Concurring. — I concur. I am in accord with the conclusion reached by my associates, and with the propositions of law which support it, but think, however, that as an even more fundamental and essential constitutional right (than that which is made the basis of the foregoing opinion) has been discussed by counsel in presenting this case and is pertinent to this decision, that it should not go unmentioned in our opinion. I refer to the right of free speech together also with the independent but constitutionally cognate and equal rights of freedom of press and peaceable assembly. (U. S. Const., Amendments I and XIV.) Amendment I of the United States Constitution, which declares those liberties, is, in effect, made operative on the several states by Amendment XIV (Hague v. Committee for Industrial Organization, (1939) 307 U.S. 496 [59 Sup. Ct. 954, 83 L. Ed. 1423]; see, also, Civil Rights Act of 1871,17 Stats, at L. 13) and such rights are redeclared in the California Constitution (sec. 9, art. I).
One cannot read the provisions of the ordinance here involved without knowing that it affects those constitutional rights in some measure. As was stated in the “Affirmative Argument on Proposition No. 1 to Regulate Picketing”, which was a paper officially mailed to the voters preceding the September 16, 1938, election, at which the ordinance was adopted, “The primary purpose of picketing is to advertise a dispute between employer and employees.” As the “display of a flag or banner ‘as a sign, symbol or emblem of opposition to organized government’ ” constitutes an exercise of the right of freedom of speech (Stromberg v. California, (1931) 283 U. S. 359, 365 [51 Sup. Ct. 532, 75 L. Ed. 1117, *7691121, 73 A. L. R. 1484]), so does picketing, to advertise a dispute between employees and employer, like other methods of expression or means of publication, likewise constitute an exercise of that right. Since it may differ, in its forms of manifestation, from the ordinary spoken or printed word, it may well be subject to reasonable regulations which might not be appropriate to the latter, but it is important that we frankly recognize it as a form of exercise of the fundamental liberty of speaking, writing and publishing one’s views so that we shall not misapprehend the standards by which the validity of any regulations affecting it are to be tested. Pertinently, I find that the regulations involved in these cases cannot be sustained when so tested.
The term “to picket” is defined, in the ordinance, to include walking or riding back and forth, or standing, sitting or remaining, in front or in the vicinity of, any place of business or residence or its approaches. A “bona fide employee” is one who, among other things, has been continuously employed by the employer for not less than 30 days. On conditions enumerated a “bona fide employee while carrying on lawful picketing”, which, among other prerequisites, entails declaration of a strike by vote of a majority “of all the bona fide employees of all classes of an employer” for the limited purpose of obtaining or resisting “a change in wages, hours or conditions of their employment after demands made therefor”, is authorized to “carry an arm band or other banner” of a limited size which is required to set forth “ (i) the name or initials of the organization represented by the person wearing or carrying such arm band or other banner, and (ii) the word ‘picket’ ”, and such arm band or banner, may, says the ordinance, “also set forth (iii) the statement that a strike is in progress at the place of business so being picketed, including the name or address of such place of business, but such arm band or other banner shall have thereon no other words, lettering, numbering, picture or design whatsoever”. The word “banner” is defined, in such ordinance [section 1 (e) ] to “mean and include, but not be limited to, any banner, transparency, paper, sign, insignia, badge, emblem, symbol, ribbon, card, picture, arm banner, band or sign, hat band or sign, sash, waist band, banner or sign”. Section 5, otherwise than as limited by sections 4 and 6, declares that “It shall be unlawful for any person to carry, show or display any banner in or upon *770any public place, or in or upon any private place within the view of any person who is in or upon any public place, in front of, in the vicinity of, or about any place of business, or any of the approaches ... (ii) in a manner calculated or with the intent to induce or influence any person to refrain from entering, occupying or leaving any place of business” or, generally, from having any transaction therewith or therein. Lastly, for the purposes of this premise, section 4 (e) provides that “The activity of any such bona fide employee while so picketing such place of business shall be limited to patrolling upon the public places in front of or about such place of business and to wearing or carrying such an arm band or other banner as is permitted by section 6.”
Thus we see that the ordinance, among other things, (1) permits a majority of all classes of employees to symbolize or otherwise express (under the conditions prescribed) their statement that a strike is in progress but denies that right to a minority; (2) permits “a bona fide employee” (on conditions) to “picket” but denies that right to any person who has not been continuously employed by the employer for not less than 30 days; (3) permits the majority (on conditions) to state on a banner that a strike is in progress but denies them the right to make that statement orally; (4) permits the majority to say (on conditions on a banner) that a strike is in progress but strictly censors what they may say concerning that fact; (5) permits a majority to advertise (on conditions) by picketing that a dispute between employees and employer exists but forbids both majority and minority, at* the time and place, or in the manner, of such advertising, to express their views or present arguments on the merits, or even to define the grounds, of the dispute. Furthermore, by such ordinance (6) not only are all persons generally forbidden to “picket”, which means that they may not walk or ride back and forth or sit, stand or remain in the vicinity of the place of business involved, except on the conditions and with the qualifications prescribed, but also, by the strict terms of the law, no person — not even a regularly employed newsboy — “upon any public place, or in or upon any private place within the view of any person who is in or upon any public place, in front of, in the vicinity of, or about any place of business ... in a manner calculated or with the intent to induce or influence *771any person to refrain from entering, occupying or leaving any place of business” or, generally, to refrain from having any transaction therein or therewith, may carry, show or display any “paper” (secs. 1 (e), 4 (c), 5 and 6). A newspaper or handbill carrying the story of a labor dispute and expressing the claims of either side would clearly be prohibited from display to the public (whether on public or private property) in the vicinity of a place of business at which a strike was in progress. The practical effect of the sum of the foregoing epitomized elements of the “regulation” is a comprehensive prohibition of the exercise by an individual, in the vicinity of a strike, of his freedom of speech and publication.
It seems a work of supererogation to cite authorities, other than Amendments Numbers I and XIV of the United States Constitution, and section 9, article I, of the Constitution of California, to the point that each of the six propositions above enumerated, as well as their combined effect, is constitutionally untenable. It is elementary that the individual’s or minority’s right to exercise freedom of speech is not a privilege or a provisional property which is subject to the control of the majority; on the contrary, it is an essential characteristic of our constitutional democracy that that right, like those of freedom of press and peaceable assembly, shall perdure, inherent and implicit in the individual, subject to personal responsibility for abuse and to reasonable and necessary regulation as to time and place and circumstances, but not, as such, in scope or content, of exercise. As was said by Mr. Justice Brandéis (joined by Mr. Justice Holmes) in concurring in Whitney v. California, (1926) 274 U. S. 357, 377, 378 [47 Sup. Ct. 641, 71 L. Ed. 1095, 1106, 1107], “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. . . . Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. A police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive. . . . The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of
*772serious injury to the state.” And to the same effect is this language in Herndon v. Lowry, (1937) 301 U. S. 242, 258 [57 Sup. Ct. 732, 81 L. Ed. 1066, 1075], “The power of a state to abridge freedom of speech and of assembly is the exception rather that [sic] the rule and the penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government. The judgment of the legislature is not unfettered. The limitation upon individual liberty must have appropriate relation to the safety of the state. Legislation which goes beyond this need violates the principle of the Constitution.”
“Democracy”, aptly says United States Commissioner of Education John W. Studebaker, at page 135 in “Plain Talk” (National Home Library Foundation, '1936), “is a technique by which the will of the majority becomes law, and by which the right of the minority to attempt to become the majority by peaceful means is scrupulously protected.” If we accept that definition, then we must acknowledge the right of the minority striker to “attempt to become the majority by peaceful means”, and we are bound to scrupulously protect that right. While picketing, like other personal activities, is, as heretofore observed, subject to reasonable regulation in its exercise, I find nothing in the California Constitution to make inapplicable or inappropriate the statement of the United States Supreme Court in Senn v. Tile Layers Protective Union, (1937) 301 U. S. 468, 481, 482 [57 Sup. Ct. 857, 81 L. Ed. 1229, 1238], that “There is nothing in the Federal Constitution which forbids unions from competing with non-union concerns for customers by means of picketing as freely as one merchant competes with another merchant by means of advertisements in the press, by circulars, or by his window displays.” We have here no question as to absolute prohibition, under the police power, of a vicious or non-useful act — the ordinance, in so far as the provisions under consideration are concerned, is manifestly intended and expressed to be regulatory of a recognized lawful and useful activity. The police power — the source of authority for most legislative remedies for municipal ills —is one of the most essential powers of government and one that is the least limitable (5 Cal. Jur. 687), but to be valid as affecting a useful and innocent endeavor it may not go beyond reasonable regulation (5 Cal. Jur. 709); the Constitution fixes its outermost limits. To retain the character *773of being merely regulatory, legislation must not arbitrarily prohibit the exercise of any right and even if otherwise validly regulatory it will, as a general rule, fall if it at all impairs or unnecessarily impedes the exercise of a fundamental personal liberty such as freedom of speech. Certainly it will be held void if it unnecessarily or harshly impairs that liberty; it should be so held for two reasons: (1) Whatever the ill such a remedy is not constitutionally available and (2) if it were available the remedy would be worse than the ill.
While a law may be valid which in effect punishes the use of language which has the effect of inciting the unlawful use of violence or the commission of crime (Stromberg v. California (1931) 283 U. S. 359, 368, 369 [51 Sup. Ct. 532, 75 L. Ed. 1117, 1123, 73 A. L. R. 1484]), the end may not (save possibly in such extraordinary situations as are mentioned in the authority next hereinafter cited) be attained through the medium of censorship or previous restraint. (Near v. Minnesota, (1930) 283 U. S. 697, 716, 719, 720 [51 Sup. Ct. 625, 75 L. Ed. 1357, 1367, 1369] ; Lovell v. Griffin, (1938) 303 U. S. 444, 451 [58 Sup. Ct. 666, 82 L. Ed. 949, 953] ; Hague v. Committee for Industrial Organization, (1939) 307 U. S. 496 [59 Sup. Ct. 954, 83 L. Ed. 1423].) “These rights [freedom of speech, press and assembly] may be abused by using speech or press or assembly in order to incite to violence and crime. The people through their legislatures [or by the initiative] may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed.” (DeJonge v. Oregon, (1936) 299 U. S. 353, 364, 365 [57 Sup. C.t. 255, 81 L. Ed. 278, 284].)
It is suggested by my learned associates that the proposition I have discussed is not raised by the facts of the cases before us. I cannot agree with that suggestion.
My opinion that picketing in general partakes of the nature of an expression or publication of an idea has already been stated and as to the more specific provisions of the ordinance which have been mentioned, although no defendant on this appeal is charged, in his picketing, with making an oral statement regarding an industrial dispute, with stating orally or on a banner or paper any fact censored by the ordinance, or with otherwise offending than is *774denoted by the broad term “picketing”, I think that, in appraising the constitutional validity of the ordinance in so far as any of its regulatory features directly or incidentally affects freedom of speech, it is proper to examine not an isolated segment but all the component parts affecting that particular liberty. By so doing we can the better determine whether the precise and directly pertinent impingement on such liberty is an inconsequential impediment or a substantial impairment. As we held in People v. Tilhin, (1939) 34 Cal. App. (2d) (Supp.) 743 [90 Pac. (2d) 148], that “to discover the creation of these crimes in the ordinance, section 4 must be added to section 3, and sections 4 and 6 added to section 5”, so here, to fairly ascertain how and to what extent, and whether validly in these cases the ordinance directly or incidentally regulates or curbs freedom of speech, we should add sections 4, 5 and 6 to section 1, and thus view the forest instead of only the single sapling. From viewing the forest, I conclude that the sapling does not merit propagation — it can bear no fruit. By the standards of civil liberty, in each of the cases now before us, the provisions of the ordinance on which each respective conviction is based are void, not only for the reasons elucidated in Mr. Presiding Judge Shaw’s opinion, but also in that each of such provisions transgresses, in the particulars hereinabove delineated, the irremissibly vetitive provisions of Amendment Number XIV of the United States Constitution, making applicable here the rights declared in Amendment I, and of section 9, article I, California Constitution.
On August 16, 1939, the Appellate Department of the Superior Court denied a rehearing, and filed the following opinion:
THE COURT. —By petition for rehearing, respondent urges that there is no common-law right to picket, even peacefully, and hence the ordinance in question does not deprive would-be picketers of any right they would otherwise have, and apparently this is deemed to furnish a reason why a discrimination, even though arbitrary and unreasonable, may be made in the ordinance without subjecting it to objection on that ground. We are somewhat at a loss to know what is meant by the statement that there is no common-law right to picket in California. Certainly, in the absence of legislative prohibition or judicial restraint, *775any person may use the public streets and other public places for walking or patrolling to and fro, or for standing, sitting or remaining, in front of any place of business, or doing any of the other acts comprehended within the definition of picketing given in this ordinance, or may, if the term “picketing” is used in the broader sense adverted to in Judge Schauer’s concurring opinion, use his picketing as a means of uttering, conveying or publishing an idea, and no act of legislation is needed to confer upon him the right to do so. (We are, of course, not referring to possible violations, by persons so picketing, of laws directed at other sorts of conduct.) But were it otherwise, a legislative act which undertakes to confer a privilege on any class of citizens is subject to section 21, article I of our state Constitution, quoted in our opinion, and also to the Fourteenth Amendment.
We are also reminded by respondent that majority rule is a fundamental tenet of our constitutional system. This may be so, but it is not universally applicable. As suggested in Judge Schauer’s concurring opinion, the Bill of Rights has numerous provisions whose purpose and effect is to prevent a majority from imposing their will on a minority in matters deemed of sufficient importance to justify such protection. Our attention is further called to various other purposes for which a majority classification has been used. When a matter of classification is involved, the question is not, is the classification valid for any or some purposes, but is it valid for the particular purpose for which it is used. The general use of a majority vote as the means of determining ordinary elections, or its adoption for selection of a bargaining agent for the employees in a business, or its use by a labor union in determining whether to strike, all of which have been referred to, may be proper enough for the purposes there in hand, but it does not follow that the same criterion may be used for the quite different purposes of this ordinance. In our opinion, it has no rational relation to those purposes.
It is also insisted that we have overlooked the rule that in the absence of facts proved in the case or judicially known on which to base a decision holding a law invalid, a court must presume that there were facts known to the legislative agency which justify it and warrant the classification made. We have had this rule in mind. But the *776court may take notice of the propensities and tendencies of mankind, and of their manifestations as disclosed by current history. We cannot avoid the knowledge that, at least in this country, the great bulk of the picketing in labor disputes has been done by employees who have gone on strike, that many of the most serious riots, acts of violence and other breaches of the peace which have occurred in such cases have happened where a majority or more of the employees at some place of business had struck, and that the participation of picketing employees in such affairs, whether as actors or victims, has not been substantially less, in proportion to their numbers, than that of other persons acting in sympathy with them. In the face of those facts a limitation of picketing to employees and to cases where a majority of employees are on strike, permitting it where those conditions exist and prohibiting it elsewhere, cannot have any reasonable relation to the legislative purposes embodied in this ordinance. That those purposes are as stated in our opinion is not disputed in the petition for rehearing, and we see no reason to doubt the correctness of our conclusion thereon.
The petition of respondent for a rehearing is denied in both of the above-entitled eases.