*1 Nо. 4298. Bank. Feb. [Crim. 1942.] In re BELL al., RUFUS et Corpus. Habeas *3 Resner, George & R. Andersen and Herbert Res- Andersen ner Petitioners. for

Joseph Heenan, Attorney (Ynba), Erling District and Respondent. Norby for TRAYNOR, Petitioners, union, members of a labor J. — orchards, engaged while certain ranches charged violating were sections arrested with anti-picketing adopted by Super- ordinance the Board of County visors of Yuba in 1937. These sections as fol- read loiter, : any person lows “Section 2. It unlawful for stand, any public highway, alley, or sit sidewalk or in any crosswalk so as to manner hinder or obstruct free passage persons passing therein thereon of or vehicles or or pass along same, attempting any or so as to in manner annoy along persons passing or molest the same.”

“Section any persons 3. It is unlawful for to beset or picket premises any approach thereto, or another, where any person employed employment, any place or or seeks or approach employee person thereto such or seeking where em- ployment lodges resides, or purpose of inducing employee person seeking employment, by means com- pulsion, coercion, intimidation, threats, violence, acts of fear quit his employment or her or to refrain from seeking ’’ freely entering employment. into complaint specify did not acts of misconduct on part petitioners language but followed the of the ordi- charged nance. petitioners in count 1 violating any with any provision one other of section count “and/or” violating any with one provision other “and/or” They section 3. Marys- were tried the Justice’s Court of Township, County ville Yuba, charged found “as guilty complaint,” in the “on and sentenced said conviction” to a $500 fine or 6 jail. superior months in appeal court, On arising the court of municipal jus- last resort in cases in a (Cal. tice’s Const., 5) VI, art. sec. constitu- unheld the tionality of the conviction, ordinance and аffirmed the jail reduced the sentence to 3 months. Petitioners there- *4 applied superior after corpus for writ of court habeas ground on the that the ordinance was unconstitutional. When petitioners that court denied writ, renewed their appli- cation in Appeal, the District Court but the latter court also denied the writ upheld the ordinance as constitu- tional. Petitioners now ask this court for a writ of habeas

492 contending prohibits peaceful that the ordinance

corpus, abridges speech, press and freedom of and therefore process assemblage in violation of the due clause of the Four- to the Constitution of teenth Amendment the United States I, 10 of the and article sections 9 and Constitution Cali- fornia.

A preliminary question constitutionality is whether the by application of an ordinance be tested a writ of ha corpus. jurisdictions cor permit beas Most such a of habeas use 164, pus. (See 29; in 25 Am. Jur. 13 Cal. eases collected sec 450; 1054.) They A. 225, 8; sec. 39 L. R. A. 32 R Jur. L. theory, however, lie, can not adhere only juris error, for a writ of but to test the substitute persons diction of the trial court or to secure the release judicial pro detained authorization void without 217, ceeding. (See 151, 13; 25 sec. 13 Cal. Am. Jur. Jur. parte 131 4; Nielsen, 672, see. Ex U. S. 176 S. Ct. [9 McGourin, 442 118]; 33 Ed. Harlan 218 S. S. L. U. [31 parte ; Moran, Ed. Ex Fed. 594 Ct. 1101] 396]; Bailey, Corpus [1913], 3 C. C. A. Habeas see. Q. 525.) theory seq.; practice et 12 N. Y. L. The R are somewhat inconsistent. In order to reconcile them reasoning parte have to the artificial of Ex courts resorted Sieiold, 717], 100 U. L. Ed. that an unconstitu S. actually statute, a trial tional and that jurisdiction subject-matter pro over therefore has no unconstitutionality ceedings upon such a based statute. foregone statute, however, conclusion is not a very question traditionally at and it has been one issue (See 454.) R. jurisdiction decide. 39 L. A. trial courts have regarding validity constantly make decisions State courts States, of the United of statutes under 'the Constitution Supreme Court, which reviews their deter the United States they expressly has stated thаt error, minations writ of Connolly, 111 jurisdiction (See Robb U. S. in such eases. 542].) 28 L. Ed. If lacked S. Ct. compelled Supreme Court to reverse United would States jurisdiction of lack decision of because a state court (See of the case. inquiry without into the merits further Swan, R. S. 379 C. & L. M. Co. v. U. Ct. Mansfield been held a decision It has never L. Ed. holding because the statute itself a statute is void invalid

493 .‘ theory adopt Therefore, the peculiar unless we void jurisdiction right, not to to decide has the court a the conclusion that decision wrong, are driven to decide we it jurisdiction merely decides because not for lack is void (39 L. R. A. is valid.” statute an unconstitutional ed.], Cases on Constitutional Law 454; McGovney, [1st see 198-200.) pp. realizing inconsistency courts, the between minority

A constitutionality corpus to practice using habeas test the only jurisdiction, to test will not theory it the lies constitutionality by he permit question the raised Jur.; A.; in 25 39 L. R. corpus. (See cases cited Am. habeas supra.) is, however, a drastic solu R., 32 There less A. L. all permit independent can an review habeas tion. courts jurisdiction, which the trial court had corpus of matters over remedy by it is appeal, from because warranted apart securing correct importance of a determination constitutionality. forgotten “It must never question of corpus precious safeguard of habeas that the writ higher duty there no to maintain personal liberty and than may not so inflexible that it not unimpaired. . . the rule is . exceptional circumstances the need yield to where corpus remedy apparent.” the writ habeas afforded Johnston, in Bowen v. 306 Hughes U. (Chief Justice S. 455].) 442, 83 Ed. There 26, 27 L. are instances S. Ct. [59 only testing corpus habeas affords the method consti where tutionality upheld as a statute valid at the when time subsequently declared invalid conviction is another case petitioner either remedy interim exhausts his taking appeal expires. (Ex by appeal parte time for or the Lockhart, ; Pac. 25 Okla. Cr. 429 In re Jarvis, [221 119] only Kan. 329 а California writ of corpus higher court to decide enables which, present one, cases like the constitutionality in arise justice’s municipal appealed only court and can be (See superior parte Siebold, supra, involving Ex court. situation.) similar widely used to corpus

Habeas is also test constitution- procedure ality only petition- but of though trial, jurisdiction try trial court has er’s even (see parte Nielsen, supra; Ex 35 Columb. L. petitioner any infringement right 412), 404 at Rev. constitutional during trial appeal. he raised on The federal courts repeatedly held that habeas lies if the accused deprived guaran has been of such fundamental constitutional right (Johnson Zerbst, tees as the counsel v. U. S. 1019, 82 1461]; S. Alabama, Ct. Ed. see Powell U. S. S. Ct. L. Ed. A. L. 527]), R. right (Moore fair trial free from mob violence Dempsey, 261 U. S. 86 Ct. 67 L. Ed. 543]) *6 testimony free from use of prosecution known to perjured be (Mooney Holohan, v. 103, 294 105 S. U. S. [55 Ct. 340, 791, 79 L. Ed. 98 R. 406].) also, A. L. (See, Turney v. Ohio, 437, 273 510 749], U. S. Ct. 71 insuring S. L. Ed. [47 right impartial judge.) regard federal courts rights these as so as to spe fundamental an additional admit procedure cial protection to insure their in remedy once the the state (Mooney Holohan, supra), courts is exhausted v. longer

or is (Johnson Zerbst, no available v. 304 458 U. S. 1461].) 82 S. L. Ed. 1019, Ct. [58 used, There other corpus situations which habeas jurisdiction, a test of question review law that important cannot otherwise be raised or is so ordinary procedure render the inadequate. Thus, lies test probable justify whether there is cause to commit ting magistrate holding petitioner (Pen. for trial. Code parte Williams, Ex 52 1487; App. see. 566 Cal. Pac. [199 Hartwell, 347]; Application 28 App. 627 Cal. Pac. [153 ; also, 13 see, 230, 12; cases cited in Jur. Cal. sec. 25 Am. 730] 37.) 170, Jur. no other of securing sec. There method magistrate’s regard. review of the determination this (People Creeks, 821]; parte 170 Cal. 368 Ex Wil v. Pac. [149 liams, supra.) complaint It also to test whether the lies charges (Ex parte Williams, public offense 121 328 Cal. [53 parte McNulty, Pac. Ex; 237, 77 Cal. 164 Pac. 11 706] [19 257]; Rep. People Moss, Am. 187 Y. St. ex rel. Perkins v. N. 383,10 309, (N. S.) 528]; 410 E. 11 A. N. Ann. Cas. R.L. [80 see, alsо, 14; 42; 25 232, 174, 13 Jur. sec. Cal. Jur. sec. Am. 862) though and 35 at Columb. L. Rev. 850 even this jurisdiction may trial falls within court and go as to appeal. permit raised on Certain courts so far of limita corpus use of habeas trial when the statute before charged. (United tions States has run the offense v. Vice, 5 parte App. Mathues, (2d) 137; 27 Fed. see Ex Cal. People McGee, (2d) 153 1 611 Cal. Pac. 983]; Pac. [36 v. [89

495 Pac. 60 People Hoffman, App. 132 (2d) 378]; Cal. [22 407.) (2d) 229]; 35 Columb. L. Rev. see all remedies require While a few courts available corpus can be invoked to before habeas appeal be exhausted Lane, 265 393 U. S. constitutionality (see Goto v. test [44 jurisdictions, including 525, 1070]), 68 most S. Ct. L. Ed. mandatory (see cases California, requirement do not make 29), 164, sec. 8; 25 Am. Jur. 225, collected in 13 Jur. sec. Cal. constitutionality to be raised permit issue of and even Zany, Matter 20 Cal. (Ibid, before trial. 241 parte Royall, 117 U. S. App. 295]; 360 Ex [129 ; contra, Glasgow Moyer, S. 29 L. Ed. Ct. [6 868] ; Ed. Johnson v. 225 U. S. Ct. L. S. 1147] L. Ed. Hoy, 227 Since U. S. S. Ct. however, granting corpus, results of writ of habeas appeal reversal on petitioner, release of the while charges merely result in a trial the exclusion those new with found based on unconstitutional enactments the inclusion constitutionally guaranteed, procedure found remedy may in if grant its discretion refuse to writ by appeal rule, adopted by This the federal not exhausted. (In Lancaster, 117, 34 courts re S. Ct. U. S. S. 713]; Chapman, Ed. re Ct. U. *7 401]; Riggins States, L. 39 Ed. v. United 199 S. 547 U. [26 Tuck, 303]; Sing S. Ct. L. v. 147, 50 Ed. United States 194 917]; U. 161 621, Henry S. 48 L. Ed. v. S. Ct. [24 Henkel, 54, 235 203]; S. 219 59 L. Ed. see U. S. Ct. [35 35 412, 414), Columb. L. 404 at followed Rev. should also be by the courts of this state. their present having exhausted petitioners, case

remedy by invalidity appeal, corpus seek to assert the merely ordinance as a whole. Habeas is not only proper remedy under such circumstances but the one constitutionality upon that will this court to decide enable of the ordinance. judged must be on its face to determine ordinance unconstitutionally acts that fall prohibits

whether it within (Thornhill Alabama, category peaceful picketing. v. 736, 1093]; 310 88 84 L. Ed. U. S. S. Ct. Carlson v. [60 California, 746, ; 310 106 S. 84 Ed. U. S. Ct. L. [60 1104] 496, 518 Hague O., 954, C. I. 307 S. S. 83 L. v. U. Ct. [59 State, 147, ; 308 U. S. 162-165 S. Ed. Schneider v. [60 1423] 496 84 146, 155];

Ct. L. Ed. Lovell v. Griffin, 303 U. S. 451 444, 666, 82 L. S. Ct. 949]; Stromberg Ed. California, [58 v. 283 359, 369, U. S. 370 S. Ct. 75 L. Ed. 532, [51 1117]. See Near v. Minnesota, 283 U. S. 697 625, S. Ct. 75 L. [51 1357]; Ed. Hopkins, Yick Wo v. 118 356 U. S. S. Ct. [6 1064, 30 L. Ed. If certain provisions operate its prohibit peaceful picketing, they are invalid even though prohibit also may properly acts that illegal. be made ‘ A penal statute that does specifically not aim evils within at control, allowable area of State contrary, but on the sweeps within its ambit other activities ordinary that in cir cumstances speech constitute an exercise of freedom of or of the press . . . lends itself harsh discriminatory enforce prosecuting ment local officials, against particular groups displeasure” deemed to their merit in a “results contin uous pervasive restraint on all freedom of discussion that might reasonably regarded purview.” (Thornh be as within its ill supra v. Alabama, 97.) at not the function of the court to imposed determine whether the restrictions legislation validly can applied particular be facts case. power “Proof particular abuse of case has never requisite been deemed a for attack on the constitution ality of a purporting license dissemination of ” (Thornhill Alabama, supra ideas. 97; Hague O., v. at I. v. C. supra; Griffin, supra; State, Lovell v. supra.) Schneider v. Language prohibiting prohibited conduct that be that may reasonably conduct not affords no ascertainable stan guilt dard of vague and is therefore too uncertain and to be (Stromberg California, enforced. v. supra, 369-370; Herndon Lowry, 242, v. 301 U. S. 261-263 Ct. S. L. Ed. ; Jersey, Lanzetta v. New U. S. S. Ct. 1066] L. 888]; Jonge Oregon, Ed. De v. U. S. 278]; Hague Ct. O., supra; Ed. v. C. I. State, supra; In Harder, Schneider v. re App. (2d) 9 Cal. (2d) ; Territory Anduha, v. Hawaii 304] 171.) (2d) 48 Fed. A conviction based such a statute though cannot stand even the acts of misconduct in par validly prohibited by properly ticular case could drafted legislation. (Thornhill Alabama, supra; Carlson Cali *8 fornia, supra.) 2 present

Section of the ordinance makes it a crime “for any person loiter, stand, upon any public or sit highway,

497 hinder alley, so as to manner sidewalk or crosswalk or . . . passage persons free ... of vehicles or obstruct the is well language encompasses conduct that within This guarantees picketing sanctioned peaceful bounds picket may peaceful even process law. Thus due loiters, public highway, alley, though or sits stands, he thereby sidewalk, to some extent crosswalk, constitutes persons vehicles or passage an to the obstruction free presence. annoyance persons approve do of his who not California, Alabama, supra; (See Carlson v. Thornhill v. Territory Anduha, Hawaii supra; Harder, supra; v. In re 1035].) The supra; Williams, 158 550 Pac. In re Cal. [111 against 2 apply equally sweeping of section prohibition would display, engrossed in a window peaceful pickets, shoppers engaged in acquaintances who wheelchairs, invalids stand invalid even conversation. entire section therefore The though County validly might prohibit and un- Tuba excessive highways. necessary streets and obstruction of the gener 3 makes Section of the ordinance likewise conduct peaceful picketing ally recognized as unlawful. Peaceful dispute besetting a labor involves picketing in the course of employees premises purpose inducing another for the quit employment dissuading seeking their others from compulsion, employment. to some extent co The fact employed ercion, threats intimidation, or does detract only long from its nature so constitute eco peaceful pressure nomic, moral, pressure social and not the vio (See McKay v. Retail Automobile Salesmen’s Local lence. (2d) 373]; 16 311 Pac. Park 1067, (2d) Union No. Cal. [106 Building Council, inson Trades 581 Pac. Co. v. Cal. (N. 550; 1165, S.) 21 L. Lisse v. Ann. Cas. A.R. (2d) (2d) ; No. Local Union Pac. Cal. 314] Union, 324].) Pierce Stablemen’s Cal. The determined not character actually existence of a threat but what threatened. dissenting Vegelahn (See opinion Holmes in of Justice Cuntner, Rep. E. St. 167 Mass. N. Am. may point possibility 35 L. A to the picket R. A. crossing picket line ousting any employee from union compel quit employment. him his thereby coerce invalid. prohibiting of section 3 such conduct are provisions 3, however, prohibiting picketing part That of section *9 498 valid,

by of violence is acts for there is no constitutional sanc disputes. part tion violence labor for When a unconstitutional, declared if it is remainder will stand complete legisla adopted by itself and would have been body tive had latter foreseen partial invalidation of ; (Ex parte Frazer, 94; Cooley, statute. 54 644 Cal. 5 Cal. Jur. (8th ed.), 360.) Constitutional Limitations Not 1, p. vol. only part is the valid present complete ordinance itself, but the provides: any section, “If subsec ordinance tion, sentence, phrase clause for this ordinance is reason held to be invalid, unconstitutional or such decision shall validity not affect constitutionality of the remain ing portions (See Corp. of this ordinance.” Bacon Service Huss, 199 21 235].) Cal. Pac. [248 provisions

The 3 prohibiting of section acts of violence general do not conflict with state laws of the relating assault, battery, riot, disturbing peace, assemblage. unlawful An if makes ‍‌‌‌‌‌​​​​​​‌‌​‌​​‌‌‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌‍ordinance is invalid it illegal illegal general the same acts that made laws Const., (Cal. XI, 11; parte Sic, the state. Ex 73 art. sec. 405]; Mingo, Cal. 142 Pac. In re 190 Cal. 769 Pac. [14 [214 ; Murphy, ; parte In re 286 190 Cal. Pac. Ex 850] [212 30] parte Daniels, 114 Stephen, ; 278 Ex 183 Cal. Pac. [46 86] 1172].) Cal. 636 Picketing by Pac. 21 A. R.L. acts [192 violence, assault, however, an offense distinct bat from tery, riot, disturbing peace, assemblage, even unlawful though may sometimes The nature of involve these acts. involving crime purpose violence with the varies for which employed. prohibits violence is This ordinance the use for purpose preventing employees violence patrons from entering premises being picketed in with connection dispute. labor from therefore defines an different offense general controversy. acts of violence unconnected with labor

When a has petitioner violating been convicted of stat entirely unconstitutional, ordinarily ute the court will corpus releasing custody. issue a writ of habeas him from however, present ordinance, provision The contains a valid prohibiting complaint charges petition The acts violence. picketing by charges ers with violence acts and therefore public offense for such acts are not consistent with lawful (See pp. 235, 236, 7; action. cited 13 Jur., cases Cal. note Peterson, parte ; parte Ex 119 578 Pac. Ex Cal. [51 859] cf.

499 ; In McLaughlin, App. 16 Cal. Pac. re Hernan [116 684] Greenall, parte Ex dez, 423]; Pac. App. Cal. 804]; Sing, In re Ah 156 Cal. Pac. Cal. Pac. imposed 448].) petitioners is not punishment Since the ordinance, provision excessive violation the valid if they only can be it is clear that released violating (Ex provision. parte were not convicted Morrison, Cal. uncertainty surrounding their conviction arises complaint, charged with ambiguity

from the them *10 any provision violating any other of the ordi one “and/or” 2 referring 2 nance, referring and count count 1 to section charged violating with section 3. Petitioners were effect any all ordinance or provisions of each section of the one provision They guilty “as of each were found section. charged” “on said conviction.” It cannot and sentenced of the record whether be from the face therefore determined pro valid guilty violating one were found vision of section 3. “and/or”, expression possible which made a conviction widespread con general terms,

couched in has met with Co., Ry. 107 Fla. (Cochrane demnation. v. Florida Coast East 431 v. Architectural Iron Workers 217]; So. Preble [145 Co., Union, Tarjan Surety App. 435; 260 Ill. v. National 268 364]; App. 232; Dudley, v. 159 La. 872 So. Ill. State [106 Storage 332 Mo. 707 S. W. Empire Co., Russell & v. Ice [59 (2d) (2d) 339 187 W. ; Douglas, v. Mo. S. State [95 1061] Columbus, 136 Neb. 87 ; City v. Drummond [285 1179] ; Equitable N. v. Trust 109, N. W. 286 W. Kornbrodt 779] (2d) ; 236, 3 Pac. Allen Co., (2d) 137 Ore. 386 Pac. 127] 232]; (2d) v. State, v. Tex. S. W. Cobb 138 Or. 303 [136 v. (2d) 272]; In State, S. W. Putnam 139 Tex. Cr. 337 [139 (2d) 973]; Em 187 Commission, dustrial Utah Tollefson, 219 Wis. 434 Liability Ins. ployers’ Co. Mutual 18 A. B. A. Jour Symposium, 376]; N. An W. And/Or ; 42 Va. 456, (editorials) West 574; 18 B. A. Journal nal A. Bar, J. Parsons, And/Or, State Q. H. Cal. 235; L. H. Symbol Against Tirade Mumper, H. Unfair cf. ‘‘ expres 187.) It is true that ”, State Bar. J. Cal. And/Or instruments other convenient contracts and proved sion has anticipate alter it can where, by equivocation, its intentional of each itemization the cumbersome possibilities native without 918, Marquette L. (118 1367; 43 Yale J. one. A. L. R. 101.) Rev. It itself, lends however, as ambiguity much to to brevity. Thus it cannot intelligibly be to fix used the occur rence past purported events. A conclusion that one either or both of two events occurred is a mere restatement problem, not a decision actually as to which event occurred. If a person is accused of violating an unconstitutional as well provision a constitutional of a statute and the verdict the use of declares guilty violating him either “and/or” provisions, one or open guilty both it whether ishe any punishable offense. The verdict effect states that guilty violating accused pro innocent the constitutional comparable precision vision. A lack of was censured erg California, United States Court Stromb U. S. 75 L. Ed. Ct. 73 A. L. R. against appellant general : “The verdict was one. 1484] ground upon it specify did not which rested. there As were statute,'and forth in the purposes jury three set was in might given respect any verdict structed that their be with considered, them, impossible say independently it is one clause of the statute the conviction was obtained. clauses, which any If of these one state court has held to invalid, be separable, was cannot determined this be appellant not convicted that the under that clause. record being permissible hold, that instead its ... It follows verdict if court, state could sustained with the valid, were the clauses of found to be one *11 from necessary the manner which the case conclusion the that, if in question is of the clauses jury the was sent Constitution, conviction can under the Federal invalid pres ambiguity judgment in the The upheld.” not be clearly warrant reversal of the conviction a ent thus case would (See, also, People Moss, v. or other direct attack. appeal (Supp.), 763, (2d) 932]; (2d) 767 Peo App. 33 Pac. Cal. [87 503, Tomlinson, 508.) 35 Cal. ple v. corpus proceeding, however,

A is in the habeas nature a attack, judgment a that collaterally collateral attacked presumption it a of regularity. (Johnson carries with v. 468 Zerbst, 458, 1019, 304 Ct. ; U. S. S. 82 L. Ed. [58 1461] (5th Judgments 780, Freeman, ed.) 1 seq.j see et 15 Cal. Jur. 64, presumption regularity applies et This seq.) pro to the ceedings justice’s only a if judgment affirmatively case, present jurisdiction shows, as in the court has over (Brush subject matter. person Smith, v. 141 466 Cal. [75

501 545]; 386 Pac. Pimental, 107 Cal. v. 55]; Hayward [40 Pac. 503; 6 Cal. Howard, 15 Jur. 401,404. 23 Cal. See Cal. Rowley v. 611.) however, is not conclusive Supp. presumption, Jur. upon petitioners places corpus proceeding in habeas but upon not that their were based proving convictions burden upon provisions of constitutional but the unconstitutional (Johnson Zerbst, supra.) they can ordinance. v. Unless sustain having been convicted this burden must be considered violating relating provision violence, the valid to acts of judgment upheld. must be

A petitioner seeking corpus, however, is habeas not con attempting fined to bur the face of record in to sustain the proving den of his conviction violation his consti rights. The courts tutional of both United States and Cali remedy per fornia have that the of habeas corpus declared not intro only mits examination actual evidence any necessary petitioner’s duced at trial additional evi infringement petitioner’s dence bearing constitu rights. (Moore tional v. 261 86 Dempsey, U. S. S. Ct. [43 265, 543]; Mooney Holohan, L. v. 294 67 Ed. U. S. 103 [55 340, 791, 406]; L. S. 79 L. Ed. 98 A. R. Herndon v. Ct. 732, 301 242 Lowry, 1066]; 81 L. S. S. Ct. Ed. U. [57 supra; Connor, (2d) Johnson v. In re 15 161 Zerbst, Cal. [99 (2d) ; Connolly, App. (2d) re 16 Pac. Cal. 709 248] [61 (2d) Lake, App. 126]; In re 490]; Pac. 65 Cal. 420 Pac. [224 Chaus, see, App. 422]; also, In re 92 384 Fiske Cal. [268 Kansas, 655, ; v. L. 274 U. S. S. Ct. Ed. 1108] Jonge Oregon, v. Ct. 81 L. Ed. De U. S. ; Alabama, Norris S. 587 S. Ct. U. 278] Alabama, 287 L. S. Ct. Ed. Powell U. S. 1074]; 84 A. Ed. L. R. This examination sufficiency made, pass upon sup the evidence to actually verdict, but to what verdict port the determine whether it violates constitu was, so the court decide guarantiеs. Such an will be made examination tional petitioner has de been proceeding whenever deprivation form that whatever prived process law, of due judg “jurisdiction” enter a If court has no has taken. con him of depriving defendant after against ment to a fair trial counsel or right guarantees stitutional enter “jurisdiction” domination, it has no from free mob stat *12 upon an unconstitutional him based judgment against a permissible determine the facts is An of examination ute. whether petitioner was denied process due of law with re- spect procedure to the at trial; his it is no permissible less whether he determine was process denied due by being law convicted violating unconstitutional legislation. Lowry, Herndon v. supra, defendant was convicted of the crime attempting to incite an appeal insurrection. On from a denial petition of his for a writ of corpus, habeas United States Court examined the evidence intro trial, duced at his concluded that only it revealed conduct protected was guarantee the constitutional of free dom speech, and held that his conviction under the statute was therefore a denial process of due requiring law issuance of a writ of corpus. habeas

In Johnson v. Zerbst, supra, a petitioned defendant for a writ of corpus habeas on ground that he had deprived been right his constitutional represented by to be counsel at his trial. The petitioner court held that was entitled to release corpus on habeas if an examination supported of the facts his allegation, stating, prisoner “a in custody pursuant to the judgment final jurisdiction state court of criminal judicial inquiry in a court of the United States into very truth detention, and substance of the causes of his al- though may it necessary become beyond to look behind and his conviction. . (p. 466.) record of . .” Dempsey,

In Moore v. supra, petitioners for release by asked corpus grounds habeas that thеy deprived had been process due of law because of mob domination of their trial. The court held the actual facts should examined allegations. determine the In Mooney truth v. Holo- hcm,siipra, the court stated that examination must be made of facts petitioner outside the record to determine whether deprived process at due law his trial. Kansas, Jonge v. supra; Oregon, eases of Fishe De

supra; Alabama, supra; Alabama, Norris v. and Powell all hold an examination be made of the supra, should evidence the trial court introduced whenever is essential questions. proper to a determination of constitutional While corpus, mark the ex- involving not writs of habeas these eases protection guaranties tent of the afforded constitutional applicable proceedings therefore and are infringement rights. with of constitutional In Nor- concerned Alabama, supra, the court stated: “That ris v. duty determine us one of fact does relieve *13 right When a has been denied.

whether in truth a federal claimed in a state specially up set and right federal has been it inquire merely whether was court, province to not it is our in also denied express in terms whether denied evi- requires an examination of If this substance and effect. review Otherwise, be dence, that must made. examination safeguarding fail constitu- purpose this of its Court would rights.” tional corpus that on habeas equally clear

The California cases are if trial the may examine evidence introduced at court the question necessary properly determine the constitutional to court, supra, fol- Connor, at In the re this issue. case of application corpus, for a writ of habeas examined lowing arraign- at transcript statements his petitioner made deprived con- he his ment to determine whether had been right at trial. The represented by to be counsel his stitutional jurisdictional treating question the as a court, constitutional one, “Furthermore, corpus is stated: the function of habeas jurisdiction judgment. the court It is to to render test the the proceeding, limited to the face of the but extends to juris- necessary record of court when to determine below The In re Appeal diction.” District Court the case of supra, respondent argues “But Connelly, declared: applied be unless of immunity ap- cannot the fact rule pears argument face of the indictment. The on is based all-too-broad statement that the function of habeas corpus jurisdiction appears is limited to the itas proceedings. accepted face of the this state rule in (and only one applicable under the code sections cited clearly Lake, in In re above) App. 420, stated Cal. 126], says: where ‘. . . While neither corpus writ one extend error, both certiorari] [habeas it- to the entire record of the court to the below and evidence ’ ” jurisdiction. necessary self determine when to Penal Code 1484, moreover, provides corpus pro- section that on habeas fact ceedings petitioner “allege any either show imprisonment unlawful, he is his or detention is or that judge discharge. thereupon entitled to his The court must proceed way pro- hear summary proof may such detention, against imprisonment or in favor of duced justice same, dispose of such as the party and may require, authority case re- power and full and quire compel witnesses, by process attendance of

subpoena attachment, perform to do and all other acts things necessary a full and fair hearing and de- termination case.” It is clear from the foregoing authorities habeas

corpus proceeding a beyond court must look the face of the record at the actual evidence when necessary to determine whether petitioner deprived has been rights. of constitutional If the petitioner which the was convicted is еntirely unconstitutional, the court discharge will him on without examining Conversely, the evidence. if the entirely statute is constitutional, the conviction will be upheld without however, examination of If, the evidence. present case, as in the part statute is in constitutional and *14 (cid:127) part in unconstitutional and it cannot be from the determined charge and conviction whether or petitioner not was tried and for violating part, convicted valid the the exam court must evidence, ine the not test whether to it is sufficient to support verdict, to a but determine whether petitioner tried and was convicted violating part alone, for invalid in the which case fall, the conviction must or whether he was and con tried violating part well, victed for the valid in which case the petitioner conviction stand. The has the prov must burden of ing that he not tried and the violating was convicted for valid of statute. part the present in

Petitioners have failed to sustain case they proving the burden of that not tried were and convicted transcripts testimony since the of at their acts of violence petitioners, trials reveal evidence of such acts. Some of the women, along engaged with 75 to other men and were in the entrance to the were picketing Reed Ranch while others to the large group in entrance Datoni Orchard. group that Ranch large Witnesses testified at Reed stood in the middle of the and refused to move pickets road approached, forcing the to automobiles thus automobiles when he if stop. only that An officer testified could driven Bell, somebody.” kill Davis wanted to Petitioners he “had stopping in Bell participated cars. Walker and going stop every damned auto saying: “We are to quoted witness, Davis, according in here.” that comes mobile “to giving road orders down middle of the up and walked through Walker stated that comes here.” stop every car to hell with stop every damn automobile and going “he was Some personally.” take care them He law. would to.go through having after permitted automobiles were no automobile, been but other than used stopped one through Ranch officers,passed the blockade at the Reed before deputy sheriffs. arrival two stop Newcomb testified he was forced witness large at Datoni 3 :10 a. group Orchard about m. waving standing flashlights. They men road gath- across the him A go flashlight ered about ear ordered back. his and photographer at the shows seven- picture taken scene car, eight directly grouped teen about the them men front there were about photographer it. The testified that immediately road turned men on the and Newcomb Hamilton, Hinman, Knapp, around left. Petitioners partici- Wiseman, Day, McKay group this were Reed present at the pated stopping of cars. Witnesses pickets’ that the ac- Ranch the Datoni Orchard testified bodily harm. tion caused them to fear exceeding This reveals bounds evidence conduct no peaceful to the picketing. may bring Pickets themselves may not picketed tice persons entering premises, occupants by stop intimidate forcibly automobiles and peace more than gathering large numbers. Such action is persuasion. and constitutes ful forceful intimidation violence. petitioners burden

Because have failed sustain the provi- the one valid proving that convicted of were writ, violence, prohibiting ordinance acts of sion of the re- discharged petitioners are and the issued is heretofore *15 County. custody of Yuba the sheriff manded to the of J., concurred. Gibson, J., Shenk, Houser, J., and C. Concurring. Although agree I J., EDMONDS, — of upon the writ to be released entitled are not petitioners opinion, has review, my of the scope corpus, habeas allows. beyond which the law been extended complaint a which were convicted petitioners The disjunctive with conjunctive in the charged them both con- They ordinance. now of the the violation of section each charges peaceful picket- of upon that, a tend since conviction . rights, constitutional of their ing infringement would be an judgment complaint this is not confined to court proceeding in this presented considering the issues 506

may look behind the of record conviction and examine evidence adduced at the trial to con- determine' whether the for acts viction was included within ‍‌‌‌‌‌​​​​​​‌‌​‌​​‌‌‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌‍the unconsti- tutional portions argument requires the ordinance. This some consideration of the nature and function of the writ corpus. habeas

Generally speaking, scope corpus review habeas is jurisdiction limited to an of the examination of the court Parks, judgment challenged. (Ex parte whose is conviction 787]; 93 L. parte Siebold, U. S. 18 Ed. Ex 100 371 U. S. [23 717]; Egan, L. Ed. el v. 268 S. 442 Ct. Knew S. [25 U. [45 522, 1036]; Johnston, 69 Ed. 306 Bowen v. 19 U. S. [59 455]; parte Sternes, S. Ct. 83 L. 156 Ed. Ex 77 Cal. Rep. parte Long, 11 Am. 114 Cal. ; Pac. St. Ex [19 251] 159 1057]; Carpenter, In 274 App. (2d) Pac. re 36 Cal. [45 (2d) 476].) may The be employed Pac. writ as a [97 irregularities vehicle for correction of errors or com jurisdiction. (Ex mitted within the exercise an admitted parte Clarke, ; parte Siebold, 100 U. S. 399 L. Ed. Ex [25 715] supra; 304 Zerbst, Johnson v. 458 U. S. S. Ct. [58 ; 218.) 82 L. Ed. 13 Jur. Nor it be as a Cal. used 1461] sufficiency device to test the the evidence warrant petitioner, question conviction of properly addressed reviewing upon (Harlan McGourin, 218 appeal. 1101]; U. 442 L. Ed. In re S. Ct. 54 175 Jacobs, [31 801]; Williams, Cal. 661 In re Pac. Pac. Cal. [166 [190 163]; parte Stevenson, 216]; In Cal. 773 re Pac. Ex Drew, ; 219.) 188 Cal. 717 Pac. 13 Cal. Jur. These 249] are traditional and from which there principles fundamental although departure, has been no in recent times the con cept jurisdiction corpus, broadened has been guilt petitioner innocence subject inquiry. proper never a challenged Furthermore, judgment by writ of habeas every presumption validity, carries with it (Johnson intendment favor. reasonable must made its Zerbst, supra, 468; Pillsbury, App. p. at re Cal. subject 725]; 64.) proceeding The Cal. Jur. Pac. upon judgments appliсable to collateral assault the rules parte generally. (In Stevenson, Stephen, supra; re Ex presumption validity, how Cal. convicting jurisdiction ever, rebuttable when

507 pursuing inquiry its into question, and is called into court petitioned court is not con challenged jurisdiction, judgment may of the of conviction but review fined to the face below, including an examination proceeding the entire any by the record but of additional only of facts disclosed with, (Re record. facts, of, not inconsistent outside 672, 118]; 33 L. 131 176 Ct. Ed. Re Nielsen, U. S. S. [9 re ; In 703, 280 Ct. 33 L. Ed. Cuddy, 131 S. S. U. [9 154] 141 35 Mayfield, 939, S. 107 S. Ct. L. Ed. U. [11 affecting jurisdiction However, to all matters not regularity attaching judg presumption of court, the unrebuttable, any ment of is conclusive and conviction judgment To inquiry beyond the face of the foreclosed. corpus otherwise, permit would the writ of habeas to be hold correcting testing means of error the suffi used as a ciency Accordingly, presumption of the evidence. petitioners portions convicted under the were constitutional of the ordinance must conclusive an be deemed examination the evidence which that conviction was jurisdiction justice’s improper had is unless the court challenged by allegations adequately has been of the petition. jurisdiction years,

As the courts defined recent right to hear concerning includes the and determine charged authority offense and the of the court to act in a given person (Fortenbury of the v. manner over accused. Superior (2d) Court, (2d) 411].) 16 405 Pac. Cal. [106 prosecution criminal during If the course of a the ac rights deprived procedural of certain fundamental cused is guaranteed by the Fourteenth Amendment the Constitu States, judgment tion of the United conviction subse jurisdiction. (Johnson quently entered is invalid for lack O’Grady, Zerbst, supra; v. v. 312 369 Smith U. S. S. Ct. [61 Connor, ; (2d) In re 15 Cal. L. Ed. 859] right counsel]; Mangum, Frank (2d) v. [denial 248] 969]; 59 L. 237 U. S. 309 S. Ct. Ed. Moore Dempsey, S. S. Ct. L. Ed. U. 543] [trial violence]; Tumey Ohio, dominated mob U. S. right 71 L. Ed. Ct. [denial 749] remedy impartial judge].) is available asserting jurisdiction petitioner to a a lack forth, pеtitioned and the look respects above set *17 record of questioned juris- behind the conviction to test the As in diction. stated “A jurisdic- one these cases: court’s beginning tion at the of trial be lost ‘in the course of proceedings’ complete the due failure to the court—as the requires by Sixth providing Amendment Counsel for an ac- — cused is unable to obtain Counsel, who has who not intelli- gently waived constitutional guaranty, this and whose life or ’’ liberty (Johnson is at stake. Zerbst, supra.) being

But prosecuted when is one for the commission of charged acts which are been committed with force and violence and of peaceful persuasion, also within the limits the jurisdiction court does not lose when it determines from they evidence that fall within category the first and not the second. That is petitioners the situation of the present justice’s jurisdiction case. The court had persons over the charged violating those with the ordinance. The offense committing acts of violence connection one with is power which the court had try, and a conviction for authority that offense was within the the court to enter. petitioners do not claim that they were not accorded fair any rights trial were guaranteed denied them although the federal peti Constitution. And tioner for a writ habeas is entitled to his release if complaint he charge was convicted does not public (Ex parte McNulty, offense 77 164 Cal. Pac. [19 237, 11 Rep. 257]; Am. St. parte Ex Williams, 121 328 Cal. if 706]), attempts, Pac. to state here, an offense of [53 jurisdiction, which the has question whether the alleged facts the commission show of that offense not be will inquired (In Leach, into. re 215 536 (2d) 3]; Cal. Pac. [12 Wood, In 194 49 908].) Cal. Pac. re When one has been [227 convicted under a statute or ordinance constitutional in its entirety, whether the evidence the trial at is bring sufficient to the case within the ordinance and establish a breach of provisions, question, its improper deter which, mination of only constitutes еrror subject corpus. (Ex parte Long, to review on habeas 159 Cal. ; Kelso, Pac. In re 147 Cal. 609 Pac. 1057] Rep. 178, (N. S.) Am. 796]; St. L. R. A. In Horr, re principle Cal. 721 This applicable even though it be contended there is a total lack evidence support (In re Cutler, supra.) the conviction. No different one been convicted when has result should obtain ordinance, part. constitutional in severable Ct. Lowry, In Herndon v. U. S. now from those 1066], quite different Ed. facts were convicted defendant was

before this court. There, Georgia. He statute of crime as defined of insurrection Supreme refus- Court appealed judgment of the state from a contending ing discharge upon corpus, him a sufficiently provide a vague indefinite to statute was too guilt. The Court ascertainable standard and characterized upheld States this contention United susceptible a con- it was entire statute as uncertain criminal innocent as well as conduct. penalizing struction made an un- order the state court had to determine whether statute, the application of constitutional construction and *18 to to the record and compelled Court was examine unlaw- specific claimed to be ascertain the which was conduct concluded, record, the the court ful under This statute. that only, it held the commission lawful acts showed of unconstitutionally applied. construed and the statute had been statute, If, na- examining of a criminal the upon the face appears unlawful to ture of the conduct which made wholly corpus must neces- upon habeas of uncertain, the court the sity to concerning the the acts attributed review evidence defendant to whether statute was unconstitution- determine the where, ally applicable, however, applied. That rule is not here, in connection with prohibits the acts of violence picketing, which, unquestionably, may be made unlawful. sufficiency complaint charge of such acts was the to tо- upon appeal, petitioners properly present which might the gether the no acts of vio- point with that the evidence showed adversely lence. them. appeal But their determined to has been adjudication upon the That a final determination constitutes conclusively which, presumed, issues of fact it was must be for of conviction violence. acts long prin- inis established

This conclusion accordance with parte Morrison, example, For case Ex in the of ciples. validity challenged Cal. 112 Pac. the 1064], petitioner vagrancy of judgment convicting of him of the crime the He attacked defined in Penal Code. section the Although first clause this section as unconstitutional. appear there- not judgment regular face, it did was on its from under which clause of section 647 the was conviction In the discharging writ, declared, had. court “we can- assume, purpose question, on or of passing not this discharging prisoner, particular that this is the clause judgment which the And conviction was had.” Porte, 355], petitioner re 198 Cal. 216 Dal was charged counts, one of stated convicted under two which beyond jurisdiction try. an offense As the court to finding guilt general, impossible it was ascertain upon counts. whether the conviction was either or both based Admitting judgment subject was erroneous and on appeal, correction nevertheless declared: “We court prepared say, however, petitioner not is entitled proceeding judgment in this account relief from said being complaint. of its based a defective count charge already seen, As we have forth in second set jurisdiction within complaint count of said was one police charged court, said the offense fact complaint the first count of said was one over which said police jurisdiction did would not be sufficient jurisdiction to oust court of the offense over jurisdiction.” full complete had agree But I that if the trials records which resulted petitioners’ in the pur- conviction be examined for the pose determining petitioners whether the committed acts intimidation, physical of violence and there is substantial support judgments evidence which are this attacked proceeding. although For may present grievances labor its public, to the employer’s the obstruction of access place to an number persons require business toas his em- *19 ployees desire gauntlet who work to to run threats physical protected by harm not guar- the constitutional anties.

Many years ago, this held that inter intentional ference employer with relations of an employees and his object is not if tortious sought to attained reason has able relevance to peaceful labor conditions and means are (Parkinson accomplish used to it. Building Co. v. Trades' Council, 154 Cal. 581 Ann. Cas. (N. R. S.) 550].) L. A. principle That recently restated applied holding and “that workmen associate to gether exert pressure and various forms of economic ’’ employers, they peaceably honestly. act provided and How- particular emphasis upon requirement the court laid ever, peaceful if that labor’s acts must be are to come within protection Fully right law. “that recognizing picket peacefully truthfully organized to is one of labor’s advertising grievances lawful means of its public, to the guaranteed by as such is the Constitution as an incident of speech,” freedom of clearly also added: “But the law re- quires that concerted action peace- union workers must be ful. Acts violence or amounting physical ‘acts intimi- enjoined.” dation’ (McKay will be v. Retail L. Auto S. (2d) Union No. 16 Cal. 373].) Pac. (2d) testimony opinion which is referred my associates, and other evidence which record, is shown fully justifies a conclusion that the picketing, on, in carried part, under cover of darkness and with a show of force employees toward Earl Fruit Co. who desired to con- their employment tinue entirely proportion out of peaceful purpose, was accompanied by violence, violence, threats of as to constitute say unlawful means. To that it comes within peaceful the bounds of picketing is to ignore the realities of the situation. pickets

When patrol the public street approach which is the to their employer’s premises and either their number or their conduct is such as to constitute intimidation put em- ployees or others in fear bodily harm, they guilty acts. unlawful Such picketing goes beyond far that which reasonable, recognized by has been the courts as a exercise of right to tell the facts of labor dispute and persuade employees, by peaceful means, to leave their work. The courts generally recognized that persuasion presence in the large persons number of peaceful is not persuasion, and in one decisions, of its Court of the United States proper said it is the function of a court of equity “to prevent the inevitable intimidation . . . groups pickets, but to allow missionaries. ... In going work, from men right have a passage to as free without obstruction as afford, streets consistent right with the enjoy of others to privilege.” (American the same Steel Tri-City Foundries v. Central Trades Council, 257 U. S. 184 S. Ct. Ed. very recent Wagon case of Milk Drivers Union of

Chicago, Local v. Meadowmoor Dairies, U. S. 287 *20 836, 552, 1200], (rehear 132 A. R. Ct. L. Ed. S. denied,

ing S. 715 1145]), U. S. Ct. L. Ed. requirement that, the same court laid down the lawful, to be picketing peaceful must be and a background not have picketing,’’ of violence. “Peaceful said the court, “is the workingman’s means of communication. It must never be forgotten, however, Bights that Bill was the child Enlightenment. Back guarantee speech of the lay of free power appeal faith in the to reason peaceful of an all the gaining means for access to the mind. It was in ohder to explosions force and due to upon avert restrictions rational guarantee speech modes communication of free scope. given generous But utterance in a context significance appeal violence can its lose as an reason and part become anof instrument of force. Such utterance was ’’ meant to be sheltered Constitution. petitioners case, the one now before this court, upon relied the decision of Thornhill v. Alabama, 310 U. 84 L. S. S. Ct. Ed. But, as 1093]. out, Mr. pointed Justice Frankfurter there “entangle was no ment in either the with violence” Thornhill case or Carlson California, 310 U. 1104], S. Ct. 84 L. Ed. power court duty where the declared: “The of the State adequate steps preserve to take peace protect privacy, lives, property and the of its residents cannot Concerning case, doubted.” former that the he said expressly dispute involving excluded a labor violence scope from the its decision these Words: “We are not now concerned with en masse or otherwise con might ducted occasion such imminent aggravated danger justify ... as to statute narrowly drawn to cover precise giving danger.” situation rise to the The Yuba County ordinance, far in so as its provisions valid severable exactly concerned, are such statute.

Curtis, J., concurred. CABTEB, J., dissenting. dissent. —I my opinion petitioners are entitled to their release on ground provisions charged were ordinance under which convicted unconstitutional and void. n majority agree of the court seem Since that section 2 invalid, of the ordinance is validity sustain the against sec- petitioners under judgment of conviction ordinance, my I will discussion to sec- tion 3 confine of said *21 only. tion 3 ‘‘ any 3. unlawful for provides: section Section is Said any or person premises another, the picket to or beset any or thereto, employed is seeks approach person where any thereto such employment, place approach or where or lodges resides, for employee person seeking employment or or inducing employee person seeking or purpose the such by compulsion, coercion, intimidation, means of employment, threats, violence, fear, quit employ- acts or to his or her freely ment or refrain or em- seeking entering from into ployment.”

In my above-quoted vague, in- opinion the section is so definite said to and uncertain that it cannot be denounce as a any may crime proscribed police act which be power of state, a provide sufficiently and fails ascertain- guilt. able standard of analysis

Before making above-quoted an section, I shall call attention to applicable certain inter- rules to the pretation of They statutes and ordinances. are as follows: language

“When appears an act on its to have face a meaning, it impossible give any precise is or in it telligible application in the it circumstances under which was operate, intended to it if simply void; judicial cer no tainty can meaning, be settled its are not courts liberty at supply deficiency or make certain. the statute legislation But ground cannot be nullified of uncer tainty, if susceptible reasonable construction that will (26 support it.” Ency. Law, 656.) Am. Eng. Ed., 2d “Where statutory meaning, terms are uncertain or confused, so courts cannot discern with reasonable certainty intended, what is pronounce will enact- ment void.” (Statutory Crimes, 3d third Ed., sub- division of section 41.) ‘‘ crimes, Statutes and ordinances fix crimes, quasi should so fix them that uncertainty. They there could be no should be so them, worded that one could and know read whether They or not he violating law. not be should so worded leave caprices as to their substantive elements to the of either judge jury. In other be words the law should complete and definite. What would effort’ be ‘reasonable under this law left a jury. for the What court jury might minds of one be ‘reasonable effort’ jury.

might not be so considered another court or Bach its making trial tribunal ordinance. This would be own will (Taft for a law criminal not do or ordinance in character.” 457].) 284 Mo. 531 W. Shaw, can equally “It mere true that a collection words law; transformed dictionary constitute otherwise the can be proper legislative An into a formula. act legislature, law, prescribe enforceable as to be must ’’ action, expressed. intelligibly must rule of and such rule Co., 146 Mo. (State Ry. Street ex Crow West Side inf. ‍‌‌‌‌‌​​​​​​‌‌​‌​​‌‌‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌‍S. W. clear, regulatory “An ordinance of nature must be cer- definite, average may man tain so that the with due care he will incur a reading after the same understand whether (19 p. 810.) L., for his or not.” penalty actions R. C. creating legislature “. . . in define offence it, constituting particular description the act or acts *22 reasonably produces, any or define it act which or is as produce results.” calculated to certain defined described L., 57.) (8 p. R. C.

Applying foregoing rules to under con the ordinance sideration, language my it is mind that contained clear charge pur is insufficient to offense within therein police power state of the recent of the of the view view holding States of the Court of the United decisions speech press, which are freedom of “The by against abridgment by First Amendment secured personal rights fundamental States, among the are United by the persons Four liberties which are secured all abridgment . .” against by state. . teenth Amendment 736, Alabama, 310 S. 88 S. Ct. 84 (Thornhill v. U. [60 California, 106 1093]; v. 310 U. S. S. L. Ed. Carlson [60 444 746, 1104]; Griffin, v. 303 S. 84 L. Ed. Lovell U. Ct. [58 State, L. 308 666, 949]; 82 Ed. Schneider v. S. S. Ct. U. 146, ; York, 84 147 Ct. L. Ed. v. New 268 S. Gitlow 155] [60 625, 652, 1145]; 666 69 L. U. S. S. Ct. Ed. Strom 1138, [45 California, 359, berg v. 283 368 75 L. 532, U. S. Ct. Ed. S. [51 73 1117,1121, 1484]; Minnesota, 697, A. L. R. Near v. 283 U. S. 625, 1362]; Grosjean 707 75 1357, S. Ct. L. Ed. [51 233, Co., 444, Press American 297 S. 244 S. Ct. 80 U. [56 660, Jonge 353, 665]; Oregon, L. Ed. De 299 U. S. 364 255, also, S. Ct. 81 See, L. Ed. Palko v. [57 283]. 319, 58 S. 6, 1937 U. December Connecticut, [302 decided settled 288].) It is also well Ed. S. Ct. authority consti- adopted state ordinances municipal amend- prohibition are within action and tute state Co., U. S. Chicago Traction Union (Raymond v. ment. 757]; Home 12 Ann. Ed. Cas. 52 L. S. Ct. Angeles, 227 U. S. Teleg. Co. v. Los Teleph. & Akron, Co. v. River Power 510]; Cuyahoga L. Ed. 312, 57 Ct. 743].) 402, 60 L. Ed. S. Ct. 240 U. S. the ordi defined in picket” terms, “beset any or court nor in consideration nance here under suрra.) Text- California, (Carlson v. state. this decision of marching to and fro “the have defined writers dispute, in a involved of an establishment premises before sign, display of by carrying and accompanied generally bearing in connection with statements placard or banner Bar Disputes and Collective (Section 109 Labor dispute.” also Teller.) Picketing has been defined Ludwig by gaining up walking “the act of enactment elsewhere by legislative . . . and the solicita of business place before and down through mouth or employees word of public or tion of the banners, place business is unfair such signs or printed association, group any voluntary labor or organized by requesting through organizations; and of labor members signs place of or em mouth or that such business word public; boycotted patronized and not ployer signs that through solicitation word mouth personal working place . . business so employees . cease (Diemer v. Weiss, (Mo.) (2d) S. W. picketed.” terms, picketing may be said to constitute In brief concerning the facts of information of a dissemination by representatives organized labor dispute labor (Thornhill place dispute exists. vicinity of the where *23 Alabama, supra.) v. both appears be well settled the decisions of

It now those of of the this court and Court United information concerning States that “the dissemination of dispute regarded be facts of a labor must within that area guaranteed by the of free discussion that is Constitution.” Alabama, supra; v. (Thornhill California, supra; Carlson v. Hague O., v. C. I. S. 496 S. Ct. Ed U. State, supra; Layers Pro- 1423]; Senn v. Schneider Tile Union, tective 301 U. S. S. Ct. L. Ed.

Applying the foregoing definition to section of the ordi- under consideration here, nance we find that the ordinance makes it for any person “unlawful picket . . . the prem- ises . . another . for purpose inducing any employee or person seeking employment quit ... his or her em- ployment or to refrain from seeking freely or entering into employment.” appears to be conceded that a statutory enactment couched in above-quoted language would a clear constitute violation of the provisions constitutional both of this state and of the United States guaranteeing such civil liberties as speech, freedom of press freedom of and freedom assem- bly. (Thornhill v. Alabama, supra; California, Carlson v. supra; Griffin, Lovell v. supra; State, Schneider supra.)

But it is insisted that the insertion “by of the words means of compulsion, coercion, intimidation, threats, acts of vio fear,” lence, or after the clause “for purpose inducing employee person or seeking employment,” and before quit the clause “to his or her employment or to refrain from seeking freely entering or employment” into removes sec tion 3 of said from category ordinance of unconstitu legislation tional prohibit renders a valid enactment ing all pickets where some of the in some manner or ‘1 other resort to might what be compulsion, construed to mean coercion, intimidation, threats, of violence, acts In fear.” argument, analyze view of this quoted let us the last terms if they and see significance whatever when used designed ordinance proscribe prohibit acts and con performed duct which be the exercise of one’s civil guaranteed by liberties both our state federal Consti tutions.

If picketing publicizing constitutes the facts concern ing dispute vicinity premises a labor in the where said dispute exists, then it must follow that it was the intention legislative body pro which enacted said ordinance concerning hibit the dissemination information such labor ‘1 ’’ dispute by compulsion, nleans of etc. my opinion only interpretation this is the construc- language placed upon above-quoted tion which can be language thereby section of said ordinance and said meaningless. illustrate, rendered To how can it said that concerning picket disseminated information the facts of dispute by “compulsion,” “coercion,” labor means *24 violence,” of “threats,” or or “acts or “intimidation,” by Certainly the dissemination of information “fear”? regardless spoken printed or of how of word means either large printing not have the voice or how would loud the creating bringing about the conditions described effect of or coercion, intimidation, threats, of vio- “compulsion, acts ’’ possible imagine for lence, least, or At it is not me to fear. engaged picketing a in in in the sense situation which one doing anything picket defined, that that has as a term been bring approaching “compul- a condition would about ’’ intimidation, violence, of or fear. sion, threats, acts coercion, stones, Picketing throwing person mean a does not but en- gaged may picketing in mean picketing stones; throw does not wielding clubs, engaged picketing may in person but a wield club; picketing firing guns, mean person a does not but a engaged may gun; brief, in picketing picketing in fire does a comprehend any mean or commission of or acts act may by engaged of those violence, but such acts be committed picketing. every conceded act It must be of violence designed injure person property of or another now penal provision of of constitutes violation some the law of subjects perpetrator prosecution this state and thereof engaged punishment, person whether committed activity. any or in other There is more reason no saying publicizing dispute, the facts of labor concerning information the dissemination of the facts through accomplished dispute pickets, may labor be means violence, gospel, than say preaching acts lec- turing political reforms, teaching economy pub- on social lishing newspaper may accomplished. be fact likewise may engaged that acts of committed violence be one change any pursuits does not the abоve character pursuit subject by legislative nor to restrictions created power. enactments under an police asserted exercise words, other it is the acts violence which come within preaching, purview police power picketing, and not the teaching publishing, because acts of violence lecturing, object accomplished purpose no to be relation to the by any activities, including picketing, of the above-mentioned according accepted to the definition that word. engaged picketing might person

true that a while commit every law, certainly our crime known to of such commission crimes charged against should not be up line or picket organization entire the labor under whose auspices premises being picketed. As I penal read our think statutes, anything I cannot in the nature of violence, violence, threats acts violence which are not now de- *25 public punishable as offenses and nounced as such. Therefore, denouncing to enact an ordinance the dissemination of infor- concerning mation the facts of a labor dispute by of means violence, places acts of such ordinance in the category of by above-quoted those denounced being rules vague, as so indefinite uncertain and absolutely meaningless. are Such, my opinion, in is the situation with reference to section 3 of the here ordinance under carry consideration. To discussion a little further in order to absurdity disclose the of the contention that section 3 since of pro- said ordinance “picketing by hibits means of acts of violence” is a valid police power state, exercise let us assume that the ordinance denounced a crime of the following : “preaching by violence”; of means acts of “lecturing by or violence”; means of of “teaching by acts or means of acts violence”; of “publishing newspaрer a by means of acts “distributing of a violence”; newspaper by of means acts of violence”; “parading by means of of acts violence.” Obviously, any such ordinance would be declared on its void being vague, face as too uncertain and indefinite to consti- public Supreme tute offense. a Court of Missouri in opinion unanimous case of Weiss, supra, Deimer v. de- uncertainty, ordinance for clared similar void I and respectable authority not been able find contrary. to to the squarely The ordinance here consideration under falls within the rule announced Court of the in ease Herndon v. Lowry, United States U. S. 1066], 81 L. S. Ed. where Ct. statute the state Georgia prohibit tending acts purporting and conduct appears insurrection incite attack. from the alleged petition judgment opinion that case that “The appellant’s illegal and sentence were void and detention be- under which he was convicted and cause the statute denies speech assembly illegally his and of restrains freedom vague provide sufficiently and is too and indefinite to ascer- guilt, alleged standard and further had tainable there adjudication by any been no court the constitutional valid- (Em- appellant’s conduct.” applied ity of the statute said: opinion 255 of its page at phasis added.) The court record neces- upon the trial “The affirmance conviction one seeks mem- who sarily gives 56 the construction § party unit of a which attempts organize local bers documents objects disclosed purposes and has the attempt incite insur- guilty be found evidence rection. applica- questions this construction

“The whether right of free- deprives the tion of the accused guaranteed by assembly Fourteenth speech dom of ap- construed and Amendment, whether the statute so ascertainable stand- plied reasonably furnishes definite added.) guilt.” (Emphasis dar d of Herndon case the page opinion On 263 of its quotes from its United States approval with decision Grocery page Cohen S. Ct. Co., U. at 298* 516], following pertinent 65 L. declaration: Ed. “ specific no or definite 'Observe that the section forbids investigation subject-matter act. It confines the *26 in the essentially inhering it authorizes to no trans- element provides. to open, therefore, action as it leaves which It widest of inquiry, scope conceivable which no one can foresee and no one or the result of which can foreshadow adequately against. guard fact, see to we no reason doubt below, the soundness of the court in its of observation opinion, that, attempt to effect to to enforce section carry of equivalent would the exact an effort to out penalized terms all merely punished which in and acts unjust public detrimental interest to the when and unreason- ” jury (p. 89.) in the . able estimation the court . .’ of The then concluded: by

“The decisions the State held Sherman relied guilt Law of furnished reasonable standard because made recognized statutory long a standard common law the test. statute, merely applied,

“The as construed amounts dragnet anyone agitates to a for a enmesh who change jury persuaded government if a can be he of ought his some effect in have foreseen words would have reasonably future others. No ascertainable conduct of vague guilt prescribed. is standard So and indeterminate of the boundaries thus set speech the freedom of assembly necessarily guarantees law of violates the liberty (Italics embodied the Fourteenth Amendment.” added.) guilt

What the ascertainable standard prescribed of here the ordinance consideration? The obvious answer to this must be that it no such contains standard. statement The therein that commit “it shall be unlawful” of say an “act nothing violence” amounts to than to more that “it defining is unlawful to do an unlawful act” without what constitutes the unlawful in the act. Nowhеre ordinance any is there of expression indication what is meant person prem- “It for any picket unlawful to beset or . . purpose inducing employee ises another . for the such or person seeking employment, by compulsion, co- means of ercion, intimidation, threats, violence, fear, quit acts or freely or employment seeking his her or to refrain froin or entering employment.” apply that if we into obvious accepted “picket” (to definition of the disseminate word concerning information or a labor publicize the facts of dispute) meaningless no the italicized crime words become is defined. Court the United the case States

Thornhill supra, commenting upon similar Alabama, statute, sweeping broad and made provisions an Alabama the following comment:

“The proscribed numerous section forms conduct activ- are subsumed under two the first embraces the offenses: ‘go just legal ities of all near who excuse’ ‘without cause any engaged to or loiter in a premises’ person about the influencing inducing lawful purpose business for the action; adopt any others to of certain enumerated courses of any second, ‘picket’ place all who of business interfering person purpose hindering, delaying ‘for the injuring with or of an- enterprise lawful business ’ *27 apparent other. or offenses one the other of the comprehends every whereby practicable the facts of a method may vicinity dispute place labor in the publicized be the of phrase just employer. of an ‘without cause business of The legal in manner does not effective restrict the excuse’ regulation; have no the the words themselves breadth of meaning Compare either inherent or historical. ascertainable S. Ct. 453-455 Jersey, 306 U. S. v. New Lanzetta action, The of listed L. Ed. courses 888]. including employee may offense, first which an an accused— — many urge take, which in comprehends others thosе merely normally publicizing, from instances would result annoyance any kind, labor without or threat of the facts of dispute. delay with a hinder, An intention to interfere offense, lawful business, an element of which is the second by likewise proved showing can be that others reacted merely way in normally learning facts expectable of some of a dispute. vague ‘picket’ The contours the term others, Employees accordingly, nowhere delineated. be purview found to be within the term and convicted for engaging by in proscribed activities with identical those the first In sum, pub- offense. whatever the means used by licize dispute, printed sign, the facts of a labor whether by by activity pamphlet, otherwise, all word mouth without exception prohibition is within the inclusive long vicinity statute so occurs in the scene of dispute.” (Italics added.)

Likewise, in case of California, supra, Carlson Supreme striking Court of the United States un- down as constitutional and County, void ordinance Shasta Cali- fornia, similar to ordinance here under consideration be- “sweeping cause of its terms,” very and inexact made this pertinent declaration: ‘‘ sweeping The terms inexact disclose ordinance of speech threat to freedom inherent in its existence. It thought cannot be differ in any respect material from the signs statute held void in Thornhill’s carrying case. and banners, raising flag, no than less of a is a natural appropriate means of conveying information on matters public (Stromberg California, concern. U. S. Ct. 75 L. [51 S. Ed. 73 A. L. R. For reasons set forth our opinion Alabama, in Thornhill v. supra, publicizing the dispute facts of labor peaceful way through appropriate means, by by pamphlet, whether banner, word mouth or regarded must now within liberty every per communication is secured son against abridgement the Fourteenth Amendment state.” reviewing decisions Court my study

United States connection with of the case at bar *28 and preparation I opinion, strongly this have been impressed with the decided liberal trend of the decisions of grеat that court, which in pronouncements its in the field of those fundamental personal rights and basic re- and liberties liberties, ferred to exemplified as civil profound vision foresight and and eminent extending fairness the consti- guaranties tutional speech press of freedom of and only strong, the wealthy powerful, and the like- wise the weak, the humble oppressed. and the is these pronouncements minority which protect will defenseless being from legislated against and their expression freedom of curtailed happen those who be in the majority or who legislative processes control the being. for the time Such a depicted situation Mr. Justice Murphy speaking for the Supreme Court the United in the case of States Alabama, supra, Thornhill v. when he said: “A penal in a statute, like threat is inherent like that in question here, specifically which does not aim at evils within but, contrary, area control allowable State on the ordinary cir sweeps within its ambit other activities that in speech cumstances constitute an exercise freedom of statute, readily such a press. existence which discriminatory harsh and local lends enforcement itself officials, agaimst particular groups deemed to prosecuting pervasive results in continuous displeasure, their and merit might reasonably discussion all restraint on freedom of purview. its It is not effective less regarded as within pernicious than permissible, less is not if the or, restraint threat of imposed by of discussion freedom restraint accused, and under after arrest conviction censorship. An demon sustain the burden of not have to statute, does constitutionally have written could not State strating covering his as dis activities specific and a different against him. introduced charge and the evidence by the closed S. Ct. 147, 155, 162, 163 State, 308 U. S. v. (Schneider regulations liberty Where 155].) L. Ed. 146, 84 special are reasons concerned, there discussion free statute, the accusa and not that it is rule obsеrving the limits it, prescribes the evidence tion (Strom transgression. against warns conduct permissible 532, 359, L. S. Ct. 283 U. S. California, berg v. S. State, U. v. 1484]; Schneider R.L. 1117, 73 A. Ed. Compare L. Ed. 146, S. Ct. Jersey, Lanzetta New 306 U. S. 451 Ct. (Emphasis added.) Ed. 888].” zealously So has States Court of United rights guarded protected personal fundamental these State, supra, liberties that the case of Schneider court struck down unconstitutional void four ordi- Angeles, by the Los respectively nances enacted cities of *29 Massachusetts, California, Milwaukee, Wisconsin, Worcester, Jersey, designed prohibit the Irvington, New distri- and etc., in cities. Mr. handbills, leaflets, circulars, said of bution case, in said declared: Roberts, speaking for the court Justice en- that in the actual argued “It is the circumstance that distributor Milwaukee ordinance the forcement of the in receive the literature throw it only if those who arrested But, construed, the even as thus streets, valid. the renders it unconstitutionally without cannot be enforced ordinance out, liberty pointed abridging speech. free As we have the of of the streets respect in of cleanliness the public convenience in- power the police justify an of not exertion does opinion and information communication of vades the free by secured the Constitution. Angeles and Worcester ordi- the suggested that Los

“It is limited to operation streets their nances are because valid mat- printed alleys free distribute persons and leaves said, the But, as we have streets places. public ter in other of infor- dissemination places for the proper are natural and of exercise not to the opinion; and one is mation and abridged on places liberty expression appropriate his of place. other may some plea the it be exercised by the press of the secured speech of “The freedom United States against abridgment the Amendment First Amend- Fourteenth similarly persons the all secured to abridgment by against a state. mеnt “Although municipality regulations may in the enact health, public convenience, of safety, interest welfare may abridge these individual liberties secured speak, write, Constitution to those print who wish to or circu- late opinion. information or . . .

“This has the freedom speech characterized personal rights press as fundamental liberties. phrase empty is not lightly The one and was not used. reflects belief of the framers Constitution rights govern-

exercise lies at the foundation of free by free It stresses, ment men. many opinions do this ‍‌‌‌‌‌​​​​​​‌‌​‌​​‌‌‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌‍importance court, the of preventing enjoy- restriction ment of these liberties. every

“In case, therefore, legislative abridgment where rights is asserted, the courts should be astute examine challenged the effect of the legislation. legislative pref- Mere erences or respecting beliefs public matters convenience may support regulation well at personal directed activi- other ties, be insufficient to justify such as diminishes the exer- rights cise of so vital the maintenance of democratic insti- tutions. so, arise, And as cases and difficult task delicate weigh falls ap- courts and to the circumstances praise substantiality support the reasons advanced regulation enjoyment rights.” of the free chief prosecuting contention case officers at bar is that the ordinance may upheld here in police as a valid power. exercise of While the within realm police operates power indefinite, which the bemay somewhat right not be to abridge invoked the fundamental guaranteed by of expression freedom constitutional mandate. liberty The Constitution is our the bulwark of civil and it *30 liberty against be so as protect should to construed police guise power. encroachment even under the While the of provisions by some of its have at times been emasculated doctrine, power enthusiastic police of the the advocatеs Con- stitution still remains the of land and fundamental law the long liberty will to so of is continue be such as the ideal civil predominate people. in of the American the hearts and minds opinion, question

In my the ordinance here trenches right guaranteed by expression the of free both state and our Constitutions, federal and therefore stricken down. should be “picketing” If of information con- “the dissemination means ’’ right picket, the to cerning dispute, facts of labor then a the right lecture, teach, publish as to a preach, well as the If newspaper, category. all fall in the same the Constitution If a protects rights, one of the crime protects these it others. exercising of by one these person is committed a while or more for the rights, may punished he convicted and prosecuted, right crime, picket, preach, not for to the exercise of the teach, my any lecture, publish newspaper. opinion, abridge designed or limit of the legislative enactment of rights squarely flies the face the con- above-mentioned guarantee stitutional speech of of press, freedom should by be declared null and void courts under their power. constitutional

From I have foregoing what said is opinion, it obvious that section 3 well as 2 of the section here ordinance void, consideration can is there be no doubt only remedy habeas is the petitioners available to validity (See test the said ordinance. cases collected and in 13 8.) commented on Cal. p. Jur. sec. my

In view of determination that the ordinance is invalid employed and void the language vague, because too therein is provide uncertain and indefinite to a sufficiently ascertainable guilt standard of and that acts by denounced it cannot be proscribed they purview because are not within police power state, complaint of the therefore fails to charge offense, public unnecessary and it to review the presented during justice’s evidence the trial in the court. The majority opinions in predicated upon this ease are theory in question pur- that since section of the ordinance ports “picketing prohibit means acts of violence” (whatever phrase means), this defines within a crime purview police power county Yuba, of the of the and not- withstanding the guilty violating defendants were found all provisions of the of both sections and of the ordinance (a portion charge being obviously based on invalid provisions judgment ordinance), against them nevertheless immune from corpus. attack

I am if it opinion, that even can that section 3 be said sufficiently the ordinance defines crime as held court, majority of the the conviction of the defendants should complaint not be stand for reason that the allowed wholly insufficient prosecution which forms the basis against judgment peti- charge public offense, guilty for the were tioners is reason that found void commission of lawful as well unlawful acts. unlawful, Section 3 of the ordinance makes intimidation, “picketing compulsion, coercion, means threats, means, except All violence, fear.” of these acts *31 peace- may “acts be to those who of violence” resorted engaged a fully lawfully publicizing labor therefore boycotting. dispute picketing or by means coercion, compulsion, moral thing That such a there is as recognized proposition is a threats, and fear intimidation, many decisions, my and in opinion, experience and necessarily conduct of an imply do not unlawful words these applied dispute. to a labor Such words when character usual, ordinary customary moral, used to define pressure every which inheres in labor economic social and particularly where is resorted to. dispute and right that it is within the constitutional conceded It must be dispute labor to advise those who engaged person of a so, if crossing picket line, future do contemplate relations with them will be withheld. or business social threat, constitutes also be conceded such advice must intimidation compulsion, amounts to and coercion. and it also compulsion, intimidation and coercion the result Such withholding of social or business such relations fear of the pleasant profitable been both may have to Obviously, with the loss thereof. person threatened who compulsion, intimidation, constituting threats, conduct by penal or proscribed cannot be ordi- coercion or fear would the reason that same constitute a violation nance for speech. guarantee of free constitutional Dictionary, Edition, Second International Webster’s New as “compulsion” follows: defines compelled; compelling, being state of “1. or act Act by physical constraint; or moral urging by force or driving or Coercion. subjection force. Of. to upon compulsion.” man a reason give no “I would compels; as, compulsion.” to live under Anything that “2. “coercion” as follows: work defines The same coercing; specif., appli- act, process, power of “1. The force, physical moral, of such either another to cation something against his he would not him will to do constrain to may cause the act compulsion. Coercion done; otherwise legal ability. far as nullity so concerns be a produced Duress. Cf. legal governmental measures to application “2. The ’’ conformity. its bring outward nation, so as to

group or by the same work as follows: is defined “intimidation” And ‘‘ fear; fearful; inspire or affect with timid To make deter, by threats; specif., frighten; fearful; to make overawe; cow. breast, in conscious harbored guilt, once “Now degrades great. Johnson. brave, “Intimidates the Frighten. daunt, deter, abash. See “Syn. Terrify, — *32 Embolden, inspirit. Encourage. hearten, See “Ant. — “Act of making deterring by threats; or of timid or fearful being intimidated, kept statе of as the were from the voters polls by intimidation.” from foregoing

It will observed definitions that the be compulsion, mere assertion coercion or intimidation has object been or of an accomplishment used resorted to for the purpose performance act, or or in the it of an does neces- sarily employed unlawful, follow therefrom that the means unjust. immoral or In fact, it is inconceivable that a labor dispute striking strike, employees could result and and their sympathizers picket boycott places could and business, owners, patrons without employees of such places being subjected degree moral, business to some social or compulsion, economic coercion or intimidation. It appears question by beyond any be settled the authorities which I above, by many other cited and authorities both jurisdictions, moral, this and other social and compulsion, may economic coercion intimidation which peaceful boycotting occasioned as the picketing, result of publicizing proscribed by of labor cannot be disputes, prohibited injunction permis- because such conduct sible right lawful exercise constitutional of free speech, press assemblage. free and free meaning said

What is with to the the words reference “compulsion,” “coercion” applied and “intimidation” when peaceful boycotting, equally with true reference to the word that a “threat.” cannot be denied right has person to threaten that he has a lawful right do, proscribed by that such threat cannot be ordinance, injunction. prohibited by statute or The late Holmes, Mr. Justice while a member of the Judicial Gunther, Massachusetts, Vegelahn Court of in' the case Rep. 443, 35 R. A. 57 Am. St. Mass. N. E. history-making his dis 722], made this observation one of senting opinions. He said: pause

“I that the word ‘threats’ often here to remark it made, threats had been if, appeared'that it used when begun. depends it had But appeared that unlawful conduct subject if general rule, you As even what threaten. on you may you in a certain event exceptions, what do some warning give your intention to do— to do—that threaten is. event, and thus person in that allow the other the chance of consequence. avoiding ‘compulsion,’ depends So as ‘compel’ you ‘annoyance’ how ... So as to ‘intimida- ”’ tion. the case of Lisse v. Local (2d) Union No. Cal. (2d) 314], page quoted at this court with approval from its decision in the case Pierce v. Stablemen’s Union, 156 Cal. 70 Pac. 324], as follows: “ right strike, ‘The united labor to furtherance of (no obligation standing way) trade interests contractual in the *33 fully recognized. may is The reason for the strike be based comply employees’ refusal the to with the demand wages, conditions, the of labor, betterment of in hours the discharge employee, engagement of one or of the another —in brief, in one of or more the multifarious considerations good may which in faith believed to tend toward the ad- employees. striking, employees vancement the After the engage may boycott, employed. in is as that word here As employed right only here it means not the to concerted intercourse, right withdrawal social and business but the legitimate all publication, means—of fair and fair oral or in persuasion, sym- written to induce others interested pathetic to cause, with their withdraw their social intercourse employer. patronage They may go business from the even this, request that he than another withdra/w his further patronage employer, may use moral intimi- from threatening boycott against dation and coercion a like him proposition necessarily he This so do. last involves if refuse bringing dispute B, C, into a between labor A and who contemplates C, upon has no difference with either. request B, and under the moral B intimidation lest boycott him, may patron- thus be constrained to withdraw his age controversy.” from he no A, with whom has (Emphasis added.) Building Council, the ease of Parkinson Co. Trades 581, Ann. 21 L. R. Cal. Cas. A.

(N. S.) 550], concurring opinion Justice Sloss his Mr. quoted dissenting opinion from approval with late Holmes, Vegelahn Mr. Gunther, supra, the case of Justice as follows: “ workingmen may view, combine with a ‘If it be true that things, getting much as can among other for their just getting labor, capital combine with a view to combined return, be true that when greatest possible must sup- has to liberty capital combined they have same the bestowal by argument, persuasion, and interests port their lawfully advantages they otherwise refusal of those control.’ frequently used ‘coercion,’ so

“The terms ‘intimidation’ and appli- no question, to me to have discussion this seem One cannot be such acts as committed. were here cation ‘coerced,’ of unlawful in the sense be ‘intimidated’ said to forego relations with by being induced business compulsion, of more relations profitable rather lose the benefit than A, ‘threats,’ speak beside equally B. It is with only party has what where that which threatened legal right to do.” Indiana, in of Local Court of the case Union

The (2d) E. City Kokomo, etc. v. 211 Ind. N. No. 26 meaning of the page 1111], at 108 A. L. R. discusses the “compulsion” relation to a labor “coercion” words dispute following language: in the ‘‘ city makes all picket- ordinance now before the court ing employer’s premises, thereto, un- approach or the necessary No the act of lawful. force violence to make punishable. upon the unlawful and Peaceable acts part expressly by chapter employees authorized allegations complaint Acts of 1933. The show *34 involving no acts fraud or violence. act authorizes The doing alleged alleges the of all which complaint, acts in the performed by that such acts were means and lawful without injure violence, any purpose or fraud or intention or the employer. striking in- picketing necessarily act of or The compulsion coercion, per- volves unless the same is and and by violence, permissible or formed acts of fraud is and lawful under the statute. ‘compulsion “The act of co- picketing of is a means and ’

ercion, legal manner, but if and it is exercised in a without statute, yet violence, fraud or it is the it is the lawful under clear The prevent intention of ordinance to the acts. of assembling overt act action congregating for concerted and by peaceable, punishable in a ordi- lawful manner is made purpose is repugnant nance. The ordinance declared object and the statute.” clearly

I the foregoing think hold that to authorities some moral, coercion and compulsion, extent social and economic intimidation every inheres in dispute labor picketing where boycotting and by striking resorted to employees and their sympathizers, and that such compulsion, coercion and intim- idation, long so as it is fraud, exercised without force or vio- lence, does not peaceful transcend realm picketing, and proscribed cannot be by statute or ordinance. This conclu- sion is sustained decisions, particularly trend of recent those of the States, Court of the I United have cited herein. purport The clear decisions is to these any the effect that proscribes statute ordinance which prohibits peaceful picketing is in clear violation of the Four- teenth Amendment to the Constitution of the United States. course,

Of engaged elementary person picket- ing is penal denouncing amenable to all of our statutes riots, force, violence, menacing threats, crimes all acts of routs, disturbing assembly, peace, of the unlawful assault battery, etc., my and and attention has not been called to engaged might acts which one in vio- perpetrate public rights another, inimical to lation of civil peace safety, as crimes which are not now denounced as such. penal punishable statutes of this state language of complaint against petitioners follows charged as follows: petitioners the ordinance and the were “That day July, 1939, on or the 9th about and within County Yuba, California, limits in the State unlawfully wilfully said defendants did then and there picket beset premises approach thereto and/or and/or another, to-wit, Fruit Company approxi- the Earl located mately City Marysville, miles seven southwest County California, commonly Yuba, State of England New Ranch were em- persons known where sought purpose of induc- ployed employment, and/or employment employees persons seeking ing such and/or intimidation compulsion, coercion means of and/or and/or quit his of violence threats acts and/or and/or and/or freely seeking or en- refrain from employment her and/or employment.” tering said into appears to be well settled where so punished framed that lawful as well as unlawful acts must it, complaint charging violation the law alleged specifically set out unlawful conduct of the *35 negative Otherwise, accused, part. lawful conduct on his charge public a law fails complaint a such to a offense,

531 (Ex parte case at which is the we the bar. situation ; parte McLaughlin, 578 Pac. Ex Peterson, 119 Cal. [51 859] Hernandez, Pac. In Cal. App. 684]; re Cal. 423].) App. Pac. authorities, foregoing the rule announced in

Tested the clearly to complaint the in the bar was ease at insufficient a offense. charge public with commission of petitioners the the clearly out, the is pointed I ordinance As have heretofore public a offense purports in so far to denounce as invalid coercion, intimidation compulsion, means relating pick to in the are defined authorities as such words case, peti being complaint against eting the the cases. Such doing the of lawful as well charges them with tioners charge public a therefore to acts, and is insufficient unlawful judgment a support of conviction insufficient offense and is for of section of said ordi a violation against petitioners 1- nance. charges at complaint the case bar both Furthermore, disjunctive act every the violation of conjunctive and in the This 3 of the ordinance. method by section denounced impossible improper. to determine clearly pleading specific what acts conduct of complaint from prosecution purpose for prove intends defendants complaint ease, guilt. in this establishing their Under of a guilty could have been found violation the defendants nothing than if did more section 3 of said ordinance holding piece peacefully the side the road stand on containing a statement that a labor in their hands cardboard adjacent premises. progress Such dispute was charge public offense, complaint clearly insufficient parte Greenall, corpus. (Ex 153 Cal. on habeas be tested Pac. 804]; Sing, re Ah Cal. attempt charges segregate no made The trial court alleged from charging an unlawful offense those complaint lawful acts. This is dem- charging purely commission but also only by allegations petition, onstrated not allege jury Both that the found the return. those of charged complaint,” “as in the and that guilty defendants imposed I imposed “on said conviction.” sentence complaint is clear that such could authorize think it nor try lawful, acts trial court accused *36 532 jurisdiction confer

could it on the trial to convict the acts, doing the lawful accused and sentence them for doing of lawful exactly the such acts. is That what was done in the instant case. The defendants guilty were found “as complaint” charged in the and sentence imposed was “on said jury conviction.” means that That the found that the defen- dants of all guilty charged were the “offenses” in the com- plaint, including predicated upon those portions those of the admittedly unconstitutional. It also meаns partially predicated the sentence on the unconsti- portions the certainly tutional statute. It needs no citation authority proposition to establish the trial that a court has jurisdiction a judgment convicting to enter no an accused of acts which only are lawful. Petitioners have exhausted the remedy other available to them, namely, an appeal. On that appeal constitutionality the of the in issue, statute was and appeal jurisdiction court which the was taken had judgment retry reverse of conviction and the case plea guilty issues raised not of the unlawful act charged. so, only Since this is is now the remedy petitioners. available to corpus proceeding only

On a habeas question involved jurisdiction, is one of namely, did the court below lawful authority particular order, judg- to make or issue the process (See many ment or under attack. cases from the Supreme Court, United States California Court and other state courts collected commented on in Am. Jur. 26; 7.) agreed sec. sec. All Cal. Jur. courts are point. this on While there is confusion in as some the cases meaning “jurisdiction,” term in habeas as used corpus proceedings, overwhelming weight authority is question to the effect that ‍‌‌‌‌‌​​​​​​‌‌​‌​​‌‌‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌‍term as includes more than the trial jurisdiction person to whether the court had over the subject jurisdiction over matter. is now settled person subject conclusive, matter not alone but that jurisdiction order or judg- of the court to make or render the imprisonment proper that serves of the ment as basis way, jurisdiction subject inquiry. render Stated another judgment as particular deemed .order jurisdiction subject person as is matter. essential (See commented Am. Jur. cases collected and 27; 469.) sec. A. E. petitioners con-

Moreover, it must be remembered were As to superior court. by a inferior court and in an vieted regu- indulged to the courts, presumption will be no consistently It has been therein. larity рroceedings presumed in nothing justice’s courts, will that, held as to Court, 209 (Antilla v. Justice’s jurisdiction. of their favor cited authorities other 43], numerous Cal. 85.) 611, see. Supp. Yr. Cal. Jur. in the foot note to majority held in the erroneously conceded, if it be Even regularity presumption there is opinions, that appli- for the court, is no basis justice’s there proceedings affirmatively that it here, for the reason such a rule cation of *37 itself that record face of the conclusively appears on the for com- charged, and sentenced were convicted petitioners Supreme Court court and the of acts which both this mission of the beyond power to be of the United States have held proscribe. subdivisions to political state or its in mind the fact standards, keeping and, these Tested court, the inferior here had in an convictions were that the subject to attack on habeas judgment of conviction is collateral jurisdiction court, although may have had corpus. The trial jurisdiction to con- subject matter, had no person wholly or based petitioners vict and for offenses sentence While it is true part an unconstitutional statute. on corpus always other remedies habeas will issue where may be used available, corpus properly it is settled habeas (see constitutionality cases collected test the of a statute 8), and that the on in 13 sec. and commented Cal. Jur. complete bar remedy by is not a appeal fact that exist case, peti- proceeding. Certainly, where, to the this constitutionality appeal tioners and raise the and, the court to which appeal, of the statute on where jurisdiction appeal complete pass taken has but, judgment, question, invalid nevertheless affirms the corpus is available.

A granted writ of habeas should therefore discharged petitioners custody. from March application rehearing

Petitioner’s denied 12,1942. Carter, J., rehearing. voted for