Thomas v. City of Indianapolis

• Decision Date: 05 December 1924
• Docket Number: Nos. 23738,24070-24072.,s. 23738
• Parties: THOMAS et al. v. CITY OF INDIANAPOLIS et al.
• Court: Indiana Supreme Court

195 Ind. 440

145 N.E. 550

THOMAS et al.

v.CITY OF INDIANAPOLIS et al.

Nos. 23738, 24070-24072.

Supreme Court of Indiana.

Dec. 5, 1924.

Appeal from Circuit Court, Johnson County; Fremont Miller, Judge.

Appeals from Circuit Court, Marion County; Harry O. Chamberlain, Judge.

Action by John R. Thomas and others against the City of Indianapolis and others. Judgment for defendants and plaintiffs appeal. William Landemier and others, Al Moseman and others, and Francis J. Dillon and others, were convicted in separate proceedings of violating the anti-picketing ordinance, and they appeal. Judgments affirmed.Joseph O. Carson, Wm. H. Faust, and J. Herbert Hartman, all of Indianapolis, for appellants.

Samuel Ashby, Thos. D. Stevenson, Harry E. Yockey, Dixon H. Bynum (Consolidated Attys.), and James M. Ogden and Wm. T. Bailey, all of Indianapolis, for appellees.

GAUSE, J.

All of the above cases were consolidated for purposes of briefing in this court, and may be disposed of by one opinion.

Cause No. 23,738 is an action in which appellants sought to enjoin the appellees, the city of Indianapolis, the mayor of said city, the chief of police, and certain other officers from enforcing against appellant and others a certain ordinance of said city known as an “anti-picketing” ordinance. The other causes are appeals from convictions for violations of said ordinance.

The question presented in all of said cases is as to the validity of said ordinance. The ordinance, omitting the title, is as follows:

“Be it ordained by the common council of the city of Indianapolis, Indiana:

Section 1. Whoever shall watch, beset, or picket the premises of another where any person is employed, or any approach thereto, or any place or approach thereto, where such employé lodges or resides, for the purposes of inducing any such employé, by compulsion, threats, coercion, intimidation, or by any act of violence, or by putting such employé in fear, to quit his or her employment or to refrain from seeking or freely entering into employment, shall, upon conviction thereof, be fined in any sum not less than ten dollars ($10.00), nor more than three hundred dollars ($300.00), to which may be added imprisonment not exceeding sixty (60) days.

Sec. 2. Whoever shall watch, beset, or picket the premises of another, or any approach thereto for the purpose of inducing others to refrain from entering such premises, or from patronizing, transacting business with or negotiating with the owner or occupant of such premises shall, upon conviction thereof, be fined in any sum not less than ten dollars ($10.00), nor more than three hundred dollars ($300.00), to which may be added imprisonment not exceeding sixty (60) days.

Sec. 3. Whoever, in association or agreement with one or more persons, shall assemble, congregate, or meet together in the vicinity of any premises where other persons are employed or upon the streets, approaches or places adjacent thereto, for the purpose of inducing any such employé, by compulsion, threats, coercion, intimidation, or by any act of violence, or by putting such employé in fear, to quit his or her employment therein or to refrain from seeking or freely entering into employment therein, shall, upon conviction thereof, be fined in any sum not less than ten dollars ($10.00), nor more than three hundred dollars ($300.00), to which may be added imprisonment not exceeding sixty (60) days.

Sec. 4. Whoever, in association or agreement with one or more persons, shall assemble, congregate, or meet together in the vicinity of the premises of another, or upon the streets, approaches, or places adjacent thereto, for the purpose of inducing others to refrain from entering such premises or from patronizing, transacting business with, or negotiating with the owner or occupant thereof, of such premises, shall, upon conviction thereof, be fined in any sum not less than ten dollars ($10.00), nor more than three hundred dollars ($300.00), to which may be added imprisonment not exceeding sixty (60) days.

Sec. 5. Whoever, for the purpose of compelling, coercing, or inducing any persons to quit his or her employment or to refrain from seeking or freely entering into employment, shall utter to or within the hearing of such person or persons, any derogatory or opprobrious or indecent epithets or language or gestures or threats of violence, shall, upon conviction thereof, be fined in any sum not less then ten dollars ($10.00), nor more than three hundred dollars ($300.00), to which may be added imprisonment not exceeding sixty (60) days.”

The first objection appellants make to the ordinance in question is that the city council had no authority under the city charter, to pass the same. Clause 47 of section 8655, Burns' 1914, provides that city councils shall have the power to pass ordinances “to preserve peace and good order, *** quell riots and disperse disorderly assemblages. ***” Appellants assert that this ordinance is unreasonable and oppressive and not within the power granted by the above statute. They take the position that picketing is not per se unlawful, and that this general grant of power in the statute is not sufficient to authorize such an ordinance.

Counsel refer to the case of Karges Furniture Co. v. Amalgamated, etc., Union (1905) 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788, 6 Ann. Cas. 829, in which it was held that the mere act of picketing, in a labor dispute, was not within itself unlawful, if not accompanied by unlawful means. It should be borne in mind that the court was, in that case, speaking of what was lawful in the absence of any legislation upon the subject, and no legislative action upon the subject was considered.

[1] Although the decisions of the courts of this country are not in accord on the question, the majority hold that, in the absence of any legislation upon the subject, so-called “peaceful picketing” is not unlawful, but that where it is accompanied by force, intimidation or coercion it is unlawful and will be enjoined by a court in the exercise of its equitable powers. Such was the holding in the Karges Furniture Co. Case, supra. See, also, note to In re Langell, 50 L. R. A. (N. S.) 412; annotation in 6 A. L. R. 929.

As to those sections of this ordinance which prohibit the resort to compulsion, threats, coercion, intimidation, or any act of violence, attention is called to the fact that the courts have unanimously recognized that picketing, where such means are used, is wrong per se and will be enjoined. As was said by this court in the case above cited:

“Under no circumstances have pickets the right to employ force, menaces, or intimidation of any kind in their efforts to induce nonstriking workmen to quit, or to prevent those about to take the strikers' places to refrain from doing so; neither have they the right, as pickets or otherwise, to assemble about the working place in such numbers or in such manner as to impress workmen employed, or contemplating employment, with fear and intimidation.”

See, also, cases cited in the above case.

[2] Under the authority to pass ordinances to preserve peace and good order, etc., a city council would certainly possess the power to pass an ordinance, the effect of which would be to prevent the commission of acts which are universally condemned as wrong and which inevitably lead to disorder and a disturbance of the peace of the public.

[3][4] A more serious question is presented as to the validity of sections 2 and 4 of said ordinance. Section 2 makes all picketing of the premises, or the approaches to the premises, of another unlawful, if for the purpose of inducing others to refrain from entering such premises or from patronizing, transacting business with or negotiating with the owner or occupant of such premises. Section 4 makes it unlawful for two or more persons to assemble together in the neighborhood of the premises of another for any of the purposes set out in section two. It will be observed that in order to violate either of these sections it is not necessary that any force or violence be used, or that there be any overt acts committed tending towards intimidation, other than the act of picketing such premises for the purpose of preventing others from patronizing, transacting business with, or negotiating with the owner or occupant.

The word “picketing,” as used in this ordinance, has a well-defined meaning. It has been defined as the maintenance of an organized espionage upon the works or places of business of an employer and those going to and from them, and it has been remarked that the word “picket” is borrowed from the nomenclature of warfare, and is strongly suggestive of a hostile attitude toward the individual or corporation against whom a labor organization has a grievance. 16 R. C. L. p. 453, and cases cited. Another definition of picketing that has often been approved is given in Black's Law Dictionary, as follows:

“Picketing by members of a trade union on strike, consists in posting members at all the approaches to the works struck against, for the purpose of observing and reporting the workmen going to or coming from the works, and of using such influence as may be in their power to prevent the workmen from accepting work there.”

Although, as heretofore stated, a majority of the courts have recognized the rights of striking employés to maintain pickets to beset the premises of the employer where no unlawful means were used and where there was no legislation upon the subject, yet many courts whose opinions are entitled to great weight, have taken the position that all picketing, as that term is used in modern practice, is unlawful and should be restrained. To this effect, see Barnes & Co. v. Chicago Typographical Union, 232 Ill. 424, 83 N. E. 940, 14 L R. A. (N. S.) 1018, 13 Ann. Cas. 54;Beck v. Railway Teamsters', etc., Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421;Otis Steel Co. v. Local Union, etc. (C....