Stewart v. State

• Decision Date: 19 January 1953
• Docket Number: Cr. 4705-4713
• Citation: 221 Ark. 496,254 S.W.2d 55
• Parties: , 31 L.R.R.M. (BNA) 2369, 22 Lab.Cas. P 67,395 STEWART et al. v. STATE.
• Court: Arkansas Supreme Court

Page 55

254 S.W.2d 55

221 Ark. 496, 31 L.R.R.M. (BNA) 2369,

22 Lab.Cas. P 67,395

STEWART et al. v. STATE.

Cr. 4705-4713.

Supreme Court of Arkansas.

Jan. 19, 1953.

G. Love Grant and Gutensohn & Ragon, Ft. Smith, for appellant.

Ike Murray, Atty. Gen., and George E. Lusk, Jr., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

By certiorari the nine petitioners bring up for review an order by which the chancellor punished them for criminal contempt. The trial court found that the petitioners had violated a temporary injunction which prohibited certain picketing activity. Charles E. Stewart, a representative of the international labor union involved, was fined $200 and sentenced to serve thirty days in jail. Allen Jones, the president of the local union, was fined $50. Six other petitioners, members of the local union, were fined $10 each. G. L. Grant, the attorney who advised the union members to take the action that was later deemed by the chancellor to be contempt of court, was fined $500 and sentenced to serve thirty days in jail, but the chancellor suspended the jail sentence because of Grant's age and poor health. For reversal the petitioners contend that the chancellor was in error in holding that the temporary injunction had been disobeyed.

Although there are minor conflicts in the testimony, the salient facts are not in dispute. In March, 1952, the employees of the Dixie Cup Company went on strike. Picket lines were established at Dixie Cup's principal place of business in Fort Smith, and in addition the striking employees picketed in the vicinity of a warehouse owned by Federal Compress & Warehouse Company. Storage space in this warehouse had been rented to Dixie Cup and to other business concerns, and one or more of the Dixie Cup employees ordinarily worked there. The present dispute centers upon the picketing that occurred at the warehouse.

This warehouse is served by two railroad spur tracks, the Missouri Pacific track entering from the east and the Kansas City Southern from the west. Twenty-third Street lies on the east side of the compress company's property and is crossed by the Missouri Pacific track as it enters the premises. There are also two motor vehicle entrances on the east, one leaving Twenty-third Street about seventy-five yards north of the track and the other about fifty yards south of the track.

It does not appear that the Kansas City Southern spur track, as it approaches the warehouse from the west, crosses any street in the immediate vicinity of the compress company's property. This track does, however, cross Incinerator Road at a point about a mile west of the warehouse.

At the beginning of the strike the Dixie Cup employees picketed the Missouri Pacific track at its intersection with Twenty-third Street and the Kansas City Southern track at its intersection with Incinerator Road. When the regular switching crews refused to cross these picket lines supervisory employees took charge of the trains and attempted to continue service to Dixie Cup. Thereupon the pickets, who seem to have then been without legal advice, stood between the rails and challenged the railroad employees to run over them. In the oral argument it was readily admitted by petitioners' counsel that this physical obstruction of the trains went beyond the permissible limits of picketing and was unlawful.

The railroad companies, finding themselves unable to serve Dixie Cup, filed separate suits for injunctive relief. The principal issues in this case turn upon the wording of the temporary injunction that was immediately issued in the Missouri Pacific case. By that order the international and local unions, their members and agents, were restrained from committing the following acts:

'Picketing in any manner, either singly or in large numbers, plaintiff's railroad tracks and spur tracks or right of way or property in any manner whatsoever in the City of Fort Smith, Sebastian County, Arkansas;

'Stopping, obstructing, injuring, impairing and weakening the plaintiff's trains, railroad tracks, machinery and employees in any manner and by any means whatsoever in the City of Fort Smith, Sebastian County, Arkansas.'

After the issuance of the preliminary injunctions the union members consulted Grant. At his direction the pickets were removed entirely from the Kansas City Southern spur track, but at the Missouri Pacific crossing on Twenty-third Street the picketing was merely modified. Grant went to the scene with some of his clients and decided that the pickets should keep at least fourteen feet away from the rails. A placard giving notice of the strike was set up at that distance on each side of the spur track. Thereafter the pickets patrolled between those placards and the highway entrances to the warehouse, one picket walking between the north placard and the access road seventy-five years to the north and the other picket traveling between the south placard and the southern access road. This modified form of picketing proved to be effective, as the regular train crews still refused to drive the trains into the warehouse premises when destined for Dixie Cup, even though the pickets had been instructed to, and did, call out to the trainmen that the railroad was not being picketed and that they were free to serve Dixie Cup if they wished. In this situation the Missouri Pacific was compelled to man its trains with supervisory employees in the five-week interval between the issuance of the temporary order and the final hearing. As we have intimated, there was no interruption in the carrier's normal service to the other lessees of the compress company.

When at the final hearing the chancellor learned what was taking place he caused nine of the union members to be cited for contempt, and later on Grant was cited as well. One of the nine employees was found not guilty; the other eight and Grant have brought the case to us. It will be convenient to consider separately the contentions of the union members and those of their attorney, even though the arguments are to a large extent overlapping.

At the trial several employee witnesses testified that it was not their intention to picket the Missouri Pacific; instead, their activity was directed solely against trucks entering the warehouse by way of the two access roads. The chancellor was fully warranted in treating this version of the matter as a subterfuge. It will be remembered that a placard had been placed on each side of the track, fourteen feet from the rail. These signs faced east, so that they were clearly visible to approaching trainmen. Yet these signs could have been seen by a truck driver only as he came abreast of them, which he might not even do, since a truck coming from the north might turn in the northern access road seventy-five yards away from the nearer sign and equally far from the picket if that person happened to be at the other end of his route. It was conceded in oral argument that the picketing would have been more effective as to motor vehicle traffic had it been confined to the highway entrances.

Stress is laid on the fact that the pickets were withdrawn from the Kansas City Southern track. Incinerator Road, however does not lead to the warehouse; so it is reasonable to conclude that the cessation of picketing at that intersection was due to the fact that continued activity would have undeniably been aimed at the railroad alone.

Reliance is also placed on the pickets' action in announcing to trainmen that the railroad was not being picketed. Yet this was evidently an empty gesture when the experience of five weeks showed that the regular crews steadfastly declined to cross what they undoubtedly regarded as a picket line. Indeed, one of the attorneys for the petitioners inadvertently recognized this to be true when, by a slip of the tongue, he put this question to a witness: 'Did they [the trainmen] cross the picket line? Excuse me. There was no picket line according to my theory. Did they cross the highway at that point?' On the whole we do not think it can be seriously argued that the picketing was intended for the benefit of truck traffic only.

Grant's defenses, which are advanced by the other petitioners as well, have to do with the wording of the temporary order. It is first said that the order is ambiguous. In this connection counsel point out that the preliminary injunction forbade 'picketing in any manner * * * plaintiff's railroad tracks,' but in the final decree this was changed to 'picketing in any manner * * * at, on or near plaintiff's railroad tracks.' Of course the mere fact of amendment does not demonstrate that the first order lacked clarity, since even a very exact statement may often be made still more precise by the use of additional language.

We do not think the temporary order subject to the charge of ambiguity. The second paragraph which we have quoted enjoined the defendants from stopping or obstructing the plaintiff's trains. This language was doubtless directed at the physical obstructions which led to the suit, though it is perhaps broad enough to encompass any picketing which brought about the forbidden result. But this provision does not stand alone. The court also enjoined the defendants from picketing 'in any manner' the plaintiff's tracks. We do not see how this sweeping prohibition could be misunderstood; certainly it includes picketing 'at, on or near' the tracks, as the final order put it. That the petitioners thought the order too comprehensive is of course immaterial, since it was their duty to obey even an erroneous decree as long as it continued in force. Carnes v. Butt, Chancellor, 215 Ark. 549, 221 S.W.2d 416.

A more subtle contention is that since the temporary injunction prohibited picketing against the railroad it was not violated by conduct which as a matter of law was directed only against Dixie Cup. It is insisted, in other words, that even though the picketing prevented the...