State ex rel. Culinary Workers Union, Local No. 226 v. Eighth Judicial Dist. Ct. in and for Clark County

• Decision Date: 24 June 1949
• Docket Number: 3561.
• Citation: 207 P.2d 990,66 Nev. 166
• Parties: STATE ex rel. CULINARY WORKERS UNION, LOCAL NO. 226 et al. v. EIGHTH JUDICIAL DISTRICT COURT IN AND FOR CLARK COUNTY et al.
• Court: Nevada Supreme Court

207 P.2d 990

66 Nev. 166

STATE ex rel. CULINARY WORKERS UNION, LOCAL NO. 226 et al. v. EIGHTH JUDICIAL DISTRICT COURT IN AND FOR CLARK COUNTY et al.

No. 3561.

Supreme Court of Nevada

June 24, 1949

Original proceeding by the State of Nevada on the relation of Culinary Workers Union, Local No. 226, Allen Shorr, also known as John Doe I and Vivian Shorr, also known as Jane Doe I, against the Eighth Judicial District Court of the state of Nevada, in and for the county of Clark, and the Honorable A. S. Henderson Judge of Department No. 2 thereof, for a writ of prohibition directing respondents to refrain from further proceeding regarding an alleged contempt of a purported temporary order restraining peaceful picketing.

Writ granted.

Robert W. Gilbert, of Los Angeles, Cal., and John W. Bonner, of Las Vegas, for relators.

Morse & Graves, of Las Vegas, and Brown & Wells, of Reno, for respondents.

EATHER Justice.

The relators seek a writ of prohibition directing the respondent Eighth Judicial District Court in and for the Cournty of Clark, to desist and refrain from taking further proceedings regarding an alleged contempt of a purported temporary restraining order previously issued by that court. On September 9, 1948, a complaint was filed by the White Cross Drug Co. and the Save-Rite Drug Stores of Las Vegas against the Culinary Workers Union Local No. 226 and the Retail Clerks Union Local No. 1536, alleging that the Unions through their agents had demanded recognition as bargaining representatives and insisted that a contract containing among other things, 'closed shop' provisions be signed by the Drug Stores; that the Unions did not represent a majority of the employees and that the employees did not wish to join a union; and that the Unions then established a picket line around the stores. The complaint prayed for damages and for a restraining order and injunction against further picketing.

The defendant Unions demurred to the complaint, chiefly upon the grounds that no cause of action was stated and that the District Court had no jurisdiction to issue a restraining order against peaceful picketing. The District Court overruled the demurrer, and upon the show-cause hearing issued a restraining order against the Unions. ^[1]

Approximately two weeks later the District Court ordered the Culinary Workers Union and two individuals, Allen Shorr and Vivian Shorr, to show cause why they should not be punished for contempt of the restraining order. This show cause order was based upon an affidavit made by one T. H. Brandt as Vice-president of the White Cross Drug Store, alleging that the union acting by and through the Shorrs had picketed in front of the Drug Store by selling copies of a newspaper, called the Nevada State Labor News. In substance, the affidavit charged that the newspaper carried a front page story to the effect that the Drug Store had discharged five employees because they were Union members and was 'unfair to organized labor;' that in hawking their papers the two pickets had shouted headines to this effect to passers-by on the street.

Relators instituted the present proceedings petitioning this court to prohibit the district court below from enforcing the restraining order, contending that the order is unconstitutional because it denies the right of relators to peacefully picket and to assemble to present their grievances, under the First and Fourteenth Amendments to the Constitution of the United States and under the Constitution of the State of Nevada, and that the District Court acted without jurisdiction at the outset by granting the restraining order.

The writ of prohibition is unquestionably appropriate as a remedy to hold proceedings in an inferior court which are not within the jurisdiction of such court; Section 9255; N.C.L.1929; McComb v. Fourth Judicial District Court, 36 Nev. 417, 428, 136 P. 563; Walser v. Moran, 42 Nev. 111, 173 P. 1149, 180 P. 492; Public Service Commission v. Eighth Judicial Dist. Court, 61 Nev. 245, 123 P.2d 237. And, when proceedings bear the threat of imprisonment of an individual for contempt of an invalid order of a lower court which order denied him constitutional and fundamental rights, the writ of prohibition is as proper as would be habeas corpus were he already in custody. Habeas corpus and certiorari have frequently been employed to attack an unconstitutional statute or decree limiting peaceful picketing, since 'One cannot be punished for contempt for violating an order which a court has no authority to make', Ex parte Henry et al., Tex.Sup., 215 S.W.2d 588, 597, (habeas corpus). In re Blaney, 30 Cal.2d 643, 184 P.2d 892, (habeas corpus). Fortenbury v. Superior Court, 16 Cal.2d 405, 106 P.2d 411, (certiorari). As a matter of simple justice, it has always been considered preferable to arrest proceedings before a man has been unlawfully imprisoned, than to release him after he has been subjected to the indignities of custody, and the writ of prohibition was designed to serve this purpose.

Therefore the remedy selected by relators is proper under these circumstances, if, in fact, the restraining order here in question is not valid.

Relators contend that the right of all persons to assemble and to make known their ideas and grievances is a fundamental element in the structure of our form of government and that peaceful picketing is an exercise of this right. Respondents concede this to be true, but argue that the picketing in the instant case was not truthful and not for a ligitimate purpose because the picketed employers had no dispute with their employees or the Union, and the Union did not represent the employees working in the store. Respondents further contend that the picketing was unlawful because, allegedly, the purpose of the picket line was to force them to sign a so-called 'closed shop' agreement, which they claim to be prohibited by Section 10473 of the Nevada Complied Laws 1929. In essence, this argument is based upon the theory that under the circumstances, even peaceful picketing is not a legitimate exercise of the fundamental right of free speech, and may be restrained.

The record shows and it is conceded by all parties that the picket line was peaceful, quiet and orderly at all times, and without violence, so the only major issue before this court is whether there was in this case any other abuse of the rights of speech and assembly as to warrant the finding below that this picket line was wrongful.

This court early announced that peaceful picketing was a lawful and reasonable method which could be used by a labor organization to disseminate its ideas and beliefs to the general public, and that such picketing was entitled to the same careful protection as that guaranteed to all forms of free speech by the Constitution of the United States and of the State of Nevada. That decision invalidated an anti-picketing ordinance, declaring that its sections constituted 'a sweeping prohibition of any form of picketing, irrespective of its nature, purpose or number of pickets, and constitute an interdiction of all activities and free speech sought to be exercised in the form of peaceful picketing', and were 'unconstitutional and void, in that they invade the constitutional guaranties of the due process of law clauses of the Federal and State Constitution, and of section 9 of Article 1 of the state Constitution guaranteeing free speech and forbidding the state to pass any law to restrain or abridge the liberty of speech.' City of Reno v. Second Judicial District Court, 59 Nev. 416, 95 P.2d 994, 1000, 125 A.L.R. 948.

The Supreme Court of the United States in Thornhill v. Alabama, 310 U.S. 88, at page 102, 60 S.Ct. 736, at page 744, 84 L.Ed. 1093, involving a similar statute set forth the basic rule that, 'In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded within that area of free discussion that is guaranteed by the Constitution', and that 'the safeguarding of these means (picketing) is essential to the securing of an informed and educated public opinion with respect to a matter which is of public concern.'

The constitutional right to free speech is not limited only to public addresser or pamphlets, or the words of some individual. It embraces every form and manner of dissemination of the ideas held by our people that appear best fitted to bring such ideas and views to the attention of the general populace, and to the attention of those most concerned with them. Peaceful picketing of an enterprise or business is the primary means by which laboring men make known their grievances. It is an appropriate mode of expression of views and opinions that is vital to their legitimate interests. Under the First and Fourteenth Amendments to the Constitution labor speech, like the expressions of businessmen, farmers, educators, political figures, religionists and all other citizens, must be given unfailing and unwavering protection by this court. These great constitutional guaranties of free speech are but a mantle of protection thrown around our basic concept of individual liberty to shelter the people from the chilling blasts of those who oppose their freedom and would take away their rights. It would be unthinkable that we should tear it away. Even greater care must be taken that tiny rents are not allowed to accumulate in the fabric unnoticed and unrepaired lest one day we should find the entire mantle rotted away.

The right to peaceful picketing must not be circumscribed by vague and ephemeral notion of 'legitimate' and 'illegitimate' purposes for which it may or may not be exercised. Free speech, which includes the right to peaceful picketing, must be given the greatest possible...