HAROLD J. JENSEN, D.B.A. “LAKE STREET PHARMACY,” DONNA OLDHAM, MARJORIE REYNOLDS, GERALDINE ROEBUCK, FLORENCE HATCH AND MARY SCOTT, APPELLANTS, v. RENO CENTRAL TRADES AND LABOR COUNCIL, A LABOR UNION, A. E. CAUBLE, LOUIS PALEY, NATHAN JEBB, CULINARY AND HOTEL SERVICE WORKERS’ LOCAL NO. 45, A LABOR UNION, WILLIAM O. ROYALTY, HARRY VIETHEER, SANFORD CARTER, TEAMSTERS, CHAUFFEURS AND WAREHOUSEMEN LOCAL NO. 533, A LABOR UNION, J. GEYER, GEORGE MASKALY, R. A. ANDERSON, ED SHAW, GEORGE BERTRAND, AND W. A. DAVIDSON, RESPONDENTS.
No. 3638
Supreme Court of Nevada
April 13, 1951
229 P.2d 908
The judgment and the order denying new trial are affirmed with costs.
EATHER and MERRILL, JJ., concur.
Ernest S. Brown, of Reno, for Appellants.
McCarran & Wedge, of Reno, Gilbert, Nissen & Irvin, of Los Angeles, and James F. Galliano, of Oakland, for Respondents.
OPINION
By the Court, MERRILL, J.:
This is an appeal from judgment of the trial court dismissing the action of plaintiffs below (upon sustaining
At the outset, we deem it wise to delineate the scope of this opinion. This court has heretofore held in State ex rel. Culinary Workers, Local No. 226 v. Eighth Judicial District Court, 66 Nev. 166, 207 P.2d 990, 996, and on petition for rehearing in 66 Nev. 202, 210 P.2d 454, that such picketing was lawful. (That case involved the White Cross Drug Company of Las Vegas and for convenience will be referred to in this opinion as the White Cross Drug case.) It is cоntended by appellants that that decision is not controlling in the matter before us and this is the question to which we must address ourselves in this opinion. Since submission of this matter to this court the legislature of the State of Nevada has amended the act which was the principal point of discussion in the White Cross Drug case; and that opinion has, thus, to the effective extent of that legislation, been superseded by legislative act.1 In this opinion, therefore, we are confined in our
First, then, as to the facts: Appellants were plaintiffs below. Appellant Jensen is proprietor of the Lake Street Pharmacy in Reno. The remaining appellants are his employees. Respondents are labor unions and union officials. On May 9, 1950, this suit was brought to secure an injunction against picketing and boycotting of the Lake Street Pharmacy and for $40,000 damages sustained by such activities.
This appeal comes to us on a demurrer to the amended complaint of plaintiffs and in our analysis of the factual situation before us, we are thus confined to the allegations there made. The allegations are not overly helpful, being extremely general in terms and dealing largely in ultimate facts or conclusions. Specific acts and occurrences, which were available to us through testimony in the White Cross Drug case, are largely absent in the case at bar.
It appears, however, that appellant employees are not members of any union or labor organization and have no desire to join any such organization; that there is no dispute between the employees and their employer, Appellant Jensen; that defendants, desiring unionization of the employees, demanded of Jensen execution of a closed shop contract; that upon his refusal, defendants on Nov. 29, 1949, established a picket line and boycott of the establishment.
From the allegations of the complaint, we are unable to ascertain any fact which distinguishes the case at bar from the White Cross Drug case.2 If the cases are to be differentiated it is by the manner in which the facts are presented in the case at bar and the conclusions in which they are encompassed.3 Factually, however,
Appellants first contend that the White Cross Drug case is not here controlling in that the opinion there concerned itself exclusively with
It is true that the two White Cross Drug opinions (on appeal and on petition for rehearing) dealt with
This is not to say, however, that in rendering its opinions this court did not have in mind the sections now urged upon us. Those sections were also cited to this court in the White Cross Drug case. They were the subject of argument by counsel. They were mentioned
“The picket line established by the union in this case was both peaceful and lawful.”
It was held in Seibert v. United States ex rel. Harshman, 129 U.S. 192, 9 S.Ct. 271, 32 L. Ed. 645, where counsel sought to have the court reconsider its rulings and overrule a decision in a controlling case, that argument, however elaborate and forceful, which only presents over again reasons originally urged against that decision, does not justify the court in reconsidering its position and changing its conclusion.
Appellants contend, however, that the language used by this court in the White Cross Drug opinion relative to the sections here involved, is such that this court is not precluded from reconsidering the matter in the light of those statutes. That language was as follows:
”
Sec. 2825.32 assuring the right to representation in collective bargaining negotiations, andsection 10061 of the N. C. L. dealing with criminal conspiracy, were cited to this court by respondents as making the acts of relators unlawful, but neither of these laws were strenuously urged in brief or oral argument. Neither of these laws can be relied upon to restrain peaceful picketing of the type here in question, and if they were to be so construed, such application would be an unconstitutional deprivation of the rights of speech and assembly.”
The lack of strenuous argument to which reference is made is not, in our view, sufficient to warrant reconsideration. That the lawfulness of the union activities and objectives under the sections in question was fully
“I dissent. In my opinion the picketing was рroperly enjoined because its admitted objective was to compel a violation of the statutes of this state.”
quoting at length the pertinent portion of
In Michael v. Morey, 26 Md. 239, 90 Am. Dec. 106, the court states:
“Although this point may not have been as fully argued in the former case as in the present, yet it cannot be said that the decision just cited was obiter dictum, as the question was directly involved in the issues of law raised by the demurrer to the bill, and the mind of the court was directly drawn to and distinctly expressed upon the subject.”
Appellants next contend that reconsidеration of our position in the White Cross Drug case is compelled by three decisions of the Supreme Court of the United States handed down since our opinion on petition for rehearing was rendered. These opinions are Hughes v. Superior Court of California, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; International Brotherhood v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 985; Building Service Employees International Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045.
The Hughes case sustained the California Supreme Court in upholding an injunction against picketing, the purpose of which was to secure proportional employment of negroes and whites. The Hanke case sustained the Washington Supreme Court in upholding an injunction against picketing, the purpose of which was to compel the owner of an establishment operated with-
In no one of these cases, however, did the United States Supreme Court itself approve the injunction or label the picketing as unlawful or for an unlawful objective. The court in each instance accepted the determination of the state through its legislature and courts that such picketing was wrongful and held that in view of the policy of the state thus established the injunction was not an unconstitutional invasion of the right of free speech. The court uniformly recognizes the right of states to determine for themselves their policies in such matters. As stated in the Hughes case:
“The policy of a state may rely for the common good on the free play of conflicting interests and leave conduct unregulated. Contrariwise, a state may deem it wiser policy to regulate. * * * The form the regulation should take and its scope are surely matters of policy and, as such, within a state‘s choice.” [339 U.S. 460, 70 S.Ct. 723.]
And in the Hanke case:
“We are, needless to say, fully aware of the contentious nature of these views. It is not our business even remotely to hint at agreement or disagreement with what has commended itself to the State of Washington, or even to intimate that all the relevant considerations are exposed in the conclusions rеached by the Washington court. They seldom are in this field, so deceptive and opaque are the elements of these problems. That is precisely what is meant by recognizing that they are within the domain of a state‘s public policy.” [339 U.S. 470, 70 S.Ct. 777.]
The Gazzam case upon the facts is extremely close to the case at bar. The picketing there was for the same
“The meaning and effect of this declaration of policy is found in its application by the highest court of the state to the concrete facts of the instant case. * * * To judge the wisdom of such pоlicy is not for us; ours is but to determine whether a restraint of picketing in reliance on the policy is an unwarranted encroachment upon rights protected from state abridgment by the Fourteenth Amendment.” [339 U.S. 532, 70 S.Ct. 787.]
The White Cross Drug case is not, then, in conflict with the United States Supreme Court‘s holding in the Gazzam case. The situation is simply that the policy of the State of Nevada as defined by this court in its interpretation of our statutes is opposed to that of the State of Washington. However, it remains the function of the state through its legislature and courts to determine that poliсy. Once determined, unless itself unconstitutional, the United States Supreme Court has indicated that it will not question it. This conclusion is supported by language in the Hanke case referring to Senn v. Tile Layers Protective Union, 301 U. S. 468, 57 S.Ct. 857, 81 L.Ed. 1229. Both the Senn and Hanke cases dealt with injunctions against picketing of self-employers to secure unionization. The Washington court in the Hanke case sustained the injunction. The Wisconsin court in the Senn case denied relief. The United States Supreme Court in each instance upheld the state court. In the Hanke case, referring to this situation, it is stated:
“Whether to prefer the union or a self-employer in such a situation, or to seek partial recognition of both interests, and, if so, by what means to seсure such accommodation, obviously presents to a state serious problems. There are no sure answers, and the best available solution is likely to be experimental and tentative, and always subject to the control of the popular will. That the solution of these perplexities is a challenge to wisdom and not a command of the Constitution is the significance of Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed 1229. Senn, a self-employed tile layer who occasionally hired other tile layers to assist him, was picketed when he refused to yield to thе union demand that he no longer work himself at his trade. The Wisconsin court found the situation to be within the state‘s anti-injunction statute and denied relief. In rejecting the claim that the restriction upon Senn‘s freedom was a denial of his liberty under the Fourteenth Amendment, this court held that it lay in the domain of policy for Wisconsin to permit the picketing: ‘Whether it was wise for the state to permit the unions to do so is a question of its public policy-not our concern.’ 301 U.S. at 481, 57 S.Ct. at 863.
“This conclusion was based on the court‘s recognition that it was Wisconsin, not the Fourteenth Amendment, which put such рicketing as a ‘means of publicity on a par with advertisements in the press.’ 301 U.S. at 479, 57 S.Ct. at 862. If Wisconsin could permit such picketing as a matter of policy it must have been equally free as a matter of policy to choose not to permit it and therefore not to ‘put this means of publicity on a par with advertisements in the press.’ If Wisconsin could have deemed it wise to withdraw from the union the permission which this court found outside the ban of the Fourteenth Amendment, such action by Washington cannot be inside that ban.”
Thus it is our view that reconsideration of the White Cross Drug casе is not compelled by later decisions of
The final question is whether reconsideration nevertheless should be given to avoid possible perpetuation of error in the light of the dissents in our own opinions and of the highly pertinent decisions of the Washington Supreme Court in the Gazzam case, 29 Wash.2d 488, 188 P.2d 97, 11 A.L.R.2d 1330, 34 Wash.2d 38, 207 P.2d 699, and in Ostroff v. Laundry & Dye Work‘s Drivers Local No. 566, 37 Wash. 2d 595, 225 P.2d 419.
In reaching for a just determination of this question we are confronted with the general prinсiples of stare decisis. It is stated (with ample citation of authority) in 14 Am.Jur. 284, Courts sec. 61,
“While, perhaps, it is more important as to far-reaching juridical principles that the court should be right than merely in harmony with previous decisions, in the light of higher civilization, later and more careful examination of authorities, wider and more thorough discussion and more mature reflection upon the policy of the law, it nevertheless is vital that there be stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should not be enсouraged to seek re-examination of determined principles and to speculate on a fluctuation of the law with every change in the expounders of it. As to many matters of frequent occurrence, the establishment of some certain guide is of more significance than the precise form of the rule, and substantial justice may often be better promoted by adhering to an erroneous decision than by overthrowing a rule once established.”
In In re Burtt‘s Estate, 353 Pa. 217, 44 A.2d 670, 677, 162 A.L.R. 1053, 1062, it is stated “Otherwise the law would become the mere football of the succеssively changing personnel of the court, and ‘the knowne certaintie of the law,’ which Lord Coke so wisely said ‘is the safetie of all,’ would be utterly destroyed.”
We must, then, balance against each other, as applicable to the case before us, the evils of perpetuation of error (assuming a reconsideration of the White Cross Drug case should disclose error to exist) and the evils inherent in an abandonment of precedent.
If error was committed by this court it was through statutory construction and, based upon such construction, through determination of state policy relative to peaceful picketing for a closed shop contract. In such respects as these courts have indicated that reconsideration may, with propriety, be regarded as a legislative rather than a judicial function. As to statutory construction Ex Parte Speer, 53 Ida. 293, 23 P.2d 239, 241, 88 A.L.R. 1086, has indicated that judicial reconsideration would be an unconstitutional usurpation of the legislative function; that a court‘s reversal of its holding on statutory interpretation is no longer mere interpretation but an actual changing of the law. After quoting the provisions of the Idaho constitution relative to division of governmental powers it is stated:
“It is the duty of the Legislature to make the laws, and, in enacting
section 18-102 , it functioned within the scope of that duty. It was the duty of the court to interpret that statute, and it did so in the Lockman Case. If the law, so interpreted, is to be changed, that is a legislative, not a judicial, function.”
Relative to determination of matters of state policy Mr. Justice Frankfurter in the Hanke opinion states:
“Because there is lack of agreement as to the relevant factors and divergent interprеtations of their meaning, as well as differences in assessing what is the short and what is the long view, the clash of fact and opinion should be resolved by the democratic process and not by the judicial sword.” [339 U.S. 470, 70 S.Ct. 777.]
In the White Cross Drug case this view was clearly presented by this court. In effect we there gave solemn assurance that if any departure was to be made from
“If the opponents of union security agreements wish tо have them declared unlawful they should address their demands to the legislature for a clear and unmistakable mandate and not appeal to this court for such declaration under color of a law that was never intended to fulfill that purpose.” [66 Nev. 182, 207 P.2d 997.]
This was reiterated in the opinion upon petition for rehearing, the statement being quoted in full.
Here again we take notice that legislative action has, in fact, been taken: that at the 1951 session of our legislature
On the other hand, it is matter of common knowledge that since rendition of the White Cross Drug case there has been widespread reliance by organized labor on the policy there enunciated respecting peaceful picketing and we must assume that employers as well have been guided thereby in their dealings with their employees. That the extent and manner of labor‘s reliance may have been unwise, injurious and provocative of public ill will does not in any wise relieve this court of its responsibility.
The United States Supreme Court in Minnesota Mining Company v. National Mining Company, 3 Wall. 332, 18 L.Ed. 42, dealing with a request for reconsideration of an opinion relating to law of real property, stated:
“Legislatures may alter or changе their laws, without injury, as they affect the future only, but where courts
vacillate and overrule their own decisions on the construction of statutes affecting the title to real property, their decisions are retrospective and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change. Parties should not be encouraged to speculate on a change of the law when the administrators of it are changed.”
The force as stare decisis of opinions by a divided court is discussed in Matthews v. Clark, 105 S.C. 13, 89 S.E. 471, 472, where it is stated:
“It is well to clear up a misapprehension in the minds of the bar as to the force of a decision of the court in cases in which the court is divided. A dissenting opinion shows that the case has been thoroughly considered. The opinions of the majority govern. When that question arises in future cases, the dissenting justice is as much bound by the decision of the majority as is the justice who wrote the prevailing opinion. The dissenting opinion, within the jurisdiction of the court, strengthens the authority of the case. Outside of the jurisdiction оf the court, where the decision is not binding but merely evidence as to what the law is, of course the conflict of the witnesses weakens the force of the opinion.”
To the same effect is Newton v. Mann, 111 Colo. 76, 137 P.2d 776, 147 A.L.R. 767.
While we are not here concerned with property or contract rights, nevertheless we are concerned with rules of conduct. To repudiate reliance upon our decision under the circumstances facing us and retroactively to expose those who have placed faith in the stability of our holding to claims of tort and perhaps, in the case of emрloyers, to ex post facto criminal liability would be to proclaim our decisions not reliable and to invite a
The action of the trial court is affirmed, with costs.
EATHER, J., concurs.
BADT, C. J. (Concurring):
I concur. Although I dissented from the original opinion and decision and from the opinion and dеcision denying rehearing in the White Cross Drug case, the law as there enunciated by the majority of the court has since been and is the law of this state. I must so consider it under the doctrine of stare decisis so ably reviewed by Mr. Justice MERRILL.