Summary
In Ellis v. Parks, 212 Ga. 540 (93 S.E.2d 708), this court held that although picketing was a form of speech, protected by the Constitution, it could be enjoined when, as there, its purpose was to injure the employer and to aid an unlawful strike.
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19366.
ARGUED MAY 16, 1956.
DECIDED JULY 10, 1956. REHEARING DENIED JULY 24, 1956.
Injunction. Before Judge Whitman. Fulton Superior Court. March 23, 1956.
Robert L. Mitchell, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers McClatchey, Hoke Smith, George B. Haley, Jr., contra.
1. The allegations of the petition, showing the name and the street and number in the City of Atlanta of the place of business, are sufficient to describe the property where the alleged trespass occurred. See Price v. Gross, 148 Ga. 137 ( 96 S.E. 4); Hollomon v. Board of Education of Stewart County, 168 Ga. 359 ( 147 S.E. 882); Laurens County Board of Education v. Stanley, 187 Ga. 389 ( 200 S.E. 294); Bowles v. Babcock Wilcox Co., 209 Ga. 858 ( 76 S.E.2d 703), and cases cited therein.
2. Where, as here, the Federal court has ruled that a strike is illegal, and it is shown that the defendants are picketing the employer to aid and effectuate that strike, they are not protected by the constitutional guarantee of free speech, and the court did not err in granting the prayer of the employer for an order enjoining such picketing.
ARGUED MAY 16, 1956 — DECIDED JULY 10, 1956 — REHEARING DENIED JULY 24, 1956.
This is an action to restrain a trespass, in which the petitioner alleges that the defendants, in conspiracy with a certain labor organization known as the Printing Pressman's Union, are picketing his business in furtherance of an illegal strike, caused and initiated by the above union, and after suit had been brought against the union in Federal court alleging the strike to be unlawful, and praying for damages, and after a motion for summary judgment was sustained and the court adjudicated the strike to be illegal. Attached to the petition is an order refusing to dismiss the case in Federal court and an order sustaining the motion for summary judgment on the issue of liability, both signed by Judge Frank H. Hooper, United States District Court. The first order states that the defendant union was not the bargaining representative of the plaintiff's workers, another union having been so certified; that the strike was called by the defendant union in its efforts to obtain recognition; that, even though the bargaining union of the employers was inactive and the strike might be justified, it was illegal under the laws of the United States and decisions of Federal courts.
Prior to the hearing in the State court, defendants' counsel made an oral motion to dismiss the petition, because (1) it failed to set out a cause of action at law or equity; (2) the relief sought and the temporary restraining order against picketing show on its face that it is and would be a violation of defendants' right of free speech and right to peacefully picket contrary to certain named paragraphs of the State and Federal Constitutions; (3) there is an adequate remedy at law as provided under the Taft-Hartley Act; (4) lack of jurisdiction, the same being within the province of the National Labor Relations Board and the courts of the United States; and (5) the judgment of Judge Hooper, United States District Court, is not a final judgment within the meaning of the Federal Rules of Civil Procedure. The oral motion was denied and after hearing evidence by affidavit the court enjoined the defendants from picketing the place of business after refusing to grant a motion for a directed verdict in favor of the defendants. The exceptions here are to the final judgment granting the injunction and to the prior rulings as to the oral motion to dismiss and the motion for a directed verdict.
Art. 1, see. 1, par. 2 of the Constitution (Code, Ann., § 2-102), which declares that "protection to person and property is the paramount duty of government, and shall be impartial and complete," means something, and it places upon the Judiciary the duty to afford that protection. When members of a labor union while on strike picket their employer, their object is to aid the strike by thus pressuring their employer to yield to their demands. The law affords the laborers the protected right to thus employ lawful means to enforce their rights to give effect to all lawful strikes. But the employer is entitled to the protection of the law against picketing to aid an unlawful strike. The employer is entitled to the equal and impartial protection of the law just as much as the employee.
The record shows that the Printing Pressman's Union called a strike against the petitioner to obtain recognition as the bargaining representative of the petitioner's employees, and a judge of the United States District Court rendered judgment that the strike was illegal, since another union was the recognized legal bargaining representative, and these defendants are in conspiracy to aid the strike thus adjudged to be illegal. The record is silent as to whether or not the judgment of the Federal court is being appealed. This court said in Woodard v. Collier, 210 Ga. 239, 242 ( 78 S.E.2d 526), that "It seems now to be rather well settled that the right to peacefully picket can not be interfered with by the courts unless the picketing is for an unlawful purpose. If it is for an unlawful purpose, it can and should be enjoined." (Italics ours.) The judicial theory that peaceful picketing is a form of free speech, as announced in Carlson v. California, 310 U.S. 106 ( 60 Sup. Ct. 746, 84 L. Ed. 1104), which is protected by the Constitutions, both Federal and State (Code, Ann., §§ 1-801, 2-115), can not be stretched to shield malevolent picketing for the purpose of injuring the employer and aiding an unlawful strike. Both the Supreme Court of Georgia and the Supreme Court of the United States have held that a person can not employ lawful acts for spite and solely for the purpose of injuring another, and that such malicious purpose renders the acts unlawful. Hornsby v. Smith, 191 Ga. 491 ( 13 S.E.2d 20, 133 A.L.R. 684); American Bank c. Co. v. Federal Reserve Bank, 256 U.S. 350 ( 41 Sup. Ct. 499, 65 L. ed. 983, 25 A.L.R. 971). These defendants can not in good faith deny that the sole purpose of their picketing is to hurt petitioner, by publicity, by the annoyance of their presence, and by preventing other needed employees from working for the employer, all of which is intended to give effect to an unlawful strike which has been so adjudged by the court.
This State has the power to enforce its Constitution and laws in such a case, and the offenders can find no refuge behind the Taft-Hartley Act. That law was not intended to protect unlawful conduct. We find nothing in that law that would allow the National Labor Relations Board to give protection to this petitioner. For the foregoing reasons the court did not err in denying the defendants' oral motion to dismiss and for a directed verdict or in granting the injunction.
Judgment affirmed. All the Justices concur, except Mobley, J., who dissents.
The decision of this court is predicated upon a ruling made by a judge of a United States District Court that the strike was illegal, and that so far as the record in this court indicated there was no appeal from such ruling. The judge of the district court, on motion by the plaintiff for a summary judgment, held that the strike was illegal, but he retained jurisdiction of the case for the purpose of determining damages. This was not a final decision from which an appeal would lie. 28 U.S.C.A. Rule 56 (c), (d); Tye v. Hertz Drivurself Stations, 173 F.2d 317 (2); Biggins v. Oltmer Iron Works, 154 F.2d 214 (3); Audi Vision v. RCA Mfg. Co., 136 F.2d 621; Leonard v. Socony-Vacuum Oil Co., 130 F.2d 535 (3). In my opinion, since the ruling of the Federal court judge was not a final judgment, it would not be a proper basis upon which to predicate this action, as there has been no final adjudication that the strike was illegal.