Millmen Union, Local 324, AFL v. Missouri-Kansas-Texas R. Co. of Tex.

Decision Date20 November 1952
Docket NumberMISSOURI-KANSAS-TEXAS,No. 3052,3052
PartiesMILLMEN UNION, LOCAL 324, AFL, et al. v.R. CO. OF TEXAS.
CourtTexas Court of Appeals

Mullinax, Wells & Ball, Houston Clinton, Jr. and L. N. D. Wells, Jr., Dallas, for appellant.

Naman, Howell & Boswell, Waco, G. H. Penland, Dallas, for appellee.

TIREY, Justice.

This is an appeal from a final judgment granting a permanent injunction against certain picketing by appellants upon appellee's private right of way. The cause was tried without the aid of a jury and upon stipulations of the parties.

The court in its decree found:

'(a) The defendants, their agents, servants, employees and representatives have been unlawfully picketing and will continue to unlawfully picket on plaintiff's right-of-way property abutting the Wm. Cameron & Co. planing mill property between 26th Street and 23rd Street and from the west line of 26th Street to 28th Street in the City of Waco, Texas, unless enjoined therefrom.

'(b) That as a result of said picketing the plaintiff's switchmen employees have refused to move freight cars to and from said Wm. Cameron & Co. mill properties because of their refusal to cross said picket lines; that plaintiff under said circumstances in order to deliver said freight service must assemble volunteer crews from its supervisory personnel which is both burdensome and expensive to plaintiff and the plaintiff will suffer irreparable injury, loss and damage unless the defendants are enjoined from picketing on its right-of-way property as aforesaid and that plaintiff's remedy at law is inadequate.

'(c) That plaintiff has no labor dispute or controversy with the defendants or any of its employees in any way connected with or involving the defendants herein and that none of the defendants are employees of the plaintiff.

'(d) That said picketing upon the part of the defendants, their agents, servants, employees and representatives constitutes an unlawful use of plaintiff's private property and an unlawful interference with the obligation of plaintiff as a common carrier and that said acts and conduct are without the consent or permission of plaintiff.

'(e) That the stipulations of the parties on file herein are considered by the court to be sufficient to justify the issuance of injunctive relief as prayed for by plaintiff * * *.'

'The court ordered the employees 'to desist and refrain from picketing on plaintiff's railroad right-of-way abutting the Wm. Cameron & Co. planing mill property between the east line of 26th Street and the west line of 23rd Street and between the west line of 26th Street and the east line of 28th Street in the City of Waco, Texas, from entering or being upon plaintiff's said right-of-way property as hereinabove described and from interfering or attempting to interfere with the movement of any of plaintiff's agents, servants, and employees and trains and cars upon said right-of-way property as hereinabove described, and that this injunction shall not apply to lawful picketing of defendants on any public street or alley or other location except upon said railroad right-of-way property between public streets as hereinabove described and that all costs incurred herein be taxed against the defendants for which let execution issue * * *.'

(The findings in the decree are not assailed by appellants, and since the trial was non-jury they are bound by the rule in Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, and Woodward v. Ortiz, Tex., 237 S.W.2d 286. See also Abilene Hotel Corp. v. Gill, Tex.Civ.App., 187 S.W.2d 708, point 6 (writ ref. w. o. m.); also cases collated in 4 Texas Digest, Appeal & Error, k 931(1-3).

The decree is assailed on the ground (Point 1) that 'the trial court erred in issuing permanent injunction since said injunction deprives appellants of their exercise of freedom of speech guaranteed by the First and Fourteenth Amendments of the Constitution of the United States and by the Constitution of the State of Texas, Vernon's Ann.St.'

It is our view that Point 1 is not applicable to the factual situation here presented and it is overruled. The findings in the decree show that appellants were guilty of trespass while they were engaged in picketing on appellee's right-of-way and the decree specifically restrains them from so doing and specifically shows that the injunction does not apply to picketing that is lawful on any public street or alley or other location except upon the right-of-way of the railroad between the public streets therein specifically designated. We are unable to see how the decree contravenes any part of the First and Fourteenth Amendment to our Federal Constitution, or any part of our State Constitution. On the contrary, we think it is in complete harmony with the provisions of each of them, as well as the spirit thereof. It is certainly in accord with the general welfare clause. Appellants' right to picket is in nowise restrained except when they are trespassing on the property of a third party, not involved in the strike, against such third party's will. However, it is our view that the picketing by the employees of Cameron on appellee's right-of-way contravenes the last clause of Art. 5153, Vernon's Ann.Tex.Civ.Stats., which provides that 'Such member or members shall not have the right to invade or trespass upon the premises of another without the consent of the owner thereof.' Appellants' contention would certainly nullify such provision of the statute and defeat the intent of the legislature and the public policy there declared. Our legislature has the right to fix the public policy of our state and it is the duty of the courts as well as our citizens to abide by it. The stipulations and the findings of the court show that the railroad company was being interfered with by the picketing pursued by the employees of Cameron, and the railroad suffered inconvenience and unnecessary expense by reason of such picketing. The railroad lawfully had and exercised complete control of its right-of-way and the action of the employees of Cameron, as stipulated and as found by the court, did interfere with the railroad in the exclusive control of its property and to its detriment in its use in the pursuit of its lawful purposes.

Appellants in their argument say: 'It is elementary that peaceful picketing for lawful purposes in connection with a bona fide labor dispute 'is one phase of the right of free speech guaranteed * * * by the First Amendment to the Constitution of the United States, which under the Fourteenth Amendment, no state can abridge,'' and further contend in effect that its acts and conduct in picketing were terminated by the injunction and that their pickets met all of the essential attributes of legality, to come within the protective cloak of the Constitution, because their picketing was peaceful and in conjunction with a bona fide labor dispute. We have no quarrel with the foregoing general statement, but in view of the stipulations here and the findings of the court it has no application to the case at bar. Appellants were on the private right-of-way of appellee engaged in picketing, without the consent of appellee, by reason of the strike of the employees of Cameron Mills. We know of no rule of law or well considered decision authorizing anyone to go upon the property of a third party, not a party to the controversy, without his consent for the purpose of picketing or otherwise and thereby inconveniencing such third party to his detriment in the lawful exercise and use of his property. Such a rule of law would authorize one in the exercise of his freedom of speech to deprive such third party of the exclusive control and use of his private property. The decree of the court seeks to avert such wrongful conduct.

Appellants rely on the opinion of our Supreme Court in Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588, and cases there cited. We have carefully reviewed this opinion and we do not think it is in point and applicable here. As we understand the opinion, the place where the picketing occurred was a public street and the railroad company's tracks were on this public street. The court said that so long as pickets did not physically obstruct the spur tracks and mutilate or seriously impair the rights of the railroad to use the streets, they had the same right to use the street as the railroads had, consistent with the peculiar and essential differences in the means and manner of its use by them and by the railroads. The court then stated in effect that when the trial court ordered the relators not to picket within 100 feet of the railroad tracks the railroad was using or was about to use, such holding was an abridgement of the right of free speech guaranteed by the Constitution to them. Our view is that the stipulation of the parties and the findings made by the trial court pointedly distinguish the factual situation in the case at bar from the Henry case. All of the cases cited by Justice Brewster in the above case involved picketing on public streets, so it is our view that such opinion is not applicable and controlling here.

Since the stipulations show and the court found that appellants' pickets invaded and trespassed upon the premises of appellee without the consent of the appellee, such picketing brought them within the last provision of Art. 5153, supra, and it is our view that such statute is constitutional. It contravenes no legal right of the employees of Cameron engaged in the picketing, and at the same time protects the railroad company in the enjoyment of the legal purposes for which it paid for and holds its right-of-way and at the same time enables it to discharge its legal obligation as a common carrier. We see no infringement here of our Federal Constitution. We are of the further view that such statute by its terms is merely declaratory of the common law as found in all Anglo-American jurisdictions. ...

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