Supreme Court of Missouri, 1948

Ex Parte Hunn and Levan

Supreme Court of Missouri · Decided January 12, 1948 · Clark

207 S.W.2d 468; 357 Mo. 256; 1948 Mo. LEXIS 627; 21 L.R.R.M. (BNA) 2212 (South Western Reporter, Second Series)

Counsel

Stanley R. Schuchat, Floyd D. Stewart, Paul J. Kaveney, Richard M. Stout, J. Jules Brinkman, Wiley, Craig Armbruster, Robert A. Roessel, Raymond M. Freed, and Bartley Bartley for petitioners. (1) Picketing is protected as an incident of free speech by constitutional guaranties in Section One of the Fourteenth Amendment of the Constitution of the United States, and in Article I, Section 8 and Section 10 of the Constitution of Missouri. Senn v. Tile Layers Protective Union, 301 U.S. 468 , 57 S.Ct. 857, 81 L.Ed. 1229; Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. California, 310 U.S. 106 , 60 S.Ct. 746, 84 L.Ed. 1104; American Federation of Labor v. Swing, 312 U.S. 321 , 61 S.Ct. 568, 85 L.Ed. 855; Milk Wagon Drivers' Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287 , 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200; Bakery Pastry Drivers Union v. Wohl, 315 U.S. 769 , 62 S.Ct. 816, 86 L.Ed. 1178; Carpenters Joiners Union of America v. Ritter's Cafe, 315 U.S. 722 , 62 S.Ct. 807, 86 L.Ed. 1143; Cafeteria Employees' Union, Local 302, v. Angelos, 320 U.S. 293 , 64 S.Ct. 126, 88 L.Ed. 58; Miller's, Inc., v. Journeymen Tailors Union, Local No. 195, 128 N.J. Eq. 162 , 15 A.2d 822, rev'd 312 U.S. 658 , 61 S.Ct. 820, 85 L.Ed. 1106; Fred Wolferman, Inc., v. Root, 356 Mo. 976 , 204 S.W.2d 733 . (2) Picketing, like any other type of communication, is not an absolute right and is subject to restrictions, which will be upheld so long as they do not transcend constitutional limitations. Carpenters Joiners Union of America v. Ritter's Cafe, supra; Milk Wagon Drivers' Union of Chicago, Local 753, v. Meadowmoor Dairies, Inc., supra; American Federation of Labor v. Swing, supra. (3) A restriction upon free speech, including picketing, must, in order to be held valid, be narrowly drawn and directed toward some specific substantive evil, or perhaps, in the case of picketing, toward specific circumstances affording a reasonable basis for regulation. Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247, 63 L.Ed. 470; Commonwealth v. Pascone, 308 Mass. 591 , 33 N.E.2d 522 ; Thornhill v. Alabama, supra; Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 87 L.Ed. 1292; Martin v. City of Struthers, 319 U.S. 141 , 63 S.Ct. 862, 87 L.Ed. 1313. (4) Legislation which places a ban on free speech, which ban is universal in respect to all persons, or in respect to all persons in a specified group, or even in respect to one individual, is unconstitutional and void. Commonwealth v. Pascone, supra; Thornhill v. Alabama, supra; Carlson v. California, supra; American Federation of Labor v. Swing, supra; Bakery Pastry Drivers Union v. Wohl, supra; Cafeteria Employees' Union, Local 302, v. Angelos, supra; Miller's, Inc., v. Journeymen Tailors Union, Local No. 195, supra. (5) The absence of an employer-employee relationship does not in and of itself afford a reasonable basis for depriving a person of his freedom of speech. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 , 42 S.Ct. 72, 66 L.Ed. 189; Purcell v. Journeymen's Barbers Union, 234 Mo. App. 843 , 133 S.W.2d 662 ; American Federation of Labor v. Swing, supra; Bakery Pastry Drivers Union v. Wohl, supra; Cafeteria Employees' Union, Local 302, v. Angelos, supra; Miller's, Inc., v. Journeymen Tailors Union, Local No. 195, supra. (6) A legislative classification which does not rest upon some real and substantial distinction, bearing a reasonable and just relation to the persons or things in respect to which the classification is imposed and to the object sought to be accomplished by the legislation, whether the law be a police regulation or otherwise, is unconstitutional and void as a denial of equal protection of the laws in violation of Section One of the Fourteenth Amendment of the Constitution of the United States, and also as a special law in violation of Article III, Sec. 40(27) of the Constitution of the State of Missouri. Southern Ry. Co. v. Greene, 216 U.S. 400 , 30 S.Ct. 287, 54 L.Ed. 536; Atchison, Topeka Santa Fe Ry. Co. v. Vosberg, 238 U.S. 56 , 35 S.Ct. 675, 59 L.Ed. 1199; State v. Julow, 129 Mo. 163 , 31 S.W. 781, 29 L.R.A. 257, 50 Am. St. Rep. 443; State ex rel. Wander v. Kimmel, 266 Mo. 611 , 165 S.W. 1067; State ex rel. Attorney General v. Miller, 100 Mo. 439 , 13 S.W. 677; White v. Missouri, K. T. Railroad, 230 Mo. 287 , 130 S.W. 325, 29 L.R.A. (N.S.) 874; State v. Hedrick, 294 Mo. 21 , 241 S.W. 402 ; People v. Gidaly, 35 Cal.App.2d 758 , 93 P.2d 660 . (7) The nature of picketing itself does not provide a reasonable basis for distinguishing in respect thereto between persons who are employees of the person being picketed and those who are not such employees. People v. Gidaly, supra; People v. Garcia, 37 Cal.App.2d 753 , 98 P.2d 265 . (8) The nature of the controversy in connection with which picketing is permitted to the employees of an employer does not provide a reasonable basis for distinguishing between such employees and other workers in the same industry, for the reason that such other workers in the same industry may have the same type of controversy with an employer as his own employees. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 , 42 S.Ct. 72, 66 L.Ed. 189; American Federation of Labor v. Swing, it a criminal offense for any person to "interfere" with the business of anyone engaged in business, or "interfere" with any person or persons desiring to transact or transacting business with him, is so completely devoid of any definition, standard, criterion, pattern or guide whereby persons may be informed as to what acts they may or may not engage in as to be void because of being vague, indefinite and uncertain. Diemer v. Weiss, 343 Mo. 626 , 122 S.W.2d 922 . (18) Where the title of a statute goes into such detail as would reasonably lead to the belief that nothing was included except that which is specified, then any matter not specified is not within the title, and any matter beyond the title is void. Art. III, Sec. 23, Constitution of Missouri, 1945; Fidelity Adjustment Co. v. Cook, 339 Mo. 45 , 95 S.W.2d 1162 ; State ex rel. Fire Dist. of Lemay v. Smith, 353 Mo. 807 , 184 S.W.2d 593 ; State on inf. of Wallach v. Beckman, 353 Mo. 1015 , 185 S.W.2d 810 . Stanley Wallach for respondent. (1) The right of free speech is not an absolute right and under police power the state may punish utterances. Whitney v. California, 274 U.S. 357 ; Gitlow v. New York, 268 U.S. 652 . (2) The right to picket is an exercise of the constitutional right to free speech but it is not an absolute right and may be limited by the state. United Electric Radio Machine Workers v. Ballwin, 67 F. Sup. Ct. 235. (3) The state is not without power to confine picketing. Bakery Pastry Drivers v. Wohl, 315 U.S. 769 ; Carpenters Joiners Union v. Ritter's Cafe, 315 U.S. 722 . Harry C. Clark for the Congress of Industrial Organizations, amicus curiae. (1) Section 8 of Senate Bill No. 79 is unconstitutional because it forbids peaceful picketing and denies freedom of speech. A.F. of L. v. Swing, 312 U.S. 321 , 61 S.Ct. 568; Bakery Pastry Drivers' Local Union v. Wohl, 315 U.S. 769 , 62 S.Ct. 816; Cafeteria Employee's Union v. Angelos, 320 U.S. 293 , 64 S.Ct. 126; Purcell v. Journeymen Barbers, 133 S.W.2d 662 . (2) Section 8, Senate Bill No. 79, violates the constitutional guaranty of equal protection of the laws. A.F. of L. v. Bain, 165 Or. 183 , 106 P.2d 544 ; Stapelton v. Mitchell, 60 F. Supp. 51 . Clif Langsdale and Clyde Taylor for Missouri State Federation of Labor, amicus curiae. (1) The constitutionality of a legislative act may be tested in habeas corpus where the petitioner is in custody by virtue of process charging violation of such act. Harris, 47 Mo. 164 ; Ex parte Voninghausen, 91 Mo. 301 , 1 S.W. 761; Ex parte Marmaduke, 91 Mo. 228 , 4 S.W. 91; Ex parte Lerner, 281 Mo. 18 , 218 S.W. 331 . (2) Transcendent importance of the questions here involved and historical value. Murdock v. Commonwealth, 63 S.Ct. 870; Douglas v. Jeannette, 63 S.Ct. 877; Bridges v. California, 62 S.Ct. 180; 2 Cooley's Constitutional Limitations (8th Ed.), p. 876. (3) Peaceable picketing by exhibition of banners, distributing of pamphlets and other literature, by word of mouth and by other means appropriate and expedient to ordinary and usual picketing by labor unions, is the exercise of freedom of speech and of the press guaranteed and protected by Amendments One and Fourteen to the Constitution of the United States. Senn v. Tile Layers Union, 301 U.S. 468 , 57 S.Ct. 857; Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736; Carlson v. California, 310 U.S. 106 , 60 S.Ct. 746; American Federation v. Swing, 312 U.S. 321 , 61 S.Ct. 568; Milk Wagon Drivers v. Meadowmoor, 312 U.S. 287 , 61 S.Ct. 522; Bakery Drivers v. Wohl, 315 U.S. 769 , 62 S.Ct. 816; Carpenters Union v. Ritter, 315 U.S. 722 ; Cafeteria Union v. Angelos, 320 U.S. 293 , 64 S.Ct. 126. (4) No restriction of any character can be placed upon freedom of speech and of the press unless there is clear, present or imminent danger to the public if such restraint is not made. Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247. Bridges v. California, 314 U.S. 252 , 62 S.Ct. 190; Bridges v. California, 314 U.S. 252 , 62 S.Ct. l.c. 193; Herndon v. Lowry, 301 U.S. 242 , 57 S.Ct. 732; Carlson v. California, 310 U.S. 106 ; Murdock v. Pennsylvania, 310 U.S. 104 ; Cantwell v. Connecticut, 310 U.S. 306 ; Schneider v. New Jersey, 308 U.S. 147 . (5) The precise question that requires decision is, whether peaceable picketing in connection with a labor matter in which labor has a real and substantial interest but where there is no labor dispute between the employer picketed and his immediate employees, presents such a clear and present or imminent peril and danger to the public that the legislature is warranted in restraining freedom of speech and of the press as in Section 8 of Senate Bill 79. (6) Section 8 of Senate Bill No. 79 is void because it violates Amendment XIV to the Constitution of the United States in that it denies the petitioner the equal protection of the law. (7) A state may not prohibit peaceful and otherwise lawful picketing in those cases when there is no labor dispute between the employer and his immediate employees. Such a restriction is in violation of the constitutional freedom of speech and of the press and of assembly. For this reason Section 8 of the Senate Bill is void. American Federation v. Swing, 312 U.S. 321 ; Bakery Drivers v. Wohl, 315 U.S. 769 ; Cafeteria Union v. Angelos, 320 U.S. 293 ; Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736.

Opinion of the Court

*262 CLARK, J.

[468] These cases, although slightly differing in their facts, pose the same legal questions and will be disposed of in one opinion. Each petitioner filed a separate application in this court for a writ of habeas corpus, alleging that he is being illegally deprived o'f his liberty; one by the Sheriff of St. Louis County, the other by the Sheriff of St. Louis City-. Our writs were issued and each respondent sheriff has made return thereto showing that each petitioner is being held on a warrant issued upon an information charging violation of Section 8 of Senate Committee Substitute for Senate. Bill 79, Laws of 1947, (Mo. R. S. A., Sec. 10178.208, pocket parts for September, 1947) commonly called the Madison Act.

Extensive briefs have been filed and oral arguments made for both petitioners. No oral argument was made for either respondent and no brief has been filed for respondent in the LeVan case.

Section 8 of the Madison Act reads as follows: “If any employee, [469] any representative of employees or officer or agent of a representative of employees shall participate in any combination or agreement of employees to cease performing any services for an employer, or to refuse to handle, install, use or work on particular materials, equipment or supplies, or to cause any loss or injury to such employer or to his employees, for the purpose of inducing or compelling' such employer to refrain from doing business with or handling the products of any other employer, or if any person shall picket, or induce others to picket, the establishment, employees, supply or delivery vehicles, or customers of anyone engaged in business, or interfere with his business, or interfere with any person or persons desiring to transact or transacting business with him, when no labor dispute exists between such employer and his employees or their representatives, he shall be deemed guilty of a misdemeanor.” (Laws 1947, p. 355, S. C. S. S. B. No. 79, See. 8.)

The information filed by the prosecuting attorney charged Hunn as follows: “On the 11th day of September, in the year 1947, in the County of St. Louis, and State of Missouri, one Arthur A. TIunn who was not in the employ of the said Samuel D. Caldwell, did then and there knowingly, wilfully and unlawfully picket the pre--mises of Samuel D. Caldwell, located at 3200 McKibbon Road, St. Louis, County, Missouri, when there was no labor dispute existing between the said Samuel D. Caldwell and the said Arthur A. Hunn, or any employees of the said Samuel D. Caldwell, contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State.”

The information charged LeVan as follows: “On the 15th day of September, 1947, not being then and there an employee of or a representative of any of the employees of Adolph Merdinger doing business as Rex Barber Shop, did then and there knowingly, wilfully and unlawfully picket the premises of Adolph Merdinger, doing *263 business as Rex Barber Shop, located at 205 North Seventh Street, St. Louis, Missouri, by walking up and down on the public sidewalk in .front of said premises carrying an umbrella upon which the following language appeared: ‘This shop is non-union, Barbers’ Union, Local 102, affiliated with A. F. of L.,’ when there was no labor dispute existing between the said Melvin L. LeVan and the said Adolph Merdinger, doing business as Rex Barber Shop, or any of the employees of the said Adolph Merdinger in violation of Section 8, of Senate Committee Substitute for Senate Bill 79, of the 64th General Assembly of the State of Missouri, and particularly that portion of it reading as follows: . . or if any person shall picket, or induce others to picket, the establishment, employees, supply or delivery vehicles, or customers of anyone engaged in business, or interfere with his business, or interfere with any person or persons desiring to transact or transacting business with him, when no labor dispute exists between such employer and his employees, or their representatives’ contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State. ’ ’

It is apparent that the information in each case is grounded upon the following portion of Section 8: “. . . or if any person shall picket, . . . when no labor dispute exists between such employer and his employees or their representatives, he shall be guilty of a misdemeanor. ’ ’

Petitioners attack Section 8 as being a denial of the right of free speech as guaranteed by the United States Constitution (Amendment I, and Section' 1 of Amendment XIV) and by the Missouri Constitution (Sections 8 and 10 of Article I). The attack is directed to the entire section, but we confine Our discussion to that portion of the section which we have last quoted and which is the only portion relevant to the issues here presented.

Under the decisions of the Supreme Court of the United States, peaceful picketing as an incident of free speech is a constitutional right.

Carlson v. California, 310 U. S. 106, 1. c. 113, 60 S. Ct. 746, 84 L. Ed. 1104: “For the reasons' set forth in our opinion in Thornhill v. Alabama, supra, publicizing the facts of a labor dispute in a peaceful [470] way through appropriate means, whether by pamphlet, by word of -mouth or by banner, must now be regarded as within that liberty of communication which is secured to every person by the Fourteenth Amendment against abridgment by a State. ’ ’

A. state may prescribe reasonable regulations as to the manner of picketing. “A State is not required to tolerate in all places and all circumstances even peaceful picketing by an individual.” (Bakery Drivers Local v. Wohl, 315 U. S. 769, 1. c. 774.) But a state is without power to ban peaceful picketing by an individual *264 on the sole ground that no labor dispute exists between the picket and the establishment picketed.

A. F. of L. v. Swing, 312 U. S. 321, 1. c. 325, 61 S. Ct. 568, 85 L. Ed: 855; “We are asked to sustain a decree which for purposes of this ease asserts as the common law of a state that there can be no ‘peaceful picketing or peaceful persuasion’ in- relation to any dispute between an employer and a trade union unless the employer’s own employees are in controversy with him.

“Such a ban of free eommunicátion is inconsistent with the guarantee of freedom of speech. That a state has ample power to regulate the local problems thrown up by modern industry and to preserve the peace is axiomatic. But not' even these essential powers are unfettered by the requirements of the Bill of Rights. The scope of the Fourteenth Amendment is not confined by the notion of a particular state regarding the wise limits of an injunction in an industrial dispute, whether those limits be defined by statute or by the judicial organ of -the state.’ A state cannot exclude workingmen from peacefrrlly exercising the right of free communication by drawing the circle of economic 'Competition between employers and workers so small as to contain only an employer and those directly employed by him. The interdependence of economic interest of all engaged in the same industry has become a commonplace. American Steel Foundries v. Tri-City Council, 257 U. S. 184, 209. The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ.

Bakery Drivers Local v. Wohl, 315 U. S. 769, 1. e. 774, 62 S. Ct. 816, 86 L. Ed. 1178: “So far as we can ascertain from the opinions delivered by the state courts in this case, those courts were concerned only with the question whether there was involved a labor dispute within the meaning of the New York statutes, and assumed that the legality of the injunction followed from a determination that such a dispute was not- involved. Of course that does not follow: one need not be in a ‘labor dispute’, as defined by state law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive.” (See also: Cafeteria Union v. Angelos, 320 U. S. 293, 64 S. Ct. 126, 88 L. Ed. 58, Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093.)

Section 8 of the Madison Act does not regulate picketing. It purports to abolish the right, not the abuse, of free speech as an incident of picketing unless a labor dispute exists. Nowhere does the Act define the term “picket” or “picketing.” As said in Thornhill v. Alabama, 310 U. S., l. c. 100, “The vague contours of the term ‘picket’ are nowhere delineated,” then in a footnote the opinion gives seven definitions of the term, some imputing peacefulness and some violence. A penal staüite creating a new offense must *265 be sufficiently clear to inform those subject to it what conduct on their part will render them liable to its penalties. [Connally v. General Construction Co., 269 U. S. 385.]

Bach information here charges “picketing” by one person only. No conspiracy is alleged, nor* any violence, or conduct even remotely tending to produce disorder. It is not stated that any damage, or even inconvenience, has resulted or will result to the establishment picketed. It is not charged that either petitioner made or displayed any false statement. In the Hunn [471] case the information doés not charge him with making any statement, oral or otherwise. LeVan is charged with walking on the public sidewalk in front of certain premises carrying an umbrella upon which appeared “This shop is non-union.” If true, that statement, unaccompanied by any illegal conduct, could be displayed upon a billboard, published in a newspaper or made by any individual without fear of punishment, regardless of the existence or non-existence of any labor dispute. The informations substantially follow the language of the .statute, but the statute, in so far as it attempts to forbid any and all picketing when no labor dispute exists, is unconstitutional and void.

That portion of the statute is void also because it is not authorized by the title of the Act, which is: “An Act .to provide for the settlement of jurisdictional labor disputes and disputes over labor. representation; to prohibit jurisdictional strikes, sympathy strikes, secondary boycotts and strikes against government and to provide penalties for violation of this act; to require and regulate elections among members of labor organizations with respect to any strike ; to provide for the enforcement of working agreements or contracts between employers and labor orgainzations; to provide for the enforcement of the provisions of this act, and to provide fol the payment of expenses for administration of this act.” (Laws 1947, p. 355, S. C. S. S. B. No. 79.) •

The title does not mention “pickets” or “picketing.” It descends to particulars indicating that the things specifically mentioned comprise the entire subject of the Act. Even if we could hold the title broad enough to include the subject of picketing in connection with the things mentioned, there is nothing in the title to give notice that the Act makes all picketing a crime in the absence of a labor dispute. (Mo. Const. Sec. 3, Art. XXIII; State ex rel. v. Smith, 353 Mo. 807, l. e. 819, 184 S. W. (2d) 593.)

For the reasons stated, we hold .that each petitioner is being illegally restrained and we hereby order that each petitioner be discharged.

All concur.

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