Ex Parte Henry, A-1656.

• Decision Date: 13 October 1948
• Docket Number: No. A-1656.,A-1656.
• Citation: 215 S.W.2d 588
• Parties: Ex parte HENRY et al.
• Court: Texas Supreme Court

215 S.W.2d 588

Ex parte HENRY et al.

No. A-1656.

Supreme Court of Texas.

October 13, 1948.

Rehearing Denied December 31, 1948.

Original habeas corpus proceeding, on the relation of Leo Henry, J. E. Martin, and Kenneth Greer, to secure relators' release from the custody of the Sheriff of Hunt County.

Writ granted.

Mullinax, Wells & Ball and Otto B. Mullinax, all of Dallas, for petitioners.

Allen Clark, of Greenville, and O. B. Fisher, of Paris, for respondents.

BREWSTER, Justice.

This is an original habeas corpus proceeding brought by relators, Leo Henry, J. E. Martin and Kenneth Greer, seeking their release from the custody of the sheriff of Hunt County, respondent.

In January, 1948, a majority of the employees of Greenville Cotton Oil Company went on strike to gain recognition of their union and a contract for fewer work hours and premium pay for overtime. One strike measure was to picket on the public streets adjacent to the company's plant. The pickets carried banners, which bore this statement: "This company is unfair to organized labor. The employees are within their rights but the company refuses to recognize them."

Only Martin and Henry were employees of the company but all relators were members of the striking union.

The oil mill plant occupied two blocks, with Bois D'arc Street on the west and Pickett Street on the south. On those streets were the only entrances to the plant. The main entrance was on Bois D'arc Street and it was used by employees and others having business with the plant. Three railroad spur tracks crossed Pickett Street from the southeast and extended, through the Pickett Street entrance, to the plant, where two of them came to a dead end. This entrance was used also by employees and by trucks.

The picketing in question crossed these spur tracks, and on several occasions as the railroads sought to deliver freight cars to the plant their train crews refused to cross Pickett Street because of the picket line.

In February, 1948, Greenville Cotton Oil Company filed suit against the local union of the American Federation of Grain Processors, A. F. of L., and certain of its members, as well as all other members, as a class, to enjoin the picketing "upon or near" the spur tracks on Pickett Street and to enjoin the defendants from committing any acts which in any manner, by pickets, by threats or by violence, would interfere with the movement of cars into and out of the plant or the performance by the railroads of their duty to the plant as common carriers.

In substance, the company alleged that since there was no labor dispute between the defendants and any railroad using the spur tracks, the picketing of the tracks prevented the free flow of commerce into and from the plant by inducing the railway employees to engage in concerted refusal to serve the plant and constituted a "secondary boycott and secondary picketing of plaintiff's plant in violation of the Antitrust laws of Texas and in violation of Article 5154, R.C.S. of Texas [Vernon's Ann. Civ.St. art. 5154]."

The defendants attacked the jurisdiction of the trial court on the ground that the matters complained of are exclusively regulated by the Federal Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq., hence are subject to injunction only by federal courts. Then they excepted to the petition because the acts complained of "constitute the peaceful exercise of the rights of free speech, free communications and assembly guaranteed by the First and Fourteenth Amendments to the Constitution of the United States, * * * which cannot therefore be * * * impaired by denying to defendants in a dispute with an employer the right to communicate their views by peacefully picketing the establishment of plaintiff in order to enlist public opinion in their behalf." Affirmatively answering, they alleged a bona fide labor dispute between them and the plaintiff and a peaceful picketing, in the course of that dispute, of plaintiff's plant "by marching in the public street, * * * carrying banners advising the public of said dispute"; they denied that they had attempted to picket the railroad tracks or "any other property than that property on which plaintiff's mill is located"; they denied that they were interfering with the free flow of commerce or the transportation of commodities other than by peaceful picketing with truthful banners on public streets; they denied use of any threats, violence or physical force; and they alleged that their picketing constituted no physical obstruction to ingress or egress from the plant.

After a hearing the trial court granted a temporary injunction. The defendants, as a class, were forbidden to molest or interfere with railway employees on or in the vicinity of the tracks at or near plaintiff's plant whenever those employees were attempting to carry freight into or out of the plant; to picket at or near the railway tracks serving the plant in such manner as to prevent the railway employees from serving the plant; or to picket on, across, at or near or within 100 feet of the railroad tracks across Pickett Street while the railways were using or about to use them to transport freight into or out of the plant. There are other directions and recitals in the injunction order but they are not relevant to any issue at bar.

Three days later an affidavit was filed by the cotton oil company alleging that Relator Greer had violated the injunction by placing himself "upon and near" the spur track leading into the plant "with a picket placard by walking to and fro across said track carrying said placard and thereby interfered with and prevented the movement" of a box car into the plant and had "refused to move away from said track and to withdraw himself 100 feet therefrom but maintained and continued to maintain a picket line on and across the track thereby preventing and interfering with the spotting of said loaded car" by the train crew. It alleged that Relators Martin and Henry had "placed themselves at and near said railroad track, established a picket line on and across said track, refused to withdraw themselves and the picket line established by them 100 feet from said track, and refused to allow" the railroad employees to move certain cars into the plant.

Answering the affidavit, the defendants invoked the same constitutional provisions as in their answer to the injunction suit and denied that they had violated the injunction "except that some of them by oral statements and peaceful picketing on Pickett Street (which is the southern boundary of the plant of Greenville Cotton Oil Company, and is a public street) have advised the public that employees of Greenville Cotton Oil Company are on a strike." They alleged that their picketing was unattended by any character of interference with any railroad and constituted "no physical obstruction to ingress or egress" from the plant.

In adjudging relators guilty of contempt, the trial court found that they had violated the injunction "by interfering with trains of the railway companies entering the premises of Greenville Cotton Oil Company" and committed them to custody until they should purge themslves by assuring the court that "they will not hereafter in any manner again violate the injunction."

By this proceeding relators seek release from that restraint. They insist that the contempt order is void because the court has no authority to restrain them from peaceful picketing, and that the injunction itself is void, under the facts proved in the contempt proceeding, because it denies and abridges their rights of free speech and assembly guaranteed by the First and Fourteenth Amendments.

We have studied the testimony offered at the contempt hearing and which the trial court considered sufficient to show that relators had violated the injunction by "interfering" with railway trains entering the plant; and we find that the main question for decision is narrow.

On the night of March 8, 1948, Greer and an unidentified person were picketing the Pickett Street entrance when a train of the Cotton Belt Railway endeavored to spot a box car at the plant. This picketing was done by walking back and forth along the middle of the street across all three of the switch tracks. As the train approached to spot the box car, Greer walked from west to east across all three tracks, in view of the train crew, carrying a banner, which read: "We are on strike at the Greenville Cotton Oil Company. We are picketing only this plant. We urge the public not to serve and cooperate with this company — we urge the public not to serve or patronize this company"; then he turned and began walking back from east to west.

When they saw this, the crew stopped the train. Whereupon one Hazlewood, railway division superintendent, who was helping in the effort to spot the car, asked Greer "if he wasn't violating the law," to which Greer replied that he "didn't think so." Hazlewood asked, "Didn't the injunction tell you not to come within one hundred feet of the tracks?" to which Greer replied, "This is a public street." Then one Rickard, agent for the railroad, said, "Greer, it was my understanding from Mr. Bringle (a member of the striking union) that Mr. Cox (another member) had placed a can west of the tracks one hundred feet and had instructed the pickets not to go beyond that can, is that right?" When Greer replied that he didn't know, Rickard asked, "Where is Bringle?" Greer said, "He is out there in the car." Rickard responded, "Let's go talk to him." Then Rickard and Greer went to an automobile parked on Pickett Street but beyond Bois D'arc Street and a full block from the railway tracks where Greer had been picketing. In it sat Bringle and five other members and officers of the union. According to Rickard, he then had this conversation with them: "I said, `Bringle are you there' and he said, `Yes.' I said, `Well, do you boys intend to establish and maintain a picket line...