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Injunction. Before Judge Pharr. Fulton Superior Court. January 19, 1954.
DUCKWORTH, Chief Justice.
1. The power to require interstate commerce is vested by the Constitution in the Congress of the United States.
2. While the Interstate Commerce Act gives shippers new rights, existing rights under the State law are therein preserved, and the jurisdiction of State courts is not superseded hereby in cases in which the decision does not invoke the determination of matters calling for the exercise of administrative power and discretion of the Interstate Commerce Commission, or relate to subjects over which exclusive jurisdiction is given to the Federal courts.
3. The uncontested facts in an interlocutory hearing, showing a plain case of discrimination by the common carriers in refusing to give service to the shipper-petitioner as required by Code 18-301 there being no tariff or regulation adopted excusing such refusal--the court erred in denying the prayers for injunctive relief enjoining the carriers from refusing to furnish the services required by law of a common carrier in this State and from operating on the highways of this State until such time as they shall have restored all services to the petitioner which are normally and customarily furnished by common carriers.
4. The evidence was conflicting as to the conspiracy of the members of the union and the carriers or of coercion by the union members, and the court did not abuse its discretion in denying the injunction as to the members of the union.
Beck & Gregg Hardware Company, a corporation in the wholesale hardware business, brought a petition for injunction in two counts against certain named motor common carriers operating in Fulton County, Georgia, and R. C. Cook and M. E. Volrath, individually and as representatives of the members of Truck Drivers & Helpers Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, A. F. of L., alleging a conspiracy between the defendants to discriminate against the petitioner in refusing to provide the normal and customary services required of a common carrier to the petitioner, there being a contract between these carriers to the petitioner, there being a contract between these carriers and the union, whereby the carriers recognize the right of their union employees to refuse to cross a union picket line; and such a picket line being around the petitioner's place of business, these carriers have refused either to deliver or to receive freight of this petitioner, in violation of their duty as common carriers required by law to furnish services without discrimination to the entire public. It is further alleged that the defendant carriers owe a duty to the public not to discriminate in the furnishing of services to the public and the petitioner, that they are discriminating against this petitioner, and that the petitioner is suffering irreparable damage for which it cannot be adequately compensated. The prayers of the petition foe for process, rule nisi, and for injunctive relief enjoining the union members from inducing, persuading, or coercing the carriers, their agents, officers, or employees from refusing to handle the petitioner's freight each carrier from refusing to furnish its services to the petitioner required by law as common carriers; and from the use of the public streets, roads, and highways of this State until such time as they have restored all services to the petitioner which are ordinarily and customarily furnished by common carriers or from discriminating in any manner against the petitioner.
The answer of defendants Cook and Volrath deny, in the main, the allegations of conspiracy, and allege that the petition is without merit and without equity in that the common law and State statutory duties here sought to be applied are in conflict with, in derogation of, in contravention of, and in violation of, the Labor Management Relations Act of 1947 as amended, and are thus null and void as applied in this case. The record fails to disclose the answers, if any, of the carrier defendants.
At the interlocutory hearing, all parties entered into a stipulation of facts, the substance of which is as follows: A picket line of eight employees exists at the hardware company's plants, resulting from an impasse between the union and the petitioner in the negotiation of a contract between the union as bargaining agent for the employees of the petitioner and the petitioner. All employees of the carriers are also members of this union. A contract between the union and the carriers allows the union members to refuse to cross a union picket line, and many of the employees of the defendant carriers have refused and are refusing to cross the picket line, and the defendant carriers will not be able to deliver or pick up freight in the normal course of their business. Each of these carriers furnishes the above service to other persons engaged in the wholesale hardware business. No violence, threats of violence, or other form of intimidation has been used at the petitioner's plant, the picketing being orderly from the beginning of the strike. Each defendant carrier has on file with both the Interstate Commerce Commission and the Public Service Commission of Georgia a tariff, approved by said commissions, a portion of which reads as follows: "Where strikes, picketing, riots or other labor disturbances . . . make it impracticable, unsafe or impossible to render pick-up and/or delivery service, such service will not be given." All the defendant common carriers operate in interstate commerce, some exclusively and some also in intrastate commerce. In addition to the above admitted facts, the pleadings of the parties were admitted in evidence.
After hearing the foregoing evidence and the argument of counsel, the court denied the prayers of the petitioner and dissolved the restraining order, and the exception here is to that judgment.
The power to regulate interstate commerce is vested in the Congress by art. I, sec. VIII, par. III of the Constitution of the United States. Code 1-125 (3). The historical background of this clause of the Constitution attests to the wisdom of thus giving the general Government supreme authority in this field. Pursuant to the foregoing clause of the Constitution, the Congress has enacted the Interstate Commerce Act, and by part II thereof, (49 U. S. C. A., 301, etc.), motor common carriers engaged in moving freight in interstate commerce are placed under the jurisdiction of the Interstate Commerce Commission, which is empowered by that act to regulate the operations of such carriers. But by section 316 (j) (49 U. S. C. A. 316 (j)) of the act, if is provided that "nothing in this section shall be held to extinguish any remedy or right of action not consistent herewith," and, in section 22 of the original act (49 U. S. C. A., 22), it is also provided that "nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute but the provisions of this chapter are in addition to such remedies." Thus the Congress plainly and unmistakably expresses its will and intention that rights of parties arising in interstate commerce transactions nay be protected by the courts of the land, both Federal and State so long as actions in the courts are not inconsistent with the provisions of the act. The act defines a common carrier by motor vehicle as one holding itself out to the general public to engage in transportation by motor vehicle in interstate and foreign commerce of passengers or property for compensation. 49 U. S. C. A., 303 (14). Our own Code, 18-301, imposes upon a common carrier the duty "to receive all goods offered that he is able and accustomed to carry, upon compliance with such reasonable regulations as he may adopt for his own safety and the benefit of the public." To the same effect see Southern Exp. Co. v. R. M. Rose Co., 124 Go. 581 (53 S. E. 185, 5 B. R. A. (NS) 619). Thus the alleged failure of the named motor common carriers to give service to the petitioner shows a failure to perform a duty required by law, and this suit in equity in the State court is brought to compel performance of that duty. Does the court have jurisdiction to grant the relief sought?
It is contended by counsel for the defendant carriers that the complaint falls squarely within the exclusive jurisdiction of the Interstate Commerce Commission or the Georgia Public Service Commission, since the petition prays that the carriers be enjoined from discriminating against the petitioner. Were this a case involving only a question of discrimination in the propagation of a rule of practice, it would seem that, under the decisions of the Supreme Court of the United States, the petitioner would be required to first appeal to the Interstate Commerce Commission or to the Georgia Public Service Commission and obtain a determination by those commissions of whether or not discrimination under the facts involved does actually exist. See Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (27 Sup. Ct. 350, 51 L. ed. 553), Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 215 U. S. 481 (30 Sup. Ct. 164, 54 L. (d. 292), Robinson v. Baltimore & Ohio R. Co., 222 U. S. 506 32 Sup. Ct. 114, 56 L. ed. 288); Mitchell Coal &c. Co. v. Pennsylvania R. Co., 230 U. S. 247 33 Sup. Ct. 916 57 L. ed. 142); Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U. S. 304 33 Sup. Ct. 938, 57 L. ed. 1494); Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 128 (35 Sup. Ct. 484, 59 L. ed. 867); Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., 238 U. S. 456 (35 Sup. 896, 59 L. ed. 1406); Northern Pacific Ry. Co. v. Solum, 247 U. S. 477 (38 Sup. Ct. 550, 62 L. ed. 1221). But from what has been said above and after a careful examination of the above-cited cases, it appears that the Interstate Commerce Act preserves the existing rights and does not supersede the jurisdiction of the State courts where the case does not involve a determination of matters calling for the exercise of administrative power and discretion by the commission or relate to a subject over which the Federal courts have been given exclusive jurisdiction. Louisville & Nashville R. v. Cook Brewing Co., 223 U. S. 70 (32 Sup. Ct. 189, 56 L. ed. 355); Pennslyvania R. Co. v. Puritan Coal Co., 237 U. S. 121 131, supra. Certainly the State commission's powers do not exclude appeals to the courts in cases like this. See Code Ga. 68-6 (Ga. B. 1931, p. 199). The contention of counsel is, therefore, unsound, in that this petition prays that the defendant carriers be enjoined from refusing to perform the duty laid upon them by law, and the petitioner is not seeking to enjoin the continuance of any tariff or to enjoin a rule of practice approved by the commissions because it is discriminatory and unjust.
It is further contended by counsel for the defendants that the petitioner is seeking a mandatory injunction, which under the law cannot be granted. In Merchants' & Miners' Transp. Co. v. Granger & Lewis, 132 Ga. 167 (63 S. E. 700), this court was reviewing an injunctive order similar in character to that sought in the present case, and at page 172 it was said: "The court's order requires the defendant to cease its discriminatory conduct, though compliance therewith may cause the carrier to accord to the plaintiffs their legal rights in the acceptance and carriage of their number in the order of its tender. While under the Code ( 4922 [now Code 55-110]) an injunction will not issue to compel a person to perform an act, yet the court may grant an order the essential feature of which is to restrain, although in yielding obedience to the restraint the defendant may incidentally be compelled to perform some act. Goodrich v. Ga. R. R. & Bkg. Co., 115 Ga. 340 (41 S. E. 659)." See also Ocean S. S. Co. of Savannah v. Savannah &c. Supply Co., 131 Ga. 831 ((33 S. E. 577, 20 L. R. A. (NS) 867, 127 Am. St. R. 265, 15 Ann. Cas. 1044); Westbrook v. Comer, 197 Ga. 433 (6), 443 (29 S. E. 2d 574); and Rinzler v. Folsom, 209 Ga. 549, 553 (74 S. E. 2d 661), and cases cited therein. To enjoin these carriers from discriminating between the petitioner and other shippers, from using the public highways, roads, and streets until the normal and customarily furnished services by them to this petitioner are restored, is not mandatory even though the normal resumption of service to the petitioner will require them to deliver and pick up the petitioner's freight. Any motor common carrier who shall operate on the highways of this State . . . otherwise than is permitted by . . . the laws of this State, may be enjoined by the courts from operating on the highways of . . . this State, at the suit of . . . any individual. Code 68 632. The operation of such carriers over the highways of this State is not an absolute vested right or perpetual franchise over our public roads (Code 68-631, Bass v. Georgia Public Service Commission, 192 Ga. 106, 110, 14 S. E. 2d 740), and while the laws with reference to routes, legislation, indemnity insurance, and other regulatory requirements must be met (Code 68 633), the right of injunction will also apply to a violation of the general laws regarding the duties assumed by the carriers, such as in this case; and such a violation makes a case requiring them to cease and desist from the use of our highways in the carrying on of such private premises as a carrier for hire unless they obey the laws of this State prescribing their duties.
In addition, counsel for the defendant individuals, as representatives of a class as members of a labor union, contend that the relief sought is in conflict with and in violation of the Labor Management Relations Act of 1947 as amended, and, if granted will compel the carriers to interfere with, restrain, and coerce their employees in the exercise of rights guaranteed to them thereunder. We deem it sufficient to state that no labor question is here involved, and while these carriers have voluntarily entered into a contract with their employees whereby they are not required to cross the union's picket lines, we think it sufficient to point out that they cannot escape their responsibility to the public of performing the duties assumed by them as common carriers by any such contract with their employees. For the responsibility of common carriers in this situation, see Haas v. Kansas City &c. R. Co., 81 Ga. 792 (7 S. E. 629); Central R. & Bkg. Co. v. Georgia Fruit Exchange, 91 Ga. 389 (17 S. E. 904).
It follows that, the lower court having jurisdiction under the laws of Georgia to grant the relief prayed for in the petition, and the admitted facts showing a plain case of discrimination by the refusal of the carriers to give the services required of them by law without just cause, the grant of the temporary injunction was demanded, and the court erred in denying the same as to the defendant carriers.
However, the stipulation of facts fails to prove positively the existence of a conspiracy between the union and the carriers or coercion by the union members of the carriers, their agents, officers, or employees into refusing service to this shipper; and the denial by the defendant individuals in their sworn answer, admitted in evidence, as opposed to the sworn petition, also in evidence, results in a conflict, and the court did not abuse its discretion in failing to enjoin the union members as prayed.
Poole, Pearce & Hall, Edwin M. Pearce, Haas, Holland, & Blackshear, Allan Watkins, Paul M. Daniel, R. J. Reynolds, Jr., Bates Block, Moise, Post & Gardner, Alexander E. Wilson, Jr., Robert T. Thompson, Wilson, Branch & Smith, contra.
Smith, Kilpatrick, Cody, Roger & McClatchey, for plaintiff in error.
Saturday May 23 03:25 EDT

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