1 Reported in 285 N.W. 903. Defendant appeals from a judgment convicting him of disorderly conduct under the provisions of a city ordinance of Minneapolis which provides that, "Any person or persons who shall make, aid, countenance or assist in making any * * * disturbance or improper diversion," shall, upon conviction be punished, etc. (Minneapolis Ordinances, 1872-1925, p. 760, § 2.)
Morris Dahl had been employed by J.D. McMillan for some 16 years. His duties consisted of driving his employer's car, helping with the maintenance of the lawn, doing vacuum cleaning in the house, washing windows, scrubbing floors, etc. He described his work thus: "Well, when I wasn't driving I was working in his house as a maid, you might say, doing all kinds of work inside the house." So it is apparent that his duties, aside from driving the car, were necessarily performed at the McMillan house, 239 Clifton avenue, in Minneapolis, an "exclusive residential district." Dahl was discharged the last day of August, 1938. For some time prior thereto he had been, and at the time of discharge was, a member of "Private Chauffeurs and Helpers Union, Local No. 912." He reported his discharge to the union and communicated with one Sawyer, its "business representative," but in the employment of "Teamsters' Joint Council." Sawyer sought to contact McMillan, but the latter refused to see him although informed over the telephone of the nature of the conversation sought to be had. Sawyer "took action to have banners made and put Mr. McMillan on the unfair list." To make these effective he "put pickets out in front of" the McMillan home on September 2, 1938. Defendant, not a member of the union to which Dahl belonged but of "Transfer Division of 544," promptly proceeded to discharge his duties as a picket by carrying a banner some three feet in length on each side of which *Page 335 was printed the words: "Unfair to Private Chauffeurs and Helpers Union, Local 912." For defendant it was claimed at the trial and not contradicted by the state that the picketing was done because McMillan had discharged Dahl for union affiliation. Defendant arrived at the McMillan residence at two o'clock and continued picketing until 4:15 p. m. when he was arrested and charged with disorderly conduct. There is no evidence that other people had gathered there nor was any showing made that disorder occurred or was threatened. As a matter of fact, when the officer came to the scene he found no one other than the accused there.
Defendant puts before us as the only question here: "May an employe working in a private residence located in a residential district peacefully picket such residence to enforce economic demands?" He contends that if the answer be in the negative the "employes working in a domestic capacity would be denied the right of picketing, which is a right given to other industrial employes."
1. The validity of defendant's argument depends upon whether a home, exclusively used as such, may be said to be a place for the carrying on of an industrial or a business enterprise. Obviously the home cannot be so classified.
"The home is an institution, not an industry. * * *
"The home is maintained as an abiding place, and the servants at the home help to make it habitable; but persons employed in manufacturing establishments or large hotels, which places are conducted for gain, are not domestic servants within the meaning of the workmen's compensation act, but are employed in industry and do come within the meaning and avowed purposes of the act." Barres v. Watterson Hotel Co. 196 Ky. 100, 102, 103,244 S.W. 308, 309,310.
As pointed out in Eichholz v. Shaft, 166 Minn. 339,208 N.W. 18, the object of the compensation act was to place upon industry, operated for profit, the burden of loss from injuries to employes engaged therein; that as such it was considered a part of the expense of operating the industry but that the act was not intended *Page 336 to place such burden and expense upon owners of homes not maintained for pecuniary gain. And the same result was reached in Anderson v. Ueland, 197 Minn. 518, 521, 267 N.W. 517, 518,927, where we said:
"* * * the only criterion for determining whether or not one is a domestic employe or servant within the meaning of the expressed exception, * * * [as to domestic servants] which would be commensurate with the original intent and purpose of the workmen's compensation act is whether or not the particular activity or activities of the employe are related to and in furtherance of the maintenance of the home."
The court concluded that the test for determining whether an employe should be excluded because of domestic employment has for its basis "the relation of the work or labor done to the upkeep of the home and the consequent comfort of those dwelling therein." And the court thought it "not too difficult" to apply that rule, as its application "accomplishes what we believe to be the purpose of this particular exception to the act — namely, the exemption from its burden of the homeowners, who receive no pecuniary profit from the maintaining of dwelling establishments."
The court was of opinion that "the home is a sacred place for people to go and be quiet and at rest and not be bothered with the turmoil of industry," and that as such it is "a sanctuary of the individual and should not be interfered with by industrial disputes." We think the court's conception of "home" as "a sanctuary of the individual" is sound. The word is defined as, "the abiding place of the affections, esp. domestic affections"; as "the social unit formed by a family residing together in one dwelling," and as "an organized center of family life." Webster's New International Dictionary (2 ed.) 1935.
2. "An enterprise not conducted as a means of livelihood, or for profit, does not come within the ordinary meaning of the terms 'business,' 'trade,' or 'industry.' " City of Rochester v. Rochester Girls' Home (Sup.Ct.) 194 N.Y. S. 236. (For other definitions, see Wd. Phr. [1, 2, 3 Ser.] Business; Industry; Trade.) *Page 337
3. We can find no basis for defendant's contention that L. 1933, c. 416, § 12 (3 Mason Minn. St. 1938 Supp. § 4260-12) has any application. The obvious purpose of that chapter (§ 2 of which declares the public policy of the state) is to give employes "full freedom of association, self-organization, and designation of representatives" of their own choosing; that they shall be, in the accomplishment of these purposes, "free from the interference, restraint, or coercion" of their employers or their agents. The title of the act discloses its purpose, i. e., to impose a duty upon the court in matters involving the issuance of restraining orders and injunctions in labor disputes. Clearly, we think its objectives relate solely to industrial disputes. Holding, as we do, that there is here no question involving an industrial employe's right to strike, nor any question relating to industrial conflict between capital and labor, the employe not being industrially employed, the nonapplicability of the mentioned act is apparent. There was here no strike, nor was there any "industrial" conflict.
4. When both parties rested defendant moved for a dismissal on the ground that a "labor dispute" was involved; "that this was his [Dahl's] headquarters, this was where he worked, he operated out of there for 16 years. There was no other place he could picket; therefore, we believe we have a right to picket under those conditions."
We think State v. Zanker, 179 Minn. 355, 229 N.W. 311, and State v. Perry, 196 Minn. 481, 265 N.W. 302, furnish adequate guides to decision here. True, in both of these cases the carrying of banners provoked real disturbance and "quite a bit of excitement." In that respect only is there a distinction. Defendant's conduct was likely to arouse anger, disturbance, or violence. That there was no outburst of violence was not due to his behavior but to the fortunate circumstance that he was arrested and taken away before any trouble broke. That defendant's presence at the McMillan home carrying this banner was as likely to provoke trouble and breach of the peace as the "bannering" in the cited cases seems clear. At least the court could so find, and that is enough. *Page 338
5. There remains only for decision the question of whether the evidence justifies the conviction. While it is true, as we have seen, that the facts in the two cases cited are not exactly parallel with the facts here appearing, yet we think the test there applied is applicable here. It is stated thus (179 Minn. 357, 229 N.W. 312):
"Conduct is disorderly in the ordinary sense when it is of such nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby." Or, as stated further: "The probable and natural consequences of the conduct is the important element."
As to modern statutes and ordinances relating to disorderly conduct, "it may be said in general that words and acts which tend to disturb the peace * * * of the community, or of a class of persons, or of a family, are punishable." 18 C. J. p. 1216, [§ 2]B, and cases under note 12. And in several jurisdictions it has been held that such conduct "as in the opinion of the magistrate tends to a breach of the peace" is punishable; "and even in the absence of such a statutory definition it is generally a question for the magistrate whether or not the particular act complained of is comprehended within the expression 'disorderly conduct.' " Id. and cases under notes 16 and 17; 8 R.C.L. p. 285, § 306, and cases under note 7.
We are of opinion and so hold that it was for the court to determine whether upon this record defendant was guilty, and that its findings in that behalf should not be overturned. The judgment and sentence are therefore affirmed.