Page:Harvard Law Review Volume 32.djvu/874

838 838 HARVARD LAW REVIEW a strike by workers in a war industry is a wrong to the state, in that it interferes with the successful conduct of the war. If it is a wrong to the state it may be that a criminal court will punish it, or that the proper executive authorities will prevent it, but a court of equity cannot enjoin it as such, either at the suit of the individual or the state. With the exception above noted equity will enjoin wrongs to individuals only. Therefore, in order to invoke the aid of equity it must be shown that the injury is a tort at law. The court in the principal case declared it to be the established law of New York that "a labor union may induce or persuade the employees of a manufactory or other business, which is conducted by the owners thereof as an open or a nonunion shop, to become members of the union, and to strike in order to compel the owner to conduct his factory or business as a union shop." * The point at which strikes or the inducing of strikes becomes unlawful is imimportant here; it suffices that these acts may be lawful. The legality of strikes, which are intentional injuries to the employer and hence prima facie actionable, is a result of the balancing of the social interests in favor of and against this method of settling industrial ques- tions.^ The question raised by the principal case is whether a sudden increase in the national need for the product of an industry, caused by an emergency such as the war, is a social interest sufficiently powerful to make otherwise lawful strikes imlawful. It would seem that it is not. In the event of a national emergency it is the fimction of the legislature and the executive, not the judiciary, to determine what modifications in normal rights and relations are necessary to meet the exigencies of the situation. Thus it is for the legislature or the executive to decide whether the right to strike of employees in war industries is to remain the same as before the war, whether a patriotic appeal is to be made to workers not to strike, or whether strikes are to be forbidden.® For a coiu-t to enjoin all strikes against an employer for the duration of the war on the ground of national needs is to assume a jurisdiction to decided questions of political policy far beyond the constitutional power of the court. It is no more within the jurisdiction of the court to decide that war has changed the legal right of a worker to strike than that it has changed the legal right of an idler not to work. There may be a social interest in the successful conduct of the war, but there is no social interest in the pursuit of a definite war policy sufficiently strong to make unlawful an act other- wise lawful, when that policy has not been adopted by the proper gov- ernmental authorities.'^ Certainly no court has the power to declare Protective Ass'n v. Cumming, 170 N. Y. 315, 63 N. E. 369 (1902); Auburn Draying Co. V. Wardell, 178 App. Div. 270, 274, 165 N. Y. Supp. 469 (191 7). troductory paragraphs of an article by Dean Roscoe Pound, " Interests of Personality," 28 Harv. L. Rev. 343. the principal case, would depend on its not being contrary to the Thirteenth Amend- ment. See Blewett Lee, "Thirteenth Amendment and the General Railway Strike," 4 Virginia L. Rev. 437. ^ The only indication of the policy of the United States government on this ques- tion, cited by the court, is a pamphlet issued by the National War Labor Board, con-
 * The court cited Bossert v. Dhuy, 221 N. Y. 342, 117 N. E. 582 (1917); National
 * See a note, "Boycotts on Materials," 31 Harv. L. Rev. 482. See, also, the in-
 * The vahdity of such a regulation, and even more the validity of the injunction in