State ex rel. Allai v. Thatch

• Court: Missouri Supreme Court
• Writing for the Court: ELLISON
• Citation: State ex rel. Allai v. Thatch, 361 Mo. 190, 234 S.W.2d 1 (Mo. 1950)
• Decision Date: 13 November 1950
• Docket Number: No. 41957,41957
• Parties: , 27 L.R.R.M. (BNA) 2078, 19 Lab.Cas. P 66,042 STATE ex rel. ALLAI v. THATCH, Judge.

Page 1

234 S.W.2d 1

361 Mo. 190, 27 L.R.R.M. (BNA) 2078,

19 Lab.Cas. P 66,042

STATE ex rel. ALLAI v. THATCH, Judge.

No. 41957.

Supreme Court of Missouri, en Banc.

Nov. 13, 1950.

Harry C. Clark, James R. Hunsucker, Kansas City, for appellant.

Edwin Mills, Pros. Atty., St. Clair County, Osceola, for respondent.

ELLISON, Judge.

This is an original proceeding in prohibition brought by the relator Henry Allai, individually and as president of District 14, United Mine Workers of America. It challenges the jurisdictional power of the respondent judge of the circuit court of St. Clair county to grant to temporary restraining order in an injunction suit brought in his court by the prosecuting attorney on a verified petition. The latter suit seeks to enjoin the relator Allai, his said union and subordinate branches and members thereof, from obstructing with men and automobiles in aid of a strike, a public road furnishing the only means of entrance to the coal mining works of the Pioneer Mining Corporation in said county, and prays other injunctive relief as hereinafter stated.

The petition in the injunction suit alleges that said mining works were constructed, completed and ready for business in February, 1950, and that many local residents of the county were ready, able and desirous of obtaining needed employment therein as non-union men. But it charges that relator Allai and his union associates have blockaded said public road leading to the mining works by parking automobiles in staggered formation on both sides of the road leaving in between only a narrow zigzag passageway for public travel--which passageway the defendant union members obstruct by congregating therein in large numbers and challenging and intimidating travelers therealong so as to prevent non-union workers from entering and laboring in the coal mining plant.

The injunction petition further alleges the foregoing acts of relator Allai and his associates cause 'great annoyance, inconvenience, danger and detriment' to the public; that the 'public welfare, health, safety and common good of the people of said vicinity require that said nuisances (italics ours) hereinabove complained of be enjoined and abated;' that the suspension of public traffic and the prevention of coal mining in the winter time will endanger the public health, comfort and common good of the people affected, enforce idleness, tend to extort from the mining corporation an illegal contract with the relator Allai and his union associates, and will foster a multiplicity of civil and criminal actions, for the abatement of which there is no adequate remedy at law.

In response to the prosecuting attorney's said verified petition for the injunction, and without the introduction of evidence, the respondent circuit judge issued a temporary restraining order [also called a temporary injunction] enjoining the relator Allai and his said associates:

'(a) from in any way whatsoever and at any and all times hindering, delaying and obstructing, either by the grouping and assemblage of persons and the improper parking and congesting of motor vehicles, any and all persons lawfully traveling said (described) public road [italics and parenthesis ours];

'(b) from coercing, threatening, intimidating and annoying in any manner and to any extent whatever and at any place any person or persons doing business or desiring or attempting to do lawful business with said Pioneer Mining Corporation;

'(c) from walking, standing, assembling, congregating and grouping together at, near, around the coal mining plant, mine, machinery and property of said Pioneer Mining Corporation;

'(d) from obstructing, hindering, delaying by parking motor vehicles or otherwise, persons, either visitors, employees or prospective employees of said Pioneer Mining Corporation, entering the property and premises of said Pioneer Mining Corporation, or working thereon or therein.

'(e) from doing any unlawful act to prevent said Pioneer Mining Corporation from making any and all lawful contracts and from conducting its coal mining business in a lawful manner;

'(f) from so conducting themselves or any of them as to enforce idleness and unemployment upon any person or persons working or desiring to work at said coal mining plant by creating through the assembled group or groups of men at or near said mining plant and property, a sense of fear and frustration.'

Thereafter the defendant-relator Allai, appearing specially, filed in respondent's court a verified motion to dismiss said temporary injunction, and upon the overruling of that motion filed his petition here for a writ of prohibition. The prohibition petition incorporates by reference the respondent's aforesaid injunction order. This court thereupon issued its provisional rule in prohibition requiring the respondent judge to show cause why we should not issue a rule absolute forbidding the enforcement of the foregoing paragraphs (b) to (f), inclusive, of said temporary injunction, but expressly excluding paragraph (a).

The return of the respondent judge to said provisional rule in prohibition is directed to said paragraphs (b) to (f) thereof, but assumes the legality of said paragraph (a), since the latter was not challenged in the provisional rule. The return alleges said paragraphs (b) to (f) were incidental to and necessary and proper to make effective the relief granted in said unchallenged paragraph (a). In particular the return asserts said paragraphs (b) to (f) were necessary to prevent relator Allai and his associates from interfering with the lawful employment of men at the coal mine by the use of force, menace and threats, in violation of Sec. 4635, R.S.1939, Mo.R.S.A., and holds the violation of that statute would, in the circumstances, constitute a public nuisance.

The respondent judge's return further alleges the restrictions imposed by said paragraphs (b) to (f), inclusive, of the temporary injunction were necessary and proper to prevent the relator Allai and his associates from wilfully hindering, obstructing and delaying members of the general public in lawfully traveling along the aforesaid public highway in violation of Sec. 8586, R.S.1939, Mo.R.S.A., which latter it is asserted would constitute a public nuisance.

Still further the respondent judge's return alleges the temporary injunctive relief granted was proper to prevent the relator Allai and his associates: (1) from coercing the mining corporation into discriminating against its employees and prospective employees who were members of the general public, but not of relator's union; (2) from encouraging or discouraging membership of the corporation's employees in a labor union; (3) and in causing said employees to contract with a labor organization which is not the representative of a majority of their members. The return rules all these acts are forbidden by the National Labor Relations Act, 29 U.S.C.A. Secs. 158, 159; and that they would deprive the individual employees or prospective employees of the mining corporation, of the right to organize and bargain collectively through representatives of their own choosing, as guaranteed by art. I, Sec. 29, Const.Mo.1945, Mo.R.S.A., and the right to life, liberty and the pursuit of happness under art. I, sec. 2, Const.Mo.1945. And it affirms a denial of these rights would constitute a public nuisance.

And finally the return alleges that while the rights of free speech, lawful assemblage and peaceful picketing are constitutional rights, yet where the same are coercive and for an unlawful purpose, they constitute a public nuisance and can be restrained by injunction, citing Fred Wolferman, Inc., v. Root, 356 Mo. 976, 981, 204 S.W.2d 733, 735, 174 A.L.R. 585, 591; Id., 333 U.S. 837, 68 S.Ct. 608, 92 L.Ed. 1122.

We take up first the several assignments made by the relator Allai in his brief here in the prohibition proceeding, in which brief he designates himself as 'appellant.' And in connection with these assignment groups we consider the answering assignments made by the respondent judge in his brief. But before going into those issues it should be stated that relator's brief appears to challenge in some respects the legality of the aforesaid paragraph (a) of respondent's temporary injunction, although our provisional rule in prohibition was not directed thereagainst.

The first point in relator Allai's brief is that injunction will not lie to restrain the perpetration of a public nuisance unless it detrimentally affects the health or morals of the public as such; and that such relief will not be granted merely to protect private property or the commission of a crime. And relator asserts the relief sought here is not for the protection of the public, but only the private property of the Pioneer Mining Corporation. On this point relator cites the authorities listed below. ¹ We cannot, of course, discuss all of them at any length, but in our opinion they do not help relator.

The cited Section 38 of Walsh on Equity does announce the general rule that public nuisances will not be enjoined to protect mere private property rights, but only when they affect the 'health, safety and physical comfort of the public.' However, that particular Section 38 deals with 'purprestures,' which, for our purposes, may be defined as a private obstruction of, or encroachment upon, a substantial part of a public road amounting to an appropriation thereof to the public prejudice. 'Purprestures,' 35 Words & Phrases, Perm.Ed., p. 553. And the Walsh text, supra, concedes that where such public prejudice results injunction will lie. In this case we think the systematic, continuous and complete obstruction of the public road by automobiles and recruited strikers would be the same in principle and effect as if a structural obstacle were placed thereon. See also 46 C.J., Sec. 252 p. 719, Sec. 367, p. 761; 66 C.J.S. Nuisances, Sec. 66, p. 815; 25 Am.Jur. Sec. 273, p. 566.

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