CARTER, J. I dissent.
As the majority make no attempt to state the facts with particularity, it seems advisable to do so here. The controversy centered around a grocery store in Richmond, Contra Costa County, one of a chain operated by Lucky Stores, Incorporated. Petitioners were adjudged guilty of contempt in that, in violation of the terms of a preliminary injunction, they admittedly continued to picket the store in question. They seek by this proceeding in certiorari to have the adjudication of contempt annulled, charging that their constitutional rights have been violated. This court has held that certiorari is the appropriate method to test the jurisdiction of the superior court where it is challenged on constitutional grounds. (Fortenbury v. Superior Court, 16 Cal.2d 405 [106 P.2d 411]; Kreling v. Superior Court, 18 Cal.2d 884 [118 P.2d 470].)
Lucky Stores sought an injunction in the Superior Court of Contra Costa County, naming petitioners and various organizations and individuals as defendants. In its verified complaint it alleged that it was a party to a collective bargaining contract with a certain clerks’ union wherein it had agreed to employ only members of the union unless the union could not meet its demands, or unless the unemployed members of the union were not satisfactory to it, in which event it might employ nonunion members, but that such nonunion employees must then join the union within a specified time. It was further alleged that these petitioners and other defendants demanded that Lucky Stores agree to hire Negro clerks in such proportion as the Negro customers bore to the white customers who patronized the store, and that plaintiff (Lucky Stores) discharge those employees who had participated in the apprehension and arrest of one Jackson who had been accused of shoplifting. Lucky Stores alleged that these demands were refused because to comply with them would violate the contract existing between it and the union, and that no labor dispute exists between it and the union, and [859]that as a result of its refusal to comply, the petitioners and other defendants have picketed its store. It is contended that this picketing will cause irreparable injury, that it is an infringement on plaintiff’s right to do business, and would require it to violate its contract with the union.
In response to the order to show cause why a preliminary injunction should not issue, petitioner Hughes filed a counter-affidavit in the injunction proceeding in which he sets forth the following facts: That he is a member and an officer in several of the organizations sought to be enjoined, and that he makes the affidavit in both his personal and representative capacities; that he and the other petitioner, Richardson, met with some officials of Lucky Stores and protested the treatment accorded Jackson; that he requested Lucky Stores, so far as this particular store is concerned, to hire graduaHy Negro clerks until the proportion of Negro to white clerks approximated the proportion of Negro to white customers. This proportional hiring was to take place as the white clerks left the employ of the store in question, or were transferred by plaintiff to other stores owned and operated by it. It was specifically stated that petitioner did not request the discharge of any employees of the store, but only that vacancies be filled with Negroes until the approximate proportion was reached. It was further alleged that about 50 per cent of the customers at this particular store were Negroes. At this time, petitioner had no knowledge of the contract existing between Lucky Stores and the union, but that subsequently the officials of the union informed petitioner that the union accepted Negro members, and that it had such qualified members presently unemployed, and could supply Negro clerks to any employer requesting such help. Petitioner states further that on May 19, 1947, members of several of the organizations sought to be enjoined, picketed the store in question. This picketing was confined to not more than six pickets patrolling an area more than 100 feet wide; that the pickets were peaceful and there was no violence, no comments were made to customers or employees, other than the placards which were carried by the pickets. The words on the placards were to the effect that Lucky Stores refused to hire, at this particular store, a proportionate number of Negro clerks.
The affidavit of Richardson, the other petitioner, was to the same effect, and contained substantially the same state[860]ments. Neither of these affidavits was controverted by the plaintiff in the trial court.
The trial court granted a preliminary injunction in favor of the plaintiff. Petitioners violated the terms of the injunction by picketing the store in question and were adjudged guilty of contempt of court.
It was agreed, at the oral argument before this court, by counsel for the respective parties, that the issue concerning Jackson had been dropped from the case. The sole question involved, at the present time, therefore, is the right of petitioners to picket a retail store, thereby setting forth their grievances and demands and publicizing the same.
When the writ of certiorari issued, respondent superior court and Lucky Stores, as real party in interest, joined in filing an answer and return, alleging that the picketing was without force and violence, but denying that it was not accompanied by misrepresentation, and alleging that the policy of Lucky Stores was to hire its employees on their individual merit and capacity, and denying that there had been any racial discrimination. It was contended that the picketing here involved was for the attainment of an unlawful objective.
It is a well-established principle that the Fourteenth Amendment to the federal Constitution invalidates legislation that infringes substantive rights of a fundamental character. The decision of the Supreme Court of the United States in Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed 1213, 128 A.L.R. 1352], made it clear that a judicial decision in the field of substantive law might also be found to be a violation of due process. Bridges v. State of California, 314 U.S. 252 [62 S.Ct. 190, 86 L.Ed 192], was the first ease to decide that punishment for contempt may violate the guaranty of freedom of speech.
The United States Supreme Court has held that picketing is identified with the freedom of speech guaranteed by the First Amendment to the Constitution of the United States. (Bakery Drivers' Local v. Wohl, 315 U.S. 769 [62 S.Ct. 816, 86 L.Ed. 1178]; Milk Wagon Drivers' Union, Local 753 v. Meadowmoor Dairies, 312 U.S. 287 [61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200]; 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].) This court has also so held in In re Blaney, 30 Cal.2d 643 [184 P.2d 892], Northwestern Pac. Railway Co. v. Lumber & Saw Mill [861]Workers' Union, 31 Cal.2d 441 [189 P.2d 277]; Park & T. I. Corp. v. International etc. of Teamsters, 27 Cal.2d 599 [165 P.2d 891, 162 A.L.R. 1426]; McKay v. Retail Auto S. L. Union No. 1067, 16 Cal.2d 311 [106 P.2d 373]; Magill Bros. v. Bldg. Service etc. Union, 20 Cal.2d 506 [127 P.2d 542], and others. In so holding, this court has established as the law of this state that the right to picket peacefully and truthfully is one of labor’s lawful means of advertising its grievances to the public.
It is quite true that the basic reason advanced in support of the fundamental right of freedom of speech for a free people grew out of the need to speak freely concerning political matters, but it is equally true that there is a need to speak freely with reference to economic matters. This may require a rather delicate balancing of interests involved, in that labor’s right to speak freely with regard to its grievances may, in some respects, infringe on the employer’s right to conduct his business as he chooses. Labor, always in a less advantageous bargaining position, has been held privileged to picket in an endeavor to put before the public its position, needs, and desires.
It is conceded here that picketing is free speech and something more. It is not an absolute right, but may be said to be in a category by itself, and as such subject to reasonable regulation by the courts. The boundaries circumscribing the right to picket are said to be that the object of concerted labor activity must be proper and that it must be sought by lawful means, or the persons injured by such activity may obtain damages or injunctive relief. There is no dispute here concerning the means used since the picketing was admittedly peaceful. The dispute centers around the objective sought by petitioners.
The picket seeks, through economic pressure, to induce certain action on the part of another. The activity sought to be induced may be one or more of many things. He may be one of a number of employees seeking better hours, working conditions, better pay for his labor, or he may, as in the present case, seek employment for himself and members of his race. It was held by this court in C. S. Smith, Met. Market Co. v. Lyons, 16 Cal.2d 389 [106 P.2d 414], and in the McKay case, supra, that labor may exert economic pressure upon employers provided that peaceful means are used and the [862]purpose is one reasonably related to labor conditions. Despite the picketing the public might choose to patronize the merchant, but labor must be given some opportunity to put its case before the public, that the public may decide for itself whether or not the worker’s position is a just one.
In New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 [58 S.Ct. 703, 82 L.Ed 1012], it was held that petitioners, members of a group organized to obtain advancement for the benefit of colored persons, were parties to a “labor dispute” within the meaning of the Norris-LaGuardia Act. The facts were substantially the same as are presented here, except for the words on the placards which the Negroes carried. The court stated the case, on page 559, in the following language: “The case, then, as it stood for judgment, was this: The petitioners requested the respondent to adopt a policy of employing negro clerks in certain of its stores in the course of personnel changes: the respondent ignored the request and the petitioners caused one person to patrol in front of one of respondent’s stores on one day carrying a placard which said: ‘Do Your Part! Buy Where You Can Work! No Negroes Employed Here!’ ...” and said on page 561, “The Act does not concern itself with the background or the motives of the dispute. The desire for fair and equitable conditions of employment on the part of persons of any race, color, or persuasion, and the removal of discriminations against them by reason of their race or religious beliefs is quite as important to those concerned as fairness and equity in terms and conditions of employment can be to trade or craft unions or any form of labor organization or association. Race discrimination by an employer may reasonably be deemed more unfair and less excusable than discrimination against workers on the ground of union affiliation ...” [Emphasis added.]
The public policy of this state, as declared by the courts, is in exact accord with the statutory policy of the' NorrisLaGuardia Act as interpreted in the above case. It has been here determined that picketing is justified even though no dispute exists between employer and employees. (McKay v. Retail Auto. S. L. Union, supra.) The Smith ease, supra, pointed out that the term “labor dispute” is a broad one, and in the absence of statutory definition, may be properly applied to any controversy which is reasonably related to employment and to the purposes of collective bargaining. (Park & T. I. Corp. v. International etc. of Teamsters, supra.)
[863]It is said that petitioners’ objective is unlawful for several reasons: (1) That if the demand of the petitioners had been complied with the result would have been, in effect, the equivalent of both a closed shop and a closed union in favor of the Negro race; and (2) that such a result, would have resulted in discrimination in favor of the Negro race; and (3) that petitioners’ objective was not a lawful exercise of the right to picket and hence not within the constitutional guaranty of free speech because petitioners had no relation to the labor contract; that the picketing was not directed at working conditions, but a racial dispute, and that a compliance with the demand would result in a breach of the contract between Lucky Stores and the Retail Clerks’ Union. The majority thought it unnecessary to discuss the latter point inasmuch as they found petitioners’ objective otherwise unlawful.
The majority, in holding that the judgment of contempt should be affirmed, state that the case of James v. Marinship Corp., 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900], is controlling. The facts in the Marinship case are as follows: Marinship, as employer, had a closed shop agreement with a labor union, whereby it agreed to hire only members of a particular union. Plaintiff, a member of the Negro race, was not admitted to full membership in the union, nor were other members of his race, but he, and they, were admitted to separate Negro lodges affiliated with the union. Negroes were forced to pay dues to these lodges in order to obtain work clearances for employment at Marinship. Marinship was under contract with the federal government wherein it was provided that it would not discriminate against any worker because of race, color, creed or national origin. Plaintiffs were willing to become members of the union on equal terms with other members, but the union would not receive them on that basis. These, then, are the facts which led to the basic question there involved: Whether a closed union coupled with a closed shop is a legitimate objective of organized labor. This question was answered in the negative. It was held that the union may not maintain both a closed shop and an arbitrarily closed union.
A closed shop is defined as one that employs only union members. (Irving v. Joint Dist. Council, U. B. of Carpenters (N.Y.), 180 P. 896, 899; Miners in General Group v. Hix, 123 W.Va. 637 [17 S.E.2d 810, 813].) A closed union is one [864]which arbitrarily denies admittance to qualified workers. It was the combination of the two, resulting in discrimination between the races, which brought about the end result—that the discriminated-against race was unable to obtain gainful employment in the closed shop, admittedly a vicious circle, which was forbidden by the decision in the Marinship case. This is the ease, which, according to the majority, is supposedly analogous to the result sought to be achieved by petitioners here.
The Retail Clerks’ Union, which is involved here only incidentally, is not a closed union. It numbers among its members those of both the white and Negro races. It has also among its members, unemployed qualified Negro clerks. The contract between Lucky Stores and this union was not a “closed shop” agreement, but in reality, a “union shop” agreement. (Markham & Callow, Inc. v. International Woodworkers, 170 Ore. 517 [135 P.2d 727]; Miners in General Group v. Hix, 123 W.Va. 637 [17 S.E.2d 810].) Lucky Stores agreed to hire union members, or if they could not be supplied, it might hire others, who must then become members of the particular union. Thus far, we have the normal situation involving a union and an employer. But the present case involves a triparty situation, which the majority insist on considering as the usual one involving a union and an employer. Petitioners are asking that Negro clerks be hired, and they are quite willing, and would consider their demands fully met if the unemployed qualified Negro clerks, presently members of the union involved were hired. The statement in the majority opinion that the right to work for Lucky Stores would be based on race, rather than qualification for the work, is absolutely without foundation. Nothing could be more remote from the truth.
It is true that one must be born into the Negro race in order to qualify for membership within its ranks, but that -is also quite true of the Caucasian, Chinese and Japanese races. But the majority have forgotten that the State of California is one of the United States of America where “all men are created- equal,” where all have equal rights, and where it has been repeatedly declared that discrimination shall not exist because of race, color or creed.
The situation presented here does not fall within the rule announced in the Marinship case. It does not fall within the definitions of either a closed shop, or a closed union. It must be remembered that picketing for either a closed shop, [865]or a closed union is not forbidden by law, but that the combination of the two is considered unlawful. It may be assumed for this purpose, that petitioners are asking that a certain proportion of their race be employed in this particular store and that the "shop” would then be closed as to a certain number of employees, although it is difficult to perceive how "closed” and "half closed” may be defined as meaning the same thing. Petitioners are not asking that the union admit only Negro members, nor are they asking that it admit any Negro members. The Retail Clerks’ Union which is involved is an open one. This point is ignored, and the majority assume that petitioners are members of the Negro "union,” that, of necessity, it is a closed "union,” and for Lucky Stores to meet petitioners’ demand would result in a closed shop and a closed union, an unlawful result. As a necessary analogy then, we have every shop employing only white help operating a "closed” shop with the aid of a "closed union,” since only white persons may belong to the white "union,” and we have, as a result, many flagrant violations of the Marinship rule. This absurd situation follows from considering that a race of people constitute a "union.”
The majority opinion states "If petitioners were upheld in their demand then other races, white, yellow, brown and red, would have equal rights to demand discriminatory hiring on a racial basis.” Petitioners are seeking nondiscrimination, not discrimination. Discrimination is treatment which is not equal. It follows that nondiscrimination must be equal treatment. Petitioners are seeking just that, and nothing more. It has long been established in equity, that the court will look through form to substance. It has also been said often and emphatically that in equity each case must be decided on its own facts, hence it might logically follow that in a neighborhood predominantly Chinese or Japanese, or on an Indian reservation that picketing for a proportional hiring of members of the particular race involved would be just, equitable and entirely in accord with sound public policy. It is not involved here. But involved here is a store situated in a district where the population is composed of a large majority of members of the Negro race. These members of the Negro race comprise at least 50 per cent of the customers of the store in question. The petitioners by means of peaceful picketing and through the words printed on their [866]placards were seeking to publicize their grievance to members of their race, and to members of the white race in sympathy with their long struggle for freedom, so that economic pressure might be exerted to gain for them equality in the labor field. They requested only that a proportionate number of Negro clerks be hired as replacements were necessary. Not that any white person be fired that they might be hired.
It must be admitted by every thinking person that. Negroes are, and have been, constantly discriminated against. They are considered by some people as being fit for only the most menial positions. It was even found necessary for the Legislatures of the various states to pass laws that they might obtain shelter and food on an equal basis with members of the white race. The abolition of slavery did not free the Negro from the chains his color imposes on him. It has been said that Negroes may obtain equal opportunities with others for employment by organization, public meetings,' propaganda, and by personal solicitation. The effectiveness of these methods may well be doubted. Labor, as a whole, found that the only way it might attain its objectives of better working conditions, hours and pay was to exert economic pressure on employers. Nothing else was heeded. Is the Negro here to be denied his only effective means of communicating to the public the facts in connection with the discrimination against him, and the only effective method by which he may achieve nondiscrimination ?
The majority assume, without deciding, that if racial discrimination exists, picketing in protest of it would not be for an unlawful objective. How can it be said that picketing to attain nondiscrimination is unlawful ? Petitioners are asking equal treatment, that which is guaranteed to them by the Constitution of the United States, and yet their objective is' called “unlawful.”
The end result of the majority decision is to establish a rule which may be applied to prevent picketing for the purpose of publicizing the fact that an employer is discriminating against persons because of race or color in the selection of his employees. Because, if such employer should employ only one of such race or color in some menial position, such as janitor or messenger boy, any claim of discrimination, according to the majority view, would be unjustified, and picketing to prevent discrimination (even though thousands of qualified members of such race or color were refused employment for that reason) would be unlawful, and could be [867]restrained by injunction. This must be the effect of the rule announced in the majority opinion. For if an employer who employs only one or two of a certain race in 10,000 employees, when hundreds of qualified members of such race are seeking employment, and he can be picketed by the members of such race to induce the employment of an increased number of such members, then, it must follow that such employer may be picketed for the purpose of inducing him to employ a' sufficient number of members of such race to indicate an intention not to discriminate against the members of such race in the selection of his employees. In other words, if the picketing is truthful and peaceful, it may be resorted to as the exercise of the constitutional right of freedom of speech or press, and that is all petitioners did in this ease.
It is my opinion, therefore, that the writ should issue annulling the judgment of contempt rendered against the petitioners.