118 Cal.App.Supp. 761, Cr. A. 632, People v. Armentrout

Docket Nº:Cr. A. 632.
Citation:118 Cal.App.Supp. 761, 1 P.2d 556
Opinion Judge:YANKWICH, Judge pro tem.
Attorney:Thomas P. White, of Los Angeles, for appellants. Charles P. Johnson, City Pros., and Joe Matherly and John L. Bland, Deputies City Pros., all of Los Angeles, for respondent.
Judge Panel:YANKWICH, Judge pro tem., dissenting in part. McLUCAS, P. J., and SHAW, J.
Case Date:July 03, 1931
Court:Superior Court of California

Page 761

118 Cal.App.Supp. 761

1 P.2d 556




Cr. A. 632.

Superior Court of California, Appellate Division, Los Angeles

July 3, 1931

Page 762

Appeal from Municipal Court of Los Angeles; Benjamin Scheinman, Judge.

Thomas W. Armentrout and others were convicted of violation of section 1 of the Los Angeles city anti-picketing ordinance (Ordinance No. 20586 N. S.), and they appeal.


YANKWICH, Judge pro tem., dissenting in part.

[1 P.2d 558] Thomas P. White, of Los Angeles, for appellants.

Charles P. Johnson, City Pros., and Joe Matherly and John L. Bland, Deputies City Pros., all of Los Angeles, for respondent.

Page 763

YANKWICH, Judge pro tem.

In three complaints the five defendants were charged with the violation of two sections

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of what is known as the Los Angeles city " anti-picketing" ordinance. Ordinance No. 20586 N. S. The first count of each of these complaints charged violation of section 1 through the making of loud and unusual noises for the purpose of inducing, influencing, and attempting to induce and influence, persons to refrain from entering the Rialto Theatre at 812 South Broadway, in the city of Los Angeles. Defendants Thomas W. Armentrout, Joseph P. Dufrane, and James Doyle are charged with the commission of the offense on December 3, 1930. No. 19535. In another complaint, Ernest Apac and Joe Hough are charged with the commission of the offense of December 4, 1930. No. 19537. In a third complaint, Joe Hough and James Doyle are charged with the commission of the offense on December 11, 1930. No. 19735. As to the second count, which charged loitering and picketing, the trial court granted a new trial. The defendants were found guilty by a jury, and judgment was pronounced by the court on March 24, 1931. The defendant Armentrout was fined $250, Dufrane was fined $50, the others were fined $25, upon count I of the complaint. As to count II the trial court granted a new trial.

The determination of the sufficiency of the evidence to sustain the conviction requires a discussion of the section 1 of the anti-picketing ordinance under which the prosecution was had. Before doing so, however, it is well to state briefly that the defendant Armentrout was the assistant business manager of the Projectionists' Union, consisting of motion picture machine operators. The union was engaged in a controversy with the proprietor of the Rialto Theatre, who had locked out the members of the union, whom he had previously employed. For several weeks prior to the dates covered by the complaints, newsboys had been stationed by Dufrane, acting as circulation manager, upon the street, at the north and south property line of the theater, to sell copies of the Los Angeles Citizen, a newspaper of general circulation, published by the labor movement in Los Angeles, and to cry the headlines of the newspaper. On November 28, 1930, the editor of the newspaper issued, at the request of T. H. Eckerson, business manager of the union, a special edition of 500 copies, which contained

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all the material published in the regular edition, except that the front page had been changed by printing thereon in large type headlines: " Trade Unionists and their families and friends will need no further information to have them decide that they do not patronize the Rialto Theatre because it is on the unfair list of Organized Labor. By T. H. Eckerson, Business Representative of the Moving Picture Projectionists Union No. 150." The front page also carried a banner line in large type: " Rialto, Broadway are yet on the unfair list." On page 3 of this edition was the article relating to the controversy, which appeared also in the regular edition.

For crying out loud certain words claimed to be the headlines of this special edition, the prosecution was instituted. And it is the contention of the defendants that they were merely selling newspapers, and that, assuming they were making loud and unusual noises in so doing, these were not unusual, but such as are made by newsboys everywhere, and are clearly recognized and legalized by the exception to what it known as the " ballyhoo" or street advertising ordinance of the city of Los Angeles. Ordinance No. 6859 N. S.

In passing upon this contention, it is well to consider the anti-picketing ordinance, in the light of certain rights of laboring men which are recognized by law, and the right of every citizen to speak freely in peace time, without being subjected to legislative or administrative restrictions, not covered by the law of libel, contempt, and/or regulatory measures passed pursuant to the police power. Section 1 of the ordinance reads: " It shall be unlawful for any person, in or upon any public street, alley or public place in the City of Los Angeles, to make any loud or unusual noise, or to speak in a loud or unusual tone or to cry out or proclaim, for the purposes of [1 P.2d 559] inducing or influencing, or attempting to induce or influence, any person to refrain from entering any works or factory or any place of business or employment, or for the purpose of inducing or influencing, or attempting to induce or influence, any person to refrain from purchasing or using any goods, wares, merchandize or other article or articles, or for the purpose of inducing or influencing, or attempting to induce or influence, any person to refrain

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from doing or performing any service or labor in any works, factory, place of business or employment, or for the purpose of intimidating, threatening or coercing any person who is performing, seeking or obtaining service or labor in any works, factory, place of business or employment."

The ordinance has been declared a valid exercise of the police power. Matter of Williams, 158 Cal. 550, 111 P. 1035. Similar ordinances have been upheld elsewhere. Thomas v. Indianapolis, 195 Ind. 440, 145 N.E. 550, 35 A. L. R. 1194; Ex parte Stout, 82 Tex. Cr. R. 183, 198 S.W. 967, L. R. A. 1918C, 277; Watters v. Indianapolis, 191 Ind. 671, 134 N.E. 482. See note, " The boycott as a weapon in industrial dispute, " 16 A. L. R. 230, 27 A. L. R. 651, 6 A. L. R. 909.

In interpreting the ordinance, it is well to bear in mind that courts have recognized the right of workmen engaged in industrial disputes to appeal to others in sympathy with their cause by spreading the news of this dispute. Whatever be the loss the employer may suffer from the social pressure resulting from this appeal, he cannot complain. 16 R. C. L. 457. To make this appeal effective, the working man may, as it has been pithily put in one case, " hire a hall or print a paper." Some expressions of these principles are here given:

" After striking, the employees may engage in a boycott, as that word is here employed. As here employed it means not only the right to the concerted withdrawal of social and business intercourse, but the right by all legitimate means of fair publication, and fair oral or written persuasion, to induce others interested in or sympathetic with their cause, to withdraw their social intercourse and business patronage from the employer. They may go even further than this, and request of another that he withdraw his patronage from the employer, and may use the moral intimidation and coercion of threatening a like boycott against him if he refuse so to do. This last proposition necessarily involves the bringing into a labor dispute between A and B, C, who has no difference with either. It contemplates that C, upon the request of B, and under the moral intimidation lest B boycott him, may thus be constrained to withdraw his patronage from A, with whom he has no controversy. * * * In this respect this court recognizes

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no substantial distinction between the so-called primary and secondary boycott. Each rests upon the right of the union to withdraw its patronage from its employer and to induce by fair means any and all other persons to do the same, and in exercise of those means, as the unions would have the unquestioned right to withhold their patronage from a third person who continued to deal with their employer, so they have the unquestioned right to notify such third person that they will withdraw their patronage if he continues so to deal." Pierce v. Stablemen's Union, 156 Cal. 70, 76, 77, 103 P. 324.

" Labor unions are recognized by the Clayton Act as legal when instituted for mutual help and lawfully carrying out their legitimate objects. They have long been thus recognized by the courts. They were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body in order by this inconvenience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been denied by any court. The strike became a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital. To render this combination at all effective, employees must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all...

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