not find the testimony all one way, I think the judgment should be affirmed. MINNESOTA SUPREME COURT. W. I. GRAY et al. v. BUILDING TRADES COUNCIL et al., Appts., 2. And Five Other Cases. (........ Minn.........) 1. The granting of a temporary injunction to plaintiff by the trial court, after issue joined, and upon the pleadings and affidavits of both parties, is, for the purpose of reviewing the action of the court, deemed to be, in effect, a finding that the allegations of the complaint upon which the writ is prayed for are true; and, upon appeal from the order granting the writ, this court will review the affidavits only to the extent of determining whether they fairly tend to support the allegations of the complaint. A boycott is a combination of several persons to cause loss or injury to a third person by causing others, against their will, to withdraw from him erty, or character; and a person's business, occupation, or calling is, aside from the chattels or money employed therein, property, within the meaning of the law, and entitled to its protection. 5. Labor organizations or unions are not unlawful, but are legitimate and proper for the advancement of their members and those dependent upon them. The members thereof may singly, or in a body, quit the service of their employer for the purpose of bettering their condition, and may by peaceful means persuade others to join them, and, as a means to that end, may refuse to allow their members to work in places where nonunion labor is employed. But boycotting, as defined above, is an unlawful conspiracy, and may be restrained by injunction. 6. The temporary injunction ordered issued by the trial court in the cases here before the court held to infringe upon the rights of defendants in the respects mentioned in the opinion. (December 24, 1903.) their beneficial business intercourse, through APPEAL by defendants from an order of threats that, unless a compliance with their demands be made, the persons forming the combination will cause loss or injury to him; or an organization formed to exclude a person from business relations with others by persuasion, intimidation, or other acts which tend to violence, and thereby cause him, through fear of resulting injury, to submit to dictation in the management of his affairs. 3. Intimidation, coercion, or threats of injury are essential elements of a boycott, but what would constitute acts of that character must depend upon the facts of each particular case. 4. The Constitution guarantees to every citizen liberty and a certain remedy in the laws for all injuries or wrongs which he may receive in his person, prop Headnotes by BROWN, J. NOTE. For earlier cases in this series on the subject of boycotts or conspiracies by trade unions or strikers, see Casey V. Cincinnati Typographical Union No. 3, 12 L. R. A. 193, and note; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 19 L. R. A. 397; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 19 L. R. A. 387; Waterhouse v. Comer, 19 L. R. A. the District Court for Hennepin County enjoining them from committing acts amounting to a boycott. Modified and affirmed. The facts are stated in the opinion. Mr. Thomas Canty, with Messrs. Herman F. Johnson and Hall & Kolliner, for appellants: There is no allegation, or even suggestion, in the record that defendants have created, or attempted to create, any monopoly, or have violated any statute by confederating together; and, even if they had, an action for an injunction could not be maintained against them therefor by plaintiffs. Pidcock v. Harrington, 64 Fed. 821; Greer v. Stoller, 77 Fed. 1; Gulf, C. & S. F. R. Co. 403; Cœur D'Alene Consol. Min. Co. v. Miners' Union, 19 L. R. A. 382; Lucke v. Clothing Cutters' & T. Assembly No. 7507, K. of L. 19 L. R. A. 408; Macauley Bros. v. Tierney, 37 L. R. A. 455; Beck v. Railway Teamsters' Protective Union, 42 L. R. A. 407; and Marx & Haas Jeans Clothing Co. v. Watson, 56 L. R. A. 951. The clear preponderance of the evidence on the affidavits is in favor of the defendants, and therefore it was error to grant an injunction. Rosenberg v. Burnstein, 60 Minn. 18, 61 N. W. 684; First Nat. Bank v. Randall, 38 Minn. 382, 37 N. W. 799; Blandy v. Raguet, 14 Minn. 243, Gil. 179. v. Miami S. S. Co. 30 C. C. A. 142, 52 U. S. 1388; Davis v. United Portable Hoisting EnApp. 732, 86 Fed. 407; Southern Indiana gineers, 28 App. Div. 396, 51 N. Y. Supp. Exp. Co. v. United States Exp. Co. 88 Fed. 180; Payne v. Western & A. R. Co. 13 Lea, 659, Affirmed in 35 C. C. A. 172, 92 Fed. 507, 49 Am. Rep. 666; Cote v. Murphy, 159 1022. Pa. 421, 23 L. R. A. 135, 39 Am. St. Rep. GC86, 28 Atl. 190; Clemmitt v. Watson, 14 Ind. App. 38, 42 N. E. 367; Delz v. Winfree, 80 Tex. 400, 26 Am. St. Rep. 755, 16 S. W. 111; Robison v. Texas Pine Land Asso. (Tex. Civ. App.) 40 S. W. 843; Graham v. St. Charles Street R. Co. 47 La. Ann. 214, | 27 L. R. A. 416, 49 Am. St. Rep. 366, 16 So. S06; Arthur v. Oakes, 25 L. R. A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 317; Continental Ins. Co. v. Board of Fire Underwriters, 67 Fed. 310; Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 613; Allen v. Flood, 67 L. J. Q. B. N. S. 119 [1898] A. C. 1; Huttly v. Simmons, 67 L. J. Q. B. N. S. 213; Glamorgan Coal Co. v. South Wales Miners' Federation, 71 L. J. K. B. N. S. 1001; Perrault v. Gauthier, 28 Can. S. C. 241; Brewster v. C. Miller's Sons Co. 101 Ky. 368, 38 L. R. A. 505, 41 S. W. 301; Baker v. Metropolitan L. Ins. Co. 23 Ky. L. Rep. 1174, 55 L. R. A. 271, 64 S. W. 913; Baker v. Sun L. Ins. Co. 23 Ky. L. Rep. 1178, 64 S. W. 967. Where the equities of the complaint are fully and positively denied in the answer or the affidavits opposing the motion for an injunction, it is, in all but a few exceptional cases, error to grant the injunction. Pineo v. Heffelfinger, 29 Minn. 183, 12 N. W. 522; Armstrong v. Sanford, 7 Minn. 49, Gil. 34; Moss v. Pettingill, 3 Minn. 217, Gil. 145; Montgomery v. McEwen, 9 Minn. 103, Gil. 93; Knoblauch v. Minneapolis, 56 Minn. | 321, 57 N. W. 928; 10 Enc. Pl. & Pr. 993, 1000, 1001, 1048; Arthur v. Oakes, 25 L. R. A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 328. The men had a right to quit. They have a right to organize and act in concert, through their organization and its officers, in quitting, or threatening to quit, for the purpose of furthering their own interest as an organization. Bohn Mfg. Co. v. Hollis, 54 Minn. 223, sub nom. Bohn Mfg. Co. v. Northwestern Lumbermen's Asso. 21 L. R. A. 337, 40 Am. St. Rep. 319, 55 N. W. 1119; Ertz v. Produce Exchange, 79 Minn. 140, 48 L. R. A. 90, 79 Am. St. Rep. 433, 81 N. W. 737. Parties confederated together may, in furtherance of their own interests, and in managing their own affairs, injure others in many ways. 18 Am. & Eng. Enc. Law, 2d ed. pp. 80, 81, 84, 86-90; 6 Am. & Eng. Enc. Law, 2d ed. pp. 872, 873; Longshore Printing Co. v. Howell, 26 Or. 527, 28 L. R. A. 464, 46 Am. St. Rep. 640, 38 Pac. 547; Macauley Bros. v. Tierney, 19 R. I. 255, 37 L. R. A. 455, 61 Am. St. Rep. 770, 33 Atl. 1; Heywood V. Tillson, 75 Me. 225, 46 Am. Rep. 373; Com. v. Hunt, 4 Met. 134, 38 Am. Dec. 346; Bowen v. Matheson, 14 Allen, 499; Walker v. Cronin, 107 Mass. 555; Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287; Snow v. Wheeler, 113 Mass. 179; National Protective Asso. v. Cumming, 170 N. Y. 315, 58 L. R. A. 135, 88 Am. St. Rep. 648, 63 N. E. 369; Rogers v. Evarts, 17 N. Y. Supp. 264; Wunch v. Shankland, 59 App. Div. 482, 69 N. Y. Supp. 349; Tallman v. Gaillard, 27 Misc. 114, 57 N. Y. Supp. 419; Reform Club of Masons & Plasterers v. Laborers' Union Protective Soc. 29 Misc. 247, 60 N. Y. Supp. It is error to compel the men to work by enjoining them from quitting. 22 Am. & Eng. Enc. Law, p. 1002. The men have a constitutional right to quit. State ex rel. Erickson v. West, 42 Minn. 152, 43 N. W. 845; Civil Rights Cases, 109 U. S. 36, 27 L. ed. 848, 3 Sup. Ct. Rep. 18; Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676; Arthur v. Oakes, 25 L. R. A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 317. An injunction will not issue against strikers to restrain them from leaving the service of an employer, for equity cannot extend by mandatory injunction its jurisdiction to compel the performance of personal service as against either the employer or the employed. Re Clark, 1 Blackf. 122, 12 Am. Dec. 213. Mr. W. E. Hale, with Messrs. Harlan P. Roberts, W. W. Bardwell, and Hale & Montgomery, for respondents: Granting an injunction pendente lite is a matter in the sound discretion of the trial court. Southern P. Co. v. Earl, 27 C. C. A. 185, 48 U. S. App. 716, 82 Fed. 692; Sanitary Reduction Works v. California Reduction Co. 94 Fed. 693; Casey v. Cincinnati Typographical Union No. 3, 12 L. R. A. 193, 45 Fed. 135; Myers v. Duluth Transfer R. Co. 53 Minn. 337, 55 N. W. 140; Gorton v. Forest City, 67 Minn. 36, 69 N. W. 478; McGregor v. Case, 80 Minn. 215, 83 N. W. 140; Jersey |