his employment any one, or to compel or force | cial, and municipal legislation, within the any person to alter his mode of carrying on his terms of the state Constitution, but we are business, or to limit or increase the number of his employés, or their rate of wages or their unable to concede this point, since its intime of service. fluence is limited to the municipality by which it was enacted, and it could not in any event have an extramural effect. It is contended that it is an attempt by a local law to regulate the practice in courts of justice, in setting aside the legal presumption of innocence, by declaring what evidence shall be proof of guilt, without regard to whether such evidence satisfies the court or jury be "Section 2. It shall be unlawful for any person to enter into, assist or participate in any conspiracy to injure the trade, business or commerce of any person doing business in the city of Portland, and upon conviction of a violation of this ordinance in the municipal court of the city of Portland, such persons shall pay a fine of not less than ten dollars nor more than five hundred dollars, or be imprisoned in the city jail for not less than five days nor more than six months, or shall be both fined and impris-yond a reasonable doubt that the accused is oned. "Section 3. If any person shall, alone or in company with others: "(a) Carry or display, or cause to be carried or displayed, print or circulate, or cause to be printed or circulated any banner, sign, transparency, writing, printing, dodger, card, notice, sticker, button or sash, which by its terms or appearance, directly or indirectly induces or attempts to induce others not to buy from, sell to, or have dealings with, any designated person or persons doing business in the city of Portland; or "(b) Loiter or parade back and forth, or cause any other person or persons to loiter or parade back and forth in front of or in the vicinity of any store, factory, works or place of business in the city of Portland, or in front of or in the vicinity of the home of any person in the city of Portland connected with, employed in, or seeking employment in, any such store, factory, works or place of business; such conduct shall be prima facie evidence of a conspiracy to injure the trade, business or commerce of the person or persons designated or referred to by or in any such banner, sign, transparency, writing, printing, dodger, card, notice, sticker, button or sash or of a conspiracy to injure the trade, business or commerce of the proprietor of the store, factory, works, or place of business, whose premises or home, or the home of whose employés or of those seeking employment in his store, factory, works or place of business, shall have been thus patrolled, and shall also be prima facie evidence of participation in such conspiracy by the person so conducting himself. "Section 4. The words 'any person doing business in the city of Portland,' any person,' 'any one' and 'proprietor,' whenever used herein, shall include the plural as well as the singular, individuals of either sex, and also any partnership, association, domestic or foreign corporation or joint-stock company." The questions presented for our consideration involve the validity of the ordinance under which the petitioner is imprisoned. An analysis of the ordinance discloses that it consists of: (1) A definition of what is to be deemed to constitute a conspiracy to injure the trade, business, or commerce of any person doing business in the city of Portland; (2) declaring such conspiracy a crime and fixing the punishment; (3) enumerating certain acts, the performance of any one of which is to be prima facie evidence of such a conspiracy. It will be at once noted that this legislation in effect makes it unlawful for workmen to strike, or to solicit others to strike, or to solicit others from accepting employment from any person doing business in the city of Portland. By section 3 picketing is made prima facie evidence of the substantial offense. guilty. This point is, of course, aimed at section 3 of the act. There are a few authorities which appear to support this contention, but the great weight of authority is opposed to it, and this court has definitely adopted the other view. In a case recently decided by this court, Elliott v. Tillamook County, 168 Pac. 77, Mr. Justice Moore says: "The Legislature, in prescribing rules governing the trial of civil causes, may enact that certain resulting evidentiary facts related to, and having a tendency to establish, the existence of some preceding fact, can properly declare that the subsequent fact affords prima facie evidence of the antecedent fact, and such burden of proof is thereby shifted to the adenactment will be upheld, notwithstanding the verse party, since he is not concluded thereby, but may introduce evidence tending to rebut the disputable presumption thereby created." Again, in State v. Randolph, 166 Pac. 555, a criminal case, Mr. Justice Harris says: "No additional force is given to the contention of the defendant when it is argued that the act of 1915 changes prior rules of evidence. The state has the power to alter rules of evidence. Stated in general terms, the accepted rule is that a person does not have a vested right in a rule of evidence, and therefore the Legislature has power to alter or create any rule of evidence, so long as it leaves a party a fair opportunity to establish his case or defense, and give in evidence all the facts legitimately bearing on the issues in the cause." The following cases sustain the doctrine: State v. Hamilton, 80 Or. 562, 157 Pac. 796; State v. Kline, 50 Or. 426, 93 Pac. 237; State v. Fisher, 53 Or. 38, 98 Pac. 713. However, the power of the law-making body is limited in this respect, in that the facts declared to be prima facie evidence must have some direct and logical tendency to prove the antecedent fact, and, when subjected to this test, it will be seen that subdivision (b) of section 3 of the ordinance under consideration is subject to the criticism that, standing alone, the acts there recited have no logical tendency to prove the crime defined in the preceding sections, and this paragraph is therefore invalid. [3] It is next urged that the ordinance is unconstitutional, because it is an unreasonable invasion of personal liberty and private rights, and is in conflict with the well-defined public policy of this state and of the United States; and this contention presents the serious question for our consideration. This legislation was frequently referred to in the [1, 2] It is urged that this is not local, spe- argument as an "anti-picketing ordinance"; but we must not lose sight of the fact that it is very much more than that. Disregarding the structural character of the enactment, and seeking for its purpose and import, we observe that it is so designed as to prohibit strikes, boycotts, and picketing. The sense in which we shall use the word "strike" herein is found in Black's Law Dictionary in these words: "The act of a body of workmen employed by the same master, in stopping work all together at a prearranged time, and refusing to continue until higher wages or shorter time, or some other concession is granted to them by the employer." A boycott has been defined as: "Combination to cause a loss to one person by coercing others, against their will, to withdraw from him their beneficial business intercourse, by threats that, unless those others do so, the combination will cause similar loss to them, or by the use of such means as the infliction of bodily harm on them, or such intimidation as will put them in fear of bodily harm." Martin, Modern Law of Labor Unions, § 67. Probably as fair a definition of “picketing" as may be found is that in Black's Law Dictionary: "Picketing, by members of a trade union on strike, consists in posting members at all the approaches to the works struck against, for the purpose of observing and reporting the workmen going to or coming from the works, and of using such influence as may be in their power to prevent the workmen from accepting work there." These definitions justify our statement that the ordinance is designed to prevent all three. We direct our attention particularly to the strike feature. Subsections (a) and (b) of section 1 denounce: the purpose and with the intent to compel said corporation to alter its mode of doing business, combining with said Alex B. Larson, W. L. said defendant then and there agreeing and Martin, and Arthur Ulch to induce and attempt to induce, by picketing said corporation, the employés of said corporation who are not memfor and not to have dealings with said corbers of a labor union organization to quit work poration, and to join said defendant as members of a voluntary unincorporated labor union organization, and to continue to refuse to work for or to have dealings with said corporation until it shall agree to make such concessions concerning wages, hours, working conditions, and grievworkers and members of said labor union orances generally as will be acceptable to the ganization, the present mode of carrying on business by such corporation being to refuse to receive or consider any such questions or controversies concerning wages, hours of labor, working conditions, or other grievances with any person or persons as representatives of a labor union organization within the corporate limits of said city of Portland, Oregon, whereby the peace and quiet of said city was disturbed, contrary to the ordinance in such case made and provided." The question presented is: Can a municipality, in the exercise of its police power, enact legislation declaring the act of striking to be criminal? The problem before us is not at all a new one. Indeed, it is as old as the endless struggle between the employer and the employé. Legislatures, as well as courts, have sought to solve it, and with varying success. In 1875 the Parliament of England enacted an affirmative statute declaring that an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employer and workmen is not to be indictable as a conspiracy, if such act committed by one person would not be punishable as a crime. The same legislation has been substantially adopted by 12 of our own states. California, Penal Code (1906) page 581; Colorado, Revised Statutes, § 3924; Maryland, section 34, art. 27, Pub. Gen. Laws 1904; Minnesota, section 4868, Revised Laws; Nevada, section 6801, Revised Laws; New Jersey, Compiled Statutes, p. 3051, § 128; New York, Penal Law (Consolidated Laws, c. 40) § 582; North Dakota, Revised Codes of 1905, § 8770; An agreement not to have dealings with a Oklahoma, section 3764, Revised Laws; Pennperson is involved in a combination of work-sylvania, Digest, 484 and 2017; Texas, artiingmen, acting in concert, to quit their employment, and such action constitutes a strike. That such is the interpretation placed upon the language of the act by the defendant city is manifest upon reading the charging part of the complaint in the instant case, which reads thus: Any agreement between two or more persons "not to buy from, sell to, or have dealings with, any person or persons in the city of Portland; or to induce, or attempt to induce, others not to buy from, sell to, or have dealings with, any person or persons in the city of Portland; for the purpose or with the intent to prevent any person from employing any person, or for the purpose or with the intent to compel or force any person to employ or discharge from his employment any one, or to compel or force any person to alter his mode of carrying on his business, or to limit or increase the number of his employés, or their rate of wages or their time of service." "The said defendant, Earl Hall, on the 29th day of September, 1917, in the city aforesaid, did willfully and unlawfully enter into, assist, and participate in a conspiracy to injure the business of Willamette Iron & Steel Works, a corporation doing business in Portland, Oregon, as follows, to wit: Said defendant did then and there enter into a combination or agreement with Alex B. Larson, W. L. Martin, and Arthur Elch to induce or attempt to induce others not cles 5244 and 5245, Revised Civ. Stat.; West of physical intimidation and fear. Crowds natalways imminent and of frequent occurrence. urally collect; disturbances of the peace are Many peaceful citizens, men and women, are always deterred by physical trepidation from entering places of business so under a boycott patrol. It is idle to split hairs upon so plain a proposition, and to say that the picket may consist of nothing more than a single individual peacefully endeavoring by rersuasion to prevent The plain facts are always at variance with customers from entering the boycotted place. such refinements of reason.' The same view is expressed in Barnes & Co. v. Chicago Typographical Union, 232 Ill. 424, 83 N. E. 940, as follows: The ordinance which we are now consider-ods of persuasion, but by the illegitimate means ing is the only one we have been able to discover which seeks to prevent workmen from quitting their employment in a body. Neither have we been able to discover a case in any state in the Union which holds that such concerted withdrawal from employment is either unlawful per se or that it may be enjoined. It will not be disputed that every workman has an absolute right, in the absence of contract, to quit his employment when he pleases, and that the employer has the reciprocal right to discharge a workman in like manner. The fact a number of workmen exercise this right in common cannot, we think, make the act criminal. Such a contention is opposed to the spirit of our laws and form of govern ment. It is contrary to the public policy of the nation, as expressed in its statutes and the decisions of the courts. It is true that there was a time when the courts of England held that an agreement of workmen to quit work in a body, for the purpose of securing better wages or improved conditions for labor, was a criminal conspiracy at common law; but this attitude may well be considered to have been a survival of the spirit which existed when Gurth, the Saxon swineherd, wore an iron collar riveted about his neck, and more than 40 years ago the English Parliament repudiated this doctrine by an affirmative statute. The act of quitting employment in a body cannot, in itself, involve any question of the public peace, health, or safety, unless it be complicated with some other problem, as in time of war, and in such an emergency the problem is shifted to the state or federal government. In this particular, then, the ordinance is unreasonable and void, as against public policy, as disclosed in legislation and the decisions of both state and federal courts. However, we do not wish to be understood as holding that, if the legislation had been in fact what it has been called, an anti-picketing ordinance, it would have been necessarily invalid. The question of peaceable picketing is one that has been discussed frequently and for many years past by the courts. The judicial opinions have been conflicting, and it is difficult to determine accurately where the weight of authority falls. All the authorities agree that picketing, accompanied by threats, force, and intimidation, is unlawful. Many courts have held that peaceable picketing is not illegal, while many others have held, and we think with reason, that there can be no such thing as "peaceable" picketing. In Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324, this view is expressed thus: "There have been a few cases where it was held that picketing by a labor union of a place of business is not necessarily unlawful, if the the watching and besetting of the workmen is pickets are peaceful and well-behaved; but, if carried to such a length as to constitute an annoyance to them or their employer, it becomes unlawful. But manifestly that is not a safe of what is lawful or unlawful. Any picket line rule, and furnishes no fixed or certain standard must result in annoyance, both to the employer and the workmen, no matter what is said or done, and to say that the court is to determine by the degree of annoyance whether it shall be stopped or not would furnish no guide, but leave the question to the individual notions or bias of the particular judge. To picket the complainants' premises was in itself an act of intimidation and an unwarrantable interference with their rights." In a very recent case, St. Germain v. Bakery & Confectionery Workers' Union (Wash.) 166 Fac. 665, the Supreme Court of the state of Washington has adopted this view, and in an able and extended discussion has abun dantly justified its position. A particularly clear summary of the approved doctrine in that case is voiced in the luminous concurring opinion of Mr. Justice Chadwick, in which, after quoting extensively from the case of Jones v. Leslie, 61 Wash. 107, 112 Pac. 81, he says: this controversy. [4] It is true that all of these are chancery cases, wherein an injunction was sought; but it is fundamentally true that whatever may be enjoined by a court of equity may by legislation be declared malum prohibitum. The ordinance, however, not only denounces picketing, but includes voluntary abandonment of employment by workmen acting together, and the two are so woven together as to make the entire act void. It follows that the petitioner must be discharged from custody; and it is so ordered. HENDERSON v. TILLAMOOK HOTEL CO. the plaintiff in this cause for his services as re et al. (Supreme Court of Oregon. Jan. 8, 1918.) 1. APPEAL AND ERROR 1180(1)-REVERSAL -EFFECT ON ACTS OF RECEIVER. Where petition for hotel receiver's appointment was included in complaint for accounting, and the allegations, if true, were sufficient to justify his appointment, which was made with notice and after defendants had answered, a subsequent holding on appeal that the trial court's action was erroneous, with direction that the receiver be removed, did not declare the appointment void, nor was it such in fact, so that the receiver was in no sense a trespasser. 2. RECEIVERS 92-AUTHORITY. A hotel receiver had authority to make purchases of supplies which would have been a necessary expense, even if there had been no receivership. 3. RECEIVERS 92-ACCOUNTING. A hotel receiver was entitled to credit for payments for supplies purchased, whether the merchants so paid applied the payments to the receiver's accounts for such supplies, or to prior unpaid balances of the hotel company, since both accounts were obligations of the hotel com pany. Department 1. Appeal from Circuit Court, Tillamook County; H. H. Belt, Judge. "Based on the findings of fact and conclusions of law heretofore found and made in this cause, it is by the court ordered that the receiver A. H. Gaylord pay to the defendant hotel company the sum of $422; that the said hotel company thereupon transfer and assign to the said Gaylord all his claims and interest in the claim now shown upon its books against one E. F. Helliere for $133 on account of draft cashed by the said Gaylord while receiver; that the said A. H. Gaylord have and recover of and from ceiver the sum of $455, the further sum of $79 for his services in keeping account of the receipts and disbursements of the defendant company prior to his being appointed receiver, and the further sum of $289 on account of said Gaylord and Carlton as expert accountants, the further sum of $32.15 for premium on bond, labor and expert accountant, and for publication of notice of hearing of final report, and that this shall be a full, final, and complete settlement of all matters herein connected with the said receivership." From this decree defendants appeal. Ralph R. Duniway, of Portland (E. J. pellants. H. T. Botts, of Tillamook, for reClaussen, of Tillamook, on the brief), for apspondent Henderson. H. T. Botts, of Tillamook (Webster Holmes, of Tillamook, on the brief), for respondent Gaylord. BENSON, J. (after stating the facts as above). [1] The evidence taken upon the accounting in this case is very voluminous, and is rendered vague and confused by what we deem an unnecessary elaboration of petty.details. From it all, we gather that the receiver took charge of the property on May 5, 1914, at which time he received with the business cash to the amount of $132.40, bar sup Suit by John Leland Henderson against the Tillamook Hotel Company and others. From a decree, certain defendants appeal. Af-plies $1,034.72, and dining room supplies $94. firmed. This is an appeal from a decree of the trial court settling the final account of the receiver appointed to take charge of the hotel property of the defendant corporation, with directions in the order of appointment-- 60. When he was removed on August 2, 1914, he returned to the defendant hotel company cash $654.97, bar supplies $1,221.29, and dining room supplies $118.17. According to his own contention, he paid $2,504.37 of bills incurred by the defendants prior to his appointment, of which defendants concede the payment of $1,710.75. This discrepancy will be referred to later. He also incurred new obligations in conducting the business, which are still unpaid, to the amount of $2,336.81. The total cash receipts, including the money on hand on May 5, 1914, were $7,608.64, and the receiver accounts satisfactorily for $6,933.31, in the shape of necessary disburse "to act as such until the further order of this court, with full power and authority to take immediate and exclusive charge of the business and affairs of said defendant corporation, and to manage the same according to the orders and directions of this court from time to time to be made herein, and to take such necessary steps as may be necessary to procure sufficient funds to meet and liquidate running and current expenses of the defendant corporation, and pay the claim of A. H. Gaylord and the said C. J. Carlton, and any other urgent demands against the same, and is hereby given power and author-ments, in addition to the sum of $654.97 paid to ity to negotiate a loan upon the credit of the defendant corporation and its assets, etc." In obedience to this order the receiver took possession of the property on May 5, 1914, and conducted the business thereunder until August 2, 1914, when, upon the reversal of such order by this court (Henderson v. Tillamook Hotel Co., 76 Or. 379, 148 Pac. 57, 149 Pac. 473), the receiver was removed and directed to return the property to the defendant corporation. Thereafter an accounting was had, wherein the trial court made and entered a decree thereon as follows: defendants on August 2, 1914. The trial court properly disallowed some of the disbursements and, as disclosed in the decree, ordered him to pay to defendants the further sum of $422, and gave judgment against the plaintiff for the receiver's compensation and other items of costs. The appeal of defendants appears to be based entirely upon the theory that the appointment of the receiver was a void act, and as a necessary sequence that the receiver himself was a trespasser. This contention is without merit. The petition for the appointment was included in the com plaint for an accounting, and the allegations of the action to the execution and delivery of were sufficient, if true, to justify the action the sheriff's deed, he was not entitled to a decree of the court. The appointment was made thereby shown to be void, since, having chosen establishing his title if the sheriff's deed was with notice and after the defendants had to offer evidence of his alleged title, he must filed their answer. It is true that this court rely upon the strength of his own title. subsequently held that the action of the 2. EQUITY 344-PLEADINGS-ADMISSIONS— trial court was erroneous, and directed that CONCLUSIVENESS AGAINST COPARTY. the receiver be removed (Henderson v. Tilla-ant is not conclusive upon other defendants. An admission in the answer of one defendmook Hotel Co., 76 Or. 379, 148 Pac. 57, 149 Pac. 473), but did not declare the appointment void, nor was it so in fact. The decree was reversed because the evidence failed to support the allegations of the petition. This being true, it follows that the receiver is not in any sense a trespasser. In High on Receivers (2d Ed.) § 286, we find this statement of the law: "An order appointing a receiver in a cause in which the court has full jurisdiction, affords protection to the receiver for all acts done under and in conformity with such order, even though it is afterward reversed for error.' This doctrine is supported by Beach on Receivers (Alderson's Ed.) p. 133. The court therefore very properly allowed as credits to the receiver all disbursements made in paying the debts of the defendant corporation and in carrying on the business. [2] The discrepancy referred to, supra, arises from the fact that the receiver continued to do business with certain firms who had accounts with the defendant corporation prior to the appointment, to whom there were unpaid balances due. New liabilities were thus incurred, and the dispute arises upon the question as to whether subsequent payments to such firms were applied to the old or new obligations. The new accounts are a proper charge against the defendants, since the supplies thus purchased would have been a necessary expense, even if there had been no receivership. High on Receivers (4th Ed.) § 809; Ogden City v. Irrigation Co., 18 Utah, 279, 55 Pac. 385. [3] It follows that it can make no material difference to the defendants whether the payments in question were applied to the new or old accounts, since both are their obligations. We find no substantial error in the record, and the decree is therefore affirmed. MCBRIDE, C. J., and HARRIS and MOORE, JJ., concur. MURPHY v. BJELIK et al. (Supreme Court of Oregon. Dec. 27, 1917.) 1. QUIETING TITLE 43-TITLE OF PLAINTIFF NECESSITY OF TITLE. 3. QUIETING TITLE BURDEN OF Proof. 44(1) EVIDENCE Where, in a suit to remove clouds, plaintiff claims to own the land and each of the defendants claim to have a lien thereon, each party has the burden of proving his claim. 4. GARNISHMENT 180 RIGHT TO JUDGMENT ON GARNISHEE'S ANSWER. Under L. O. L. § 295 et seq., relating to attachment and garnishment and providing that the garnishee shall furnish a certificate of propany debt owing to the defendant, that if he erty belonging to the defendant or the amount of refuses to give a certificate, or gives one unsatisfactory to plaintiff, he may be required to appear for examination, that the issues between the plaintiff and the garnishee shall be tried as ordinary issues of fact, that if the garnishee him to do so or plaintiff may have judgment for fails to answer the court or judge may compel want of such answer, and that, if it appears from the answer or is found upon the trial that the garnishee had property of defendants beyond that admitted in the certificate or in any amount if a certificate was refused, judgment may be given against the garnishee for the value thereof in money, a judgment against the garnishee is only authorized when he refuses to answer or when his answer is unsatisfactory to plaintiff, and, where he answers by admitting an indebtedness and plaintiff is satisfied with nishee is a nullity and gives plaintiff no right such answer, a money judgment against the gar which he would not have without such judgment. 5. GARNISHMENT 189 EXECUTION - ENJUDGMENT AGAINST GAR FORCEMENT NISHEE. ment is recovered by plaintiff, and it shall apUnder L. O. L. § 308, providing that if judg pear that property has been attached, the court shall order it sold to satisfy plaintiff's demands. and that if execution issue thereon the sheriff shall apply the attached property or the proceeds thereof upon the execution, and sections 233 and 234, relating to the manner of executing a writ of execution and providing that, in ing from any garnishee, if it appear from the the case of property in the possession of or owgarnishee's certificate that he is owing a debt then due, and if such debt is not paid by the garnishee to the sheriff on demand, he shall levy on the property of the garnishee as if the execution was against the garnishee's property. but that if such debt be not then due the sheriff shall sell the same as other property, the sale of a debt which has matured and is due is not contemplated, and an order directing the sheriff to sell a debt due from the garnishee would be a nullity. 6. ATTACHMENT 1-NECESSITY OF COMPLIANCE WITH STATUTE. Attachment proceedings are statutory, and the substantial requirements of the statute must be complied with. 7. GARNISHMENT 105-NATURE OF RIGHT ACQUIRED BY PLAINTIFF. In a suit by one claiming under a sheriff's deed to remove clouds from his title, where defendants pleaded the judgment under which the sale was made and did not allege that it was a Garnishment does not create a lien in favor nullity or that the sheriff's sale was void but, of plaintiff upon any money in the hands of the on the contrary, relied thereon claiming that garnishee, nor upon any property owned by it, the transaction whereby plaintiff acquired title but gives rise to a contingent personal liability a redemption from that judgment, but to respond to any judgment that may afterplaintiff, instead of relying on the pleadings, wards be recovered by plaintiff against the garoffered the entire record from the commencement nishee's creditors. was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |