People v. Harris, 14309.

• Decision Date: 29 May 1939
• Docket Number: 14309.
• Citation: 104 Colo. 386,91 P.2d 989
• Parties: PEOPLE v. HARRIS.
• Court: Colorado Supreme Court

91 P.2d 989

104 Colo. 386

PEOPLE v. HARRIS.

No. 14309.

Supreme Court of Colorado, En Banc.

May 29, 1939

Error to District Court, City and County of Denver; H. A. Hicks Judge.

George Harris was informed against for violation of '35 C.S.A c. 97, § 90, by picketing a place of business, and to review a judgment of acquittal, the People bring error.

Affirmed.

John A. Carroll, Dist. Atty., of Denver, Byron G Rogers, Atty. Gen., and Reid Williams, Asst. Atty. Gen., for plaintiff in error.

Philip Hornbein and Floyd F. Miles, both of Denver, for defendant in error.

Benedict & Phelps, Pershing, Nye, Bosworth & Dick, and Yeaman, Gove &amp Huffman, all of Denver, amici curiae.

OTTO BOCK, Justice.

This case is Before us on a writ of error sued out by the people under the provisions of section 500, chapter 48, C.S.A. '35, to review a judgment of acquittal in a criminal case.

An information in two counts was filed against George Harris, defendant in error, under section 90, chapter 97, '35 C.S.A., charging in the first count that he 'did wilfully and unlawfully loiter about and patrol the streets of the City and County of Denver, and the place of business' of the Moore Mortuary 'for the purpose of wilfully and unlawfully influencing and inducing the other persons, whose names are to the District Attorney unknown, not to trade with, buy from, sell to, work for, or have business dealings' with the Moore Mortuary.

The second count charged that the defendant 'did wilfully and unlawfully picket the works, buildings, and other place of business and occupation' of the Moore Mortuary, which was 'then and there doing and conducting a lawful business.' It charged that the picketing was done 'for the purpose of wilfully and unlawfully obstructing and interfering with and injuring said lawful business, work and enterprise' of the Moore Mortuary.

The substantive law involved in these charges, section 90, supra, reads as follows: 'It shall be unlawful for any person or persons to loiter about or patrol the streets, alleys, roads, highways, trails or place of business of any person, firm or corporation engaged in any lawful business, for the purpose of influencing or inducing others not to trade with, buy from, sell to, work for, or have business dealings with such person, firm or corporation, or to picket the works, mine, building or other place of business or occupation of such other person, persons, firm or corporation, for the purpose of obstructing or interfering with or injuring any lawful business, work or enterprise; provided, that nothing herein shall prevent any person from soliciting trade, custom or business for a competitive business.'

Defendant pleaded not guilty. A jury was waived, and the case submitted on a stipulation of facts. Thereon defendant was adjudged not guilty and discharged.

The position of the people is supported here by amici curiae, while the attorney general joins with counsel for defendant in urging the invalidity of the statute.

Section 90, supra, was enacted by the legislature in 1905. Only one other state, Alabama, has a similar law. No litigation involving its construction has ever reached this court. Perhaps one of the reasons for this situation is that injunctive relief was the usual remedy sought in cases involving picketing in labor disputes. This approach was partially foreclosed by sections 76-87, chapter 97, '35 C.S.A., prohibiting injunctive relief under such circumstances.

Counsel have ably discussed the development of the social and legal problems involved. Every student of the law will readily admit that changes have occurred since the enactment of section 90, supra, relating to labor disputes. Local Union No. 26, etc., v. City of Kokomo, 211 Ind. 72, 5 N.E.2d 624, 108 A.L.R. 1111; Fenske Bros. v. Upholsterers' Union, 358 Ill. 239, 193 N.E. 112, 97 A.L.R. 1318; Geo. B. Wallace Co. v. International Ass'n, 155 Or. 652, 63 P.2d 1090; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. Much statute law has since been enacted in the interest of labor and in its lawful rights to secure reasonable wage levels. It is quite universally conceded now that labor has the right to organize and to lawfully protect its economic interests. National Labor Relations Board v. Jones & Laughlin Steel Corp., supra. It is generally admitted that the right of collective bargaining is here to stay. That this right has created corresponding responsibilities also must be recognized. The need in our economic life of organized labor as an important factor in maintaining wage levels is generally accepted.

In West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330, the Supreme Court of the United States had Before it the validity of a minimum wage law in the state of Washington. Speaking through Mr. Chief Justice Hughes, the court, in sustaining the constitutionality of this law, said (300 U.S. page 399, 57 S.Ct. page 585, 81 L.Ed. 703, 108 A.L.R. 1330): 'The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage is not only detrimental to their health and well being, but casts a direct burden for their support upon the community. What these workers lose in wages the taxpayers are called upon to pay. The bare cost of living must be met. * * * The community is not bound to provide what is in effect a subsidy for unconscionable employers.'

The stipulated facts directly pertaining to this discussion are as follows:

'* * * for the purpose of giving publicity to the fact that the Moore Mortuary, Inc., work had been placed on the unfair list, the defendant, George Harris, accompanied by Clifford Matson, Jr., both of whom are members of Local Union No. 55 of the United Brotherhood of Carpenters and Joiners of America, and Charles Williams, Frank Bryant, Merle Elliott, Clarence Seims, William Wallrath and Arthur Bentz, all of whom are members of Local Union No. 720 of the Hod Carriers and Building Construction Laborers, were directed by the Denver Building Trade Council to patrol the sidewalks adjoining the Moore Mortuary, Inc., establishment, and to peaceably picket the said construction work which was then being carried on; that the defendant and the other members of the union above named, proceeded to peacefully picket said premises by walking upon the sidewalks of East Seventeenth Avenue and on Clarkson Street adjacent to said premises in groups of two; that the defendant and each of the other persons above named, carried a sign attached to the back of their persons, in substantially the following form, and reading as follows:

"This _____

Job

R I A F N U

Denver Building Trades Council.'

'that said picketing was carried on in the following manner.

'The defendant, George Harris, and the other persons above named, in groups of two, with said signs attached to their backs, walked from the alley-way on East Seventeenth Avenue, separating Clarkson and Emerson Streets, westerly to the intersection of the sidewalks at East Seventeenth Avenue and Clarkson Street; thence in a southerly direction terminating at the building line of said premises, a distance of approximately one hundred feet south of the intersection of the sidewalks; that each of said groups of two persons was separated and walked at about forty-foot intervals; that neither the defendant, nor any of the other persons above named engaged in said picketing, spoke to or addressed any person or persons except to answer questions or inquiries directed to them.

'It is further stipulated that said picketing was carried on without intimidation or coercion, and the methods employed did not involve fraud, violence, breach of the peace or threat thereof, nor did said persons commit any act or acts tending thereto.

'That said picketing was maintained and carried on by the said defendant and the other persons named for the purpose of influencing and inducing other craftsmen not to work for said contractors, and to advise and inform the public and persons seeking the services of the Moore Mortuary, Inc., that the construction work being there carried on was being done in a manner and under conditions deemed unfair to Organized Labor, thereby seeking to influence and induce members of Organized Labor and persons in sympathy with the principles of the Organized Labor Movement to withhold their patronage from the said Moore Mortuary, Inc., until the matters in dispute should be satisfactorily adjusted.'

It will be noted that under the stipulated facts the picketing was confined to walking on the sidewalk adjacent to the premises of the Moore Mortuary, Inc., and not on 'the place of business of any person,' or the 'building * * * of such other person.'

By the great weight of authority, peaceful picketing, so long as it does not in fact involve fraud, intimidation, breach of the peace, or coercion, has been sustained in many cases. See Pope Motor Car Co. v. Keegan C.C., 150 F. 148; Karges Furniture Co. v. Amalgamated Woodworkers Local Union, 165 Ind. 421, 430, 431, 75 N.E. 877, 2 L.R.A.,N.S., 788, 6 Ann.Cas. 829; Steffes v. Motion Picture Machine Operators Union, 136 Minn. 200, 161 N.W. 524; Root v. Anderson, Mo. App., 207 S.W. 255; Bayonne Textile Corp. v. American Federation of Silk Workers, 116 N.J.Eq. 146, 172 A. 551, 92 A.L.R. 1450; Exchange Bakery & Restaurant v. Rifkin, 245 N.Y. 260, 157 N.E. 130; McCormick v. Union, 13 Ohio Cir.Ct.,N.S., 545; Greenfield v. Central Labor Council, 104 Or. 236, 192 P. 783, 207 P.168; Everett Waddey Co. v. Richmond Typographical Union, 105 Va. 188, 53 S.E. 273, 5 L.R.A.,N.S., 792, 8 Ann.Cas. 798, ...