Colorado State Council of Carpenters v. District Court of Eighth Judicial Dist. In and For Larimer County

• Decision Date: 25 May 1964
• Docket Number: AFL-CI,No. 1340,No. 21207,L,1340,21207
• Parties: , 49 Lab.Cas. P 19,003 COLORADO STATE COUNCIL OF CARPENTERS, United Brotherhood of Carpenters and Joiners of America, LocalL. Eberhardt, and Roy Bergh, Petitioners, v. DISTRICT COURT OF EIGHTH JUDICIAL DISTRICT IN AND FOR the COUNTY OF LARIMER, State of Colorado, Dale E. Shannon, as Judge of said Court, and Van Winkle Construction Company, Respondents.
• Court: Colorado Supreme Court

Page 601

392 P.2d 601

155 Colo. 54, 49 Lab.Cas. P 19,003

COLORADO STATE COUNCIL OF CARPENTERS, United Brotherhood of

Carpenters and Joiners of America, Local No. 1340, AFL-CIO, L. L. Eberhardt, and Roy Bergh, Petitioners, v. DISTRICT COURT OF EIGHTH JUDICIAL DISTRICT IN AND FOR the

COUNTY OF LARIMER, State of Colorado, Dale E.

Shannon, as Judge of said Court, and Van

Winkle Construction Company,

Respondents.

No. 21207.

Supreme Court of Colorado, En Banc.

May 25, 1964.

Rehearing Denied June 15, 1964.

Wayne D. Williams, Howard E. Erickson, Denver, for petitioners.

Wagner & Wyers, Denver, for respondents.

MOORE, Justice.

This is an original proceeding in which the petitioners sought the issuance of a rule directed to the respondents commanding that they show cause why an injunction entered by the respondent district court should not be held null and void for lack of jurisdiction to enter the same. The rule was issued as requested and respondents have filed their answer.

It appears from the documents presented to this Court that the petitioners had made a request of the Van Winkle Construction Company to sign a collective bargaining agreement but that the Company refused; that said Company was performing a construction contract with the City of Fort Collins under which it was obligated to build a water reservoir with a capacity of fifteen million gallons at a cost of approximately $460,000.00; that upon the failure of the Company to sign the tendered contract, petitioners caused pickets to be placed near the entrance to the work project, these pickets displaying placards which stated that the Company 'does not have collective bargaining agreement with Carpenters' Local No. 1340'; and it further appears that Van Winkle Construction Company did not make any application to the National Labor Relations Board in connection with the dispute with petitioners. The Company filed an action in the district court of Larimer County in which it sought an injunction against the aforesaid picketing and further sought damages incurred by the Company, resulting from the events following the picketing of the work project. In the district court action the petitioners questioned the jurisdiction of the court to enter an injunction. The trial court overruled the objections made to its jurisdiction in the premises, and following a hearing entered a preliminary injunction as prayed for by the Company. Thereafter this original proceeding was filed in this Court.

We have read the briefs which have been filed and the cases contained therein. We hold that the district court of Larimer County was without jurisdiction to enter the temporary injunction and that the rule heretofore issued should be and hereby is made absolute. We think it sufficient to say in justification of this decision that the matters in controversy are practically the same as those present in Building Construction Trades Council v. American Builders, Inc., 139 Colo. 236, 337 P.2d 953, in which it was held that the state courts have no jurisdiction to enjoin peaceful picketing in the absence of a showing that the National Labor Relations Board has declined to accept jurisdiction over the controversy. To like effect are two recent decisions of the United States Supreme Court, namely, Local No. 438, Construction and General Laborers' Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963); and Retail Clerks International Association v. Schermerhorn, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179, decided December 2, 1963. From the opinion in the case first above mentioned we quote the following:

'The allegations of the complaint, as well as the findings of the Georgia Supreme Court, made out at least an arguable violation of § 8(b) of the National Labor Relations Act, 29 U.S.C. § 158(b). Consequently, the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay within the exclusive powers of the National Labor Relations Board. Plumbers, etc., of Local No. 298, A. F. of L. [Union] v. Door County, 359 U.S. 354, 359, 79 S.Ct. 844, 847, 3 L.Ed.2d 872 [37 LC 65, 403]; San Diego Bldg. Trades Council, etc., Local 2020 v. Garmon, 359 U.S. 236, 244-245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 [37 LC 65, 367]; Hotel Employees Union, Local No. 255 v. Sax Enterprises, Inc., 358 U.S. 270, 79 S.Ct. 273, 3 L.Ed.2d 289 [36 LC 65, 145]; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 478, 481, 75 S.Ct. 480, 486-488, 99 L.Ed. 546 [27 LC 67, 064]; Garner v. Teamsters, etc., Union No. 776, 346 U.S. 485, 489-491, 74 S.Ct. 161, 165-166, 98 L.Ed. 228 [24 LC 68, 020]. Nor is the jurisdiction of the Georgia courts sustainable, as respondents urge, by reason of the Georgia right-to-work law and by § 14(b) of the National Labor Relations Act, 29 U.S.C. § 164(b). This precise contention has been previously considered and rejected by this Court. Local Union 429, etc., v. Farnsworth & Chambers Co., 353 U.S. 969, 77 S.Ct. 1056, 1 L.Ed.2d 1133 [32 LC 70, 724], reversing 201 Tenn. 329, 299 S.W.2d 8. The Georgia Supreme Court clearly exceeded its power in authorizing the issuance of a temporary injunction,' (83 S.Ct. p. 534).

The rule heretofore issued is made absolute and the temporary injunction by the district court of Larimer County in Civil Action No. 14852 is vacated and held for naught.

HALL, Justice (dissenting).

I dissent.

Procedurally, I find nothing in the Constitution, our rules or decisions which sanctions or warrants the entertaining of this matter as an original proceeding.

Petitioners label the proceeding as:

'ORIGINAL PROCEEDING UNDER RULE 106(4) and RULE 116 IN NATURE OF PROHIBITION.'

In Lucas v. District Court of Pueblo County, 140 Colo. 510, 345 P.2d 1064, this court stated:

'Although the case purports to arise under Rule 106, it is our view that this rule does not apply to original proceedings. * * *'

Rule 116, providing for original proceedings in the Supreme Court, expressly provides:

'* * * Relief in the nature of prohibition will not be granted except in matters of great public importance. The fact that a court has erroneously granted or denied change of venue, or is otherwise proceeding without or in excess of jurisdiction, will not be regarded as sufficient.' (Emphasis supplied.)

Article VI of the Constitution provides:

'Section 2. Appellate jurisdiction.--The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, * * *.'

'Section 3. Original jurisdiction--opinions.--It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same; * * *.'

Petitioners here have not sought any remedial writ. Though they label their petition as 'in the nature of prohibition,' they do not ask that the court, or anyone else, be prohibited from doing anything.

At the time this proceeding was commenced, a temporary injunction had been entered. At the time the hearing was had on the application for a temporary injunction, the court had before it the complaint of the contractor, Van Winkle Construction Company. At that time the petitioners here, defendants there, entered their appearance in that action, they had filed no responsive pleading placing in issue any fact; at that time they suggested to the trial judge that:

'* * * grave doubt existed concerning the jurisdiction of the Court to grant the relief requested in view of the provisions of the National Labor Relations Act * * *.'

They took no other steps questioning the jurisdiction of the court. The plaintiff presented testimony by several witnesses to prove the allegations of its complaint; the defendants offered no testimony.

In this original proceeding the petitioners pay that:

'* * * this Honorable Court * * * direct the respondents to show cause * * * why the * * * injunction should not be held null and void for lack of jurisdiction to enter the same, and, in the absence of such showing, that the said preliminary injunction be so held null and void * * *.'

Petitioners could get no relief through a 'writ of habeas corpus, mandamus, quo warranto, certiorari, injunction,' or 'other original and remedial writs,' or in the nature of prohibition. This court has granted no such relief.

Petitioners in this original proceeding sought review by this court of the proceedings of the trial court. Clearly this court has reviewed the proceedings in the trial court. The respondents have not been ordered to do or refrain from doing anything. This court has issued no writ, no mandate. Without the record before it, it has reviewed the actions of the trial court, found the judgment of the trial court void and erroneous, and adjudicated that:

'* * * the temporary injunction * * * is vacated and held for naught.'

The relief granted is exactly that which would have been granted or denied on review by writ of error.

Counsel for respondents in their answer urge that:

'The record does not justify the granting of this extraordinary remedy for the reasons set forth in the attached memorandum brief.'

In their brief respondents point out that 'where writ of error is available, prohibition is not the proper remedy,' and refer to numerous pronouncements of this court so holding. The majority opinion makes no mention of this contention and, in effect, reviews the judgment of the trial court without benefit of the record and reverses the judgment of the trial court. In so doing, the majority proceed in disregard of numerous pronouncements of this court.

In People ex rel. Ovren v. District Court, 32 Colo. 469, 77 P. 239, it is stated:

'* * * But as to whether the district court had jurisdiction in that action to hear and decide the matters presented by the supplemental complaint is a different, and more important, question, upon the investigation of which we are not inclined at the present time, and in the pending proceeding, to...