On the joint application of the petitioners we granted the common law writ of certiorari to review the proceedings and decree of the Circuit Court of Jefferson County, in Equity, adjudging petitioners guilty of civil contempt for refusing to obey the mandate of the final decree entered on the 27th day of September, 1946, in the case of Arthur Greenwood et als. against The Hotel and Restaurant Employees International *Page 65 Alliance and Bar Tenders International League of America et als., case No. 69398 in said circuit court; and a return embodying the record and proceedings of the circuit court duly certified has been made by the register. The case was argued and submitted on March 19, 1947, on motion and merits. The motion entered upon the motion docket with notice to petitioners was made by Arthur Greenwood et als., to dismiss or strike the petition for certiorari and dismiss the proceedings on the ground that the petitioners have a complete and adequate remedy by appeal.
This motion is without merit. It is the settled law in Alabama that common law certiorari is the remedy to review a judgment or decree holding persons guilty of contempt, who are not imprisoned, and if imprisoned, habeas corpus is the remedy. Wetzel v. Bessemer Bar Association, 242 Ala. 164, 5 So. 2d 722; Ex parte Dickens, 162 Ala. 272, 50 So. 218; Bankston v. Lakeman, 219 Ala. 508, 122 So. 819; Ex parte Hill, 229 Ala. 501,158 So. 531; Ex parte John Hardy, 68 Ala. 303. The motion to dismiss the proceeding is, therefore, overruled.
Review by the common law writ of certiorari is limited to the question of jurisdiction of the court to enter the decree which was allegedly violated or disregarded and for errors apparent upon the record. If there is any evidence to support the trial court's conclusion of fact on which the contempt is predicated, such conclusion is not subject to review. Ex parte Wetzel,243 Ala. 130, 8 So. 2d 824; Ex parte Slaughter, Fire Marshall,217 Ala. 515, 116 So. 684.
Procedural irregularities in the injunction proceedings are not regarded as errors apparent. Ex parte Wetzel, supra; Rochelle v. Rochelle, 237 Ala. 530, 187 So. 451.
Petitioners' major contention is that there was an absence of jurisdiction in the circuit court to render the decree of September 27th, 1946, and it is, therefore, void.
By Chapter 4, Article 2, Subdivision 2, embracing §§ 129 through 131, Title 13, Code of 1940, equity jurisdiction is conferred upon the circuit court in all civil causes "in which a plain and adequate remedy is not provided in the other judicial tribunals." Code of 1940, Title 13, § 129. And § 1038, Title 7, Code of 1940, provides that injunctions may be granted returnable into any of the circuit courts of this state by the judges of the supreme court, court of appeals or circuit courts or judges of courts of like jurisdiction.
The record before us shows that the court's jurisdiction was duly invoked by a bill of complaint filed by Arthur Greenwood et als., as complainants, in the Circuit Court of Jefferson County, In Equity, against The Hotel and Restaurant Employees International Alliance and Bar Tenders International League of America, a voluntary unincorporated labor organization, and Culinary Workers Union Local 459 of the Hotel Restaurant Employees International Alliance and Bar Tenders International League of America, an unincorporated labor organization, Carl Hacker and George Hardwick, in conformity with Alabama Equity Rule 2. Code of 1940, Title 7 Appendix, p. 1037. And §§ 143 and 144 of Title 7, Code of 1940, providing for service of process, is notice to and binding upon the individuals constituting the organization or association. Grand International Brotherhood, etc. v. Couch, 236 Ala. 611, 184 So. 173; 7 C.J.S. Associations, § 1.
The bill in the injunction proceedings alleges that on the 4th of September, 1946, the individual defendants presented to the Greenwoods a contract for negotiation as to wages, hours and working conditions of employees written by Hacker and were informed by Greenwood that he and his partners were not in position to engage in negotiations until they had time to consider the contract and obtain legal advice in respect thereto. That the contract was left with the Greenwoods and said individual defendants went away but returned on Friday, the 6th of September for an answer and when the Greenwoods informed them that they had been unable to consult counsel in respect to the contract, Greenwood was informed by Hacker that they could wait no longer and the strike was called and the picket line set up.
The proposed contract, inter alia, contained the following provisions: *Page 66
"Article I. Type of Shop: The Employer agrees to hire and retain in his employ no other of the employees herein mentioned but members in good standing in the Union and to hire them through the office of the Union. The Union shall have a 24-hour limit in which to furnish the requested employees. If the Union is not in a position to furnish the employees requested within that time, then the Employer shall have the right to hire from the open market, provided, however, that the employees so hired shall not be objectionable to the Union, and that employees so hired shall perfect their membership in the Union within FIFTEEN DAYS after being hired. All employees so hired shall be on probation for the first fifteen days of their employment and subject to dismissal without cause.
"Article II. Interviews of Employees: The official representative of the Union shall have access to the property of the Employer during the regular business hours for the purpose of talking with employees on duty concerning Union business."
"Article XIII. Dressing Rooms, Lockers, Toilets: The Employer shall provide for his employees sanitary toilets and dressing rooms, and an individual locker for each employee with a lock and key for it. The Employer shall be financially responsiblefor losses incurred through his failure to comply with thelatter part of this paragraph. [Italics supplied.]
"Article XIV. Fines: There shall be no employer fines for any purpose nor shall there be any charges for breakage unless through willfull or gross neglect on the part of an employee.
"Duration of Agreement: This agreement constitutes an understanding between __________ operating the Greenwood Cafe located at 407 North 20th Street, in the City of Birmingham, Alabama, and the Culinary Workers Union Local 454 of the Hotel Restaurant Employees International Alliance and Bartenders International League of America, affiliated with the American Federation of Labor as the duly authorized and qualified agent for the employees now employed, or who may hereafter be employed at the above address or any other establishment which may in the future be operated in Jefferson County by the above named Employer.
"It is expressly understood between the parties that should the above establishments be sold or leased as a concession during the life of this agreement, then all the terms and conditions of this agreement must continue to be in full force as to the establishment and is thereby upon the heirs, executors and assigns. * * *."
The bill further alleges: "The said Carl Hacker and the said George Hardwick at that time stated that they couldn't wait; that Complainants had had time enough and thereupon left the complainants' place of business and about 11:45 a. m. thereafter the Local and International Union, acting through the said Carl Hacker and the said George Hardwick, duly authorized so to do by said organizations, called a strike of the employees of the Complainants and stationed pickets at the front and rear entrances of Complainants' place of business. Said pickets varied in number from two to ten and included the said Carl Hacker and the said George Hardwick. Said pickets displayed large placards approximately three feet square on which was printed the words 'Greenwood's is on Strike. Employees demand more Wages and less Hours.' Said pickets congregated around the front and rear of Complainants' said place of business and displayed said placards and walked up and down the sidewalk in front of the main entrance of Complainants' place of business and up and down the alley entrance to Complainants' place of business and informed people that the Unions above referred to called a strike and that prospective customers who were about to enter the place of business would be low down and disreputable if they crossed the picket line and they greatly interfered with the transaction of business and have made it impossible for the Complainants to transact business as long as said picket line is maintained.
"Complainants aver that prior to the filing of this bill and since the calling of said strike, they informed the Respondents that they always had been and are now ready, willing and able to negotiate with the Respondents with respect to a contract relating to wages, hours and working conditions *Page 67 of the employees of the Complainants and that if they were unable to agree with the Respondents on the terms and conditions of such contract, they were ready, willing and able and would submit their differences to arbitration, and they requested the Respondents to call off said strike and to negotiate with the Complainants for a contract relating to wages, hours and working conditions with assurance that if any differences between the parties could not be amicably adjusted the Complainants would agree to submit such differences to arbitration and enter into such contract as was determined by arbitration to be fair and just. The respondents refused andrejected said offer and stated that the strike would becontinued and the pickets maintained until the Complainantssigned a contract. * * *" [Italics supplied.]
"* * * And Complainants are advised by counsel, informed and believe and on such advice, information and belief aver that the calling of said strike and the maintenance of said pickets was a wanton and malicious invasion of the rights ofComplainants and that Complainants are entitled to recover compensatory and punitive damages of the Respondents. * * *" [Italics supplied.]
The bill, after its filing, was presented to Hon. Richard V. Evans, one of the Judges of the Circuit Court, who granted fiat and directed the register to issue the injunction upon the complainant filing a bond "in the manner and form prescribed by law and approved by the register." The writ of injunction was duly issued by the register and served by the sheriff on the 7th day of September, 1946, on the named defendants. The facts of the filing of the bill, granting of the injunction and the constituent elements thereof are also recited in the petition for writ of certiorari.
While it is well settled that labor has a right to organize and appoint a bargaining agent to deal with employers in respect to wages, hours and working conditions and to strike and to peacefully picket and carry signs advertising to the public and to the employer or the prospective employer, the employer has the converse rights under the law, as stated by this court in Hardie-Tynes Mfg. Co. v. Cruse, et al., 189 Ala. 66,66 So. 657:
"The English and American courts have, we believe, without exception, held that the right to conduct one's business, without the wrongful and injurious interference of others, is a valuable property right which will be protected, if necessary, by the injunctive processes of equity." 189 Ala. at pages 73 and 74, 66 So. at page 660. And it cannot be denied that the owner of such business had a right to contract in respect thereto without intimidation or coercion.
This principle has been recently reaffirmed by this court in the "White Elephant" case. Carter v. Knapp-Motor Co., 243 Ala. 600, 11 So. 2d 383, 384, 144 A.L.R. 1177, wherein it was observed, after quoting the substance of the bill's averments: "The bill thus clearly discloses that defendants are actuated by one motive only, that is, of coercing complainant, who was under neither legal nor moral obligation to do so, to give them another Hudson car.
"Our decisions are to the effect that the right to conduct one's business without the wrongful interference of others is a valuable property right which will be protected, if necessary, by injunctive process. Bowen v. Morris, 219 Ala. 689,123 So. 222. And the enjoyment of the good name and good will of a business is likewise a valuable property right subject to like protection. Bankers' Fire Marine Ins. Co. v. Sloss, 229 Ala. 26, 155 So. 371. One's employment, trade or calling is likewise a property right, and the wrongful interference therewith is an actionable wrong. United States Fidelity Guaranty Co. v. Millonas, 206 Ala. 147, 89 So. 732, 29 A.L.R. 520."
The petitioners here cite and place much store on the ruling of the Supreme Court of the United States in Swing's case, (American Federation of Labor v. Swing), 312 U.S. 321,61 S. Ct. 568, 569, 85 L. Ed. 855, wherein that court speaking by Justice Frankfurter observed: "* * * But our concern is with the final decree of the appellate court. On its face the permanent injunction in that decree rested on the explicit avowal that 'peaceful persuasion' was forbidden in this case because those who were enjoined were not in Swing's *Page 68 employ. Moreover, as we have seen, the supreme court of Illinois dismissed proceedings before it to review that decree on representations that the decree was in accordance with its mandate on the temporary injunction.
"Since the case clearly presents a substantial claim of the right to free discussion and since, as we have frequently indicated, that right is to be guarded with a jealous eye, Herndon v. Lowry, 301 U.S. 242, 258, 57 S. Ct. 732, 739,81 L. Ed. 1066; Schneider v. State, 308 U.S. 147, 161,60 S. Ct. 146, 150, 84 L. Ed. 155; United States v. Carolene Products Co.,304 U.S. 144, 152 note, 58 S. Ct. 778, 783 note, 82 L. Ed. 1234, it would be improper to dispose of the case otherwise than on the face of the decree, which is the judgment now under review. We are therefore not called upon to consider the applicability of Meadowmoor Dairies v. Milk Wagon Drivers' Union, supra [371 Ill. 377, 21 N.E.2d 308], the circumstances of which obviously present quite a different situation from the controlling allegations of violence and libel made in the present bill.
"All that we have before us, then, is an instance of 'peaceful persuasion' disentangled from violence and free from 'picketing en masse or otherwise conducted' so as to occasion 'imminent and aggravated danger.' Thornhill v. Alabama,310 U.S. 88, 105, 60 S. Ct. 736, 746, 84 L. Ed. 1093. We are asked to sustain a decree which for purposes of this case asserts as the common law of a state that there can be no 'peaceful picketing or peaceful persuasion' in relation to any dispute between an employer and a trade union unless the employer's own employees are in controversy with him. * * *"
In a more recent utterance of the Supreme Court of the United States, the court, speaking through Justice Rutledge, observed:
"* * * The First Amendment is a charter for government, not for an institution of learning. 'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts. Cf. Abrams v. United States, 250 U.S. 616,624, 40 S. Ct. 17, 20, 63 L. Ed. 1173, and Gitlow v. New York,268 U.S. 652, 672, 45 S. Ct. 625, 632, 69 L. Ed. 1138, dissenting opinions of Mr. Justice Holmes. Indeed, the whole history of the problem shows it is to the end of preventing action that repression is primarily directed and to preserving the right to urge it that the protections are given." Thomas v. Collins,323 U.S. 516, 537, 65 S. Ct. 315, 326, 89 L. Ed. 430.
"Accordingly, decision here has recognized that employers' attempts to persuade to action with respect to joining or not joining unions are within the First Amendment's guaranty. National Labor Relations Board v. Virginia Electric Power Co., 314 U.S. 469, 62 S. Ct. 344, 86 L. Ed. 348. Decisions of other courts have done likewise. When to this persuasion otherthings are added which bring about coercion, or give it thatcharacter, the limit of the right has been passed. Cf. National Labor Relations Board v. Virginia Electric Power Co., supra. But short of that limit the employer's freedom cannot be impaired. The Constitution protects no less the employees' converse right. Of course espousal of the cause of labor is entitled to no higher constitutional protection than the espousal of any other lawful cause. It is entitled to the same protection." [Italics supplied.] Thomas v. Collins, supra,323 U.S. 516, at pages 535, 536, 65 S. Ct. 315, 326, 89 L. Ed. 430.