Moorev.Cooks Etc. Union No. 402

Court of Appeal of California, Second District, Division TwoJan 30, 1919
39 Cal.App. 538 (Cal. Ct. App. 1919)
39 Cal.App. 538179 P. 417

Civ. No. 2064.

January 30, 1919.

APPEAL from a judgment of the Superior Court of San Diego County. W. A. Sloane, Judge. Affirmed.

The facts are stated in the opinion of the court.

Henning McGee for Appellants.

Hoff Chatterson for Respondents.


This is an appeal from a judgment of the superior court of San Diego County to enjoin the defendants from picketing the place of business of the plaintiffs. There is no question as to the facts of the case. The appeal is upon the judgment-roll alone. The matter comes to this court squarely upon the law.

It was admitted by the defendants upon the trial, and the court found, that the defendant unions established a picket of plaintiffs' business and maintained a picket patrol in front of their restaurant from the twenty-fifth day of February, 1915, until the service of the restraining order in this case on December 7, 1915. The picketing, as the court found, was, in the language of the findings, as follows: "That the said defendant unions did thereupon establish a boycott of the plaintiffs' business, and place a picket patrol in front of plaintiffs' said place of business on or about the twenty-fifth day of February, 1915, during certain hours of each day, until the service of the restraining order in this action, to wit, on December 7, 1915. That said picket, from the twenty-fifth day of February, 1915, until early in October, 1915, wore a badge consisting of a white ribbon with the word 'Picket' printed in large black letters, and after said . . . day of October, the letters were discarded and the badge consisted simply of a plain white ribbon pinned upon her clothing at or near her shoulder and running across her breast; and that at all time said picketing was maintained under conditions of publicity and public notoriety calculated and intended to give notice and did give notice to persons passing said place of business or intending to patronize the same, that said place of business was under boycott, and that its patronage was opposed by organized labor. That there was but one picket at a time, and the patrol was changed twice, the second picket being a man during one day, and the other two pickets being women. That said picket patrol was maintained practically continuously from the said twenty-fifth day of February until the seventh day of December, there being an interruption of but two or three days during that time, and was maintained at the noon hours between 11 and 2 o'clock in the day, and between 5 and 7 in the evening, which were the hours of the day when the greatest number of meals were served by the plaintiffs to their customers."

Ours is not a government of liberty under license, but under law. We have the right to do as we please only so long and so far as our so doing does not interfere with the rights of others. When we level up the ravines of low impulses, humble the mountains of pride, straighten the crooked places of deceit, and smooth the rough places of anger and malice and all uncharitableness, it will become so obvious that the conceded acts of defendants were an illegal interference of plaintiffs' rights, that it needs no argument to convince any God fearing, liberty loving, home defending, and humanity helping individual in this enlightened day of that fact. Such conduct, as disclosed by the record here, we think not only constituted an illegal interference with plaintiffs' rights, but became, and was, as to them, a private nuisance.

The fact that the purpose for which the defendants maintained pickets, as was done here, viz., to induce plaintiffs to unionize said restaurant by compelling the women employees to pay their dues to said union, and to discharge the nonunion cook and employ a union cook in his place, does not justify maintaining a patrol in front of plaintiffs' premises as a means of carrying out their scheme, which is nothing short of a conspiracy — as the court found the fact in the case at bar to be. The admitted facts in the case, we think, disclose "a combination to do injurious acts expressly directed to another by way of intimidation or constraint, either of himself or of persons employed or seeking to be employed by him," and "is outside of an allowable combination, and is unlawful ( Vegelahn v. Guntner, 167 Mass. 92, [57 Am. St. Rep. 443, 35 L. R. A. 722, 44 N.E. 1077]), and against such "the law will protect the victim and punish the movers of any such combination." ( Crump v. Commonwealth, 84 Va. 927, [10 Am. St. Rep. 895, 6 S.E. 620].) We yield to no court or individual in claiming for and defending to the utmost all the legal rights of trades unions and organized labor generally, but "there is no sanctity in any of these that elevates them above the law, or which confers upon them, or any of them, rights not enjoyed by any other individual or association." ( Pierce v. Stablemen's Union, 156 Cal. 70, [ 103 P. 324].) Justice is not, and cannot be, justice if weighed in unequal balances. The test is not how members of the union act toward one another, but rather, how do they act toward the nonunion man.

Peaceful picketing! There is no such thing, if the term is intended to apply to the facts as they are shown to be by the record in the case at bar. We are in full accord with the doctrine enunciated in the case of Atchison etc. Ry. Co. v. Gee, 139 Fed. 582, where it is held that "there is, and can be, no such thing as peaceful picketing, any more than there can be chaste vulgarity, or peaceful mobbing, or lawful lynching." After an exhaustive examination of the decisions of this and other jurisdictions, we are of the opinion that the doctrine laid down by the appellate tribunals of this state is supported by the weight of authority throughout the union, but, regardless of that fact, the point involved in this case has been so often decided, and that adversely to the contentions of appellants here — as is evidenced by the following decisions: Goldberg-Bowen Co. v. Stablemen's Union, 149 Cal. 429, [117 Am. St. Rep. 145, 9 Ann. Cas. 1219, 8 L. R. A. (N. S.) 460, 86 P. 806]; Parkinson v. Building Trades Council, 154 Cal. 581, [21 L. R. A. (N. S.) 550, 98 P. 1027]; Pearce v. Stablemen's Union, supra; Berger v. Superior Court, 175 Cal. 719, [ 167 P. 143] — that it would be useless to cite further authorities. In the Berger case the supreme court supported the same doctrine, but refused to support the conclusion of the trial court adjudging the petitioner therein guilty of contempt, when the record did not disclose anywhere "that the person charged is one of the persons or classes enjoined, or acting as the agent or servant of, or in combination with them, but only that he had actual knowledge of the terms of the injunction by reason of the service of a copy thereof upon him." That this is a correct statement of the law we think is not debatable.

The court further found "That during the time of said picketing the said pickets patrolled the sidewalk in front of the plaintiffs' place of business the entire width of the restaurant, and near the outer edge of the said sidewalk," and as a conclusion of law held that "the picketing of the plaintiffs' place of business, with instructions to walk up and down the pavement in front thereof, and the patrol of said picket in accordance with said instructions upon the sidewalk in front of plaintiffs' place of business, was and is unlawful, illegal and a trespass and illegal injury to the property rights of the plaintiffs, and were an illegal restraint of trade."

From what has been said here, it follows that, as appellants contend, "the only question involved in the present appeal is the right of organized labor to maintain a 'peaceful picketing' in front of plaintiffs' place of business, so that all members and friends of labor unions may know that plaintiffs are operating their business in a manner that organized labor believe to be 'unfair.' " The entire contention of defendants here is that they have a legal right so to do. We are convinced, from an examination of the record presented to us, that under the law they have no such right, and that the court acted within its jurisdiction in granting the injunction herein.

Judgment affirmed.

Finlayson, P. J., and Sloane, J., concurred.