Edwards v. Com., 3712

• Citation: 191 Va. 272,60 S.E.2d 916
• Decision Date: 06 September 1950
• Docket Number: No. 3712,3712
• Parties: , 19 Lab.Cas. P 66,075 ROBERT EDWARDS AND WILLIE SAVAGE, JR. v. COMMONWEALTH OF VIRGINIA. Record
• Court: Supreme Court of Virginia

Page 916

60 S.E.2d 916

191 Va. 272, 19 Lab.Cas. P 66,075

ROBERT EDWARDS AND WILLIE SAVAGE, JR. v. COMMONWEALTH OF VIRGINIA.

Record No. 3712.

Supreme Court of Appeals of Virginia

September 6, 1950.

Israel Steingold, Samuel A. Steingold and Maurice Steingold, for the plaintiffs in error.

J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Assistant Attorney General, for the Commonwealth.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Warrants were issued against the defendants, Edwards and Savage, construed as charging them with picketing in violation of an act of the General Assembly approved March 25, 1946, Acts of Assembly, 1946, ch. 229, p. 391; * sec. 4711a, 1946 Cum Supp. to Code, 1942 (Michie); sec. 40-64, Code, 1950.

On their trial in the corporation court they were convicted and fined $25 each. On this writ of error they assert (1) that the said statute violates the First and Fourteenth Amendments of the Constitution of the United States, and (2) that even if the statute is constitutional the evidence fails to show that they violated it. We deal first with the second assignment.

The defendants introduced no evidence but relied on their motion to strike the Commonwealth's evidence, which the trial court certified to be as follows:

Gem theatre, in Norfolk, is located at the intersection of Church street and Olney road, and fronts on Church street about 20 feet. The sidewalk in front of the theatre is approximately six feet wide. When arrested the defendants were patrolling in front of the theatre, one walking in one direction, the other in the opposite direction, at a distance from one to two feet from the building line. Each defendant carried a placard 28 inches by 22 1/2 inches, bearing this inscription:

'Jobs are slow because of Jim Crow Demand Negro Manager at Gem's Jim Crow Show Committee Against Job Discrimination'

The picketing did not interfere with the free use of the sidewalk by pedestrians; the entrances and exits of the theatre were free for ingress and egress, but the back-and-forth movements of the defendants did affect people going in and out of the theatre. Defendants said to the prospective patrons, 'Don't go in there. This theatre is Jim Crow. Stand up for your rights. ' One witness testified that they told the people not to go into the theatre because they did not have a colored manager. Some of the prospective patrons went on into the theatre but some did not go in. The box office receipts dropped 'appreciably' after the picketing began.

The employees of the theatre were not on strike. There was no act of violence and no threat of violence by defendants or any one else. The defendants were not employees of the theatre and had never been employed in that theatre or in the moving picture industry.

The order of conviction merely found the defendants guilty as charged in the warrants, without specifying the section of the act they were found to have violated. Very clearly the evidence does not show any violation of sections 1 or 2. This much is in effect conceded, but the Commonwealth argues that section 3 applies to and forbids the acts done by the defendants, while the defendants assert that the section applies only to picketing while a strike is in progress.

The first section of the act forbids interference by anybody with another's right to work, by the use of violence, threats or insults.

The second section forbids picketing by force or violence, or in such manner as to interfere with free ingress or egress to and from any premises, or with the free use of public ways.

The third section forbids picketing by non-employees. It applies to persons who are non-employees at the time of the picketing, and also to persons who were non-employees at the beginning of any strike. It prohibits any person who was not an employee of the business or industry being picketed immediately prior to the commencement of any strike, from picketing with respect to such strike. It also prohibits any person who is not an employee of the business or industry being picketed from picketing with respect to such business or industry. In other words, this section as written declares it unlawful:

(1) For any person who is not a bona fide employee of the business or industry being picketed to participate in any picketing or any picketing activity with respect to such business or industry; and

(2) For any person who was not, immediately prior to the time of the commencement of any strike, a bona fide employee of the business or industry being picketed to participate in any picketing or any picketing activity with respect to such strike.

We could, of course, add to or rearrange the words of the statute and make its third section apply only when there is a strike; but our function is to interpret the act as written, not to rewrite it. Virginia Ass'n of Ins. Agents v. Commonwealth, 187 Va. 574, 578, 47 S.E. (2d) 401, 404; Lewis v. Commonwealth, 184 Va. 69, 73, 34 S.E. (2d) 389, 390.

So construed, it is clear that the first-named provision of section 3 applies to the defendants under the undisputed facts of this case and makes unlawful the acts and conduct for which they were arrested and convicted.

This conclusion presents for decision the contention of the defendants that the part of the act which makes criminal what they were doing is an illegal restraint upon their right to freedom of speech, guaranteed to them by the Fourteenth Amendment of the Constitution, and is, therefore, invalid. That question is to be determined by reference to the decisions of the Supreme Court of the United States, which has the final say.

In Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.ed. 1093, Thornhill was convicted of a misdemeanor for violating an Alabama statute forbidding any person to loiter about another's premises or place of business for the purpose of influencing others not to have business dealings there, or to picket a place of business for the purpose of interfering with or injuring any lawful business or enterprise there conducted. The court held that the statute was invalid on its face because it violated the freedom of speech secured by the First Amendment against Federal abridgment and by the Fourteenth Amendment against abridgment by the States.

Among other things the court said that particularly where the principle of free discussion is concerned, it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct, and that the statute as applied by the State court left no room for exceptions based on the number of persons engaged in picketing, its peaceful character, the nature of the dispute, or the truthfulness of the things asserted. 'In sum, whatever the means used to publicize the facts of a labor dispute, whether by printed sign, by pamphlet, by word of mouth or otherwise, all such activity without exception is within the inclusive prohibition of the statute so long as it occurs in the vicinity of the scene of the dispute.' 310 U.S. at p. 101, 60 S.Ct. at p. 744.

Answering the argument of the State that the purpose of the statute was to prevent violence and breaches of the peace, which it said were the concomitants of picketing, the court said: 'The power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted. But no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.' 310 U.S. at p. 105, 60 S.Ct. at pp. 745-6.

In Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.ed. 1104, decided the same day as the Thornhill Case, the court held invalid an ordinance of a California county similar to the Alabama statute, on the ground that for the reasons stated in the Thornhill Case, publicizing the facts of a labor dispute in a peaceful way through appropriate means, whether by pamphlet, word of mouth, or banner, was within the liberty of communication secured by the Fourteenth Amendment against State abridgment. 'But the ordinance in question here abridges liberty of discussion under circumstances presenting no clear and present danger of substantive evils within the allowable area of State control.' 310 U.S. at p. 113, 60 S.Ct. at p. 749.

Since those cases the constitutional limitations upon the power and duty of the States to preserve the peace and to protect the privacy, the lives and the property of their residents, have been further defined in a variety of circumstances.

In Milk Wagon Drivers Union, etc. v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.ed. 836, 132 A.L.R. 1200, raising questions affecting the scope of the Thornhill and Carlson Cases, the court upheld an Illinois injunction against acts of picketing, in themselves peaceful but 'enmeshed with contemporaneously violent conduct which is concededly outlawed.' 312 U.S. at p. 292, 61 S.Ct. at p. 554. The court said that such a decree of injunction to prevent continuance and recurrence of flagrant violence 'arising out of a particular controversy and adjusted to it, raises totally different constitutional problems from those that would be presented by an abstract statute with an overhanging and undefined threat to free utterance. To assimilate the two is to deny to the states their historic freedom to deal with controversies through the concreteness of individual litigation rather than through the abstractions of a general law.' 312 U.S. at pp. 292-3, 61 S.Ct. at pp. 554-5.

The court expressly did not qualify the Thornhill and Carlson decisions but reaffirmed them, saying they 'involved statutes baldly forbidding all picketing near an employer's place of business. ...