The opinion
I concur in the result of Judge Blake's opinion for the same reason that I concurred in the result of the majority opinion in O'Neil v. Building Service Employees Union , 9 Wn.2d 507 , 115 P.2d 662 , and of the mapority opinion in S and W Fine Foods, Inc. v. Retail Delivery Drivers and Salesmen's Union, ante p. 262, 118 P.2d 962 . In cases of this character, we are in duty bound to follow the decisions of the supreme court of the United States.
Upon oral argument, appellant contended that, even so, that duty can be properly discharged in the instant case by reversing the lower court upon the rule announced by the supreme court in its opinion in Milk Wagon Drivers Union v. Meadowmoor Dairies , 312 U.S. 287 , 85 L.Ed. 386 , 61 S.Ct. 552 , 132 A.L.R. 1200 . Briefly stated, the rule of that case is that picketing may be enjoined when set in "a background of violence." It must be conceded that there was some violence shown in the instant case. At the outset at least, there was mass picketing. Appellant's manager, its attorney, and one of its foremen were on separate occasions denied entrance to the plant. On another occasion, a picket grabbed the steering wheel of the automobile of a company salesman who was about to drive into the plant and threatened that, if he persisted, his car would be run over the bank. The violence, however, was sporadic and quite insignificant in nature, as contrasted with the violence which caused the majority of the members of the supreme court of the United States to leave the Illinois injunction in force in the Meadowmoor case:
"Witnesses testified to more than fifty instances of window smashing; explosive bombs caused substantial injury to the plants of Meadowmoor and another dairy using the vendor system and to five stores; stench *Page 533
bombs were dropped in five stores; three trucks of vendors were wrecked, seriously injuring one driver, and another was driven into a river; a store was set on fire and in large measure ruined; two trucks of vendors were burned; a storekeeper and a truck driver were severely beaten; workers at a dairy which, like Meadowmoor, used the vendor system were held with guns and severely beaten about the head while being told `to join the union'; carloads of men followed vendors' trucks, threatened the drivers, and in one instance shot at the truck and driver. In more than a dozen of these occurrences, involving window-smashing, bombings, burnings, the wrecking of trucks, shootings, and beatings, there was testimony to identify the wrongdoers as union men." (Milk Wagon Drivers Union v. Meadowmoor Dairies, supra.)
The author of the opinion in that case could well say: "These acts of violence are neither episodic nor isolated," and, "the picketing in this case was set in a background of violence."
It must be remembered also that, in spite of the veritable reign of terror staged by the pickets in conducting the strike involved in the Meadowmoor case, three of the judges held that the state court's injunction prohibiting picketing should, nevertheless, be completely dissolved. The long dissenting opinion of Mr. Justice Black, in which one of his brethren concurred, closes with the following sentence:
"I am of opinion that the court's injunction strikes directly at the heart of our government, and that deprivation of these essential liberties cannot be reconciled with the rights guaranteed to the people of this Nation by their Constitution."
A third justice devoted a separate dissenting opinion to establishing the proposition that the right to picket at a future time cannot be lost or impaired by past violence. Nor was his thesis far removed from *Page 534
the thought of the majority, for they included in their own opinion the following statement:
"The injunction which we sustain is `permanent' only for the temporary period for which it may last. It is justified only by the violence that induced it and only so long as it counteracts a continuing intimidation." (Italics mine.)
Since the violence in this case at no time approximated, or even approached, that shown in the Meadowmoor case, I am of the opinion that that case is not authority for the issuance of the injunction for which the appellant prays. Indeed, since the majority opinion in the Meadowmoor case squarely holds that an injunction is justified "only so long as it counteracts a continuing intimidation," and the lower court in the instant case found, as a fact, that violence and intimidation had wholly ceased, I believe the supreme court of the United States would sustain the trial court had it refused to keep any injunction whatever in force.
In fact, there is much reason to think that, should the matter come before it, the supreme court would dissolve even the comparatively mild injunction which the trial court's order left in effect. It expressly forbids picketing by more than five pickets. Would not the supreme court be compelled to dissolve it in order to maintain the integrity of its recent decisions? Those decisions reach the conclusion that peaceful picketing cannot be restrained, upon the reasoning that each picket is doing nothing more than exercising his individual and personal right of freedom of speech as guaranteed him by the first amendment to the Federal constitution; hence, no injunction will lie. The picket line in this instance was a long one, at times, as Judge Blake's opinion points out, containing as many as three hundred men. An injunction forbidding all but five of the three hundred from picketing denies that right *Page 535
to all but five. Under the doctrine of the Swing and companion cases, would not the court be compelled to hold that the injunction limiting the picket line to five men deprived each of the several hundred others of their respective constitutional rights of freedom of speech? Obviously, this question cannot be answered by saying that a court can compel them to delegate such rights. A right more personal in its nature than the right of freedom of speech cannot be conceived or imagined. To compel a man, by court order, to delegate that right to another or others, would be simply to deprive him of it by force.
To say, as the supreme court has recently repeatedly said, that peaceful picketing by persons having a legitimate interest in a labor dispute cannot be restrained because no man's right to freedom of speech may be abridged, is just another way of saying that every man having a legitimate interest in a labor controversy may peacefully picket without restraint. How, then, could that court sustain an injunction limiting the number of pickets?
As I view it, the second question discussed in both of the foregoing opinions is purely academic. I can see no good reason to inquire whether or not Congress intended to prohibit peaceful picketing after a collective bargain had been made, for it could not constitutionally do so. This proposition (assuming the Swing case to be sound) is subject to demonstration, almost Euclidian in brevity and certainty:
(1) Peaceful picketing is nothing other than the exercise of that freedom of speech protected by the first amendment to the Federal constitution.
(2) To abridge peaceful picketing would, therefore, abridge freedom of speech.
(3) But the first amendment to the Federal constitution provides that: *Page 536
"Congress shall make no law . . . abridging the freedom of speech, . . ."
Hence, if Congress did in fact attempt to limit peaceful picketing by any provision of the national labor relations act, the act is to that extent unconstitutional.
I concur in the result of the majority opinion.
JEFFERS, J., concurs with ROBINSON, C.J.