The only act committed was peaceful picketing. Defendant did not accost or interfere with any person. He was alone on the street. He was found guilty of disorderly conduct for doing an act which was not unlawful and which he had a right to do.
1. Peaceful picketing is lawful. In Steffes v. Motion Picture M. O. Union, 136 Minn. 200, 202,161 N.W. 524, we held that it was not unlawful in a labor dispute for a picket to walk up and down the street in front of plaintiff's place of business displaying a banner that plaintiff was unfair to organized labor. We said:
"The term 'unfair' as used by organized labor has come to have a meaning well understood. It means that the person so designated is unfriendly to organized labor or that he refuses to recognize its rules and regulations. It charges no moral shortcoming and no want of business capacity or integrity."
The authorities are practically unanimous that picketing becomes unlawful only when it ceases to be peaceful and is accompanied by acts of violence, intimidation, threats, and breach of the peace. Nann v. Raimist, 255 N.Y. 307,174 N.E. 690, 73 A.L.R. 669; Wise Shoe Co. Inc. v. Lowenthal,266 N.Y. 264, 194 N.E. 749; Bayonne Textile Corp. v. American Fed. of Silk Workers, 116 N.J. Eq. 146, 172 A. 551,92 A.L.R. 1450; Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910,116 A.L.R. 477. *Page 341
In Exchange Bakery Restaurant, Inc. v. Rifkin, 245 N.Y. 260,263, 157 N.E. 130, 133, Judge Andrews, in reversing the lower court said: "Picketing' connotes no evil." In Pope Motor Car Co. v. Keegan (C. C., N.D. Ohio) 150 F. 148, the court said that peaceful picketing is in no sense unlawful. The courts have held that peaceful picketing does not constitute disorderly conduct. In People v. Phillips, 245 N.Y. 401,157 N.E. 508, a conviction of disorderly conduct was reversed where the proof showed that defendant with others marched up and down in front of complainant's place of business in downtown New York. In People v. Nixon, 248 N.Y. 182,161 N.E. 463, evidence that defendant and others walked four abreast up and down a sidewalk 12 feet wide in front of complainant's place of business, creating no special excitement or disturbance, was held not to justify a conviction of disorderly conduct. Accord, People ex rel. Broder v. Heller, 166 Misc. 155,2 N.Y. So.2d 352. In City of St. Louis v. Gloner,210 Mo. 502, 109 S.W. 30, 15 L.R.A.(N.S.) 973, 124 A.S.R. 750, it was held that peaceful picketing was in no sense unlawful and that an ordinance making peaceful picketing punishable as disorderly conduct was unconstitutional upon the grounds that it deprived the picketer of his liberty without due process of law. In the Perry (196 Minn. 481, 265 N.W. 302) and Zanker (179 Minn. 355, 229 N.W. 311) cases there was not only picketing but disorder and breach of the peace. They did not involve cases of peaceful picketing and are not in point. In any aspect of this case, we are bound to hold as a matter of law that defendant was not guilty of disorderly conduct. It will not do to say that a finding of disorderly conduct is conclusive in all cases. If there is no evidence to sustain such a finding, it is our duty to set aside the conviction. The view that a finding of disorderly conduct is conclusive was repudiated in People v. Phillips, supra, in the following language [245 N.Y. 403, 157 N.E. 509]:
"It seems to rest upon the erroneous idea expressed by the magistrate that 'if there is no strike and he is marching up and down in front of this place of business he is guilty of disorderly conduct.' " See also People v. Nixon,supra. *Page 342
2. The conviction cannot be sustained without ignoring L. 1933, c. 416, 3 Mason Minn. St. 1938 Supp. §§ 4260-1 to 4260-23, which limits the jurisdiction of courts to issue injunctions in labor disputes. It is sometimes called the state Norris-LaGuardia Act because it is practically a copy of it. Section 4-e [4260-4(e)] prohibits the issuance of an injunction to restrain giving publicity to the existence of the facts involved in a labor dispute "whether by advertising, speaking,patrolling, or by any other method not involving fraud or violence." Such legislation is deemed to recognize the lawfulness of the conduct which it exempts from injunctional restraint. Fenske Bros. Inc. v. Upholsterers Int'l Union,358 Ill. 239, 193 N.E. 112, 97 A.L.R. 1318. In New Negro Alliance v. Sanitary Grocery Co. 303 U.S. 552, 58 S. Ct. 703,82 L. ed. 1012, picketing of a store in a negro neighborhood in Washington, D.C. with placards advertising that the owner did not employ negroes and advising others to buy where negroes could work was held to be lawful under § 13 of the Norris-LaGuardia Act (29 USCA, § 113), which is substantially the same as § 12 of our act. Since peaceful picketing is lawful under the statute, it cannot be held to be disorderly conduct. See Local Union No. 26, etc. v. City of Kokomo, 211 Ind. 72,5 N.E.2d 624, 108 A.L.R. 1111.
3. The fact that the picketing was in front of the employer's residence does not make the act unlawful. The ordinance has not prescribed zones within which certain acts shall be deemed disorderly conduct. It is city-wide in its application. If an act is unlawful in one section of the city it is unlawful in every other part. The ordinance makes no distinction between business and residential, or different kinds of residential, districts. That the employer's residence was involved is only a collateral circumstance. Even if, as stated in People v. Nixon, 248 N.Y. 182, 185, 188, 161 N.E. 463, 465, 466, the defendant was guilty of bad taste and "atrociously bad manners," that would not make his acts unlawful, for "as yet bad manners have not been made punishable by imprisonment," and "of course, no one urges that distinction may be based merely upon difference of social or economic position." *Page 343
In Senn v. Tile Layers Protective Union, 301 U.S. 468,57 S. Ct. 857, 81 L. ed. 1229, picketing of an employer's home with banners proclaiming that he was unfair to organized labor was upheld as inherently unobjectionable. There the record shows that the employer had a desk in his dining room, kept his tools in his garage, and worked on jobs away from his home with one or two employes. Here the employer's home was the place of employment. The cases are not distinguishable. The courts have almost uniformly held that the home is not exempt from peaceful picketing. Picketing of homes has been enjoined only when conducted with intimidation, threats, or breach of the peace. Knudsen v. Benn (C. C. Dist. of Minn. 5th Div.) 123 F. 636; Christensen v. Kellogg S. S. Co. 110 Ill. App. 61; State Line S. R. Co. v. Brown, 11 Pa. Dist. Rep. 509; So. California I. S. Co. v. Amalgamated Assn. of I. S. T. Workers, 186 Cal. 604,200 P. 1. A. R. Barnes Co. v. Chicago Typo. Union No. 16, 232 Ill. 424, 83 N.E. 940, 14 L.R.A.(N.S.) 1018,13 Ann. Cas. 54, is the only case I have been able to find in which an injunction was upheld prohibiting the picketing of employes' homes. That case is based upon the rule that all picketing, whether peaceful or not, is unlawful. It is contrary to the overwhelming weight of authority and our rule stated in the Steffes case, supra.
Where picketing of homes has been enjoined, the injunctions have been modified to restrain only acts of intimidation, threats, and violence and to permit peaceful picketing. In Iron Moulders' Union v. Allis-Chalmers Co. (7 Cir.) 166 F. 45, 47, 52, 20 L.R.A.(N.S.) 315, a decree prohibiting strikers from picketing "the homes or boarding houses or residences of said complainant's employes" was modified so as to prohibit such picketing only when conducted "in a threatening or intimidating manner." Peaceful picketing of employes' homes was permitted. A similar modification of an injunction was made in A. L. Reed Co. v. Whiteman, 238 N.Y. 545, 144 N.E. 885. The rule which permits peaceful picketing of an employe's home applies equally to the employer. Here, as in Senn v. Tile Layers Protective Union, supra, the primary grievance was against the employer. *Page 344
In disorderly conduct cases the rule is that conduct otherwise lawful is not rendered unlawful because it relates to a home. In People v. Weiler, 179 N.Y. 46, 71 N.E. 462,1 Ann. Cas. 155, it was held that a licensed private detective was not guilty of disorderly conduct in shadowing and following a person to, and then watching him in, his home, where he did not speak to or come in contact with any person or otherwise commit any offensive or disorderly act. In accord, People v. Clark (Co. Ct.) 164 N.Y. S. 137. The fact that the act was committed in the home may be the very thing that will prevent it from being disorderly conduct as where the charge is for speaking vile and abusive language. See Zecca v. Smith, 5 N.J. Misc 1044, 139 A. 423.
I think that we should reverse the conviction.
MR. JUSTICE HILTON, being incapacitated by illness, took no part.