In re Application of Moore

• Decision Date: 11 January 1924
• Parties: In the Matter of the Application of RICHARD MOORE for a Writ of Habeas Corpus
• Court: Idaho Supreme Court

224 P. 662

38 Idaho 506

In the Matter of the Application of RICHARD MOORE for a Writ of Habeas Corpus

Supreme Court of Idaho

January 11, 1924

CRIMINAL SYNDICALISM-SABOTAGE-STRIKING ON THE JOB-STATUTES-CRIMINAL OFFENSE-LEGISLATIVE INTENT.

1. Held, that by the use of the word "sabotage" in the criminal syndicalism law, the legislature of this state did not include striking on the job.

2. An act cannot be held criminal under a statute unless it clearly appears from the language used that the legislature so intended.

Petition for writ of habeas corpus. Petitioner discharged.

Petitioner discharged.

William Healy, for Petitioner.

The term "sabotage" as used in the Idaho criminal syndicalism law is restricted to such meaning or meanings only as constitute unlawful acts, viz., damage or destruction of property. The rule "noscitur a sociis" requires such construction. (State v. Aspelin, 118 Wash 331, 203 P. 964; State v. Tonn, 195 Iowa 94, 191 N.W. 530; State v. Dingman, 37 Idaho 253, 219 P 760.)

Every statutory definition of "sabotage" of other states limits its meaning to damage or destruction of property. ( State v. Dingman, 37 Idaho 253, 219 P. 760; California, Henning Gen. Laws, p. 3281, sec. 1; Washington Sess. Laws 1919, chap. 173, sec. 1; Oregon, Laws 1919, chap. 12, codified as sec. 2025; Utah Laws 1919, chap. 127, sec. 2; Montana, Laws Sp. Sess. 1918, chap. 7, sec. 2 (codified sec. 10741, R. C. 1921); Minnesota, Laws 1917, chap. 215, sec. 1; South Dakota, Laws 1918, chap. 38, codified as sec. 3647, R. C. 1919; Kansas, Sp. Sess. 1920, chap. 37, sec. 21.) Judicial definitions are to the same effect. (State v. Tonn, 195 Iowa 94, 191 N.W. 530; State v. Moilen, 140 Minn. 112, 1 A. L. R. 331, 167 N.W. 345.)

An interpretation of the word "sabotage" to mean something noncriminal and nonviolent, e. g., slowing down of work, would render the statute violative of both state and federal constitutions. (State v. Gabriel, 95 N.J.L. 337, 112 A. 611; State v. Tachin, 92 N.J.L. 269, 106 A. 145; State v. Diamond, 27 N.M. 477, 20 A. L. R. 1527, 202 P. 988; Fox v. Washington, 236 U.S. 270, 35 S.Ct. 383, 59 L.Ed. 573.)

A. H. Conner, Attorney General, and Herman H. Taylor, for Sheriff Wm. F. Dunning.

The term "sabotage," as used in the Idaho law, is not restricted to such meaning or meanings as constitute unlawful acts, viz., damage or destruction to property. The rule "noscitur a sociis" does not require such construction. (Brown v. Chicago-Northwestern, R. Co., 102 Wis. 137, 44 L. R. A. 579, at 587; People v. Gitlow, 195 A.D. 773, 187 N.Y.S. 783.)

Neither statutory nor judicial definitions require such construction except those statutes wherein sabotage is limited, as in Minnesota, California and Oregon, or other states where the term is defined as such as "malicious damage or injury to the property of an employer," or the damage injury or destruction of real or personal property.

"If it is within the power of the legislature to declare that a given act when done constitutes a crime, then it is likewise within the power of the legislature to declare that to advocate the doing of such act is a crime." (State v. Laundy, 103 Ore. 443, 204 P. 958, 206 P. 290; Fox v. Washington, 236 U.S. 270, 35 S.Ct. 383, 59 L.Ed. 573.)

In State v. Dingman this court has adopted and approved definitions of sabotage, which include slowing down on the job, withdrawal of efficiency, loitering at work, retarding production, and the like. That case is decisive of the issues raised herein.

DUNN, J. William A. Lee and Wm. E. Lee, JJ., concur. BUDGE, J., McCarthy, C. J., Dissenting.

OPINION

DUNN, J.

Petitioner was charged with criminal syndicalism, and after a preliminary examination was held to answer to the district court of Bonner county. His application for a writ of habeas corpus is based on the claim that he was committed without reasonable or probable cause.

The statute under which petitioner is being prosecuted is as follows:

"Criminal syndicalism is the doctrine which advocates crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform. The advocacy of such doctrine, whether by word of mouth or writing, is a felony punishable as in this chapter otherwise provided." (C. S., sec. 8580.)

"Any person who: . . . .

"4. Organizes or helps to organize or attempts to organize or becomes a member of or who, being a member thereof, continues or retains such membership or voluntarily assembles with any society, group or assemblage of persons formed to teach or advocate, or which does teach or advocate, the doctrine of criminal syndicalism;

"Is guilty of a felony and punishable by imprisonment in the state prison for not more than 10 years or by a fine of not more than $ 5,000, or both." (C. S., sec. 8581.)

It is stipulated by the state and the petitioner that the evidence taken at the preliminary examination shows him to be a member of the I. W. W., and that the evidence on which the state relies to prove that the organization teaches the doctrine of criminal syndicalism consists of three exhibits attached to the petition, two being copies of minutes of Picket Camp, and the third a leaflet entitled "Three Kinds of Strikes." The latter is the one exhibit of importance in this case, and of this the material portion is that relating to "the strike on the job." This leaflet reads as follows:

"Three Kinds of Strikes.

"The only purpose, or object, that a real union of lumberjacks can have is to serve to better the life conditions of the members of the union. The strike, as labor history fully proves, is the only method a union has to gain more wages, shorter hours and improved conditions.

"If the workers of the lumber industry are organized into the I W. W., and organized 100% on the job, the necessity of striking would cease as the bosses would grant the demands made rather than foot the bill for a strike, they would most evidently be bound to lose, provided of course, that the workers had sufficient control of the unemployed.

"The lumber workers, although strongly organized in the Northwest, do not control all of the unemployed and are not organized 100% on the job in the entire lumber industry of the country. So the strike must be relied on to establish something like decent conditions in the lumber camps of the Northwest, and elsewhere. As we examine into the matter of strikes, we see that there are three well defined methods of striking, each method being adapted to certain conditions that may exist in an industry.

"First. The Industrial Strike. In this form of strike the intention is to include everybody working in the industry or in a territory that includes a heavy fraction of the industry. The Northwest woods and mills do not comprise the entire lumber industry, as there is timber especially in Wisconsin, Louisiana, Arkansas, Georgia and Maine, but the Northwest timber production is a major fraction of the total production and cannot be supplied by any or all of the other timber sections of the country, therefore, a strike in the Northwest that stops a heavy percentage of the timber production must win. It is worthy of note too, that the Northwest does produce a special kind of timber, not found elsewhere, especially lending itself to the requirements of large sized pieces.

"The length of time taken by such a strike depends on immediate conditions existing at the time, such as the percentage of men on strike, the number of unemployed on the slave market, the number of logs and the amount of lumber on hand, market prices, (supply and demand, ) cheap transportation, the competition of substitutes for lumber, and finally and most important of all, the intelligence manifested by the strikers themselves, in the conduct of the strike throughout all of its many details.

"Second. The Intermittent Strike. When the workers are unorganized, except in a few camps, or when for any reason it is inadvisable to pull out an entire industry to correct abuses in a few camps, this strike is resorted to. An organization more than local in size is the first essential. The I. W. W. has branches, or at least delegates, in all towns and in every way we are prepared to co-operate with the strikers. When the crew of a camp strikes, the boss usually goes or sends to the nearest town for another crew. Active delegates and members being aware of the strike, should supply him with a union crew whose business it would be to stay on the job long enough to line up those who may have been left behind by the first crew and then strike for the same demands made by the first crew.

"Then the boss will decide to beat those tactics by going to Spokane, Portland or Seattle for his third crew. Here is where a widespread, active and intelligent union counts. When the first bunch leaves the camp they should immediately notify the big branches and headquarters of the Lumber Workers' Industrial Union No. 120, of the I. W. W., who in turn will relay the information through the papers and bulletins to the entire membership. Watchers must be kept in the slave market to spot the job when the employment shark hangs out a sign, or grabs men on the street. All efforts should be directed to see that the third crew is made up of members of the I. W. W. The boss will have to pay their fare 100 miles or so to the camp and commence operations again only to find that the third crew is on strike for the demands made by the first and second crews. If the boss remains obstinate for any length of time despite these methods, bankruptcy or insanity will end matters, though, usually, the workers will win without the necessity of supplying very many crews.

"Third. The Strike on the Job. During years of industrial...