27 Cal.App.2d 293, 511, In re Lyons

Docket Nº:511
Citation:27 Cal.App.2d 293, 81 P.2d 190
Party Name:In re Lyons
Case Date:June 24, 1938
Court:California Court of Appeals

Page 293

27 Cal.App.2d 293

81 P.2d 190

In the Matter of the Application of FRANK LYONS, for a Writ of Habeas Corpus.

Crim. No. 511.

California Court of Appeal, Fourth District

June 24, 1938


W. C. Dorris and R. W. Henderson for Petitioner. Victor H. Parry for Respondent



Frank Lyons filed his petition in this court seeking release from confinement under an order finding him guilty of contempt of court and committing him to jail for a period of five days.

Clyde W. Rowlinson and Wayne Odom were copartners in a grocery store and vegetable market in or near the city of Bakersfield in Kern County, California. They conducted their business under the name "Riverview Drive In Market".

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They operated their store themselves except with the help of one occasional employee who worked about thirty hours a week. They rented space in their market to Bernard A. Daly and John F. Daly who conducted a retail meat market without the aid of any employees.

The Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 193, is an unincorporated association known as a labor union, as is the Retail Clerks' International Protective Association, Local No. 137. G. Harold Woodard is secretary of the Butchers Local, and Wm. H. Bailey is the business Agent of the Retail Clerks Local.

Neither Rowlinson and Odom nor Daly and Daly had any agreement with organized labor. They had no dispute nor difference with organized labor concerning wages, hours or conditions of employment, unionization of employees, employing nonunion labor or any other matter that usually gives rise to labor troubles or differences. The only controversy was over the closing of their places of business on Sunday. In this respect this case is unique in American Jurisprudence in so far as we are advised by counsel or can ourselves ascertain. We have found no case where a retail business establishment was picketed by a labor union representative to force Sunday closing.

Rowlinson and Odom and Daly and Daly kept their places of business open seven days a week. In January, 1938, they were approached by Woodard and Bailey as representatives of the two labor unions who requested them to close their places of business and to sign a contract to keep them closed from 12 o'clock midnight on each Saturday night to 12 midnight on each Sunday night. The shopkeepers refused to sign the agreement but did keep their places of business closed for four consecutive Sundays to test the practicability of such Sunday closing. They opened their shops for business at about 7:30 o'clock on the morning of Sunday, February 27, 1938. At about 10 o'clock a picket, or pickets, appeared bearing placards upon which appeared the words, "Unfair", "Unfair to Organized Labor", and "Unfair to Organized Labor, Local # 193". On and after March 3, 1938, pickets daily paced back and forth on the sidewalk bearing similar placards. There is no showing that the pickets did or said anything to anybody other than to silently bear the placards. They did not attempt to otherwise interfere with the shopkeepers,

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their businesses or customers or with anyone entering or leaving the premises. We are not informed of the number of persons engaged in the picketing except from the use of the plural, "pickets". Whether this is intended to mean more than one picket acting at the same time, or a relay of one picket following another on the same day, we do not know. It at least appears that on April 5, 1938, petitioner Frank Lyons was picketing alone.

On March 18, 1938, the shopkeepers filed an action in the Superior Court of Kern County seeking to enjoin the two unions, their officers, agents, employees and members (sued as John Does and Richard Roes) from continuing the picketing and to recover $607.50 actual, and $10,000 punitive damages. It is alleged that the grocery and vegetable business fell off $150 per week and the meat business $52.50 per week as a result of the picketing.

An order to show cause was issued and on April 2, 1938, a temporary restraining order was made restraining the picketing. As we have observed, petitioner was picketing on April 5, 1938. The restraining order was served on him. He refused to desist, was cited for contempt of court, found guilty of contempt and sentenced to confinement in the county jail for five days. This proceeding followed. There is no intimation that his action caused any disturbance or that he did anything other than what is known as "peaceful picketing".

There appear to be no Sunday closing or antipicketing ordinances in either Kern County or in the city of Bakersfield. There is no Sunday closing or antipicketing statute of the state of California applicable to the parties to this controversy. This case is simply one in which a group of citizens attempted to force the shopkeepers to close their places of business on Sundays. That the group composed the membership of two labor unions is unimportant. Union members have no greater right to attempt to force a place of business to close on Sunday than has any other group of citizens and at the same time no less right. We must measure the rights of the respective parties to the Sunday closing controversy by general principles, and in so far as the cases dealing with picketing in labor disputes announce those general principles, they are applicable here.

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The plaintiffs in the injunction action base their hopes of success on those provisions of the federal and state Constitutions granting to every citizen the right to acquire, possess and enjoy property, and guaranteeing to him the equal protection of the laws of the land. (Amendments V and XIV to the U.S. Const.; secs. 1, 13 and 21, art. I, California Const.) Petitioner bases his right, to peacefully picket, on the provisions of the First and Fourteenth Amendments to the Federal Constitution and on section 9 of article I of the state Constitution which guarantee the unrestricted right of free speech. Thus we have here a recurrence, in a somewhat novel form, of that struggle between property rights and personal rights which has occupied the attention of the courts of the land since the organization of the Republic. The courts have always been zealous to protect the rights of persons to acquire, own and enjoy property. They have been more zealous, if possible, to protect the personal right of free speech, and perhaps justly so, for free discussion contains the germ of progress which keeps flowing the blood stream of the Republic.

The rules governing these two rights are summarized in American Jurisprudence, pages 1108, 1109, 1117, as follows:

"The people have protected not only their persons from unreasonable treatment by governmental authority by virtue of the Bill of Rights, but also their property. By virtue of the Fifth Amendment to the Federal Constitution and the provisions of the various state Constitutions, it was early provided that the Federal, state, and local governments could not take private property for public use without just compensation. This power is further governed as to both the Federal and state authority by the provisions of the Fifth and Fourteenth Amendments to the United States Constitution, as well as the provisions of the various state Constitutions, that no person shall be deprived of his property without due process of law. ...

"The Constitution of the United States and the Bill of Rights of many of the states contain prohibitions against the enactment of laws which would abridge the freedom of speech or of the press. ... By virtue of later decisions of the Supreme Court, the rule has become firmly settled that the right of freedom of speech and of the press, which is protected by the First Amendment from abridgement by

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Congress, is among the fundamental rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the states. ...

"Not only is the freedom of speech and of the press protected from infringement by the legislative department, but it is also safeguarded from judicial abridgement. An essential element of the liberty of the press is its freedom from all censorship over what shall be published and exemption from control, in advance, as to what shall appear in print. Consequently, it has been asserted that the right of freedom of speech and the press cannot coexist with the idea of preventing such freedom of speech or of the press by injunction. Thus, the right to boycott has been asserted under the constitutional guaranty of freedom of speech and of the press, and an instance is given where the authority to enjoin persons from exercising freedom of speech peaceably in assistance of a boycott has been vigorously denied." (See, Parkinson Co. v. Building Trades Council, 154 Cal. 581 [16 Ann. Cas. 1165, 21 L.R.A. (N. S.) 550]; Dailey v. Superior Court, 112 Cal. 94 [53 Am.St.Rep. 160, 32 L.R.A. 273].)

The cause of the plaintiffs in the injunction case must of necessity rest on the following reasoning: There is no law or ordinance prohibiting them from keeping their places of business open on Sunday. It was therefore their legal right to do so. In so doing they were entitled to the free use of their own property and the uninterrupted trade of their customers. The good will of their business was a part of their property which they were entitled to enjoy (secs. 992, 993, Civ. Code) and which is protected by constitutional guaranties. Good will has been defined "to be the advantage or benefit which is acquired by an establishment beyond the mere value of the capital stock, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances, or...

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