32 Cal.2d 850, 17685, Hughes v. Superior Court

Docket Nº:17685
Citation:32 Cal.2d 850, 198 P.2d 885
Opinion Judge:[12] Schauer
Party Name:Hughes v. Superior Court
Attorney:[7] Edises, Treuhaft & Condon and Robert L. Condon for Petitioners. [8] Allan Brotsky, Benjamin Dreyfus, J. Bruce Fratis, Cecil F. Poole, Philip Adams, Robert Herman and Herbert Prashker, as Amici Curiae on behalf of Petitioners. [9] Hoey & Hoey and Francis Hoey for Respondent. [10] Edward D. Kei...
Case Date:November 01, 1948
Court:Supreme Court of California
 
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Page 850

32 Cal.2d 850

198 P.2d 885

JOHN HUGHES et al., Petitioners,

v.

SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent

LUCKY STORES, INCORPORATED, Real Party in Interest.

S. F. No. 17685.

Supreme Court of California

Nov. 1, 1948

In Bank.

Page 851

COUNSEL

Edises, Treuhaft &amp Condon and Robert L. Condon for Petitioners. Allan Brotsky, Benjamin Dreyfus, J. Bruce Fratis, Cecil F. Poole, Philip Adams, Robert Herman and Herbert Prashker, as Amici Curiae on behalf of Petitioners. Hoey &amp Hoey and Francis Hoey for Respondent. Edward D. Keil, George A. Connolly, Mitchell T. Neff, Willard S. Johnston and Orrick, Dahlquist, Neff &amp Herrington, as Amici Curiae on behalf of Respondent

OPINION

[198 P.2d 886] SCHAUER, J.

Petitioners through certiorari seek annulment of a judgment of the Superior Court of Contra Costa County by which petitioners were found guilty of contempt of court for wilfully violating a preliminary injunction. The injunction restrained petitioners and certain other individuals, as well as five named unincorporated associations, "from picketing or taking position in front of any of the places of business of Lucky Stores, Incorporated, for the purpose of compelling ... [Lucky Stores, Incorporated, hereinafter termed "Lucky"] to do any of the following acts:

"(1) the selective hiring of negro clerks, such hiring to be based on the proportion of white and negro customers who patronize ... [Lucky's] stores." [*]

We have concluded that, upon the principles enunciated in James v. Marinship Corp. (1944), 25 Cal.2d 721, 745 [160 A.L.R. 900], and Park & Tilford I. Corp. v. International etc. of Teamsters (1946), 27 Cal.2d 599, 607,

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614 [162 A.L.R. 1426], the injunction properly restrained picketing for the purpose described, and that the judgment of contempt should be affirmed.

The controlling issue is whether the sole objective involved--the discriminatory hiring of a fixed proportion of Negro employes regardless of all other considerations--is lawful. Relative to this issue it is to be particularly noted that here the only activity enjoined is "picketing ... for the purpose of compelling ... [Lucky] to ... [engage in] the selective hiring of negro clerks ... based on the proportion of white and negro customers who patronize ... [Lucky's] stores." This is in contrast to the situation which was presented in Park & Tilford I. Corp. v. International etc. of Teamsters (1946), supra, 27 Cal.2d 599, wherein the injunction which had been issued broadly forbade "concerted activities" for any purpose. As stated in that case (p. 614 of 27 Cal.2d), "Since defendants, in connection with their concerted activities, made unlawful demands that plaintiff sign a closed shop contract and coerce its employees to join defendant unions, it was permissible for the trial court to enjoin defendants from making such demands," but (p. 607 of 27 Cal.2d), "The injunction ... was not limited to enjoining such demands but prohibited defendant's concerted activities and thus prevented defendants from exercising their right under the law of this state and of the federal government to engage in such activities for a closed shop." It is also to be borne in mind that the proceeding before us is not an appeal from the order granting an injunction but is a petition for certiorari to annul a contempt adjudication.

Petitioners allege that on June 21, 1947, approximately three weeks after the injunction issued, they picketed in front of Lucky's Canal Store, "which store is located in the City of Richmond, County of Contra Costa, State of California, bearing placards which carried the following legend: 'Lucky Wont Hire Negro Clerks in Proportion to Negro Trade--Dont Patronize' "; that on the same day they were served with a citation to appear before the [198 P.2d 887] superior court on June 23, 1947, and show cause why they should not be adjudged in contempt; that on June 23 they were found guilty of "contempt of the aforesaid preliminary injunction" and received sentence. Petitioners allege further that both on June 21, 1947, and prior to issuance of the injunction petitioners and the other defendants named in the injunction proceedings

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"were picketing to secure a change of employment policy and working condition of Lucky ... by seeking to have Lucky ... hire at its Canal Store ... a number of Negro clerks proportionate to the number of Negro customers of said Canal Store ... A demand for these changes in employment policy was made by your petitioners upon Lucky ... before any picketing was done at the said Canal Store, which demand related to future vacancies and did not ... contemplate the discharge of any of the present personnel of said Canal Store." Each petitioner alleges that he is a member and officer of one of the associations named as defendants in the injunction and that each of such associations has a "substantial number of Negroes as members, in the City of Richmond." It is also alleged that petitioners "individually, and as officers" of the associations "have an interest in promoting the employment by Lucky ... of Negro personnel and in improving the employment possibilities of Negro citizens, particularly of those Negro citizens who are members of the defendant organizations.

"D. The picketing conducted by your petitioners in their individual and representative capacities, and by the defendants ... [named in the injunction] was designed to promote and foster the aforesaid interest in increasing the employment possibilities of Negro citizens.

"E. The City of Richmond, County of Contra Costa, State of California, has a large and growing Negro population in excess of ten thousand persons; unemployment among this Negro population is greatly disproportionate to the unemployment among the white persons in Richmond; traditionally, many industries and occupations are closed to Negroes and will remain closed until the Negro people can make effective their demand to obtain equality of opportunity for employment and to prevent economic discrimination against Negroes.

"F. The picketing ... [at all times] was peaceful and orderly, without force or violence; the pickets did not prevent the customers and employees of Lucky ... in going to and from the said Canal Store; the picketing was unaccompanied by misrepresentation, threats or intimidation of any sort."

Petitioners urge that the preliminary injunction violated their constitutional right of free speech and was therefore in excess of the court's jurisdiction and void. If their position is sound, a judgment holding them guilty of contempt of the injunction will be annulled upon certiorari. (Fortenbury v.

Page 854

Superior Court (1940), 16 Cal.2d 405, 407-409 ; Kreling v. Superior Court (1941), 18 Cal.2d 884 .)

After the alternative writ issued, respondent superior court and Lucky, the real party in interest, joined in filing an answer and return. They admit that the picketing by petitioners was without force or violence, but deny that it "was unaccompanied by misrepresentation." They allege that Lucky's "policy throughout has been to hire employees on their individual merit and capacity" and deny that Lucky has discriminated against the Negro race; certain affidavits in support of this allegation and denial are attached to the answer and return.

Respondent and Lucky contend, among other points, that the picketing here involved, and upon which the judgment of contempt is based, was for the attainment of an unlawful objective, viz.: not to induce Lucky not to discriminate against, but, rather, expressly to compel Lucky to discriminate arbitrarily in favor of, one race as against all others in the hiring of a portion of its clerks; and that therefore the injunction was properly issued and the judgment of contempt should stand. With this position, upon the record here, we must agree.

[198 P.2d 888] It is now established as the law that "the right to picket peacefully and truthfully is one of organized labor's lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech." (McKay v. Retail Auto. S. L. Union No. 1067 (1940), 16 Cal.2d 311, 319 , and cases there cited; see also Magill Bros. v. Bldg. Service etc. Union (1942), 20 Cal.2d 506, 511-512 ; People v. Dail (1943), 22 Cal.2d 642, 651 ; In re Blaney (1947), 30 Cal.2d 643, 647 .) Nevertheless, as emphasized in James v. Marinship Corp. (1944), supra, 25 Cal.2d 721, 728-729 (see also authorities there cited), the state may protect against abuses of the right; "the object of concerted labor activity must be proper and ... must be sought by lawful means, otherwise the persons injured by such activity may obtain damages or injunctive relief." (See also Park & Tilford I. Corp. v. International etc. of Teamsters (1946), supra, 27 Cal.2d 599, 603; Northwestern Pac. R. R. Co. v. Lumber & S.W. Union (1948), 31 Cal.2d 441, 446 .)

In the Marinship case the court was concerned with the "fundamental question ... whether a closed union coupled

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with a closed shop is a legitimate objective of organized labor." (P. 730 of 25 Cal.2d.) We held that a union which holds a closed shop contract or other form of labor monopoly must admit Negroes "to membership under the same terms and conditions applicable to non-Negroes unless the union and the employer refrain from enforcing the closed shop agreement against them." There was not in that case any contention that the number of Negroes admitted to membership in the union or hired by the employer must be proportional, regardless of all other considerations, to the number of Negroes residing in the area or doing business with the employer. The judgment awarding a preliminary injunction which "was clearly...

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