I think the entire injunction order, as written, should be reversed, including the portion approved by the majority opinion and reading as follows:
"The aforesaid defendants are also enjoined from and commanded to desist and refrain from operating any motor vehicles *Page 527 along the streets and alleys of Boise City and territory contiguous thereto, over which the plaintiff has the franchise right to transport passengers, with intent to, or in such manner as to interfere with the full and free enjoyment of its right by the plaintiff, and especially to stop the operation of the so-called 'courtesy cars' or any motor vehicles operated in a similar manner so as to directly or indirectly interfere with the transportation business of the plaintiff.
"The aforesaid defendants are also enjoined from and commanded to desist and refrain from interfering, or attempting to interfere in any manner with the free use of their motor vehicles and other personal property used in connection with the plaintiff's business or in carrying on said business and enjoined from doing any acts or things whatever in furtherance of any conspiracy or confederation among them, or any of them, to obstruct or interfere with said plaintiff, its officers, agents or employees, in the free and unrestrained control and operation of its business and property, and also from ordering, directing, aiding, assisting, or in any manner abetting any person committing any or either of the acts aforesaid."
My analysis of the foregoing portion of the injunction convinces me that it is entirely too broad in its prohibition against the appellants "operating any motor vehicles along the streets and alleys of Boise City and territory contiguous thereto, over which the plaintiff has the franchise right to transport passengers, . . . ." Of course if they operated their cars along the streets in front of respondent's motor buses, regularly and continuously, it was evidently done "with intent . . . . to interfere with the full and free enjoyment of " respondent's rights. On the other hand, these are some of the very things that the statute seems to authorize members of the labor union to do. Section 3, chapter 215, 1933 Session Laws, provides inter alia as follows:
"No court, nor any judge or judges thereof shall have jurisdiction to issue any restraining order or temporary or permanent injunction which in specific or general terms prohibits any person or persons from doing, whether singly or in concert any of the following acts: . . . . *Page 528
"(e) Giving publicity to and obtaining or communicating information regarding the existence of, or the facts involved in, any dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace, or threat thereof;"
It will be observed from the foregoing excerpts from the statute, that "patrolling any public street or any place where any person or persons may lawfully be," is authorized; and subdivision (i) of the same section authorizes
"(i) Agreeing with other persons to do or not to do any of the acts heretofore specified";
while subdivision (k) of the same section legalizes the doing of any or all of the acts enumerated "in concert."
The cases, both state and federal, seem to abundantly support and uphold members of a labor union in doing any and all of the things enumerated in this statute.
The "operation of the so-called 'courtesy cars' " along the streets preceding respondent's motor buses in a peaceful and orderly manner, was within the rights of the appellants; and they might do so with or without signs or notices by simply orally publicizing their purpose or the controversy between them and the transportation company. The intent with which they do so is immaterial. (New Negro Alliance v. Sanitary GroceryCo., Inc., 303 U.S. 552, 58 Sup. Ct. 703, 82 L. ed. 1012.)
I am agreed, however, with that part of the majority opinion which, as I understand it, holds to the effect that appellants exceeded their right of picketing and patrolling streets and the right of freedom and liberty of expression, when they, inferentially solicited, and accepted respondent's passengers or prospective passengers who had assembled at the company's stations and stopping places and carried them over the same transportation routes on which respondent was operating its passenger buses. They also exceeded their right of picketing and patrolling, when they received or accepted donations or contributions for carrying such passengers. The unlawful acts hereinabove pointed out may well be enjoined. *Page 529
Under the facts of this case, the judgment for such damages as were awarded is not supported by legal or substantial evidence. The entire judgment should be reversed.
I am authorized to say that Justice Budge concurs in these views.