As a practical matter, the ultimate effect of the foregoing opinion *Page 270 will be that the nine salesmen involved in this action will be compelled to join the picketing union or lose their jobs. Their employer may be able, for a little while, to maintain its hitherto correct attitude of neutrality, but sooner or later, as a matter of self-preservation, it will have to abandon it; for, although it be able to weather the concentrated drive being made upon its customers, it will not be able to secure special services made necessary by breakdowns or required from time to time to make necessary repairs, alterations, and physical improvements, so long as even one picket exercises his right of freedom of speech in front of its premises.
A picket line is sacrosanct, a barrier which may not be crossed without risking severe pains and penalties. It is not what the picket says, but his locus in quo which proximately causes the desired result. This being so, were it not for the all-inclusive interpretation placed upon the words "freedom of speech" by the supreme court of the United States in the Swing case, one might well justify a dissent from the majority opinion upon the ground that impelled the late Mr. Justice Brandeis to dissent in the case of Di Santo v. Pennsylvania, 273 U.S. 34, 43,71 L. Ed. 524, 529, 47 S. Ct. 267, in which he said, Mr. Justice Holmes concurring:
"In the case at bar . . . the logic of words should yield to the logic of realities."
I concurred in the result of the recent opinion of this court in O'Neil v. Building Service Employees International Union,Local No. 6, 9 Wash. 2d 507, 115 P.2d 662, in the belief that the opinion of the supreme court of the United States in theSwing case required that result. It was vigorously contended, at the hearing of the instant case, that it did not. That it did is now clear beyond all question. In support *Page 271 of that statement, I cite the action of the supreme court of the United States in the case of Bakery Pastry Drivers etc. v.Wohl, 313 U.S. 548, 85 L. Ed. 855, 61 S. Ct. 1108, a case so recently and so inconspicuously decided that it was not called to our attention until a month after our decision in the O'Neil case had been rendered. The facts of the case are best stated in the opinion rendered in the cause by the supreme court of New York, 14 N.Y.S.2d 198, from which I quote as follows:
"Each of the two plaintiffs are peddlers engaged in the business of buying baked food products from different manufacturing bakers and reselling them to grocery stores. Each is the owner of a truck used by him in the distribution of his wares. One of the plaintiffs, Wohl, has been a peddler for five years and the other, Platzman, for two years. Wohl buys his merchandise from four different bakeries and Platzman from two. Neither one has any contractual relation with any of these bakeries. The earnings of the plaintiffs are based upon the difference between the purchase and the resale price of the products. The approximate income of Wohl is about $32 weekly from which he supports his mother and two motherless daughters. He works about thirty-three hours a week and has no employee.
"Platzman also has no assistant, is married and an expectant father and his income is about $35 weekly, derived from a working schedule of sixty-five hours.
"The plaintiff seek a permanent injunction restraining the defendant union from picketing the places of business of the manufacturing bakers who sell to them and of the customers who buy from them. The proof is that the defendant threatens to picket these manufacturers and the various customers of the plaintiffs unless each of the plaintiffs employ a member of the defendant union one day a week to assist them. The place of business of the Diamond Baking Company, one of the manufacturers selling to the plaintiffs, has already been picketed. Another manufacturer was also picketed for a short period. *Page 272
"The plaintiffs contend that they are engaged in an independent calling and that their meagre earnings are insufficient to permit them in justice to their families to employ a union member for one day a week."
The supreme court granted the injunction. The appellate division of that court affirmed it, two judges dissenting, 19 N YS. 2d 811. Upon appeal to the New York court of appeals, it was again affirmed, all judges concurring, 284 N.Y. 788,31 N.E.2d 765. An application for writ of certiorari was made to the supreme court of the United States. It disposed of the cause in an opinion so brief that it may be quoted in its entirety (citation, supra):
"Per Curiam: The petition for rehearing is granted. The order denying certiorari, post, p. 572, is vacated and the petition for writ of certiorari is granted. The judgment is reversed.American Federation of Labor v. Swing, 312 U.S. 321."
This decision goes much farther than we are required to go in order to reverse the judgment in the instant case. In that case, the picketing union exercised its right of freedom of speech for the express purpose of interfering with the personal undertakings of Wohl and Platzman, neither of whom had any employees whatever. In the instant case, since the S and W Fine Foods, Inc., are employers of labor, the picketing union has at least a semblance of legitimate interest. In that case, the union picketed, not only the respective plaintiffs' sources of supply, but threatened to picket their customers as well. In this case, the union merely picketed the employer's plant. Furthermore, in that case, the consequences to the plaintiffs of the refusal to afford injunctive protection will be exceedingly drastic. It appears that each of the two plaintiffs in that case was scarcely able to support his family. Platzman, working sixty-five hours per week, was able to make *Page 273 but thirty-five dollars per week. Denied protection, he will be compelled to employ union help. Violent changes will have to be made in his modest business venture, assuming that he can continue to carry it on at all. In this case, the nine salesmen can continue to work as usual — if they will but pay an initiation fee to the picketing union, and a monthly royalty for the privilege, and submit themselves in various ways to its government and control.
This court is bound to take note of the fact that the supreme court of the United States has recently so profoundly altered the rules of law governing the matter before us as to destroy the force and authority of many of its previous decisions. It formerly held — and until very recently — that the right of freedom of speech "is not absolute," but "is subject to restriction and limitations." This was said in Gilbert v.Minnesota, 254 U.S. 325, 332, 65 L. Ed. 287, 290, 41 S. Ct. 125, decided in 1920, and we have it on good authority that at least as late as 1931 the court was still of that opinion; for, in an article published during that year by the then Professor Frankfurter of the Harvard law school, now Mr. Justice Frankfurter of the supreme court and author of the opinions in the Swing and Meadowmoor cases, we find the following statement:
"Together with his colleagues, Mr. Justice Brandeis has refused to make freedom of speech an absolute." (Mr. Justice Brandeis and The Constitution, 45 Harvard Law Review 33, 88.)
[See the dissenting opinion of Mr. Justice Brandeis inSchaefer v. United States, 251 U.S. 466, 482-483, 64 L. Ed. 360,367, 40 S. Ct. 259, in which he says, in substance, that the rule is that one may not speak freely where the words used are used in such circumstances and are of such a nature as to create a clear and present danger. This, he says, "is a rule of reason," *Page 274 and, "like many other rules for human conduct, it can be applied correctly only by the exercise of good judgment; . . ."]
In pronouncing the unanimous opinion of the court in Schenckv. United States, 249 U.S. 47, 52, 63 L. Ed. 470, 473,39 S. Ct. 247, Mr. Justice Holmes said:
"We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character ofevery act depends upon the circumstances in which it is done.Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not evenprotect a man from an injunction against uttering words that mayhave all the effect of force." (Italics mine.)
If that remained the law, we would be justified in affirming the decree of the trial court; for, without taking the time and space to detail the circumstances under which the picketing was done, it may be said that they were fully sufficient to give the words spoken and displayed "all the effect of force." But the law, as announced in the Meadowmoor and Swing decisions, allows no restraint of the freedom of speech of at least one of the parties to a labor controversy, unless and until the words spoken are punctured and emphasized by such acts of violence as are enumerated in the opinion in the Meadowmoor case (312 U.S. 287, 85 L. Ed. 836, 61 S. Ct. 552), to wit, the destruction of property by fire, the use of explosive and stench bombs, the smashing of windows, the burning of trucks and driving them into the river, shooting at workmen, holding them up with guns and beating them over the head while advising them "to join the union."
As none of these acts or any acts at all resembling them are shown to have taken place in the instant case, *Page 275 and since the opinions of the supreme court on the question presented are binding upon us, I feel compelled to concur in the result reached by the majority. But beyond that I cannot go.
I cannot believe that the right to freedom of speech is so absolute, unlimited, and overriding that persons and associations acting in concert may not be legally restrained from employing it as an effective instrument to destroy the right of freedom to work. It would seem, when two civil liberties come into direct and irreconcilable conflict, and one of them is more fundamental than the other, that the more fundamental should prevail. That the right of freedom to work is more fundamental than the right of freedom of speech is axiomatic. There have been occasions where heroic souls, under great spiritual exaltation, have deemed the right to speak freely and without restraint to be even more precious than the right to live, but such occasions are rare. The generality of mankind has, in all ages and at all times, been compelled to work in order to live and engage in the pursuit of happiness. The right to work is, obviously, the most fundamental of human rights because it is only by its exercise that life itself can be maintained.
The first amendment to the Federal constitution protects the right of free exercise of religious belief, the right of freedom of speech, the right of freedom of the press, the right of assemblage, and the right to petition for redress of grievances. Nothing is said therein, or elsewhere in the constitution, of the right of freedom to work. Yet, it cannot be excluded from the category of civil rights by the rule expressio unius estexclusio alterius. The men who insisted upon the addition of the first ten amendments to the constitution, as a condition to its adoption, felt that the existence of the rights listed therein could not safely be taken for granted, but *Page 276 should receive the sanction of express inclusion. They knew that, historically, those rights had developed out of governmental experience, that they were rights granted by governments as and when their desirability became apparent, and that they had been customarily sanctioned by express statutes, such as the English Bill of Rights. They, therefore, thought it prudent that they should be expressly enumerated. But the men of that time considered the right to work, to live, and to engage in the pursuit of happiness to be of a higher and more fundamental character. They conceived it to be a natural right conferred upon all men by the Creator of the Universe, and, therefore, in no need of the protection of written law. They, in fact, considered it so fundamental in character as not even to be subject to governmental limitation. Of this the evidence is clear, cogent, overwhelming, and irrefutable.
On the sixth day of May, 1776, a convention of delegates and representatives from the several counties and corporations of the colony of Virginia met at the city of Williamsburg. Although the independence of the American colonies had not yet been declared, the members of that convention evidently expected that they would shortly be faced with the task of establishing a new government, for they straightway set about formulating a series of declarations of the fundamental principles which should control such an adventure. After a prolonged debate, the declarations agreed upon were adopted by a unanimous vote on June 12. The very first of these read as follows:
"That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, withthe means of acquiring and possessing property, and pursuing and obtaining *Page 277 happiness and safety." Vol. 9, p. 109, Hening's Statutes at Large. (Italics mine.)
On the following July 4, the thirteen colonies, through their representatives assembled at Philadelphia, adopted the same principles as their justification for declaring their independence; for, after reciting, by preamble, that a decent respect for the opinions of mankind required that they should declare the causes which impelled them to the separation, they proceeded at once to make the declaration which begins:
"We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, . . ."
In the short period of less than one year we have been swiftly and steadily led away from the fundamental principles upon which our government was founded to a point where we now judicially ignore a fundamental, "inalienable" right which it was instituted to secure; for, during that brief period, it has been made manifest that the law will no longer protect the right of our citizens to freely work, acquire property, and engage in the pursuit of happiness, whether they attempt to exercise that right by the method of working for hire or, as Hyman Wohl and Louis Platzman of New York elected to do, by striving for themselves and their respective families single-handed and alone.
Was it the possession of sound and historical knowledge, or a kind of prophetic insight, that induced the statesmen of old Virginia to attach to the declarations adopted at Williamsburg on June 12, 1776, the following admonition: *Page 278
"That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequentrecurrence to fundamental principles." (Italics mine.)