CABTEB, J., dissenting. — I dissent.
In my opinion petitioners are entitled to their release on habeas corpus upon the ground that the provisions of the ordinance under which they were charged and convicted are unconstitutional and void.
■ Since the majority of the court seem to agree that section 2 of the ordinance is invalid, but sustain the validity of the [513]judgment of conviction against the petitioners under section 3 of said ordinance, I will confine my discussion to section 3 only.
Said section provides: ‘ ‘ Section 3. It is unlawful for any person to beset or picket the premises of another, or any approach thereto, where any person is employed or seeks employment, or any place or approach thereto where such employee or person seeking employment lodges or resides, for the purpose of inducing such employee or person seeking employment, by means of compulsion, coercion, intimidation, threats, acts of violence, or fear, to quit his or her employment or to refrain from seeking or freely entering into employment.”
In my opinion the above-quoted section is so vague, indefinite and uncertain that it cannot be said to denounce as a crime any act which may be proscribed under the police power of the state, and fails to provide a sufficiently ascertainable standard of guilt.
Before making an analysis of the above-quoted section, I shall call attention to certain rules applicable to the interpretation of statutes and ordinances. They are as follows:
“When the language of an act appears on its face to have a meaning, but it is impossible to give it any precise or intelligible application in the circumstances under which it was intended to operate, it is simply void; for if no judicial certainty can be settled upon as to its meaning, courts are not at liberty to supply the deficiency or make the statute certain. But legislation cannot be nullified on the ground of uncertainty, if susceptible of any reasonable construction that will support it.” (26 Am. and Eng. Ency. Law, 2d Ed., 656.)
“Where the statutory terms are of such uncertain meaning, or so confused, that the courts cannot discern with reasonable certainty what is intended, they will pronounce the enactment void.” (Statutory Crimes, 3d Ed., in the third subdivision of section 41.)
‘ ‘ Statutes and ordinances which fix crimes, or quasi crimes, should so fix them that there could be no uncertainty. They should be so worded that one could read them, and know whether or not he was violating law. They should not be so worded as to leave their substantive elements to the caprices of either judge or jury. In other words the law should be complete and definite. What would be ‘reasonable effort’ under this law is left a question for the court or jury. What [514]in the minds of one court or jury might be ‘reasonable effort’ might not be so considered by another court or jury. Bach trial tribunal would be making its own ordinance. This will not do for a law or ordinance criminal in character.” (Taft v. Shaw, 284 Mo. 531 [225 S. W. 457].)
“It is equally true that a mere collection of words can not constitute a law; otherwise the dictionary can be transformed into a statute by the proper legislative formula. An act of the legislature, to be enforceable as a law, must prescribe a rule of action, and such rule must be intelligibly expressed. ’ ’ (State ex inf. Crow v. West Side Street Ry. Co., 146 Mo. 155 [47 S. W. 959].)
“An ordinance of a regulatory nature must be clear, certain and definite, so that the average man may with due care after reading the same understand whether he will incur a penalty for his actions or not.” (19 R. C. L., p. 810.)
“. . . in creating an offence the legislature may define it by a particular description of the act or acts constituting it, or may define it as any act which produces, or is reasonably calculated to produce certain defined or described results.” (8 R. C. L., p. 57.)
Applying the foregoing rules to the ordinance under consideration, it is clear to my mind that the language contained therein is insufficient to charge an offense within the purview of the police power of the state in view of the recent decisions of the Supreme Court of the United States holding that “The freedom of speech and of the press, which are secured by the First Amendment against abridgment by the United States, are among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a state. . . .” (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]; Lovell v. Griffin, 303 U. S. 444 [58 S. Ct. 666, 82 L. Ed. 949]; Schneider v. State, 308 U. S. 147 [60 S. Ct. 146, 84 L. Ed. 155]; Gitlow v. New York, 268 U. S. 652, 666 [45 S. Ct. 625, 69 L. Ed. 1138, 1145]; Stromberg v. California, 283 U. S. 359, 368 [51 S. Ct. 532, 75 L. Ed. 1117,1121, 73 A. L. R. 1484]; Near v. Minnesota, 283 U. S. 697, 707 [51 S. Ct. 625, 75 L. Ed. 1357, 1362]; Grosjean v. American Press Co., 297 U. S. 233, 244 [56 S. Ct. 444, 80 L. Ed. 660, 665]; De Jonge v. Oregon, 299 U. S. 353, 364 [57 S. Ct. 255, 81 L. Ed. 278, 283]. See, also, Palko v. [515]Connecticut, decided December 6, 1937 [302 U. S. 319, 58 S. Ct. 149, 82 L. Ed. 288].) It is also well settled that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the amendment. (Raymond v. Chicago Union Traction Co., 207 U. S. 20 [28 S. Ct. 7, 52 L. Ed. 78, 12 Ann. Cas. 757]; Home Teleph. & Teleg. Co. v. Los Angeles, 227 U. S. 278 [33 S. Ct. 312, 57 L. Ed. 510]; Cuyahoga River Power Co. v. Akron, 240 U. S. 462 [36 S. Ct. 402, 60 L. Ed. 743].)
The terms, “beset or picket” are not defined in the ordinance here under consideration nor in any statute or court decision of this state. (Carlson v. California, supra.) Text-writers have defined picketing as “the marching to and fro before the premises of an establishment involved in a dispute, generally accompanied by the carrying and display of a sign, placard or banner bearing statements in connection with the dispute.” (Section 109 Labor Disputes and Collective Bargaining by Ludwig Teller.) Picketing has also been defined by legislative enactment elsewhere as “the act of walking up and down before any place of business . . . and the solicitation of the public or employees through word of mouth or by printed signs or banners, that such place of business is unfair to organized labor or to any voluntary association, group or members of labor organizations; and by requesting through word of mouth or signs that such place of business or employer be boycotted and not patronized by the public; and by personal solicitation through word of mouth or signs that employees . . . cease working in such place of business so picketed.” (Diemer v. Weiss, 343 (Mo.) 626 [122 S. W. (2d) 922].) In brief terms, picketing may be said to constitute the dissemination of information concerning the facts of a labor dispute by representatives of organized labor in the vicinity of the place where the dispute exists. (Thornhill v. Alabama, supra.)
It now appears to be well settled by both the decisions of this court and those of the Supreme Court of the United States that “the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.” (Thornhill v. Alabama, supra; Carlson v. California, supra; Hague v. C. I. O., 307 U. S. 496 [59 S. Ct. 954, 83 L. Ed 1423]; Schneider v. State, supra; Senn v. Tile Layers Protective Union, 301 U. S. 468 [57 S. Ct. 857, 81 L. Ed. 1229].)
[516]Applying the foregoing definition to section 3 of the ordinance under consideration here, we find that the ordinance makes it “unlawful for any person to . . . picket the premises of another . . . for the purpose of inducing any employee or person seeking employment ... to quit his or her employment or to refrain from seeking or freely entering into employment.”
It appears to be conceded that a statutory enactment couched in the above-quoted language would constitute a clear violation of the constitutional provisions both of this state and of the United States guaranteeing such civil liberties as freedom of speech, freedom of press and freedom of assembly. (Thornhill v. Alabama, supra; Carlson v. California, supra; Lovell v. Griffin, supra; Schneider v. State, supra.)
But it is insisted that the insertion of the words “by means of compulsion, coercion, intimidation, threats, acts of violence, or fear,” after the clause “for the purpose of inducing such employee or person seeking employment,” and before the clause “to quit his or her employment or to refrain from seeking or freely entering into employment” removes section 3 of said ordinance from the category of unconstitutional legislation and renders it a valid enactment prohibiting all picketing where some of the pickets in some manner or other resort to what might be construed to mean ‘1 compulsion, coercion, intimidation, threats, acts of violence, or fear.” In view of this argument, let us analyze the last quoted terms and see if they have any significance whatever when used in an ordinance designed to proscribe and prohibit acts and conduct which may be performed in the exercise of one’s civil liberties guaranteed by both our state and federal Constitutions.
If picketing constitutes the publicizing of the facts concerning a labor dispute in the vicinity of the premises where said dispute exists, then it must follow that it was the intention of the legislative body which enacted said ordinance to prohibit the dissemination of information concerning such labor dispute by nleans of 1 ‘ compulsion, ’ ’ etc.
In my opinion this is the only interpretation or construction which can be placed upon the above-quoted language of section 3 of said ordinance and said language is thereby rendered meaningless. To illustrate, how can it be said that a picket disseminated information concerning the facts of a labor dispute by means of “compulsion,” or “coercion,” or [517]“intimidation,” or “threats,” or “acts of violence,” or “fear”? Certainly the dissemination of information by means of either the spoken or printed word regardless of how loud the voice or how large the printing would not have the effect of creating or bringing about the conditions described as “compulsion, coercion, intimidation, threats, acts of violence, or fear. ’ ’ At least, it is not possible for me to imagine a situation in which one engaged in picketing in the sense that that term has been defined, doing anything as a picket which would bring about a condition approaching “compulsion, coercion, intimidation, threats, acts of violence, or fear. ’ ’ Picketing does not mean throwing stones, but a person engaged in picketing may throw stones; picketing does not mean wielding clubs, but a person engaged in picketing may wield a club; picketing does not mean firing guns, but a person engaged in picketing may fire a gun; in brief, picketing does not mean or comprehend the commission of any act or acts of violence, but such acts may be committed by those engaged in picketing. It must be conceded that every act of violence designed to injure the person or property of another now constitutes a violation of some penal provision of the law of this state and subjects the perpetrator thereof to prosecution and punishment, whether committed by a person engaged in picketing or in any other activity. There is no more reason for saying that publicizing the facts of a labor dispute, or the dissemination of information concerning the facts of a labor dispute through pickets, may be accomplished by means of acts of violence, than to say that preaching the gospel, lecturing on social reforms, teaching political economy or publishing a newspaper may be likewise accomplished. The fact that acts of violence may be committed by one engaged in any of the above pursuits does not change the character of the pursuit nor subject it to restrictions created by legislative enactments under an asserted exercise of the police power. In other words, it is the acts of violence which come within the purview of the police power and not the picketing, preaching, lecturing, teaching or publishing, because acts of violence have no relation to the purpose and object to be accomplished by any of the above-mentioned activities, including picketing, according to the accepted definition of that word. It may be true that a person while engaged in picketing might commit any and every crime known to our law, but certainly the
The ordinance here under consideration falls squarely within the rule announced by the Supreme Court of the United States in the ease of Herndon v. Lowry, 301 U. S. 242 [57 S. Ct. 732, 81 L. Ed. 1066], where a statute of the state of Georgia purporting to prohibit acts and conduct tending to incite insurrection was under attack. It appears from the opinion in that case that “The petition alleged the judgment and sentence were void and appellant’s detention illegal because the statute under which he was convicted denies and illegally restrains his freedom of speech and of assembly and is too vague and indefinite to provide a sufficiently ascertainable standard of guilt, and further alleged that there had been no adjudication by any court of the constitutional valid[519]ity of the statute as applied to appellant’s conduct.” (Emphasis added.) The court at page 255 of its opinion said:
“The affirmance of conviction upon the trial record necessarily gives § 56 the construction that one who seeks members for or attempts to organize a local unit of a party which has the purposes and objects disclosed by the documents in evidence may be found guilty of an attempt to incite insurrection.
“The questions are whether this construction and application of the statute deprives the accused of the right of freedom of speech and of assembly guaranteed by the Fourteenth Amendment, and whether the statute so construed and applied furnishes a reasonably definite and ascertainable standdar d of guilt.” (Emphasis added.)
On page 263 of its opinion in the Herndon case the court quotes with approval from its decision in United States v. L. Cohen Grocery Co., 255 U. S. at page 81 [41 S. Ct. 298[65] L. Ed. 516], the following pertinent declaration:
“ 'Observe that the section forbids no specific or definite act. It confines the subject-matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against. In fact, we see no reason to doubt the soundness of the observation of the court below, in its opinion, to the effect that, to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury . . .’ (p. 89.) ”
The court then concluded:
“The decisions relied on by the State held the Sherman Law furnished a reasonable standard of guilt because it made a standard long recognized by the common law the statutory test.
“The statute, as construed and applied, amounts merely to a dragnet which may enmesh anyone who agitates for a change of government if a jury can be persuaded that he ought to have foreseen his words would have some effect in the future conduct of others. No reasonably ascertainable standard of guilt is prescribed. So vague and indeterminate [520]are the boundaries thus set to the freedom of speech and assembly that the law necessarily violates the guarantees of liberty embodied in the Fourteenth Amendment.” (Italics added.)
What is the ascertainable standard of guilt prescribed in the ordinance here under consideration? The obvious answer to this question must be that it contains no such standard. The statement therein that “it shall be unlawful” to commit an “act of violence” amounts to nothing more than to say that “it is unlawful to do an unlawful act” without defining what constitutes the unlawful act. Nowhere in the ordinance is there any indication of what is meant by the expression “It is unlawful for any person to beset or picket the premises of another . . . for the purpose of inducing such employee or person seeking employment, by means of compulsion, coercion, intimidation, threats, acts of violence, or fear, to quit his or her employment or to refrain froin seeking or freely entering into employment.” It is obvious that if we apply the accepted definition of the word “picket” (to disseminate information concerning or to publicize the facts of a labor dispute) the italicized words become meaningless and no crime is defined.
The Supreme Court of the United States in the case of Thornhill v. Alabama, supra, in commenting upon similar broad and sweeping provisions of an Alabama statute, made the following comment:
“The numerous forms of conduct proscribed by section 3448 are subsumed under two offenses: the first embraces the activities of all who ‘without just cause or legal excuse’ ‘go near to or loiter about the premises’ of any person engaged in a lawful business for the purpose of influencing or inducing others to adopt any of certain enumerated courses of action; the second, all who ‘picket’ the place of business of any such person ‘for the purpose of hindering, delaying or interfering with or injuring any lawful business or enterprise of another. ’ It is apparent that one or the other of the offenses comprehends every practicable method whereby the facts of a labor dispute may be publicized in the vicinity of the place of business of an employer. The phrase ‘without just cause or legal excuse’ does not in any effective manner restrict the breadth of the regulation; the words themselves have no ascertainable meaning either inherent or historical. Compare [521]Lanzetta v. New Jersey, 306 U. S. 451, 453-455 [59 S. Ct. 618, 83 L. Ed. 888]. The courses of action, listed under the first offense, which an accused — including an employee — may not urge others to take, comprehends those which in many instances would normally result from merely publicizing, without annoyance or threat of any kind, the facts of a labor dispute. An intention to hinder, delay or interfere with a lawful business, which is an element of the second offense, likewise can be proved merely by showing that others reacted in a way normally expectable of some upon learning the facts of a dispute. The vague contours of the term ‘picket’ are nowhere delineated. Employees or others, accordingly, may be found to be within the purview of the term and convicted for engaging in activities identical with those proscribed by the first offense. In sum, whatever the means used to publicize the facts of a labor dispute, whether by printed sign, by pamphlet, by word of mouth or otherwise, all such activity without exception is within the inclusive prohibition of the statute so long as it occurs in the vicinity of the scene of the dispute.” (Italics added.)
Likewise, in the case of Carlson v. California, supra, the Supreme Court of the United States in striking down as unconstitutional and void an ordinance of Shasta County, California, similar to the ordinance here under consideration because of its “sweeping and inexact terms,” made this very pertinent declaration:
‘ ‘ The sweeping and inexact terms of the ordinance disclose the threat to freedom of speech inherent in its existence. It cannot be thought to differ in any material respect from the statute held void in Thornhill’s case. The carrying of signs and banners, no less than the raising of a flag, is a natural and appropriate means of conveying information on matters of public concern. (Stromberg v. California, 283 U. S. 359 [51 S. Ct. 532, 75 L. Ed. 1117, 73 A. L. R. 1484].) For the reasons set forth in our opinion in Thornhill v. Alabama, supra, publicizing the facts of a labor dispute in a peaceful 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 abridgement by a state.”
In reviewing the decisions of the Supreme Court of the United States in connection with my study of the case at bar [522]and the preparation of this opinion, I have been strongly impressed with the decided liberal trend of the decisions of that great court, which in its pronouncements in the field of those fundamental and basic personal rights and liberties referred to as civil liberties, have exemplified profound vision and foresight and eminent fairness in extending the constitutional guaranties of freedom of speech and of the press not only the strong, the wealthy and the powerful, but likewise the weak, the humble and the oppressed. It is these pronouncements which will protect a defenseless minority from being legislated against and their freedom of expression curtailed by those who happen to be in the majority or who control the legislative processes for the time being. Such a situation was depicted by Mr. Justice Murphy in speaking for the Supreme Court of the United States in the case of Thornhill v. Alabama, supra, when he said:
“A like threat is inherent in a penal statute, like that in question here, which does not aim specifically at evils within the allowable area of State control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press. The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, agaimst particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. It is not any less effective or, if the restraint is not permissible, less pernicious than the restraint on freedom of discussion imposed by the threat of censorship. An accused, after arrest and conviction under such a statute, does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him. (Schneider v. State, 308 U. S. 147, 155, 162, 163 [60 S. Ct. 146, 84 L. Ed. 155].) Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression. (Stromberg v. California, 283 U. S. 359, 368 [51 S. Ct. 532, 75 L. Ed. 1117, 73 A. L. R. 1484]; Schneider v. State, 308 U. S. 147, 155, 162, 163 [60 S. Ct. 146, 84 L. Ed. 155].) Compare [523]Lanzetta v. New Jersey, 306 U. S. 451 [59 S. Ct. 618, 83 L. Ed. 888].” (Emphasis added.)
So zealously has the Supreme Court of the United States guarded and protected these fundamental personal rights and liberties that in the case of Schneider v. State, supra, that court struck down as unconstitutional and void four ordinances enacted respectively by the cities of Los Angeles, California, Milwaukee, Wisconsin, Worcester, Massachusetts, and Irvington, New Jersey, designed to prohibit the distribution of handbills, leaflets, circulars, etc., in said cities. Mr. Justice Roberts, speaking for the court in said case, declared:
“It is argued that the circumstance that in the actual enforcement of the Milwaukee ordinance the distributor is arrested only if those who receive the literature throw it in the streets, renders it valid. But, even as thus construed, the ordinance cannot be enforced without unconstitutionally abridging the liberty of free speech. As we have pointed out, the public convenience in respect of cleanliness of the streets does not justify an exertion of the police power which invades the free communication of information and opinion secured by the Constitution.
“It is suggested that the Los Angeles and Worcester ordinances are valid because their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places. But, as we have said, the streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.
“The freedom of speech and of the press secured by the First Amendment against abridgment by the United States is similarly secured to all persons by the Fourteenth Amendment against abridgment by a state.
“Although a municipality may enact regulations in the interest of the public safety, health, welfare or convenience, these may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion. . . .
“This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Constitution that [524]exercise of the rights lies at the foundation of free government by free men. It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties.
“In every case, therefore, where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.”
The chief contention of the prosecuting officers in the case at bar is that the ordinance here in question may be upheld as a valid exercise of police power. While the realm within which the police power operates may be somewhat indefinite, it may not be invoked to abridge the fundamental right of freedom of expression guaranteed by constitutional mandate. The Constitution is the bulwark of our civil liberty and it should be so construed as to protect that liberty against encroachment even under the guise of the police power. While some of its provisions have at times been emasculated by enthusiastic advocates of the police power doctrine, the Constitution still remains the fundamental law of the land and will continue to be such so long as the ideal of civil liberty is predominate in the hearts and minds of the American people.
In my opinion, the ordinance here in question trenches upon the right of free expression guaranteed by both our state and federal Constitutions, and should therefore be stricken down. If “picketing” means “the dissemination of information concerning the facts of a labor dispute, ’ ’ then the right to picket, as well as the right to preach, lecture, teach, or publish a newspaper, all fall in the same category. If the Constitution protects one of these rights, it protects the others. If a crime is committed by a person while exercising one or more of these rights, he may be prosecuted, convicted and punished for the crime, not for the exercise of the right to picket, preach, lecture, teach, or publish a newspaper. In my opinion, any legislative enactment designed to abridge or limit any of the above-mentioned rights flies squarely in the face of the con[525]stitutional guarantee of freedom of speech and press, and should be declared null and void by the courts under their constitutional power.
From what I have said in the foregoing opinion, it is obvious that section 3 as well as section 2 of the ordinance here under consideration is void, and there can be no doubt but that habeas corpus is the only remedy available to petitioners to test the validity of said ordinance. (See cases collected and commented on in 13 Cal. Jur. p. 225, sec. 8.)
In view of my determination that the ordinance is invalid and void because the language employed therein is too vague, uncertain and indefinite to provide a sufficiently ascertainable standard of guilt and that the acts denounced by it cannot be proscribed because they are not within the purview of the police power of the state, the complaint therefore fails to charge a public offense, and it is unnecessary to review the evidence presented during the trial in the justice’s court.
The majority opinions in this ease are predicated upon the theory that since section 3 of the ordinance in question purports to prohibit “picketing by means of acts of violence” (whatever this phrase means), it defines a crime within the purview of the police power of the county of Yuba, and notwithstanding the defendants were found guilty of violating all of the provisions of both sections 2 and 3 of the ordinance (a portion of the charge being based on obviously invalid provisions of the ordinance), the judgment against them is nevertheless immune from attack on habeas corpus.
I am of the opinion, that even if it can be said that section 3 of the ordinance sufficiently defines a crime as held by a majority of the court, the conviction of the defendants should not be allowed to stand for the reason that the complaint which forms the basis of the prosecution is wholly insufficient to charge a public offense, and the judgment against petitioners is void for the reason that they were found guilty of the commission of lawful as well as unlawful acts.
Section 3 of the ordinance in question makes unlawful, “picketing by means of compulsion, coercion, intimidation, threats, acts of violence, or fear.” All of these means, except “acts of violence” may be resorted to by those who are peacefully and therefore lawfully engaged in publicizing a labor dispute by means of picketing or boycotting.
That there is such a thing as moral compulsion, coercion, intimidation, threats, and fear is a proposition recognized in [526]experience and by many court decisions, and in my opinion, these words do not necessarily imply conduct of an unlawful character when applied to a labor dispute. Such words may be used to define the usual, ordinary and customary moral, social and economic pressure which inheres in every labor dispute and particularly where picketing is resorted to.
It must be conceded that it is within the constitutional right of a person engaged in a labor dispute to advise those who contemplate crossing a picket line, that if they do so, future social or business relations with them will be withheld. It must also be conceded that such advice constitutes a threat, and it also amounts to compulsion, intimidation and coercion. Such compulsion, intimidation and coercion is the result of fear of the withholding of such social or business relations which may have been both pleasant and profitable to the person who is threatened with the loss thereof. Obviously, conduct constituting such threats, compulsion, intimidation, coercion or fear cannot be proscribed by penal statute or ordinance for the reason that the same would constitute a violation of the constitutional guarantee of free speech.
Webster’s New International Dictionary, Second Edition, defines “compulsion” as follows:
“1. Act of compelling, or state of being compelled; act of driving or urging by force or by physical or moral constraint; subjection to force. Of. Coercion.
“I would give no man a reason upon compulsion.”
“2. Anything that compels; as, to live under compulsion.” The same work defines “coercion” as follows:
“1. The act, process, or power of coercing; specif., the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done; compulsion. Coercion may cause the act produced to be a nullity so far as concerns legal ability. Cf. Duress.
“2. The application of legal or governmental measures to a group or nation, so as to bring its outward conformity. ’ ’
And “intimidation” is defined by the same work as follows:
‘ ‘ To make timid or fearful; to inspire or affect with fear; to make fearful; to frighten; specif., to deter, as by threats; to overawe; cow.
“Now guilt, once harbored in a conscious breast, “Intimidates the brave, degrades the great. Johnson. “Syn. — Terrify, daunt, deter, abash. See Frighten.
[527]“Ant. — Embolden, hearten, inspirit. See Encourage.
“Act of making timid or fearful or of deterring by threats; state of being intimidated, as the voters were kept from the polls by intimidation.”
It will be observed from the foregoing definitions that the mere assertion that compulsion, coercion or intimidation has been used or resorted to for the accomplishment of an object or purpose or in the performance of an act, it does not necessarily follow therefrom that the means employed was unlawful, immoral or unjust. In fact, it is inconceivable that a labor dispute could result in a strike, and that striking employees and their sympathizers could picket and boycott places of business, without the owners, employees or patrons of such places of business being subjected to some degree of moral, social or economic compulsion, coercion or intimidation. It appears to be settled beyond any question by the authorities which I have cited above, and by many other authorities both in this and other jurisdictions, that the moral, social and economic compulsion, coercion and intimidation which may be occasioned as the result of peaceful picketing, boycotting and publicizing of labor disputes, cannot be proscribed by statute or prohibited by injunction because such conduct is permissible as a lawful exercise of the constitutional right of free speech, free press and free assemblage.
What is said with reference to the meaning of the words “compulsion,” “coercion” and “intimidation” when applied to peaceful picketing and boycotting, is equally true with reference to the word “threat.” It cannot be denied that a person has the right to threaten that which he has a lawful right to do, and that such threat cannot be proscribed by statute or ordinance, or prohibited by injunction. The late Mr. Justice Holmes, while a member of the Supreme Judicial Court of Massachusetts, in' the case of Vegelahn v. Gunther, 167 Mass. 92 [44 N. E. 1077, 57 Am. St. Rep. 443, 35 L. R. A. 722], made this observation in one of his history-making dissenting opinions. He said:
“I pause here to remark that the word ‘threats’ often is used as if, when it appeared'that threats had been made, it appeared that unlawful conduct had begun. But it depends on what you threaten. As a general rule, even if subject to some exceptions, what you may do in a certain event you may threaten to do — that is. give warning of your intention to do— [528]in that event, and thus allow the other person the chance of avoiding the consequence. So as to ‘compulsion,’ it depends on how you ‘compel’ ... So as to ‘annoyance’ or ‘intimidation. ’ ”
In the case of Lisse v. Local Union No. 31, 2 Cal. (2d) 312 [41 Pac. (2d) 314], at page 318, this court quoted with approval from its decision in the case of Pierce v. Stablemen’s Union, 156 Cal. 70 [103 Pac. 324], as follows:
“ ‘The right of united labor to strike, in furtherance of trade interests (no contractual obligation standing in the way) is fully recognized. The reason for the strike may be based upon the refusal to comply with the employees’ demand for the betterment of wages, conditions, hours of labor, in the discharge of one employee, or the engagement of another — in brief, in any one or more of the multifarious considerations which in good faith may be believed to tend toward the advancement of the employees. After striking, the employees may engage in a boycott, as that word is here employed. As here employed it means not only the right to the concerted withdrawal of social and business intercourse, but the right by all legitimate means — of fair publication, and fair oral or written persuasion, to induce others interested in or sympathetic with their cause, to withdraw their social intercourse and business patronage from the employer. They may go even further than this, and request of another that he withdra/w his patronage from the employer, and may use the moral intimidation and coercion of threatening a like boycott against him if he refuse so to do. This last proposition necessarily involves the bringing into a labor dispute between A and B, C, who has no difference with either. It contemplates that C, upon the request of B, and under the moral intimidation lest B boycott him, may thus be constrained to withdraw his patronage from A, with whom he has no controversy.” (Emphasis added.)
In the ease of Parkinson Co. v. Building Trades Council, 154 Cal. 581, 610 [98 Pac. 1027, 16 Ann. Cas. 1165, 21 L. R. A. (N. S.) 550], Mr. Justice Sloss in his concurring opinion quoted with approval from the dissenting opinion of the late Mr. Justice Holmes, in the case of Vegelahn v. Gunther, supra, as follows:
“ ‘If it be true that workingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the [529]greatest possible return, it must be true that when combined they have the same liberty that combined capital has to support their interests by argument, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully control.’
“The terms ‘intimidation’ and ‘coercion,’ so frequently used in the discussion of this question, seem to me to have no application to such acts as were here committed. One cannot be said to be ‘intimidated’ or ‘coerced,’ in the sense of unlawful compulsion, by being induced to forego business relations with A, rather than lose the benefit of more profitable relations with B. It is equally beside the question to speak of ‘threats,’ where that which is threatened is only what the party has a legal right to do.”
The Supreme Court of Indiana, in the case of Local Union No. 26 etc. v. City of Kokomo, 211 Ind. 72 [5 N. E. (2d) 624, at page 628, 108 A. L. R. 1111], discusses the meaning of the words “compulsion” and “coercion” in relation to a labor dispute in the following language:
‘ ‘ The city ordinance now before the court makes all picketing of the employer’s premises, or the approach thereto, unlawful. No force or violence is necessary to make the act of picketing unlawful and punishable. Peaceable acts upon the part of the employees are authorized expressly by chapter 12 of the Acts of 1933. The allegations of the complaint show no acts involving fraud or violence. The 1933 act authorizes the doing of all acts alleged in the complaint, which alleges that such acts were performed by lawful means and without fraud or violence, or any intention or purpose to injure the employer. The act of striking or picketing necessarily involves compulsion and coercion, and unless the same is performed by acts of fraud or violence, is lawful and permissible under the statute.
“The act of picketing is a means of ‘compulsion and coercion, ’ but if it is exercised in a legal manner, and without fraud or violence, it is lawful under the statute, yet it is the clear intention of the ordinance to prevent such acts. The overt act of assembling and congregating for concerted action in a peaceable, lawful manner is made punishable by the ordinance. The ordinance is repugnant to the declared purpose and object of the statute.”
I think the foregoing authorities clearly hold that to some extent moral, social and economic compulsion, coercion and [530]intimidation inheres in every labor dispute where picketing and boycotting is resorted to by striking employees and their sympathizers, and that such compulsion, coercion and intimidation, so long as it is exercised without fraud, force or violence, does not transcend the realm of peaceful picketing, and cannot be proscribed by statute or ordinance. This conclusion is sustained by the trend of recent decisions, particularly those of the Supreme Court of the United States, which I have cited herein. The clear purport of these decisions is to the effect that any statute or ordinance which proscribes or prohibits peaceful picketing is in clear violation of the Fourteenth Amendment to the Constitution of the United States.
Of course, it is elementary that a person engaged in picketing is amenable to all of our penal statutes denouncing as crimes all acts of force, violence, menacing threats, riots, routs, disturbing of the peace, unlawful assembly, assault and battery, etc., and my attention has not been called to any acts which one engaged in picketing might perpetrate in violation of the civil rights of another, or inimical to public peace and safety, which are not now denounced as crimes by the penal statutes of this state and punishable as such.
The complaint against petitioners follows the language of the ordinance and the petitioners were charged as follows:
“That on or about the 9th day of July, 1939, and within the limits of the County of Yuba, in the State of California, said defendants did then and there wilfully and unlawfully beset and/or picket the premises and/or the approach thereto of another, to-wit, the Earl Fruit Company located approximately seven miles southwest of the City of Marysville, in the County of Yuba, State of California, and commonly known as the New England Ranch where persons were employed and/or sought employment, for the purpose of inducing such employees and/or persons seeking employment by means of compulsion, and/or coercion and/or intimidation and/or threats and/or acts of violence and/or to quit his or her employment and/or to refrain from seeking or freely entering into said employment.”
It appears to be well settled that where a statute is so framed that lawful as well as unlawful acts may be punished under it, a complaint charging a violation of the law must specifically set out the alleged unlawful conduct of the accused, and negative lawful conduct on his part. Otherwise, a complaint under such a law fails to charge a public offense, [531]which is the situation we have in the case at bar. (Ex parte Peterson, 119 Cal. 578 [51 Pac. 859]; Ex parte McLaughlin, 16 Cal. App. 270 [116 Pac. 684]; In re Hernandez, 64 Cal. App. 71 [220 Pac. 423].)
Tested by the rule announced in the foregoing authorities, the complaint in the ease at bar was clearly insufficient to charge the petitioners with the commission of a public offense. As I have heretofore pointed out, the ordinance is clearly invalid in so far as it purports to denounce as a public offense picketing by means of compulsion, coercion, or intimidation as such words are defined in the authorities relating to picketing cases. Such being the case, the complaint against petitioners charges them with the doing of lawful as well as unlawful acts, and is therefore insufficient to charge a public offense and is insufficient to support a judgment of conviction against petitioners for a violation of section 3 of said ordinance. 1 -
Furthermore, the complaint in the case at bar charges both in the conjunctive and disjunctive the violation of every act denounced by section 3 of the ordinance. This method of pleading is clearly improper. It is impossible to determine from such a complaint what specific acts or conduct of the defendants the prosecution intends to prove for the purpose of establishing their guilt. Under the complaint in this ease, the defendants could have been found guilty of a violation of section 3 of said ordinance if they did nothing more than stand on the side of the road peacefully holding a piece of cardboard in their hands containing a statement that a labor dispute was in progress on the adjacent premises. Such a complaint is clearly insufficient to charge a public offense, and may be tested on habeas corpus. (Ex parte Greenall, 153 Cal. 767 [96 Pac. 804]; In re Ah Sing, 156 Cal. 349 [104 Pac. 448].)
The trial court made no attempt to segregate the charges in the complaint charging an alleged unlawful offense from those charging the commission of purely lawful acts. This is demonstrated not only by the allegations of the petition, but also by those of the return. Both allege that the jury found the defendants guilty “as charged in the complaint,” and that the sentence imposed was imposed “on said conviction.” I think it is clear that such a complaint could not authorize the trial court to try the accused for acts which are lawful, nor [532]could it confer jurisdiction on the trial court to convict the accused for the doing of lawful acts, and to sentence them for the doing of such lawful acts. That is exactly what was done in the instant case. The defendants were found guilty “as charged in the complaint” and sentence was imposed “on said conviction.” That means that the jury found that the defendants were guilty of all the “offenses” charged in the complaint, including those predicated upon those portions of the statute which are admittedly unconstitutional. It also means that the sentence was partially predicated on the unconstitutional portions of the statute. It certainly needs no citation of authority to establish the proposition that a trial court has no jurisdiction to enter a judgment convicting an accused of acts which are lawful. Petitioners have exhausted the only other remedy available to them, namely, an appeal. On that appeal the constitutionality of the statute was in issue, and the court to which the appeal was taken had jurisdiction to reverse the judgment of conviction and retry the case upon issues raised by a plea of not guilty of the unlawful act charged. Since this is so, habeas corpus is now the only remedy available to petitioners.
On a habeas corpus proceeding the only question involved is one of jurisdiction, namely, did the court below have the lawful authority to make or issue the particular order, judgment or process under attack. (See the many cases from the United States Supreme Court, California Supreme Court and other state courts collected and commented on in 22 Am. Jur. 159, sec. 26; 13 Cal. Jur. 222, sec. 7.) All courts are agreed on this point. While there is some confusion in the cases as to the meaning of the term “jurisdiction,” as used in habeas corpus proceedings, the overwhelming weight of authority is to the effect that the term includes more than the question as to whether the trial court had jurisdiction over the person and subject matter. It is now settled that jurisdiction over the person and subject matter is not alone conclusive, but that the jurisdiction of the court to make or render the order or judgment that serves as the basis of the imprisonment is a proper subject of inquiry. Stated another way, jurisdiction to render the particular .order or judgment in question is deemed as essential as is jurisdiction of the person or subject matter. (See cases collected and commented on in 22 Am. Jur. 161, sec. 27; 76 A. L. E. 469.)
Moreover, it must be remembered that petitioners were con[533]vieted in an inferior court and not by a superior court. As to such courts, no presumption will be indulged as to the regularity of the proceedings therein. It has been consistently held that, as to justice’s courts, nothing will be presumed in favor of their jurisdiction. (Antilla v. Justice’s Court, 209 Cal. 621 [290 Pac. 43], and numerous other authorities cited in the foot note to 6 Cal. Jur. 10 Yr. Supp. 611, see. 85.)
Even if it be conceded, as erroneously held in the majority opinions, that there is a presumption of regularity of the proceedings in a justice’s court, there is no basis for the application of such a rule here, for the reason that it affirmatively and conclusively appears on the face of the record itself that petitioners were charged, convicted and sentenced for the commission of acts which both this court and the Supreme Court of the United States have held to be beyond the power of the state or its political subdivisions to proscribe.
Tested by these standards, and, keeping in mind the fact that the convictions were here had in an inferior court, the judgment of conviction is subject to collateral attack on habeas corpus. The trial court, although it may have had jurisdiction of the person and subject matter, had no jurisdiction to convict and sentence the petitioners for offenses based wholly or in part on an unconstitutional statute. While it is true that habeas corpus will not always issue where other remedies are available, it is settled that habeas corpus properly may be used to test the constitutionality of a statute (see cases collected and commented on in 13 Cal. Jur. 225, sec. 8), and that the fact that a remedy by appeal may exist is not a complete bar to the proceeding. Certainly, where, as in this case, the petitioners appeal and raise the question of the constitutionality of the statute on such appeal, and, where the court to which the appeal is taken has complete jurisdiction to pass on the question, but, nevertheless affirms the invalid judgment, habeas corpus is available.
A writ of habeas corpus should therefore be granted and the petitioners discharged from custody.
Petitioner’s application for a rehearing was denied March 12,1942. Carter, J., voted for a rehearing.