(dissenting).
I dissent from the conclusion reached by the majority opinion. Baldly stated, this case involves a highway construction con*375tractor engaged in the construction of a state highway project under contract with the State of Idaho. As a part of that contract, the construction was required to be completed within a certain period of time and if not so completed penalties were imposed upon the construction company. Also as a part of the contract, the construction company was required to pay its employees wage rates then prevailing in that area as determined by the Secretary of Labor. The contractor did so pay such a prevailing wage scale. The contractor, under the then prevailing federal regulations, was unable to increase the wage scale. The appellant, which was not the bargaining agent for any of the contractor’s employees, picketed the construction project and urged the employees not to work. The employees refused to work and the construction project was shut down.
The plaintiff was then faced with the following dilemma. It could allow the project to remain shut down, thus violating its contract with the State of Idaho, or pay. higher wages to its employees in violation of the then applicable federal regulations.
The majority opinion correctly states the general rule of A. F. of L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855 (1941), to the effect that peaceful picketing even in the absence of an employer-employee relationship is a constitutionally protected right. An exception to the rule, however, is that if such picketing has an unlawful objective then it is not a constitutionally protected activity. As correctly stated by the majority opinion, the issue upon which this decision turns is whether the trial court correctly concluded that the appellants were picketing for an unlawful objective.
The majority opinion states three possible alternative objectives of the picketing. I do not agree with the first alternative posed by the majority opinion, i. e., that the sole purpose was to inform the public that the company did not provide “standard” wages and benefits to its employees. It is uncontroverted in the record that the pickets urged the employees not to work, that the employees refused to work and that their refusal was based on their desire for higher wages. In my judgment the only question is whether this court should indulge in an assumption of intention on the part of the appellants which is nowhere sustained in the record. The majority opinion assumes that the intention and objective of the appellant could have been to induce the respondent to pay higher wages when that was legally possible, i. e., after the termination of the 90 day freeze. The entire thrust of the hearing conducted by the trial court was otherwise. The attorneys for the respondent in questioning of the executive officer of the contractor attempted to persuade him and the court that wages could have been raised during the time in question. The appellant’s attorney attempted to introduce defendant’s exhibit 2 as a statement from the Office of Emergency Preparedness to the effect that wages could be raised. The business agent of the union and one of the employees stated that the purpose of the employees leaving their work was to obtain higher wages. At no time was any person asked the objective of the picketing, nor did any witness even infer that the objective was to secure higher wages when such became legally possible. I find no support in the record for the assumption indulged in by the majority opinion that the purpose and objective of the appellant was to secure higher wages at a future time and therefore lawful.
From time immemorial this court has ruled that the exercise of discretion'by the trial court in granting or refusing a temporary injunction will not be reversed on appeal unless a clear abuse of discretion is shown. Utility Light & Power Co. v. City of Burley, 83 Idaho 285, 361 P.2d 788 (1961), and cases cited therein.
This court now holds that the trial judge herein clearly abused his discretion in failing to rule on the basis of a possible theory not presented or argued before him and which in my judgment finds no support in the record. The action of the trial court should be affirmed.