HUGHES v. SUPERIOR COURT IN AND FOR CONTRA COSTA COUNTY

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District Court of Appeal, First District, Division 1, California.

HUGHES et al. v. SUPERIOR COURT IN AND FOR CONTRA COSTA COUNTY.

Civ. 13535.

Decided: November 20, 1947

Edises, Truehaft & Condon, of Oakland, for appellant. Hoey & Hoey, of Martinez, for respondent.

Petitioners were adjudged guilty of contempt in that, in violation of the terms of a preliminary injunction, they admittedly continued to picket a certain grocery store located in Richmond, California, and operated by Lucky Stores, Inc. They seek by this proceeding in certiorari to have this adjudication of contempt annulled, it being their contention that the preliminary injunction upon which the adjudication of contempt depends was violative of their constitutional rights. Certiorari is the appropriate method to test the jurisdiction of the Superior Court where the validity of a contempt adjudication 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.

The main problem presented in this proceeding is whether Negroes may be lawfully enjoined from peacefully picketing a retail establishment that caters to Negro trade, for the purpose of inducing the operators of that establishment, in the course of personnel changes, to hire Negro workers in proportion to Negro patronage.

A chronological summary of events as disclosed by the clerk's transcript, filed by way of return, is as follows:

May 20, 1947—Lucky Stores filed in the Superior Court of Contra Costa County a verified complaint for injunction, naming various organizations and individuals as defendants. So far as pertinent here, the complaint alleges that there exists a collective bargaining contract between a designated clerk's union and the plaintiff under which the union is recognized as the sole collective bargaining agent for all employees working for plaintiff; that the contract provides that the plaintiff will only employ members of the union through the union unless the union cannot meet the request of the plaintiff or unless the persons on the unemployed list of the union are not satisfactory to the employer, in which events the plaintiff may employ non-union employees, who, however, must join the union within a specified time; that the defendants have demanded that plaintiff ‘agree to hire Negro clerks, such hiring to be based upon the proportion of white and Negro customers patronizing plaintiff's stores, and that the plaintiff discharge those employees participating in the apprehension and arrest of McKennly Jackson,’ who had been accused of shoplifting; that these demands were refused by plaintiff; that such demands, if complied with, would violate the contract of plaintiff with the union; that no labor dispute exists between plaintiff and the retail clerks' union; that by reason of the refusal of plaintiff to comply with their demands defendants have picketed plaintiff's store; that unless such picketing is restrained, plaintiff will suffer irreparable injury and be forced to close the store in question; that such picketing for such a purpose is an infringement upon plaintiff's right to do business, and would require plaintiff to violate the union contract above mentioned; that plaintiff has no adequate remedy at law. The prayer is for a permanent injunction restraining such picketing for such purposes, and for a temporary restraining order until the hearing. The union agreement is attached as an exhibit to this complaint.

May 26, 1947—John Hughes, one of the petitioners in the present proceeding, filed a counter-affidavit in the injunction proceedings. He therein avers that he is a member and an officer in several of the organizations sought to be enjoined; that he makes the affidavit in both his representative and personal capacities; that on May 17, 1947, he and Louis Richardson, the other petitioner, and others, met with some officials of Lucky Stores; that affiant protested against the actions of certain employees of Lucky Stores in arresting one Jackson, charged with petty theft; that the protest was based on claimed unnecessary force, including the firing of a pistol shot in a crowded area, by one of Lucky's employees, in effecting the arrest; that affiant and the others with him requested the discharge of the employee that fired the shot; that one of the officials of Lucky Stores stated that the employee who fired the shot was no longer working at the store in question; that affiant later learned this representation was false; that affiant and those with him also requested that Lucky Stores, so far as the store here involved is concerned, ‘hire gradually * * * Negro clerks until the proportion of Negro clerks to white clerks approximated the proportion of Negro and white customers. Your affiant and those with him requested that the increase in the proportion of Negro to white clerks take place as white clerks quite their employ or were transferred by plaintiff. Your affiant and those with him explicitly stated that they were not requesting the discharge of any of the present employees of the Canal Store [the store in question], but were requesting only the vacancies be filled with Negroes until the approximate proportion was reached’; that about fifty per cent of Lucky's customers at this store are Negroes; that Lucky's representatives refused to discuss the proposal and the discussion ended; that affiant and those with him had no knowledge of the union contract mentioned in the complaint; that subsequently the officials of the union in question have informed affiant that such union accepts Negroes as members and have no objection to the hiring of Negro clerks by Lucky Stores as long as such clerks join the union; that the union in question has Negro members presently unemployed, and can supply qualified Negro clerks to any employer requesting such help; that on May 19, 1947, members of several of the organizations sought to be enjoined picketed the Canal Store and continued to do so until May 21, 1947, when the picketing ceased; that there never were more than six pickets patrolling an area more than 100 feet wide; that the pickets were peaceful and there was no violence; that the employees and customers of Lucky's had free ingress and egress to and from the store without molestation; that the pickets were orderly and made no comments to customers or employees; that the placards carried by the pickets were truthful; that the words on the placards were to the effect that Lucky Stores refused to hire at its Canal Street store a proportion of Negro and white clerks approximating the proportion of Negro and white customers of the store.

Louis Richardson, the other petitioner herein, filed an affidavit containing essentially the same averments contained in the Hughes affidavit. These affidavits were not controverted by the plaintiff in the trial court.

On this same day—May 26, 1947—a hearing on the order to show cause and temporary restraining order was had. The matter was submitted to the court on the complaint, counter-affidavits, points and authorities, and argument. No affidavits at all were filed by the plaintiff. The court determined that plaintiff was entitled to the preliminary injunction.

June 5, 1947—The trial court made and issued its formal order granting the preliminary injunction. By the terms of that order the various persons and organizations, including petitioners, named in the complaint were enjoined from picketing for the purpose of compelling Lucky Stores to hire a proportional number of Negro clerks or discharging those employees participating in the arrest of Jackson, and Lucky Stores was required to post a $1,000 bond, which was done.

June 21, 1947—A citation issued from the trial court to petitioners and others ordering them to show cause on June 23, 1947, why they should not be punished for contempt for violating the injunction. This was duly served on petitioners the day of its issuance.

It was stipulated between the parties that on June 21, 1947, the two petitioners picketed the Canal Street store carrying a placard reading: ‘Lucky won't hire Negro Clerks in proportion to Negro trade, don't patronize,’ and while so picketing petitioners were served with a citation, it having been agreed that petitioners would waive the affidavit normally required.

June 23, 1947—Petitioners moved the court to vacate the preliminary injunction. This motion was denied. The court then found that the two petitioners wilfully violated the injunction, and adjudged that they should be imprisoned for two days and pay a fine of $20. A ten-day stay of execution was granted. On the same day—June 23, 1947—this petition for certiorari was filed in this court.

After this court had granted the writ, the Superior Court filed its return and answer in which it is admitted that the picketing was without force or violence. In addition, Lucky Stores, through its attorney, filed what purports to be an answer and return to the writ of certiorari to which are attached certain affidavits. By this pleading and by these affidavits Lucky Stores seeks to present to this court certain facts and factual issues that were not presented to, were not considered by, and were not before the trial court. It is not necessary to summarize these factual matters because they are not properly before this court.

It is elementary law that the province of the writ of certiorari is to review the record of an inferior court and to determine from that record, and from that record alone, whether such court has exceeded its jurisdiction. Evidence dehors that record is not permitted. See discussion and many cases collected 4 Cal.Jur. p. 1107, § 69. It is true that where certain jurisdictional facts were in fact before the trial court but do not appear in the record, those facts may be shown to the appellate court on the return to the writ. See discussion 4 Cal.Jur. p. 1110, § 71. But this is not an exception to the general rule. It is merely permitting a party to show what actually was before the inferior tribunal even though that particular fact does not appear formally in the record. Most of the cases cited by Lucky Stores to substantiate its position that we should consider the questioned affidavits fall within the category last mentioned. Such cases do not support the contention that an appellate court on such a writ may consider facts and factual issues not presented to or considered by the trial court.

There are two cases cited by Lucky Stores that do contain language that tends to support its contention that this court may properly consider the affidavits asserting the existence of facts never presented to the trial court. The first of these is Wilde v. Superior Court, 53 Cal.App.2d 168, 127 P.2d 560, a proceeding in certiorari to review a contempt adjudication for practicing law in violation of a disbarment order. The appellate court did take testimony not considered or presented below, and held that such procedure was proper, citing certain habeas corpus proceedings that were not in fact review proceedings, but, in a real sense, were original proceedings in the appellate court. The Wilde case held, however, that, independent of such new evidence, the record introduced below demonstrated that the trial court had exceeded its jurisdiction. What was said about the taking of factual testimony in the appellate court that was not presented below must be held to have been dicta, and, in view of the many cases announcing the rule stated above, it must be held to have been erroneous dicta. In the other case relied upon—Triplett v. Superior Court, 57 Cal.App.2d 536, 135 P.2d 4—the appellate court in a certiorari proceeding did receive in evidence and did consider and rely upon an affidavit not presented to the trial court. The authority relied upon for such procedure was the dicta in the Wilde case. These two cases are completely out of line with an otherwise unbroken line of authorities, and, in our opinion, should be disregarded. We, therefore, hold that we are limited in our consideration of the problems here involved to the factual record presented to the trial court, and may not consider the portions of the return of Lucky Stores and its supporting affidavits seeking to present factual issues and facts not presented to the trial court.

The respondent first seeks to support the adjudication of contempt on the theory that petitioners' conduct tended to induce a breach of contract between Lucky Stores and the retail clerks' union. The verified complaint for an injunction is primarily based on this theory, and this point was fully briefed before the trial court. As will later appear, the trial judge rendered an oral opinion in support of the adjudication of contempt, and he therein justified the order on grounds other than inducement of breach of contract. The reasons why the trial judge did not attempt to base his decision on this ground are quite apparent.

In the first place, there are no facts pleaded that demonstrate that petitioners' actions in picketing to secure the proportional hiring of Negro clerks would necessarily result in a breach of contract between the union and Lucky Stores. The picketing Negroes did not demand the discharge of any existing employees, except the employee who had fired the shot in arresting Jackson, and the picketing was not directed at this last-mentioned objective. The demand was that, as white help quit or was transferred, they be replaced with Negroes. The evidence shows that the union is willing to accept Negro clerks, and that, in fact, at all times here pertinent, it had qualified Negro clerks in the union who were unemployed.

In the second place, and this is a complete answer to this contention, while it is now the law of California that, under certain circumstances, a deliberate and intentional interference with an existing contract is tortious and actionable (Imperial Ice Company v. Rossier, 18 Cal.2d 33, 112 P.2d 631), it is clearly the law that such interference may, in a proper case, be justified and therefore privileged. The Rossier case expressly recognizes that justification may exist for such an interference with the contract rights of others. It is there stated (18 Cal.2d at page 35, 112 P.2d at page 632): ‘Such justification exists when a person induces a breach of contract to protect an interest that has greater social value than insuring the stability of the contract. Rest. Torts, sec. 767. Thus, a person is justified in inducing the breach of a contract the enforcement of which would be injurious to health, safety, or good morals. [Citing two cases and the Restatement of Torts, § 767(d).] The interest of labor in improving working conditions is of sufficient social importance to justify peaceful labor tactics otherwise lawful, though they have the effect of inducing breaches of contracts between employer and employee or employer and customer. [Citing many cases.] In numerous other situations justification exists (See Rest.Torts, sec. 766 to 774) depending upon the importance of the interest protected.’ It should be noted that in the comment on clause (d) of § 767 of the Restatement of Torts, cited supra, which is the section that enumerates the interests that create the privilege, it is stated that attempts to prevent racial discrimination come within the privilege. That this is so would seem quite clear. The economic interest of Negroes in securing employment for members of their race, and in attempting to alleviate the results of a discriminatory employment policy, are of sufficient social importance to justify the interference with the type of contract here involved.

This brings us to the main question presented on this appeal, namely, whether Negroes lawfully and peacefully may picket for the purpose of inducing the operators of a retail establishment that caters to Negro trade, in the course of personnel changes, to hire Negro workers in proportion to Negro patronage. The trial court has held that such picketing should be enjoined. The court rendered an oral opinion in which the grounds of the decision are fully set forth. The court first stated that it was convicted that this state should follow a decision of the trial court in New York—A. S. Beck Shoe Corporation v. Johnson, 153 Misc. 363, 274 N.Y.S. 946, 953—holding that the right of picketing is limited to labor disputes in the limited sense of those words, and that picketing for the purpose here involved was not in the furtherance of a labor dispute. The judge in the instant case then stated: ‘The controversy here is not a labor dispute. The defendants do not constitute a labor union or a labor organization of any kind. I don't think there is any question about that. They do not propose, [to be] nor are they all members, of any single trade or class of trades. Their demands are not connected with any one industry. The questions about which they are now picketing have no connection with wages, hours of labor, unionization, or betterment of working conditions.’ As a second ground for the issuance of the injunction the trial court then stated:

‘It is solely a racial dispute. Assuming that the means were peaceful and were devoid of misrepresentation, disorder and violence, the Court is still of the opinion that the purpose sought does not justify the means used, and that injunctive relief is warranted. The acts of the defendants are irreparably injuring the plaintiff's business. Not only do they tend to keep prospective colored customers out of the stores of the plaintiff but they must necessarily have the effect of keeping out white customers also. The purpose of the defendants in having members of one race discharged in order to employ the members of another race will not justify this direct damage to the plaintiff in the conduct of its business. The acts here shown are also contrary to sound public policy. If they were permitted and if they succeeded in their purpose it would then become equally proper for some organization composed of white persons to picket the premises, insisting that all Negro employees be discharged and that white employees be re-employed. If this were permitted there is substantial danger that race riots and race reprisals might result in this and other communities. They would serve as precedent for similar activities in the interests of various racial or religious groups and the effect upon the social well being of communities throughout the state would be far reaching. A balancing of advantages to the defendants as against the disadvantages to this plaintiff and to the social order as a whole clearly points to disapproval of the acts complained of.

‘As a matter of principle, based upon a sound public policy, the Court cannot lend its assistance to this movement. It must protect not only this plaintiff but the community as a whole from the dangers which exist in continued activity along these lines. I should like very much to see this position tested in the Appellate Courts.’

This opinion fully states the strongest arguments that can be advanced in support of the view that such picketing should be enjoined. Contained therein is every major argument made by the respondents and the various amici curiae who have filed briefs in support of the trial court. The trial judge is to be commended for thus setting forth in full his reasons for granting the injunction. There can be no doubt at all that the views expressed by the trial judge find direct support in the Beck case, supra. That case is a one-man opinion of a trial judge. It is factually on all fours with the present case. There, an association of Negroes had made demands on the proprietor of a Harlem shoe store that he hire a percentage of Negro clerks. The proprietor refused to accede to these demands and certain Negroes began to picket the store. The opinion shows, unlike the present case, that the picketing was accompanied by violence. The court granted the injunction, however, without reference to the fact of violence. In his opinion the judge gave as his reasons exactly the same reasons given by the trial judge in the instant case. The Beck case has been the subject of much discussion. See 83 Univ. of Pa. L.Rev. 383; 35 Colum.L.Rev. 121; 48 Harv.L.Rev. 691.

There is at least one case from an appellate court that supports the conclusions of the trial court in the instant case, and that is Green v. Samuelson, 168 Md. 421, 178 A. 109, 99 A.L.R. 528. In that case certain individuals and organizations made demands for the hiring of Negroes in certain stores operated by the white plaintiffs in a section of Baltimore where Negroes outnumbered whites. When these demands were not met, picketing commenced, and an action was brought to restrain such activities. The trial court enjoined the picketing and the Court of Appeals affirmed that portion of the judgment. The following observations were made by the court.

‘The defendants contend that this case is, or is akin to, a labor dispute, because their purpose is to secure employment for members of their race and thus improve its condition, * * * Their grievance is that the * * * merchants depend almost wholly on colored patronage for their existence and that these merchants do nothing for them in return. That there is some merit in their complaint cannot be disputed, as the planting of a white store in an exclusively colored community is an exploitation of the inhabitance for profit, but the defendants cannot right their wrongs by means that are unlawful. * * *’ (178 A. at page 111.)

‘The general purpose of colored persons to improve the condition of their race may not be improper, but they must adopt lawful means to accomplish this end, and must not resort to intimidation and threats which may easily lead to breach of the peace and physical violence. * * *’ (178 A. at page 112.)

‘They may, be organization, public meetings, propaganda, and by personal solicitation, persuade white employers to engage colored employees and to induce their people to confine their trade to those who accede to their wishes, * * * The complaint here is not with the thing intended to be done but the means employed to do it. * * *’ (178 A. at page 112.)

‘In our opinion, this is a racial or social question, and as such, the rules heretofore announced and applied to labor disputes have no application, and the things complained of were properly enjoined, * * *’ (178 A. at page 113.)

These are the strongest authorities and arguments relied upon by respondents. They are all predicated upon the basic premises that the right of picketing is limited to labor disputes, in the most limited sense of those terms; that picketing to secure the employment of Negroes in Negro occupied areas does not involve a labor dispute; that the interests sought to be protected by such picketing are racial and not economic; and that such picketing based on racial considerations is against public policy. In our opinion every one of these premises is demonstrably unsound, both on principle and authority.

In the first place, when a group that has been discriminated against in employment in a certain industry band together and try to secure an abandonment of those discriminatory policies and practices, and the employers refuse to abandon such practices, the dispute between the employer and this group in a very real sense is a ‘labor dispute.’ The United States Supreme Court has expressly so held in the case of New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012. That case arose in the District of Columbia. The District Court enjoined the petitioners, and the Circuit Court of Appeals affirmed, from picketing a certain store for the purpose of inducing the hiring of Negro personnel. The United States Supreme Court reversed. The petitioners in that case were a corporation composed of colored persons, organized for the mutual improvement of its members and the promotion of civic, educational and charitable purposes, and the officers of that corporation. The court stated the problem involved as follows (303 U.S. at page 559, 58 S.Ct. at page 706, 82 L.Ed. 1012): ‘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 the respondent's stores on one day carrying a placard which said: ‘Do Your Part! Buy Where You Can Work! No Negroes Employed Here!’ and caused or threatened a similar patrol of two other stores of respondent. The information borne by the placard was true. The patrolling did not coerce or intimidate respondent's customers; did not physically obstruct, interfere with, or harass persons desiring to enter the store; the picket acted in an orderly manner, and his conduct did not cause crowds to gather in front of the store.'

The focal point of the case was whether the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., prohibiting the use of injunctions in labor disputes, applied so as to make improper the action of the District Court in granting the injunction in this case. The Court stated (303 U.S. at page 559, 58 S.Ct. at page 706, 82 L.Ed. 1012): ‘The trial judge was of the view that the laws relating to labor disputes had no application to the case. * * * The Court of Appeals thought that the dispute was not a labor dispute within the Norris-LaGuardia Act because it did not involve terms and conditions of employment such as wages, hours, unionization or betterment of working conditions, and that the trial court, therefore, had jurisdiction to issue the injunction. We think the conclusion that the dispute was not a labor dispute within the meaning of the act, because it did not involve terms and conditions of employment in the sense of wages, hours, unionization or betterment of working conditions is erroneous.’

The Court had previously pointed out that ‘The relation of employer and employees does not exist between the respondent and the petitioners or any of them. The petitioners are not engaged in any business competitive with that of respondent, and the officers, members, or representatives of the Alliance are not engaged in the same business or occupation as the respondent or its employees.’ (303 U.S. at page 555, 55 S.Ct. at page 704, 82 L.Ed. 1012.)

The Court then analyzed some of the pertinent provisions of the statute and then stated (303 U.S. at page 561, 58 S.Ct. at page 707, 82 L.Ed. 1012): ‘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 affiliations. There is no justification in the apparent purposes or the express terms of the act for limiting its definition of labor disputes and cases arising therefrom by excluding those which arise with respect to discrimination in terms and conditions of employment based upon differences of race or color.’

At page 562 of 303 U.S., at page 707 of 58 S.Ct., 82 L.Ed. 1012, the Court said: ‘It was intended [by the Act] that peaceful and orderly dissemination of information by those defined as persons interested in a labor dispute concerning ‘terms and conditions of employment’ in an industry or a plant or a place of business should be lawful; that, short of fraud, breach of the peace, violence, or conduct otherwise unlawful, those having a direct or indirect interest in such terms and conditions of employment should be at liberty to advertise and disseminate facts and information with respect to terms and conditions of employment, and peacefully to persuade others to concur in their views respecting an employer's practices.' See, also, Milk Wagon Drivers' Union v. Lake Valley Farm Products Co., 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63.

It is true, of course, that this case is one interpreting the words ‘labor dispute’ as those terms were used in the statute, but the rationale of that opinion supports the conclusion that if it is necessary to find the existence of a ‘labor dispute’ before picketing can be justified, then such terms should be broadly interpreted and, so interpreted, the type of dispute here involved is a ‘labor dispute.’ See Rotwein on Labor Law, p. 80, § 96.

The public policy of this state, as declared by the courts, is in exact accord with the statutory policy of the Norris-LaGuardia Act as interpreted in the New Negro Alliance case. The courts of this state have unequivocally determined that picketing is justified even though the relationship of employer-employee does not exist and where no dispute at all exists between the employer and employee. Thus in McKay v. Retail Auto. Salesman's Local Union No. 1067, 16 Cal.2d 311, 106 P.2d 373, the sales employees of the Howard Automobile Company had entered into a mutually satisfactory bargaining contract with their employer. The salesmen did not want to join a union, and they were entirely satisfied with the terms of their employment. Nevertheless, the union picketed the plant for the purpose of compelling the employees to join their union, or compelling the employer to discharge the employees. The non-union employees sought an injunction. It was held that the union had the right peacefully to picket, that the union had a direct interest in the betterment of labor conditions, and that a dispute between employer and employee was not essential to justify peaceful picketing. At page 324 of 16 Cal.2d, at page 380 of 106 P.2d, the Supreme Court, after citing many authorities upholding the right to picket where a bona fide labor dispute exists, stated, in reference to the point under discussion: ‘The plaintiffs do not challenge the soundness of these principles but urge that they do not apply here because there is no ‘strike’ and no ‘labor dispute’. It is said that the related craft members ‘only ceased working because of the penalty imposed for passing a picket line’ placed around the company's premises by the ‘irresponsible’ Salesmen's Union. Such an interpretation of the facts assumes a lack of solidarity among the affiliated crafts and an unwillingness on the part of the members to co-operate in the action directed against the employer—an assumption which is negatived by every circumstance in the case. Moreover, as has been pointed out in Smith Metropolitan Mkt. Co. v. Lyons, 16 Cal.2d 389, 106 P.2d 414, the term ‘labor dispute’ is a braod 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’.' See, also, Park & Tilford Import Corp. v. International etc. of Teamsters, 27 Cal.2d 599, 165 P.2d 891, 162 A.L.R. 1426.

Thus, if it were necessary to hold that in order to justify peaceful picketing, a ‘labor dispute’ must exist, we would be compelled to hold that the controversy here involved is ‘reasonably related to employment’ and is therefore a ‘labor dispute’ within the broad meaning of those terms. But we do not desire to hold that the right to picket is limited to labor disputes.

In the first place, from a standpoint of principle there can be no such limitation on the right to picket. Whatever the true constitutional basis of the right to picket may be, we are convinced that where the picketers have a direct economic interest to protect, and the protection of such interest is in accord with public policy, they may lawfully picket regardless of the existence or nonexistence of a labor dispute. That Negroes have such an economic interest to protect is obvious. That they are an economically discriminated against group is too clear to require discussion. We are here faced with a situation where the employment policy of Lucky Stores, and of other employers, some of whom appear here as amici curiae, has resulted in discrimination in the hiring of Negroes. Not only are they the last to be hired and the first to be fired, but many of the group can secure employment in only the most menial positions. Thus, white employers, operating in Negro districts, economically exploiting this group, making their profits from it, now urge that the Negroes should not be permitted to picket for the purpose of securing economic equality and fairness in employment, because, forsooth, such a dispute is not a ‘labor dispute,’ but a ‘racial’ dispute. The argument contains its own refutation. Obviously, the Negroes have an economic interest to protect every bit as important as that of a union that desires to compel nonconsenting employees to join the union or to compel the employer to fire them. That interest is entitled to protection, is in accord with sound public policy, and, in our opinion, justifies that form of self-help known as picketing. The fact, if it be a fact, that such disputes may lead to some violence is no ground to deny the right. While, of course, race conflicts are to be discouraged, so is racial discrimination to be discouraged, and the prevention of the latter is a most important part of our public policy. James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329; Williams v. International etc. of Boilermakers, 27 Cal.2d 586, 165 P.2d 903; Thompson v. Moore Drydock Co., 27 Cal.2d 595, 165 P.2d 901. Some violence is a possible concomitant of any attempt to improve by self-help the lot of previously subjected groups, as the turbulence of some labor disputes indicates. If violence occurs the courts possess full power to enjoin the violence even to the extent of enjoining completely the right to picket. Milk Wagon Drivers' Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132, A.L.R. 1200. The courts of the various states in general and of this state in particular have been quite liberal in upholding the right of labor to picket. This is so because the courts have believed, and quite properly so, that the raising of the living standards of any large subjugated group that otherwise may become an economic burden on the community as a whole is in accord with sound public policy. Every argument that can and has been made in support of the right of labor to picket can properly be made in support of the right of the Negro race to secure economic equality. The essential public policy behind both demands is identical. But, say respondent and the supporting amici curiae, if Negroes may picket to secure fair employment practices, then whites may also picket to secure the discharge of Negroes, and other racial, religious and minority groups may picket to secure rights claimed by them. Those questions are not now before us. Those problems can be decided when and if they arise. Each case must be decided upon its own facts. All that we are here holding is that it is in accord with sound public policy to permit Negroes, a discriminated against and subjugated group in our society, to picket to attempt to secure equality in employment practices from those employers who cater to Negro patronage. The right is granted not because the picketers are members of a minority group, but because that minority group is economically discriminated against, and is attempting to rectify that condition. Beyond that we do not have to and do not go in this case. We conclude therefore that on principle the right to picket is not limited to labor disputes but may be exercised whenever the economic interest of the picketers is sufficiently important to warrant this interference with the rights of those against whom the picketers are operating.

In the second place, the cases clearly demonstrate that the right to picket is not limited to labor disputes. In Bakery and Pastry Drivers and Helpers Local v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178, the New York courts had enjoined certain union members from picketing some independent bakery goods peddlers to induce those peddlers not to work seven days a week, and to hire a union man one day a week. The Supreme Court stated (315 U.S. at page 774, 62 S.Ct. at page 818, 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.'

In the case of In re Lyons, 27 Cal.App.2d 293, 81 P.2d 190, the members of two unions sought to induce the owners of independent grocery stores not to operate on Sunday, and when this demand was refused, started to picket. The trial court issued a restraining order which Lyons violated, and he was found in contempt. On habeas corpus the appellate court, in speaking of the store owners, stated (27 Cal.App.2d at page 294, 81 P.2d at page 191):

‘They had no dispute nor difference with organized labor concerning wages, hours or conditions of employment, unionization of employees, employing nonunion labor or any other matter that usually gives rise to labor troubles or differences. The only controversy was over the closing of their places of business on Sunday. * * *

‘This case is simply one in which a group of citizens attempted to force the shopkeepers to close their places of business on Sundays. That the group composed the membership of two labor unions is unimportant. Union members have no greater right to attempt to force a place of business to close on Sunday than has any other group of citizens and at the same time no less right. We must measure the rights of the respective parties to the Sunday closing controversy by general principles, and insofar as the cases dealing with picketing in labor disputes announce those general principles, they are applicable here.’

The court also said (27 Cal.App.2d at pages 298, 299, 81 P.2d at page 193): ‘We cannot see how the right to peacefully picket, under the guaranty of free speech, could be confined to cases in which there exists a dispute between an employer and organized labor over hours or conditions of employment, rate of pay, unionization of employees or employment of non-union men and not extended to a dispute between a businessman and any citizen or group of citizens who may differ with him on a question of business policy. The guaranty of the right of free speech is general and extends to every class or group of citizens. As that guaranty is not confined to labor organizations, decisions in those cases announcing the principles upon which the right rests in the cases involving the ordinary labor dispute are important and controlling here. Because we have a difference of opinion on the question of closing a mercantile establishment on Sunday as the cause of the peaceful picketing, that fact should not make the rules announced in those decisions any less applicable. Citizens have just as much and no less right to differ on the wisdom of Sunday closing as they have to entertain different opinions on conditions of employment or rates of pay. The exact method used in conveying these opinions to the public is unimportant provided they are peacefully and quietly done in an orderly manner and not in violation of the provisions of a statute or an ordinance.’

The same rules were announced in Re Bell, 37 Cal.App.2d 582, 585, 100 P.2d 339, 340, where it was stated: ‘There is no doubt that peaceable picketing is recognized as lawful under the Fourteenth Amendment to the federal Constitution, and article I, sections 9 and 10 of the California Constitution. [Citing cases.] The right to picket by lawful means is not confined to particular groups or unions, but may be enjoyed by all individuals or classes who desire to thereby convey to the public their opinions regarding labor controversies or to promote their causes by presenting persuasive facts to other workmen, in a legitimate manner, free from force, violence, intimidation or threats. The constitutional privilege may not be conferred upon one class and denied to others. It is guaranteed to all on the same basis, upon the theory that it is a lawful exercise of the constitutional guaranty of freedom of speech, press and assemblage.’

These cases stand unequivocally for the proposition that the right to picket is not and constitutionally cannot be limited to labor unions and to labor disputes. It will be noted that in some of the opinions quoted the right to picket is placed directly and without limitation on the state and federal constitutional guarantees of free speech. We have intentionally refrained from discussing the constitutional source of the right. The Supreme Court of this state and of the United States have both frequently announced that the right to picket finds its protection in, and is measured by, the constitutionally guaranteed right of free speech. See McKay v. Retail Auto. S. L. Union No. 1067, 16 Cal.2d 311, 106 P.2d 373; In re Blaney, 30 Cal.2d 643, 184 P.2d 892; Senn v. Tile Layers Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229; Carlson v. State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; A. F. of L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Cafeteria Employees Union, etc. v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58. If the extent of the right is measured by this test then all peaceful, nonviolent, truthful picketing would be lawful, where not accompanied by a great and present danger to the public, and the object or purpose of the picketing would be a false factor. But the Supreme Court of the United States has also indicated that the right to picket is not as broad as the right of free speech, and has held that considerations of public policy may limit the right—see Carpenters and Joiners Union v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143. There are several most interesting articles discussing these and other cases. See Teller, Picketing and Free Speech, 56 Harv.L.Rev. 180; Dodd, Picketing and Free Speech: a Dissent, 56 Harv.L.Rev. 513; Teller, Picketing and Free Speech: a Reply, 56 Harv.L.Rev. 532. In many of the state cases the right to picket is not based on such broad grounds. These cases hold that picketing, being a form of self-help and of economic coercion, is prima facie a tort but may be justified or privileged if the interest sought to be protected, when weighed against the injury to the employer, from a standpoint of public policy, should be protected. Under this theory the right to picket is measured by the yardstick of social and economic consequences. This is the view adopted by the Restatement of Torts, § 775 et seq. See, also, 1 Teller on Labor Disputes and Collective Bargaining, Chapter Eight, p. 319 et seq.; 1947 Cumulative Supplement, p. 69, § 136. We do not find it necessary to choose between these two concepts. In the present case, even if the most limited concept of the nature of the right to picket, as set forth in the Restatement, be accepted, it must be held that the picketing here involved was lawful. The attempt to secure economic equality has long been recognized as the basis of labor's right to picket. Such a purpose is a lawful one. That is exactly what petitioners are seeking here. Even Mr. Teller, who is the most articulate champion of the limited view of the nature of the right to picket as set forth in the Restatement, has stated: ‘Aggravating circumstances surrounding the Negro's search for work reflect the proximate connection between the Negro's demands and the labor contract. * * * Insecure, dispossessed, intensely exploited, the American Negro worker clings to the crags of life in the face of overwhelming counter availing forces. Abolition of slavery has not meant emancipation of the Negro. * * * Within the framework of the labor contract, therefore, and as limited by the subject matter of employment conditions, race, color and creed ought to be accorded the privilege of picketing upon the reasonable assumption that its benefit to the individuals involved is worth more than its cost to society.’ 1 Teller, Labor Disputes and Collective Bargaining, § 136, at page 427. Mr. Justice Murphy expressed this same thought in his concurring opinion in Steele v. Louisville & Nashville R. Co., 323 U.S. 192, at page 209, 65 S.Ct. 226, 235, 89 L.Ed. 173, in the following language: ‘The Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed or color. A sound democracy cannot allow such discrimination to go unchallenged.’ In James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, our State Supreme Court recognized a definite national and state public policy to prevent unequal treatment of persons because of their color. See, also, Williams v. International, etc. of Boilermakers, 27 Cal.2d 586, 165 P.2d 903; Thompson v. Moore Drydock Co., 27 Cal.2d 595, 165 P.2d 901. It follows, of course, that when Negroes seek to prevent discrimination in employment practices by demanding the hiring of Negroes in proportion to Negro patronage, such demand does not violate any principle of public policy. To the contrary, if the Negro is to rise to a position of economic integrity, that being a desirable public aim, he must be afforded the means by which to achieve such elevation. The right to protest peacefully against those who would deny him economic equality is the most elementary tool with which he should be permitted to commence his ascent. The alternative—the economic shackling of Negroes to their present economic status—is far more dangerous to our social development than the imaginary difficulties envisaged by the trial court in this case.

There are several minor points that should be discussed. It will be remembered that, in their original demands, the organizations and individuals enjoined requested not only the gradual hiring of Negro clerks in proportion to Negro patronage, but also the discharge of a particular worker who had allegedly used undue force in arresting a Negro accused of the theft of bacon from the store in question. Picketing for this purpose as well as for the purpose of securing employment for Negroes was enjoined. The actual picketing, however, did not publicize this phase of the dispute and did not seek this result. The placards displayed merely referred to the failure of the store proportionally to employ Negroes. Even if picketing to secure the discharge of this employee were unlawful (a point we do not decide), this would not justify a total injunction against lawful as well as the assumed unlawful picketing. As was said in Park & Tilford Import Corp. v. International, etc. of Teamsters, 27 Cal.2d 599, at page 607, 165 P.2d 891, 896, 162 A.L.R. 1426: ‘Unlawful conduct in connection with concerted activities does not necessarily call for an injunction totally prohibiting the activities. A union may continue its concerted activities if they can be purged of the elements that make them unlawful.’ Here the two elements are severable. Moreover, the complete answer to this phase of the case is that petitioners were adjudged to be in contempt not because they picketed to secure the discharge of this employee, but because they carried placards demanding the proportional hiring of Negro clerks.

The respondent also urges that even if picketing to secure economic equality were lawful, picketing to secure ‘proportional’ hiring of Negroes is unlawful. Such an argument disregards the realities. Carried to its logical conclusion it would mean that a store whose patronage is entirely Negro, and where many clerks were hired, by the token hiring of one Negro, could prevent the picketing of such establishment aimed at preventing such discrimination and exploitation. Even if it be assumed that a demand for a mathematical quota, discrimination being absent, would be an unlawful demand, in the present case it is the fact that discrimination here exists that makes what otherwise, it may be assumed would be unlawful, lawful. Beyond that we need not go.

The judgment of contempt is annulled.

PETERS, Presiding Justice.

BRAY, J., and FINLEY, J. pro tem., concur.