dissenting. The majority opinion rests upon the proposition that the Chancellor concluded to restrain all picketing that might affect Dixie Cup train service “until the matter could be explored upon final hearing.” For, say the judges who make this explanation, “We regard [this] as the only permissible interpretation of the order and conclude that the proof shows beyond a reasonable doubt that the continued picketing amounted to criminal contempt.” It is then said: “When we consider the record as a whole, and especially when we remember that Stewart merely followed directions given by Grant, . . . we are not willing to approve the jail sentence in Stewart’s case.”
But as authority for holding the pickets and their advisors guilty of criminal contempt the case involving Missouri Pacific Railroad Company against United Brick and Clay Workers’ Union, Local No. 602, is cited to emphasize the position taken there that the picketing was directed against the employer, hence it did not amount to a, secondary boycott against the railway company. The writer of the majority opinion handed down today wrote the opinion in the case just cited. In concluding it was said: “We . . . think it rather far-fetched to suppose that [hy the Act of 1868] the General Assembly intended ... to establish a policy making a picket line unlawful simply because sympathetic railway employes prefer not to cross it.” The opinion will not be two years old until May of 1953, and yet it is having the fundamental substructure kicked from under it with as little reference to consistency as though never intended as a judicial expression.
Gist of the controversy lies in the fact that the picketing strikers personally notified railway operatives that they were not striking against or picketing Missouri Pacific. The record does not show that after the injunction these defendants went upon railroad property. Of course one against whom a restraining order has been issued in circumstances where the court had jurisdiction assumes the risk of determining what the limitation or circumscription is, and he is not excused if, acting in good faith, the order is disobeyed. But in the cavse before us an experienced attorney (who is one of the defendants) read this court’s more recent decisions and told the men they could not picket railroad premises. But they could, said the attorney, stay off of the company’s property and direct their activities against truckers who were not included in the restraining order.
But while I would reverse and dismiss the criminal convictions, this would be done with an opinion expressing the utmost respect for the fine qualities inherent in the Chancellor whose many outstanding decisions and whose devotion to idealistic jurisprudence serve to remove the slightest suspicion that in rendering judgment against the petitioners he was actuated by any purpose other than impartial administration of the law. It is my thought that retrospectively the Chancellor believed that he had intended to prohibit picketing, per se. Wording of the order, however, was not sufficient to encompass what the Chancellor subsequently considered he had made clear.
Rhetorically the result is neither fish, flesh, nor fowl from a judicial standpoint. There is a finding that the injunction was disobeyed, that the defendants are guilty of criminal contempt beyond a reasonable doubt, but by fiat the jail sentences are removed. If inconsistencies of the opinion were disregarded all urge to exercise the pardoning power would be eliminated and logic would remain unassailed.