Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
[39 NJSuper Page 253] The plaintiff, a local union associated with the Journeymen Barbers, Hairdressers, Cosmetologists and Proprietors' International Union of America (herein called the International), sued in a county district court to
replevy four union shop cards issued to the four defendants. The cards are designed for display in a barber shop as a symbol of union recognition; on the face of each card appear the words "Union Shop" in large letters. The four defendants are employer barbers, each working at the trade in his own shop in Perth Amboy, New Jersey, each of them employing one journeyman barber except that one of them employs three. The court gave judgment for defendants Plaintiff appeals.
Questions are raised as to whether the county district court has jurisdiction over the subject matter of the action. Under our present appellate practice, however, this is a matter of minor concern. If the cause is cognizable, not in that court, but in some other trial court in the State, we nevertheless should endeavor to resolve the substantial questions; however, we then, through our mandate, will direct judgment on our conclusions to be entered in a court which has jurisdiction of the subject matter. R.R. 1:27 D(b).
Putting first things first, we turn to the troublesome substantial questions. Is the plaintiff entitled to the possession of the shop cards? Should the law refuse to aid the plaintiff because of plaintiff's alleged ulterior motives here?
The defendants do not inform us explicitly as to the injury they would suffer if the cards were taken from them. Neither a strike, boycott or picketing is suggested. But obviously the cards bring to defendants' shops a certain amount of patronage from union men and their sympathizers; and the replevin of the cards would impair defendants' livelihood to presumably a substantial extent. However, it does not appear that the return of the cards to the plaintiff would subject defendant to any other injury. We have not overlooked the following provision of the International's constitution (Art. VII, sec. 3):
"When the Union Shop Card is removed from any shop for violation of the laws, rules, regulations and agreements, all members employed therein shall immediately leave the employment of said shop. For failure to comply with the above the member or members will
be subject to suspension and to penalties as provided for in Article XIII of this Constitution."
The parties have not alluded to this provision in their arguments before us. However, there is some suggestion in the testimony that the union is not enforcing it at the present time, and we of course should not on our own initiative assume that the clause will affect the defendant.
We shall look first at the case as plaintiff argues it.
Under agreements, similar in form, heretofore signed by defendants (defendants in their brief admit that all four of them signed up), the defendants each agreed:
"* * * I will comply with all the conditions imposed in the 'Rules Governing Shop Cards' which are printed on the back of said Union Shop Card.
I also agree, that the Union Shop Cards is [sic] now, and shall remain the property of the Journeymen Barbers' International Union of America, and that it is loaned to me only during such time as the conditions imposed are fulfilled by me * * *
I also further agree, on demand, to peaceably allow, without interference on my part or others, any duly appointed representative of the International or Local Union to remove said Union Shop Card from any point of display * * *."
It would seem that each defendant thereby agreed to yield to the plaintiff the possession of the card for any cause. However we need not rest on this inference. Clause (d) of the Rules Governing Shop Cards (to which rules defendants agreed in the sentence first quoted above) confirms the point. The rules appear on the back of the cards as follows:
"The person or persons displaying this card do so in accordance with the rules stated below, and it is agreed, by the person or persons displaying this card, that for any violation of the rules below stated, he or they will give peaceable possession of the same to the local union under whose jurisdiction it ...