State v. Casselman, 7502

• Decision Date: 02 May 1949
• Docket Number: 7503,7504,7502,7505
• Parties: STATE v. CASSELMAN. STATE v. TOWNE. STATE v. ABEL. STATE v. HILL
• Court: Idaho Supreme Court

205 P.2d 1131

69 Idaho 237

STATE v. CASSELMAN.

STATE v. TOWNE.

STATE v. ABEL.

STATE v. HILL

Nos. 7502, 7503, 7504, 7505

Supreme Court of Idaho

May 2, 1949

Appeal from District Court, Third Judicial District, Ada County Charles E. Winstead, Judge.

Affirmed.

Anderson & Thomas, of Boise, for appellants.

Chapter 265 of the 1947 Session Laws under which the defendants are charged is unconstitutional. Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562; Pierce v. U.S. 314 U.S. 306, 62 S.Ct. 237, 86 L.Ed 226; Thornhill v. State of Alabama, 310 U.S. 88, 96 60 S.Ct. 736, 84 L.Ed. 1093; Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; U. S. v. Ballard, D.C., 12 F.Supp. 321; Standard Oil Co. of Louisiana v. Parterie, 12 F.Supp. 100, 101.

Robert E. Smylie, Atty. Gen., and James W. Blaine, Pros. Atty., of Boise, for respondent.

Chapter 265, Idaho Session Laws of 1947, is a clear, understandable statute which fixes reasonable, definite and certain boundaries of permissible conduct, and does not deprive these defendants of due process of law. Laws 1947, C. 265.

State v. Dingman, 37 Idaho 253, 219 P. 760, (1923); Omaechavarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763, (1917); State v. Hennessey, 114 Wash. 351, 195 P. 211; Arizona Power Co. v. State, 19 Ariz. 114, 166 P. 275; Robinson v. U.S. 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944; Screws v. U.S. 325 U.S. 91, 65 S.Ct 1031, 89 L.Ed. 1495, 162 A.L.R. 1330; Cole v. Commonwealth, 169 Va. 868, 193 S.E. 517; Dail-Overland v. Willys-Overland, D.C., 263 P. 171, 173. Nash v. U.S. 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232, 1235.

Chapter 265 does not infringe the right to speak freely and assemble peaceably which is guaranteed by the first Amendment to the Constitution of the United States. Whitaker, et al. v. State of North Carolina, 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. ; Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A.,N.S., 874; N.L.R.B. v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348. Milk Wagon Drivers' Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836; Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093.

In aid of construction of words used in statute, the court may consider statutes in pari materia and construe the two statutes together. Achenbach v. Kincaid, 25 Idaho 768, 775, 140 P. 529 (1914); Cook v. Massey, 38 Idaho 264, 271, 220 P. 1088, 35 A.L.R. 200 (1923).

Two statutes passed on the same day and relating to the same subject matter are to be read together as if they were parts of the same act. Laws 1947, c. 265; Laws 1947, c. 266; Chandler v. Lee, 1 Idaho 349, 350 (1870); Oneida County v. Evans, 25 Idaho 456, 461, 138 P. 337 (1914); Garrett Trsfr. & Storage Co. v. Pfost, 54 Idaho 576, 583, 33 P.2d 743 (1933); and see United Pacific Ins. Co. v. Bakes, 57 Idaho 537, 545, 67 P.2d 1024 (1937).

The court has held that this rule applies with peculiar force to statutes enacted at the same session which treat of similar subject matter. Peavy v. McCombs, 26 Idaho 143, 149, 140 P. 965 (1914); Perrault v. Robinson, 29 Idaho 267, 275, 158 P. 1074 (1916), quoting I Lewis' Sutherland on Statutory Construction, Sec. 268.

J. L. Eberle, B. S. Varian and D. O. Morgan, all of Boise, amici curiae.

Chapter 265 of 1947 Session Laws of State of Idaho, by its context and language comes within the following standard adopted by the Supreme Court of Idaho, and is not unconstitutional for want of certainty: "Reasonable certainty, in view of the conditions, is all that is required, and a liberal effect is always given to the legislative intent when possible. . . . A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary understanding an adequate description of the evil intended to be prohibited." State v. Groseclose, 67 Idaho 71, 171 P.2d 863; State v. Dingham, 37 Idaho 253, 219 P. 760; Omaechevarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763; Miller v. Strahl, 239 U.S. 426, 36 S.Ct. 147, 60 L.Ed. 364; Nash v. U.S. 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232; Stewart v. State, 4 Okl.Cr. 564, 109 P. 243, 32 L.R.A.,N.S., 505; State v. Lawrence, 9 Okl.Cr. 16, 130 P. 508; State v. Fox, 71 Wash. 185, 127 P. 1111; affirmed: 236 U.S. 273, 59 L.Ed. 573, 35 S.Ct. 383.

There is no absolute right to picket, even when done without violence, as an incident to freedom of speech as guaranteed under the Constitution of the State of Idaho and Constitution of the United States: but the right to picket is subject to the limitation that the object and end sought by means of such picketing be lawful. And the lawfulness of the purposes of picketing is a matter of public policy within the legislative prerogative of the state subject to regulation under the State's inherent police power in the interest of public peace, public morals, economic interests, and general welfare. American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. ; (And cases cited therein); Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488, 41 S.Ct. 172, 65 L.Ed. 349, 366, 16 A.L.R. 196; Denver Milk Producers, Inc. v. International Brotherhood of Teamsters, 116 Colo. 389, 183 P.2d 529, (cases cited therein); United States v. Painters Local Union No. 481, D.C., 79 F.Supp. 516, 525; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; United Public Works v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574.

Givens, Justice. Porter, J., and Sutphen and Sutton, District Judges, concur. Holden, Chief Justice, dissenting.

OPINION

Givens, Justice.

Appellants were convicted of violating Chapter 265, 1947 Session laws, page 788. ^[1] Separate appeals were consolidated for hearing and determination herein. Appellants waived a jury and were tried by the court on a stipulation of facts, epitomized as follows:

The American Telephone and Telegraph Company is the head of and owns the controlling interest in 23 separate, individual, corporate subsidiaries of a federation giving nationwide telephone service, of which the Mountain States Telephone & Telegraph Company (hereinafter designated Telephone Co.), organized in Colorado; and the Western Electric Company (hereinafter designated Electric Co.), organized in New York, are members.

Each subsidiary, in addition to dividends, pays 1 1/2% of its gross operating revenue to the parent company, mostly used to operate the Bell Laboratories.

The Annual Reports of the American Telephone and Telegraph Company and the Mountain States Telephone and Telegraph Company, 1946, and Handbook for Installation Information of the Electric Company, and an advertisement in Life Magazine, January 2, 1947, pp. 108-9, entitled "Up from the Ranks," were admitted as exhibits.

The Electric Co. engineers, fabricates and installs central office equipment in, and upon order from the various affiliates, its employees working mostly in their buildings and central offices, and at all times since November 1946 have been so doing for the Telephone Co. in its building. The Boise headquarters of the Electric Co. are under written contract with and in the central office building of the Telephone Co. at 609 Main Street, including lights, heat and toilet facilities. The foremen of the Electric Co. keep their records there and receive reports from their employees, who congregate and work there, such room being solely under the control of the Electric Co., situated on the ground floor off the main hall.

Each subsidiary employs and pays its own employees, who are in separate unions: for the Telephone Co., the Mountain States Federation of Telephone Workers; and for the Electric Co., the Association of Communication Equipment Workers; both unions are affiliated with and part of the National Federation of Telephone Workers.

Employees of the operating companies and the Electric Co. may, but not as a matter of right, transfer from one to the other without loss of benefits, but as to the latter company, must take special training, and must in either event transfer his or her union membership.

April 7, 1947, both subordinate unions struck as against their respective employers, over separate labor contracts. The American Telephone and Telegraph Company refused to bargain with the National Federation of Telephone Workers as the bargaining agent for the subordinates, except as to long distance operators, for the reason it had no authority to represent the affiliated companies.

The separate labor disputes were settled individually; that between the Telephone Co. and its union employees at 12:01 A.M. May 15, 1947, and that of the Electric Co. May 21, 1947.

April 7 to May 14, pickets of the two unions peaceably patrolled the public street and thoroughfare in front of the Telephone Co. building, bearing strike placards Exhibits E ^[2] and F. ^[3]

After the settlement and ending of the strike against the Telephone Co., appellants, employees of the Electric Co., continued such picketing, carrying the same placards, and employees of the Telephone Co. therefore declined to work and its service was restricted. These prosecutions and convictions ensued.

Appellan...