Hughes v. Superior Court of California in Contra Costa County Transcript of Record

    TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1949

N o. 61

JOHN HUGHES AND LOUIS RICHARDSON, 
PETITIONERS,

vs.

SUPERIOR COURT OF THE STATE OF CALIFORNIA 
IN AND FOR THE COUNTY OF CONTRA COSTA

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE
OF CALIFORNIA

PETITION FOR CERTIORARI FILED FEBRUARY 21, 1949. 

CERTIORARI GRANTED MAY 2,1949.



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1949

No. 61

JOHN HUGHES AND LOUIS RICHARDSON, 
PETITIONERS,

vs.

SUPERIOR COURT OF THE STATE OF CALIFORNIA 
IN AND FOR THE COUNTY OF CONTRA COSTA

ON WRIT OR CERTIORARI TO THE SUPREME COURT OF THE STATE
OF CALIFORNIA

INDEX
Original Print

Proceedings in District Court of Appeal for the First Ap­
pellate District of California............................................

Caption ........................................ [omitted in printing]. .
Record from Superior Court of Contra Costa County. . . .

Complaint for injunction............................................
Exhibit—Form of collective bargaining agreement 

between plaintiff and Retail Clerks’ Union. . . . 
Memorandum in opposition to preliminary injunction

and temporary restraining order, etc......................
Counter affidavit of John H ughes................................
Counter affidavit of Louis Richardson .........................
Plaintiff’s memorandum of points and authorities. . . .
Order for issuance of preliminary injunction.............
Bond on injunction................. [omitted in printing]. .
Order granting preliminary injunction .....................

1
1
3 1
3 1

13 8

22 .18
34 26
39 29
45 32
48 34
49
52 34

J udd & Detweiler. (Inc.), P rinters, W ashington, D. C., J uly 13, 1949

—3359



11 IN D E X

Record from Superior Court of Contra Costa County—
Continued Original Print

Citations and returns thereon. . [omitted in printing]. . 55
Minute entry; Motion to dissolve order granting pre­

liminary injunction denied, finding of contempt, and
judgment ...................................................................  59 35

Clerk’s certificate.................. [omitted in printing]. . 61
Petition for writ of certiorari ............................................ 62 36

Exhibit “A”—Order of Superior Court granting pre­
liminary injunction (copy). . [omitted in printing]. . 70

Writ of certiorari.............................................................  74 41
Answer and return to writ of certiorari......................... 77 43

Exhibit “A”—Affidavit of Otto P. M eyer.............  82 45
Exhibit “B”—Affidavit of Albert West .....................  86 48
Exhibit “C”—Affidavit of Benjamin W. Linsner. . . .  88 49

Answer to petition for writ of certiorari......................  90 50
Respondent’s petition for a hearing by Supreme Court. . . .  95 52

Appendix—Opinion of District Court of Appeal. . . . 114 61
Answer to petition for hearing by Supreme Court.......  137 83
Opinion of Supreme Court, Schauer, J .........................  151 90
Dissenting opinion, Carter, J .........................................  163 98
Dissenting opinion, Traynor, J. .......................................... 179 107
Petition for rehearing in Supreme Court ......................... 187 111
Answer to petition for rehearing..................................  .196 117
Order of Supreme Court denying petition for rehearing. . 202 120
Clerk’s certificate .........................[omitted in printing]. . 203
Order granting leave to proceed in forma pauperis; grant­

ing petition for writ of certiorari and transferring case 
to appellate docket ...........................................................  204 120



1

[fols. 1-2] [Caption omitted]

[fol. 3] [File endorsement omitted]

IN THE SUPERIOR COURT OF THE STATE OF 
CALIFORNIA IN AND FOR THE COUNTY OF 
CONTRA COSTA

No. 39861

L u c k y  S tores, I ncorporated , a Corporation, Plaintiff
vs.

P rogressive  C it iz e n s  of A m er ic a , an Unincorporated Asso­
ciation; Progressive Citizens of America Canal Club, an 
Unincorporated Association; Progressive Citizens of 
America Canal Precinct Club, Richmond Chapter, an 
Unincorporated Association; Mrs. E. Williams, Indi­
vidually and in Her Representative Capacity; Mrs. F. 
Anderson, Individually and in Her Representative Ca- 
pacty; Glen Mapps, Individually and in His Representa­
tive Capacity; John Hughes, Individually and in His 
Representative Capacity; The National Association for 
the Advancement of Colored People, an Unincorporated 
Association; First Hoe, Second Doe, Third Doe, Fourth 
Doe, Fifth Doe, Sixth Doe, Seventh Doe, Eight- Doe, 
Ninth Doe, Tenth Doe, Eleventh Doe, Twelfth Doe, Thir­
teenth Doe, Fourteenth Doe, Fifteenth Doe, Sixteenth 
Doe, Seventeenth Doe, Eighteenth Doe, Nineteenth Doe, 
Twentieth Doe, Twenty-First Doe, Twenty-Second Doe, 
Twenty-Third Doe, Twenty-Fourth Doe and Twenty- 
Fifth Doe, Defendants.

C o m pl a in t  for  I n ju n c t io n — Filed May 20, 1947
Now come Lucky Stores Incorporated, a corporation and 

[fol. 4] for cause of action against the defendants and each 
of them alleges:

I
Plaintiff Lucky Stores Incorporated is a corporation or­

ganized and existing under and by virtue of the laws of 
the State of California, and having its principal place of 
business at the City of Oakland, County of Alameda, State 
of California, and doing business in the Counties of Alameda 
and Contra Costa.

1—61



2

II
Plaintiff is ignorant of the true names of defendants 

First Doe to Twenty-Fifth Doe, inclusive, and, therefore, 
sues them by such fictitious names. Plaintiff prays leave 
that their true names, when ascertained, may be inserted 
in all papers, files and pleadings in this proceeding.

III
That the defendant, Progressive Citizens of America, 

an unincorporated association, hereinafter referred to as 
The Association, is now, and at all times herein mentioned 
has been an unincorporated association, subdivided into 
various territorial local groups throughout the United 
States and composed of more than two persons who are 
residing in and associating in business and contracting busi­
ness under said name in the County of Contra Costa, State 
of California.

That the defendant Progressive Citizens of America Canal 
Club and Canal Precinct Club, Richmond Chapter, Pro­
gressive Citizens of America are unincorporated associa- 
[fol. 5] tions consisting of more than two persons who are 
residing in and associating in business and transacting 
business in the County of Contra Costa, State of California, 
under the common name.

That the defendant, Mrs. E. Williams, is an individual 
doing business in the County of Contra Costa, and is an 
officer of the Association, to wit, the Canal Club President, 
and is made a party hereto in her individual and representa­
tive capacity.

That, the defendant, Mrs. F. Anderson, is an individual 
doing business in the County of Contra Costa, and is an 
officer of the Association, to wit, Club Secretary of the Canal 
Club, and is made a party hereto in her individual and rep­
resentative capacity.

That the defendant, Glen Mapps, is an individual doing 
business in the County of Contra Costa and is an officer, 
to wit, Committee Chairman of the Canal Club of the Asso­
ciation, and is made a party hereto in his individual and 
representative capacity.

IV
That there exists between the Retail Clerks Union, Local 

No. 1179, a collective bargaining contract entered into



3

September 19, 1946, and continuing in full force and effect 
until September 19, 1947; that a true copy of said contract 
is incorporated herein by reference and made a part of this 
complaint as if set forth in full, and is attached hereto as 
Exhibit “ A ” .

That within said Collective Bargaining Contract there 
are provisions:

Section I. Recognition of the Union
The Employer hereby recognizes the Union as the sole 

[fol. 6] collective bargaining agency for all employees work­
ing for the Employer and within the jurisdiction of the 
Union and the Union recognizes the employer Association 
as bargaining agent for its members who have given it 
proper power of attorney and duplicate, original of which 
is deposited with the Union at the time of signing this 
agreement.

Section II. Employment of Union Members
The employer shall employ only members of the Union 

in good standing and through the office of the Union; pro­
vided, however, that in the event the said Union cannot meet 
the request of the Employer for an employee, as herein­
after set forth, the Employer may hire a person not 
affiliated with the Union.

The Union shall maintain a list of unemployed members 
together with their qualifications. In the event said list 
contains no members satisfactory to the Employer, he 
may hire a non-member of the Union, but only in com­
pliance with the following rules:

(a) The Employer shall notify the Union prior to the 
employment of such non-Union person.

(b) The said employee shall file an application to be­
come a member of the Union before reporting* for work. 
The Union shall not initiate said employee within twenty- 
one (21) days from the date of his employment unless 
approved by the Employer.

(c) The Employer shall, upon notice from the Union, 
immediately discontinue the employment of said person 
if said person has not filed said application and has not 
become a member of said Union as above set forth.



4

(d) The Employer shall pay said person so employed 
during the period said person is not a member of the Union 
at the regular Union wage provided for in this agreement 
for the class of work said person is doing, and shall in all 
other respects require said person to work under and live 
up to all Union rules and regulations covering the employ­
ment as set forth in this agreement.

It is further provided in said Collective Bargaining 
Contract: “ The term of this agreement shall be one year 
from its effective date and may be renewed thereafter for 
like periods of time . .
[fol. 7] V

That defendants and each of them, and particularly de­
fendants, Progressive Citizens of America Canal Club, 
through their duly authorized representatives, have de­
manded that in addition to the agreement reached on hours 
and wages that plaintiff further agree to hire negro clerks, 
such hiring to be based upon the proportion of white and 
negro customers patronizing plaintiffs’ stores, and that 
the plaintiff discharge those employees participating in 
the apprehension and arrest of McKennly Jaekson, accused 
of the theft of six pounds of bacon from one of plaintiff’s 
store units located near the Canal Housing Project, Rich­
mond, California. These demands plaintiff has refused.

The allegations that said demand upon plaintiff to hire 
negro clerks in proportion to white and negro customers 
patronizing plaintiff’s stores is beyond the terms and 
provisions of the clause which treats of modification and 
renewal of the contract entered into between plaintiff and 
Retail Clerks Union, Local No. 1179, dated September 19, 
1946, hereinabove referred to.

Plaintiff further alleges that there exists no dispute 
between plaintiff and Retail Clerks Union, Local No. 1179, 
as to hours, wages and conditions of employment in that 
an agreement has been reached between the parties in all 
such matters, and said agreement does not now expire until 
September 19, 1947. Plaintiff further alleges that the 
demand of the defendants, Progressive Citizens of America, 
Canal Club, for the hiring of negro retail clerks based upon 
a proportion of negro customers patronizing plaintiff’s 
[fol. 8] stores is one that would contemplate other changes in 
the contract or the addition of other provisions into the con­



5

tract not covered by the modification and renewal clause 
of said contract.

VI
By reason of the refusal of plaintiff as above set forth 

in Paragraph V hereof, defendants, and each of them, and 
particularly defendant Progressive Citizens of America 
Canal Club, have picketed and do continue to picket plain­
tiff’s store located at the Canal Project, Richmond, Cali­
fornia, as a means of securing the demands made by said 
defendants upon plaintiff.

Plaintiff alleges this picketing to be in violation of the 
Collective Bargaining Agreement between plaintiff and 
the Retail Clerks Union, Local No. 1179, currently in full 
force and effect and made a part of this complaint as 
Exhibit “ A ” .

Plaintiff alleges that defendant Parent Association is a 
party to and lending its support to the picketing by de­
fendant Canal Club of the plaintiff in that it is acting in 
concert with said Canal Club and the other defendants to 
enforce the unreasonable and unjustifiable demands of 
defendants for the hiring of additional negro clerks in 
stores of the plaintiff, and for the discharge of those em­
ployees connected with the firing of a pistol and the 
subsequent arrest of Mr. McKennly Jackson.

VII
Unless defendants, and each of them, are restrained and 

enjoined from such action or any threatened action or of any 
other means which will force the closing of plaintiff’s store 
[fol. 9] operations in the County of Contra Costa, plaintiff 
will suffer irreparable damage unless defendants’ actions 
are restrained and enjoined in that: Plaintiff will be pre­
vented from carrying on its normal operations in the 
retailing of food stuffs, and the continued picketing by de­
fendants would lead to a closing of plaintiff’s stores to the 
great damage of plaintiff.

VIII
Plaintiff alleges that the establishment of picket lines 

in front of plaintiff’s stores in order to enforce the demand 
for hiring of additional negro clerks, such hiring to be 
based on the proportion of white and negro customers



6

patronizing plaintiff’s stores, and in order to enforce its 
demand for the discharge of those employees of plaintiff 
who effected the arrest of Mr. McKinnly Jackson, a shop­
lifter, is an infringement upon plaintiff’s right to do 
business.

IX
Plaintiff alleges that there exists between organized labor 

and labor unions in the County of Contra Costa a common 
agreement and understanding that neither the unions, 
nor the members thereof, will pass through a picket line, 
whether the objects of that picket line are legal or illegal, 
proper or improper. Plaintiff alleges that the establish­
ment of a picket line in front of its stores would have 
for its purpose the forcing of plaintiff to comply with 
defendants demand for the hiring of negro clerks based 
upon a proportion of white and negro customers patroniz­
ing plaintiff’s stores, and the discharging by plaintiff of 
[fob 10] those employees of plaintiff who aided in the arrest 
of McKinnly Jackson, a shop-lifter; that each and all of 
said purposes of said picket line would be contrary to the 
terms of the Collective Bargaining Contract presently in 
full force and effect between plaintiff and the Retail Clerks 
Union, Local No. 1179, Exhibit “ A ” heretofore referred 
to and made a part of this complaint.

X
Plaintiff alleges that it has no adequate remedy at law 

in this: There exists an inadequacy and uncertainty of 
damages that would be suffered by plaintiff if defendants 
actions continue, and plaintiff would suffer permanent loss 
of some of its customers to competitors.

Plaintiff alleges that the amounts of such damage are 
unforseeable and cannot be estimated.

XI
Plaintiff is informed and believes, and upon such in­

formation and belief alleges the following facts peculiarly 
within the knowledge of defendants Mrs. R  Williams, Mrs. 
F. Anderson, Glenn Mapps and John Hughes, individually 
and in their respective capacities, as well as other diverse 
persons whether or not named as defendants, Twenty-First 
Doe to Twenty-Fifth Doe, inclusive; that defendants Mrs. 
E. Williams, Mrs. F. Anderson, Glenn Mapps and John



7

Hughes, and such other diverse persons presently unknown 
to plaintiff, have conspired together in concert to get an un­
lawful action against plaintiff, to wit: To induce a breach 
[fol. 11] of the contract currently in existence and effect 
between plaintiff and Retail Clerks Union, Local No. 1179; 
that further in said conspiracy they have picketed plain­
tiff’s store located in the Canal Housing Project, Rich­
mond, and unless said unlawful actions of defendants, Mrs. 
E. Williams, Mrs. F. Anderson, Glenn Mapps and John 
Hughes, and such other diverse persons presently unknown 
are restrained, the means adopted by said defendants to 
carry out said conspiracy will work to the irreparable 
damage of plaintiff in the manner and means above set 
forth.

Wherefore, plaintiff prays,
1. That defendants and each of them be permanently en­

joined and restrained from acting in concert one with the 
other to compel plaintiff to do any act, particularly:

(1) The selective hiring of negro clerks, such hiring to 
be based on the proportion of white and negro customers 
who patronize plaintiff’s stores.

(2) The discharge of those employees participating in 
the apprehension and arrest of McKinnly Jackson, a shop­
lifter.

2. That defendants and each of them be permanently en­
joined and restrained from any picketing or from any 
other means used, or to be used, by defendants in bringing- 
economic pressure to bear upon plaintiff.

3. That this court make an order directing the defendants 
and each of them to show cause at a time and place ap­
pointed in such order of the Court why they and each of 
them should not be enjoined and restrained during the 
pendency of this action from doing any of the actions 
[fol. 12] above mentioned.

4. That a temporary restraining order be granted plain­
tiff herein enjoining and restraining said defendants and 
each of them, their officers and agents and each of them 
until a hearing upon such order to show cause from, doing 
or causing to be done any of the said acts or things herein 
complained of.



8

5. That upon the hearing of said order to show cause a 
permanent injunction be granted restraining said defendants 
and each of them from doing any of said acts and things 
during the pendency of said action as are complained of 
herein.

6. That plaintiff be allowed its costs of suit herein in­
curred and such other and further relief as may be just 
and proper.

Hoey & Hoey, Attorneys for Plaintiff.

Duly sworn to by Otto P. Meyer. Jurat omitted in printing.

[fol. 13] E x h ib it  to C o m pl a in t

Agreement
This Agreement, made and entered into this — day of

"> 19—, an<i between----- , a —— (here insert whether
corporation, partnership or individual), First party, here­
inafter called Employer, and Retail Clerks’ Union, Local 
No. 1179, affiliated with the American Federation of Labor 
through the Retail Clerks’ International Protective Associ­
ation, Second Party, hereinafter called Union.

Witnesseth:
In consideration of the premises and of the respective 

promises, agreements and covenants of the said parties 
hereto they do hereby mutually agree as follows, to-wit:

Sec. I. Recognition of the Union
The employer hereby recognizes the Union as the sole 

collective bargaining agency for all employees working for 
the Employer and within the jurisdiction of the Union and 
the Union recognizes the Employer Association as bargain­
ing agent for its members who have given it proper power 
of attorney _ and duplicate, original of which is deposited 
with the Union at the time of signing this agreement.

Sec. II. Employment of Union Members
The employer shall employ only members of the Union 

in good standing and through the office of the Union; pro­
vided, however, that in the event the said Union cannot



9

meet the request of the Employer for an employee, as here­
inafter set forth, the Employer may hire a person not 
affiliated with the Union.

The Union shall maintain a list of unemployed members 
together with their qualifications. In the event said list 
contains no members satisfactory to the Employer, he may 
hire a non-member of the Union, but only in compliance with 
the following rules:

(a) The Employer shall notify the Union prior to the em­
ployment of such non-Union person.

(b) The said employee shall file an application to become 
a member of the Union before reporting for work. The 
Union shall not initiate said employee within twenty-one 
(21) days from the date of his employment unless approved 
by the Employer.

(c) The Employer shall, upon notice from the Union, 
[fol. 14] immediately discontinue the employment of said 
person if said person has not filed said application and has 
not become a member of said Union as above set forth.

(d) The Employer shall pay said person so employed 
during the period said person is not a member of the Union 
at the regular Union wmge provided for in this agreement 
for the class of work said person is doing and shall in all 
other respects require said person to work under and live 
up to all Union rules and regulations covering the employ­
ment as set forth in this agreement.

Sec. III. Discharge of and Discrimination Against
Employees

The employer shall not discharge or discriminate against 
an employee for upholding Union principles, serving on a 
committee of the Union or any organization affiliated there­
with, and failing or refusing to purchase stocks, bonds, 
securities or interest in any partnership, corporation and/or 
company.

Upon discharge of any employee the Employer shall, 
within twenty-four (24) hours thereafter notify the Union 
of such discharge, and the reason therefor.

Sec. IV. Working Hours and Overtime
(a) Eight (8) hours shall constitute a regular day’s 

work and forty (40) hours consisting of five eight hour days



10

shall constitute a regular week’s work. The said forty (40) 
hours consisting of said five eight hour days shall be worked 
as follows: Within seven (7) consecutive days, Sunday 
through Saturday inclusive, the said five eight hour days 
which constitute the regular week’s work, shall he consecu­
tive in a seven day store operation; but may be any five (5) 
days within the said seven (7) consecutive days (Sunday 
through Saturday inclusive), where the operation is a six 
day or less store operation.

(1) Anything contained in this contract to the contrary, 
nothing in this contract shall be construed to prohibit the 
designation by the Employer of any two (2) consecutive 
days off as the employee’s day off immediately following 
an employee’s five (5) consecutive days of work, nor any 
five (5) consecutive days of work immediately following 
an employee’s two (2) consecutive days off, but in any event 
the five (5) consecutive days’ work and the two (2) con­
secutive days off must be within a period of seven (7) con­
secutive days.

(a-2) There shall not be more than two (2) consecutive 
days off between the last day worked in any one seven (7) 
day period and the first day worked in the following seven 
(7) day period. It being agreed in this respect that an extra 
[fol. 15] day or day’s work as may be required shall be 
given the employee to eliminate more than two (2) con­
secutive days off, such extra day or days worked shall be 
at the overtime rate.

All work performed in excess of the regular day’s work 
of eight (8) hours in any one day, or in excess or outside 
of the regular forty (40) hours work in any one week, shall 
be deemed overtime and paid at the overtime rate of one 
and one-half times the regular straight time rate,

(b) Including the lunch period, the hours comprising the 
day’s work for all employees shall be worked consecutively. 
Both male and female employees shall receive one continu­
ous and uninterrupted hour off for lunch at approximately 
the middle of the working day. No employees shall be re­
quired or allowed to perform any duties of his employment 
during his lunch period.

(c) All employees working less than five (5) full con­
secutive days in any calendar week shall be paid ten cents 
per hour above the scale in the classification in which they



11

work, and shall be paid for the work performed during such 
calendar week within three (3) days after the last day 
worked in such week. Any employee reporting for woi'k 
after being ordered to do so shall receive not less than a 
full day’s pay for that day.

(d) No employee shall be required or allowed to work 
more than nine (9) hours in any one day, nor more than 
fifty-four (54) hours in any one week; provided, however, 
that where the employee is engaged in taking inventory he 
may be required or allowed to work such overtime as may 
be necessary to complete the taking of the inventory.

(e) All regular employees (i.e. employees exclusive of 
Friday and Saturday Help) of an Employer shall receive 
one week’s vacation with full pay for each twelve-month 
period of employment; but all such employees who have had 
three or more years of employment with an Employer shall 
receive two weeks vacation with full pay.

All time lost from employment because of absence from 
work through sickness or other emergency or temporary 
lay-off shall be considered as time worked for the purpose 
of determining the length of employment.

Vacation periods shall be fixed by the Employer to suit 
the requirements of his business but as far as possible and 
practicable vacations will be given between May 1 and Sep­
tember 30, inclusive.

A week’s vacation pay shall consist of the sum arrived at 
by multiplying the employee’s straight time hourly rate 
at the time of his taking his vacation by the average num- 
[fol. 16] ber of hours in his scheduled work weeks during 
the year preceding the taking his vacation. Any employee 
who has not been with the Employer for a year, but who 
has worked for the employer six months or more, and has 
his employment severed for a reason other than a quit 
without cause, or discharged for cause, shall receive upon 
severing of employment a pro-rate vacation pay in ratio 
to the time worked bears to his rate of vacation pay for one 
week.

Employees who are qualified for vacation and have their 
employment severed for reasons other than a. quit without 
cause, or discharge for cause, and who have worked any 
period subsequent to that for which they have received a 
vacation shall likewise receive upon severance of employ­



12

ment a prorate vacation pay as provided in the prorate 
formula in the above paragraph.

Sec. V. Schedule of Wages
The following schedule of minimum wages shall he main­

tained by the parties hereto during the period of this agree­
ment, and the Employer shall and hereby agrees to pay 
wages in compliance therewith; it being understood and 
agreed that all wages fixed in this contract are so fixed 
upon the basis of an eight (8) hour day, and forty (40) 
hour week for both male and female employees worked over 
a period as set forth in Section IV above. All employees 
shall receive their pay weekly and within three (3) days 
after completion of the said week’s work.

Hourly Overtime Weekly
Rate

Beginner Clerks:
Less than three months industry ex­

perience .................  ........................... $ .0114
More than three months but less than

six months industry experience.........
Regular Clerks or checkers...................  •
Receiving Clerks ........................................  1.37%
Head Clerks ................................................ 1.37%
Managing Clerks ........................................  1.67%

Rate Rate

$1,368 $36.50

1.10
1.25

1.65
1.87%
2.062
2.062
2.512

44.00
50.00
55.00
55.00
67.00

B. Belief Clerk: Wherever an employee is required by 
the Employer to change from one store to another during 
the same day, all time consumed by said employee in going 
either to or from one store to another shall be considered 
and paid for as part of his regular day’s work.

Sec. VI. Classification of Employees
For the purpose of this contract the classifications of 

employees above set forth are hereby defined as follows:
[fol. 17] (a) Beginner Clerk: A beginner Clerk is one who
has less than six (6) months’ experience in the aggregate in 
the industry irrespective of where such experience may have 
been had. A beginner Clerk may perform the duties of any 
classification except managing clerk, receiving clerk or head 
clerk and shall be paid as stipulated in Section V, Schedule 
of Wages.

(b) Regular Clerk or Checker: A regular Clerk or 
Checker is an employee who has had more than six (6)



13
months’ experience in the aggregate in the industry, irre­
spective of where such experience may have been had. In 
such instances where only one person is employed at a time 
in a department the employer may classify and pay such 
person as a regular clerk or checker.

(c) Receiving Clerk: A Receiving Clerk is an employee 
who is engaged the major part of his time in the receiving 
department of the Employer’s establishment and who is in 
charge of and responsible for the receiving of merchandise.

(d) Head Clerk: A Head Clerk is an employee who in 
addition to the duties of a regular clerk or checker as here­
inabove set forth, performs one of the following duties:

1. Acts as a department manager having charge of and 
supervision over a department, except in such instances as 
set forth in subsection (b) of this section defining the duties 
of a regular clerk or checker.

2. Acts as produce buyer.
3. Acts in the capacity of assisting the managing clerk 

in his duties; or acts in the capacity of assisting the owner 
wdiere the owner is actively engaged in the business per­
forming the duties of managing clerk, or performs the 
duties of a managing clerk in his absence, and generally 
supervises the conduct of a store. The mere occasional or 
incidental performance of a duty of a managing clerk wdiile 
the managing clerk is on the job shall not be construed as 
the basis for classifying an employee as a bead clerk. This 
subsection shall not apply to stores wdiere not more than 
two people, including the owner, are working therein w7here 
either

(1) The owner is actively engaged in the business per­
forming the duties of a managing clerk, or—

(2) Where a managing clerk is employed where the owner 
is not actively engaged in the business as above set forth in 
this subsection.

(dd) Where three or more people, even though one be the 
owner, are working in a store which operates between 7 :00 
p.m. and 8 :00 a.m., or on Sundays, not less than one of the 
[fol. 18] employees shall be classified as Head Clerk irre­
spective of the number of employees working during such 
night hours or Sundays.



14

(e) Managing Clerk: A Managing Clerk is an employee 
who acts for and on behalf of the owner and who has one or 
more of the following duties in any one store. In addition 
to his work as clerk he has charge of and general supervision 
over not more than one store; or attends to the proper ac­
counting and collection of the cash and receipts of the busi­
ness ; or has charge of the ordering of merchandise for the 
store; or is generally the nominal head or foreman thereof. 
In each store there shall be one managing clerk; provided, 
however, that in stores where the owner works actively on 
the premises the major part of the time performing the 
duties of a managing clerk no managing clerk will be re­
quired. No managing clerk shall be employed for less than 
a full work week. (Absence from work due to illness or 
emergency excepted.)

(f) The Employer may require any employee to do work 
not within the duties of one classification, in which event 
such employee shall be classified and paid under the classifi­
cation which pays the highest wage, except where an em­
ployee of a higher classification is relieved for a lunch 
period.

Sec. VII. Store meetings
No store meetings shall be held so as to conflict with the 

regular meetings of the Union, and upon a three-day 
notice to the Employer of a special meeting the Employer 
agrees to hold no store meeting in conflict therewith.

Sec. VIII. Caps and Uniforms
The Employer shall furnish all gowns and/or aprons and 

pay for the laundering of same, provided, however, that in 
the event any employee uses more than three uniforms in 
any one week the Employer shall have the right, if he so 
desires, to deduct the sum of twenty-five cents from the 
employee’s pay for the -week the employee uses more than 
three uniforms.

Sec. IX. Charity
The Union shall and hereby agrees to conduct and handle 

any and all campaigns and drives for charitable purposes 
among its membership in such instances as it deems advis­
able but in no event shall the Employer carry on any char­
itable campaign among his employees.



15

Sec. X. Visits to stores
It is agreed by both parties hereto that the business rep­

resentatives shall have the right and shall be allowed by the 
[fol. 19] Employer to visit any and all stores for the pur­
poses of making inquiries from the employees relative to 
information about working conditions, violations of work­
ing conditions, complaints of members of the Union, and/or 
any violations of this agreement.

Sec. XI. Suspended or Expelled Members of the Union
When any member of the Union is suspended or expelled,* 

the Employer shall and hereby agrees to discharge such 
member within seven (7) days after receiving notice from 
the Union of such suspension or expulsion.

Sec. XII. Holidays
The following holidays shall be observed and each regular 

employee shall be paid for the same except when without 
permission of the Employer the employee fails to report 
for work either the day before or the day after the holiday: 
New Year’s Day, Washington’s Birthday, Memorial Day, 
Fourth of July, Labor Day, Admission Day, Thanksgiving 
Day and Christmas Day. It is further agreed that whenever 
such holidays fall upon a Sunday they shall be observed upon 
the following Monday, and it is further agreed that said 
holidays shall be granted as days off to employees in addi­
tion to their regular days off.

Sec. XIII. Bond
Wherever the Employer requires the bonding of any em­

ployee or the carrying of any insurance for the indemnifi­
cation of the Employer, the premiums for the same shall be 
paid for by the employer.

See. XIV. Strike or Lockout
It shall not be a violation of this contract, nor shall any 

employee be discharged or discriminated against, for re­
fusing to work for or to sell or handle the merchandise or 
products of or from any establishment or any individual, 
firm or corporation, while such individual, firm or corpora­
tion is under lockout or is under a strike, or is listed in the 
official “ We don’t patronize” list of the Central Labor



16

Council of Contra Costa County. Provided, however, that 
this section shall not apply in such instances where a lock­
out exists or a strike is called by any organization consid­
ered dual in character by the American Federation of 
Labor, or is conducting itself at the time of said lockout or 
strike contrary to the principles and practices of the Ameri­
can Federation of Labor.

Sec. XV. Board of Adjustment
In order to afford the parties opportunity of investiga- 

[fol. 20]tion into alleged grievances and violations of con­
tract, and also of discussing matters that may be of mutual 
concern, an Industry Board of Adjustment shall be created 
composed of three representatives from each side. The 
Board shall meet at such regular times as may be deter­
mined by the parties and shall operate under such rules as 
they may determine.

Sec. XVI. Terms of Agreement
The term of this agreement shall be one (1) year from its 

effective date and may be renewed thereafter for like pe­
riods of time either as is or with changes or amendments 
in the manner following:

(a) If neither party to this contract, prior to thirty 
days before the expiration of the year term then in exist­
ence, notifies the other party in writing of its desire to re­
scind or make any change or amendment in said contract, 
then said contract shall be automatically extended and 
renewed for the following year.

(b) In the event that either party is desirous of the 
renewal of same with any change or amendment, the party 
desiring such change or amendment shall give notice of the 
same to the other party not less than thirty days before the 
expiration of the year term then in existence, and shall 
specify in said notice the change or amendment desired. In 
the event that such change or amendment is agreed to by 
both parties hereto before the expiration date of the year 
term then in existence it shall be incorporated into and 
made a part of this contract; but in the event said parties 
cannot mutually agree to the acceptance of said change or 
amendment, or any other change or amendment to take the 
place of that proposed, this contract shall not be renewed



17

for another year, and shall terminate and become null and 
void upon the expiration of the year term then in existence, 
unless the parties hereto agree to submit the matter in con­
troversy to arbitration. In the latter instance, it may be 
agreed to continue the existing agreement during the time 
the arbitration proceedings are pending. Notwithstanding 
anything herein contained to the contrary, Section XVIII 
shall in any and all events continue in full force and 
effect for the two year period from September 19, 1946, and 
in addition shall be part of and incorporated into any con­
tractual relations of the parties during said two year 
period.

(c) The effective date of this agreement is September 19, 
1946.

(d) This agreement shall be binding upon the heirs, ex­
ecutors and assigns of the parties hereto.

(e) No employee shall suffer any reduction in wages or 
general working conditions by reason of the signing of this 
agreement.
ffol. 21] Sec, XVII

An employee who is required to leave his employment 
through action of any governmental agency, or who volun­
tarily leaves his employment for the purpose of joining 
with the armed forces of the United States, shall, when his 
forced or voluntary absence ceases without dishonorable 
discharge or severance, and if application be made within 
sixty (60) days therefrom, be reinstated to employment 
upon his request, without loss of seniority and without 
detriment of any benefits of employment which existed at 
the time of his leaving employment, or which shall have 
accrued in the interim between his leaving employment and 
his return to work, and wherever possible to the position 
which he held when leaving employment, or to one providing 
not less remimeration than his original p o sitio n .

In cases where the returning employee has suffered a dis­
ability which makes it impossible for him to perform his 
former work, or work similar thereto, he shall nevertheless 
be reinstated in employment in such position as may be 
within the ability of the employee to perform.

2—61



18

Sec. XVIII
The Union agrees that it shall not request premium pay 

for any night or Sunday work, as such, for a period of 
two (2) years from September 19, 1946.

----- Firm name; ------ Address,------ City. B y ------ ,
Retail Clerks’ Union, Local 1179. B y----- .

Store Card No. —; Active Members ----- ; Non-Active
Members —— .

[fol. 22] [File endorsement omitted]

I n  S u pe r io r  C ourt  op C ontra  C osta C o u n t y  

[Title omitted]

[fol. 23] M em o r a n d u m  in  O p p o s it io n  to P r e l im in a r y  I n ­
ju n c t io n  and  T em porary  R e st r a in in g  O rder , and  M otions  
to D issolve  T em porary  R e st r a in in g  O rder , and  to D e n y  
t h e  P r e l im in a r y  I n ju n c t io n s—Filed May 26,1947
Come now John Hughes and Louis Richardson, in their 

individual and such representative capacities as they may 
have, and such of the defendants above named who have 
been regularly served in the above entitled action, by their 
attorneys, and file this above described memorandum and 
make the above described motions. The motions are based 
on the papers and pleadings on file herein, the Counter 
Affidavits of John Hughes and Louis Richardson, and this 
memorandum.

I

There Are No Facts Alleged in the Complaint Or in the 
Papers on File to Warrant in Injunction Against Defend­
ants on the Theory of Attempt to Induce Breach of Contract.

The plaintiff is apparently primarily proceeding on the 
theory that this Court should use its drastic equity power 
of injunction on the grounds that the defendants were in­
ducing or attempting to induce a breach of an alleged con­
tract between plaintiff and Retail Clerks Union, Local 
No. 179, herein called the union. Parenthetically, it might 
be noted that the document attached as Exhibit A to the 
complaint is not only undated and nowhere names the



19

plaintiff as a party, but also expresely states in Section 1 
that the bargaining agents are the Union and an unidentified 
“ Employer Association,” not a party to this suit.

Assuming the existence of such a contract, however, no 
facts are alleged which disclose any course of conduct by 
[fol. 24] the defendants that could reasonably cause a 
breach of contract between plaintiff and the Union. An 
analysis of the complaint demonstrates this. Paragraphs I, 
II and III of the complaint are formal allegations identify­
ing the parties. Paragraph IV quotes a portion of Ex­
hibit A. Paragraph V alleges that defendants demanded 
(1) that a certain proportion of Negro clerks be hired at 
the Canal Store, and (2) That certain employees be dis­
charged. Paragraph IV also contains the conclusion that 
defendants’ action is “ beyond the terms and provisions” 
of the contract between plaintiff and the Union. Nowhere 
is it alleged that defendants requested that nonunion em­
ployees be hired, or that any employees be hired except mem­
bers of the Union in good standing and through the office 
of the Union. The Union, having a closed shop, must 
of course admit Negroes to membership (James v. Marin- 
ship Corp., 25 Cal (2d) 721) and presumably could supply 
Negro clerks. If the Union could not supply Negro clerks, 
under the provision of Section II of the contract that “ in 
the event the said Union cannot meet the request of the 
Employer for an employee,” the plaintiff could hire Ne­
groes, providing they joined the Union within the specified 
time.

The request to increase the proportion of Negro clerks 
is clearly compatible with the contract. Moreover, the ac­
tion of the defendants in requesting the discharge of cer­
tain employees if acceded to by plaintiff certainly would not 
violate the contract. Section III of the contract, the only 
applicable section, prevents discharge of an employee for 
(1) “ upholding Union principles;” (2) Serving on a com- 
[fol. 25] mittee of the Union or an affiliate; (3) failing or 
refusing to purchase stocks, etc. of any company. Ob­
viously, none of these provisions have the remotest rela­
tion to a request for a discharge of employees “ connected 
with the firing of a pistol and the subsequent arrest of Mr. 
McKennly Jackson” (Complaint, page 5, lines 28-29).

Paragraph VI alleges merely that defendants are picket­
ing or causing picketing. The right of the defendants to



20

picket will be discussed in detail below. The related allega­
tions in Paragraph YII (irreparable damage), Paragraph 
VIII (“ right to do business” ) and Paragraph X (ade­
quateness of legal remedy) will likewise be treated here­
after.

Paragraph IX, after alleging that picket lines are effec­
tive, continues that the “ purposes” of the picket line 
“ would be contrary to the terms of “ the agreement between 
plaintiff and the Union.” A short answer to this Para­
graph, is that it accuses the defendants of the breach of 
contract to which they are not a party, a legal impossibility.

Paragraph XI alleges a conspiracy between the defend­
ants to induce a breach of contract, and picketing in further­
ance of the conspiracy. As pointed out above, all the alleged 
demands of the defendants, if acceded to by plaintiff, would 
not necessarily violate the contract. Hence the alleged 
conspiracy to induce a breach stands on no firmer ground 
than the alleged inducement itself. One cannot conspire 
illegally to do a lawful act,.
[fol. 26] Assuming arguendo, that defendants did induce 
or attempt to induce a breach of contract, an injunction is 
still improper. In Boyson v. Thorn, 98 Cal. 578, California 
refused to follow precedents from other jurisdictions and 
held that an injunction would not issue to prevent C from 
inducing B to violate his contract with A. This case was 
California law until Imperial Ice Co. v. Bossier, 18 Cal. 
(2d) 33, which in effect reversed the Boyson case. How­
ever, in the Bossier case the Court specifically exempted 
from the tort of inducing breaches of contracts, cases in­
volving attempts to improve working conditions. The 
Court stated (at page 35) :

“ The interest of labor in improving working condi­
tions is of sufficient social importance to justify peace­
ful labor tactics otherwise lawful, though they have the 
effect of inducing breaches of contracts between em­
ployer and employee or employer and customer.” 

(Citing among other authority. Bestatement of 
Torts, Section 767, Comment d, which specifically illus­
trated the type of privilege to include activity to en­
courage employment of a particular race).



21

Moreover, before an injunction would be permissive it 
must be shown that the defendants had knowledge of the 
contract and its terms. The Court stated (page 37):

‘ ‘ The act of inducing the breach must be intentional. 
If the actor had no knowledge of the existence of the 
contract or his actions were not intended to induce a 
breach, he cannot be held liable though an actual 
breach results from his lawful and proper acts.” 
(citing cases).

In the instant case, it is nowhere alleged that any of the 
defendants had any knowledge of the contract, or its terms, 
and indeed the opposite is shown (Counter Affidavits of 
[fol. 27] Hughes and Richardson). I t is submitted that no 
basis for injunction has been established on the grounds of 
inducing breach of contract.

II

The Defendants Have a Constitutional Right to Picket 
Under the Fourteenth Amendment of the Federal Con­
stitution.

The cases establishing the right to picket, and the quali­
fications on this right, are numerous and recent. The lead­
ing cases and, it is submitted, those that control this case 
are New Negro Alliance v. Sanitary Grocery Company, 
303 U. S. 552; Thornhill v. Alabama, 310 U. S. 88; A. F. of 
L. v. Swing, 312 U. S. 321; Cafeteria Union v. Angelos, 320 
U. S. 293; McKay v. Retail Etc. Union, 16 Cal. (2d) 311; 
Park and Tilford Corp. v. Teamsters, 27 Cal. (2d) 599; 
and In re Lyons, 27 Cal. App. (2d) 293.

The New Negro Alliance case presents a factual situa­
tion in all material respects on all fours with the present 
case. The facts of that case were that petitioners, a volun­
tary Association advocating the economic advancement of 
Negroes, requested the Grocery Company to adopt a policy 
of employing Negro clerks in certain of its stores; the Com­
pany ignored the requests; the petitioners caused a person 
to picket one of the stores, carrying placards urging persons 
not to patronize the store because it did not hire Negroes; 
there were no threats or intimidation, the picket was peace­
ful and orderly. The Court held that there existed a labor



22

dispute within the meaning of the Norris-LaGuardia Act, 
and that the trial court erroneously enjoined the picketing. 
The Supreme Court stated (at page 561) :

[fol. 28] “ The desire for fair and equitable condi­
tions of employment on the part of persons of any 
race, color or persuasion, and the removal of dis­
criminations against them by reason of their race or 
religious beliefs is quite as important to those con­
cerned as fairness and equity in terms and conditions 
of employment can be to trade or craft unions or any 
form of labor organization or association. Race dis­
crimination by an employer may reasonably be deemed 
more unfair and less excusable than discrimination 
against workers on the ground of union affiliation.

The Court held the Trial Court in error in its finding that 
the laws relating to labor disputes had no application be­
cause “ it did not involve terms and conditions of employ­
ment in the sense of wages, hours, unionization or better­
ment of working conditions . . . (Page 560).

The right to picket is not of course limited to trade 
unions nor to employees of the establishment being picketed. 
See In re Lyons, supra; A. F. of L. v. Swing, supra; Park 
and Tilford Etc. Corp. vs. Teamsters, supra. In the Lyons 
case, a union was attempting to compel an employer to close 
on Sundays The Court stated (at page 295) :

“ Unions have no greater right to attempt to force a 
place of business to close on Sundays than has any 
other group of citizens and at the same time no less 
right. We must measure the right of the respective 
parties to Sunday closing controversy by general 
principles . . .”

Therefore, this case might be decided upon principles of 
those cases dealing generally with picketing.

There can no longer be question that the right peacefully 
to picket is encompassed within the constitutional guarantee 
of freedom of speech and freedom of dissemination of ideas. 
Thornhill v. Alabama, supra; A. F. of L. v. Swing, supra, 
[fol. 29] Park and Tilford Etc. Corp. v. Teamsters, supra; 
Lisse v. Local Union, 2 Cal. (2d) 312. Peaceful picketing 
cannot, under the Fourteenth Amendment, be prevented



23

by statute (Thornhill v. Alabama, supra) nor by injunction 
in a State Court (A. F. of L. v. Swing, supra).

In the recent Park & Tilford case, the Court held that 
peaceful picketing could not be enjoined regardless of the 
object of such picketing. Even though the picketing was 
in support of demands which were not only “ ill advised 
but unlawful” (27 Cal. (2d) at 603), it was held that while 
the demands could be enjoined, the picketing could not. 
In this case, the defendant union represented none of the 
plaintiff’s employees, a majority of whom belonged to 
another union. The defendants demanded that the plaintiff 
sign a closed shop agreement with it, although had the 
plaintiff done so, the plaintiff would have been in violation 
of the National Labor Relations Act. The Plaintiff prop­
erly, the Court said, refused this demand and the defend­
ants picketed the plaintiff employer’s place of business. In 
affirming the right to picket the Court stated (27 Cal. (2d) 
at 607):

“ In the present case, the unlawfulness of defend­
ants’ conduct lies in their demands that plaintiff sign 
a closed shop contract with them and coerce its em­
ployees to join defendant unions before they have ob­
tained the requisite majority. Their concerted action 
for a closed shop is unlawful when divorced from these 
demands; it must be divorced when the demands are 
enjoined.

“ Picketing and boycotting unquestionably entail a 
hardship for an employer when they affect his business 
adversely. The adverse effect upon the employer’s 
business that may result from the competition among 
workers for jobs is comparable to the adverse effect 
on his business that may result from his own competi­
tion with other employers. It is one of the risks of 
business . . .”

[fol. 30] Clearly, this disposes of the plaintiff’s allegation 
that defendants are interfering with its “ right to do busi­
ness” (Complaint Paragraph VIII), the “ irreparable dam­
age” (Complaint, Paragraph VII) and “ loss of customers 
to competitors.” The picketing, being peaceful, is lawful. 
The demands, (i.e., increasing the proportion of Negroes 
and demanding the discharge of certain employees,) being 
lawful, cannot be enjoined. The conduct of the defendants



24

being protected by the Constitution, the resultant effect on 
plaintiff is “ one of the risks of business.”

In its Memorandum of Points and Authorities, plaintiff 
relies heavily on Steiner v. Long Beach, Local No. 128,
19 Cal. 92d)" 676 and Magill v. Building Service Union,
20 Cal. (2d) 506. In the Magill case the Court found that 
the pickets were disseminating false and untruthful state­
ments. It should be noted firstly, that there is no allegation 
in the complaint that the defendants uttered any false or 
untruthful statements in connection with their picketing; 
on the contrary, the Counter Affidavits affirmatively allege 
that the placards carried by the pickets were truthful and 
gave a fair version of the dispute between plaintiff and 
defendants. (See Cafeteria Union v. Angelos, 320 U. S. 
293 for a holding that pickets statements must be viewed 
liberally and that “ loose language” and “ undefined slo­
gans” are permissive.) Thus the Magill doctrine is not 
involved in this case.

In the second place, the Magill case expressly held (20 
Cal (2d) at 512) that only the false or misleading state- 
[fol. 31] ments could be prevented and that if so restrained 
the defendants could exercise ‘ ‘ their right to picket. ’ ’ Hence 
both the temporary restraining order and the requested 
preliminary injunction, seeking to enjoin all picketing, go 
beyond the holding of the Magill case.

The Steiner case involved picketing enmeshed in acts 
of violence. Obviously, this case is not in point. There is 
not a word in any of the documents on file herein charging, 
or from which it could be inferred, that the picketing here 
was other than peaceful and orderly. Moreover, even in the 
“ violence” cases (Steiner v. Long Beach etc. Union, supra; 
Milk Wagon Drivers Union v. Meadowbrook, 312 U. S. 287) 
picketing cannot be enjoined unless there is an overwhelm­
ing pattern of violence, so that “ the momentum of fear 
generated by past violence would survive even though 
future picketing might be wholly peaceful. . . .’’ Isolated 
or sporadic instances of violence do not warrant an injunc­
tion (A. F. of L. v. Swing, supra; McKay v. Retail etc. 
Union, supra). Euclid Candy Co. v. International Long­
shoremen 49 Cal. App. (2d) 137, the only other California 
case cited by plaintiff, is likewise a case of a pattern of 
continued violence and one of false and misleading liter­
ature, and as such, has been disposed of by the previous 
discussion.



25

There Are No Facts Alleged Justifying Equitable Relief 
to Plaintiff.

As already pointed out, the complaint does not allege 
any facts (as distinguished from conclusions) which justify 
[fol. 32] an injunction or a restraining order against the 
defendants. In McKay v. Retail Automobile etc., Union, 
16 Cal (2d) 311, 320, the Court stated:

“ It is a fundamental principle that the drastic sanc­
tion of equity may not be invoked without a detailed 
showing of specific facts justifying such relief. This 
rule is applicable to suits for injunction in labor con­
troversies and has been so applied in this State. ’ ’

As. Justice Traynor stated in the Park & Tilford case, 
the most recent California utterance on the subject of 
picketing (27 Cal. (2d) at 608-9):

“ Injunctions in labor disputes have not generally 
proved to be an effective means of settling them; 
frequently they have aggravated rather than allayed 
a conflict. They have the deceptive appeal of the quick 
and easy and therein lies their danger, for disputes 
between workers and employers, now often complicated 
by internecine disputes among workers themselves, are 
not always of a comparable simplicity. There are many 
currents of conflict in the mainstream of labor rela­
tions, variable, unpredictable, subsiding at times as 
quickly as they arise. For the most part they can be 
controlled, not by the courts but by the Legislature, 
whenever the necessity arises and to whatever degree 
the public interest requires.”

For the foregoing reasons, it is respectfully submitted 
that the temporary restraining order should be dissolved, 
the preliminary injunction should be denied, and that the 
defendants ’ Motions with respect thereto should be granted.

Respectfully submitted, Edises, Treuhaft & Condon 
by Robert Condon, Attorneys for Defendants John 
Hughes, Louis Richardson, and such of the defend­
ants as have been served.

Dated May 23, 1947.

III



26

[fol. 33] (Affidavit of Service by Mail omitted in printing.)

[fol. 34] [File endorsement omitted]

I n  S u pe r io r  C ourt  of C ontra  C osta C o u n ty  

[Title omitted]

C o u n t e r  A ffid a v it  of J o h n  H u g h e s—Filed May 26, 1947

S tate  of C a l ifo r n ia ,
County of Contra Costa, ss :

John Hughes, being first duly sworn deposes and says:
That be is the secretary of the Richmond Branch, Pro­

gressive Citizens of America, an unincorporated association 
(not named as a defendant herein) and a member, but not 
an officer or official of Progressive Citizens of America, an 
unincorporated association and that he is not an officer of 
official of Progressive Citizens of America, Canal Club, an 
unincorporated association; that Progressive Citizens of 
America, Canal Club, is a subordinate division of Progres­
sive citizens of America, Richmond Branch; that he makes 
[fol. 35] this affidavit in his individual capacity and in what­
ever representative capacity this Court may later determine 
he has.

A majority of the members of Progressive Citizens of 
America, Richmond Branch and Progressive Citizens of 
America, Canal Club are workers in various trades and 
industries in the San Francisco Bay Area, including a num­
ber of unemployed members, and including qualified retail 
clerks. Approximately fifty per cent of the members of 
both the Richmond Branch and Canal Club are Negroes.

That on or about May 17, 1947, your affiant, Louis Rich­
ardson president of the Richmond Chapter of the National 
Association for the Advancement of Colored People, a Mrs. 
Russell, a Mr. Harris and a Mr. Clark met with some officials 
of plaintiff whose names he believes to be Mr. Myers, Mr. 
Young and an unidentified person who stated that he was 
the attorney for plaintiff. That your affiant and Louis 
Richardson were the principal spokesman for the group 
with your affiant. That your affiant protested to the above 
described officials of the plaintiff, regarding the actions of



27

certain employees of plaintiff in connection with the arrest 
by these employees of one McKennley Jackson, allegedly 
guilty of petty theft. That the protest was against the 
action of these employees in using unnecessary force against 
Jackson in making the arrest, including physically striking 
Jackson at a time when his hands wTere being held; that in 
addition your affiant and those with him protested the reck­
less firing of a shot from a pistol by one of plaintiff’s em­
ployees in front of plaintiff’s place of business, and in a 
crowded neighborhood, where children and other residents 
were endangered by the course of the bullet from the pistol; 
[fol. 36] That your affiant and those with him requested the 
discharge or transfer of the employee responsible for the 
reckless firing of the pistol in a congested area. That plain­
tiff’s representatives admitted that a shot had been fired 
on the street adjacent to plaintiff’s place of business and 
stated that the employee who fired the shot was no longer 
working at the Canal Store of plaintiff where the alleged 
petty theft took place. Your affiant later learned that the 
employee who fired the pistol was the manager of the store 
and that he had not been discharged or transferred as stated 
by plaintiff’s representative.

Your affiant and those with him also requested the plain­
tiff’s representatives to hire gradually at the Canal Store 
of plaintiff Negro clerks until the proportion of Negro 
clerks to white clerks approximated the proportion of Negro 
and white customers. Your affiant and those with him re­
quested that the increase in the proportion of Negro to white 
clerks take place as white clerks quit their employ or were 
transferred by plaintiff. Your affiant and those with him 
explicitly stated that they were not requesting the discharge 
of any of the present employees of the Canal Store, but 
were requesting only the vacancies be filled with Negroes 
until the approximate proportion was reached. That ap­
proximately 50% per cent of the customers of Canal Store 
are Negroes. Plaintiff’s representatives refused to discuss 
the subject of having the Negro and white clerks at the 
Canal Store approximate the proportion of Negro and white 
customers. At this point the discussion ended.
[fol. 37] That your affiant, and he is informed and believes, 
those with him, had no knowledge of any alleged contract 
or any of the provisions of such contract, between plaintiff 
and Retail Clerks Union, Local No. 179, or any other union. 
That your affiant has been informed and believed that some



28

or all of plaintiff’s employees were members of the Retail 
Clerks Union, Local 179. That approximately a year ago 
yonr affiant visited the offices of Retail Clerks Union, Local 
No. 179. That he was informed by officials of such Union 
that the Union accepted Negroes as members and had no 
objection to the hiring of Negro clerks by the plaintiff, pro­
viding that such Negroes became members of the Union.

That your affiant is informed and believes that Retail 
Clerks Union, Local 179, has Negro members unemployed 
and can supply qualified Negro clerks to any employer re­
questing such clerks. That Progressive Citizens of 
America, Richmond Branch and Progressive Citizens of 
America, Canal Club, have as members Negroes who are 
qualified clerks and can supply such persons to Retail Clerks 
Union, Local 179 or to plaintiff, and such persons will join 
Retail Clerks Union, Local No. 179.

That on or about May 19, 1947, members of Progressive 
Citizens of America, Richmond Branch and of other organi­
zations picketed plaintiff’s Canal Store and continued until 
May 21,1947, when picketing ceased. That there were never 
more than six pickets patrolling an area more than 100 feet 
wide. That the pickets were peaceful, that there was 
violence, and that plaintiff’s employees and customers had 
[fol. 38] free egress and ingress to the said store without 
harassment or molestation. That the pickets were orderly 
and no comments to any of the plaintiff’s customers or 
employees. That the pickets carried placards which were 
truthful and contained no misrepresentations or fraudulent 
statements. That the words on the placards were to the 
effect that plaintiff refused to hire at its Canal Store a pro­
portion of Negro and white clerks approximating the pro­
portion of Negro and white customers at such store; and 
that plaintiff refused to discharge or transfer the employee 
who fired a pistol in the congested area adjacent to plain­
tiff’s store.

Further your affiant sayeth not.
John E. Hughes.

Subscribed and sworn to before me on this 23rd day 
of May, 1947. Robert L. Condon, Notary Public in 
and for the County of Contra Costa, State of Cali­
fornia. (Seal.)



I n  S u pe r io r  C ourt  op C ontra  C osta C o u n t y  

[Title omitted]

C o u n t e r  A ppid a v it  op L o u is  R ic h a r d so n—Filed May 26,
1947

S tate  op Ca l ifo r n ia ,
County of Contra Costa, ss:

Louis Richardson, being first duly sworn, deposes and 
says:

That he is the president of the Richmond Chapter, Na­
tional Association for the Advancement of Colored People, 
an unincorporated association, and a member, but not an 
officer or official of the National Association for the Ad­
vancement of Colored People, both herein sometimes collec­
tively called the NAACP; the primary purpose of the 
NAACP is to promote the social and economic advancement 
of Negro people; to assist Negroes in finding employment 
[fol. 40] and to encourage in business and industry full 
and fair employment of Negroes. Of particular concern 
to the Richmond Branch of NAACP is finding jobs for, and 
preventing discrimination against, the employment of un­
employed Negro citizens; that he makes this affidavit in 
his individual capacity and in whatever representative 
capacity this Court may later determine he has.

A majority of the members of the NAACP are workers 
in various trades and industries in the San Francisco Bay 
area, including a number of unemployed members and in­
cluding qualified retail clerks. Approximately ninety-eight 
per cent of the members of both the Richmond Chapter 
and the National NAACP are Negroes. There are approxi­
mately five hundred members of the Richmond Branch of 
the NAACP.

That on or about May 17,1947, your affiant, John Hughes, 
secretary of one Richmond Branch, Progressive Citizens 
of America, a Mrs. Russell, a Mr. Harris and a Mr. Clark 
met with some officials of plaintiff whose names he believes 
to be Mr. Myers, Mr. Young and an unidentified person who 
stated that he was the attorney for plaintiff. That your 
affiant and John Hughes were the principal spokesman for 
the group with your affiant. That your affiant protested

29

[fol. 39] [File endorsement omitted]



30

to the above described officials of the plaintiff regarding 
the actions of certain employees of plaintiff in connection 
with the arrest by these employees of one McKennley Jack- 
son allegedly guilty of petty theft. That the protest was 
against the action of these employees in using unnecessary 
force against Jackson in making the arrest, including 
[fol. 41] physically striking Jackson at a time when his 
hands were being held; that in addition your affiant and 
those with him protested the reckless firing of a shot from 
a pistol by one of plaintiff’s employees in front of plaintiff’s 
place of business, in a crowded neighborhood, where chil­
dren and other residents were endangered by the course 
of the bullet from the pistol; That your affiant and those 
with him requested the discharge or transfer of the em­
ployee responsible for the reckless firing of the pistol in 
a congested area; That plaintiff’s representatives admitted 
that the shot had been fired on the street adjacent to plain­
tiff’s place of business and stated that the employee who 
fired the shot was no longer working at the Canal Store of 
plaintiff where the alleged petty theft took place. Your 
affiant later learned that the employee who fired the pistol 
was the manager of the store and that he had not been dis­
charged or transferred as stated by plaintiff ’s representa­
tive. Your affiant and those with him also requested the 
plaintiff’s representatives to hire gradually at the Canal 
Store of plaintiff Negro Clerks until the proportion of 
Negro clerks to white clerks approximated the proportion 
of Negro and white customers. Your affiant and those with 
him requested that the increase in the proportion of Negro 
to white clerks take place as white clerks quit their employ 
or were transferred by plaintiff. Your affiant and those 
with him explicitly stated that they were not requesting 
the discharge of any of the present employees of the Canal 
Store, but were requesting only that vacancies be filled 
with Negroes until the approximate proportion was reached, 
[fol. 42] Plaintiff’s representatives refused to discuss the 
subject of having the Negro and white clerks at the Canal 
Store approximate the proportion of Negro and White 
customers. At the point the discussion ended.

That your affiant, and he is informed and believes, those 
with him had no knowledge of any alleged contract, or any 
of the provisions of such contract, between plaintiff and 
Retail Clerks Union, Local No. 179, or any other Union.



81

That your affiant is informed and believes that Retail 
Clerk Union, Local 179, has Negro members unemployed 
and can supply qualified Negro clerks to any employer re­
questing such clerks. That the NAACP, Richmond Branch, 
have as members Negroes who are qualified clerks and 
can supply such persons to Retail Clerks Union, Local 179 
or to plaintiff, and such persons will join Retail Clerks 
Union, Local No. 179.

That on or about May 19, 1947, members of the NAACP, 
Richmond Branch and of other organizations picketed 
plaintiff’s Canal Store and continued until May 21, 1947, 
when picketing ceased. That there were never more than 
six pickets patrolling an area more than 100 feet wide, 
that the pickets were peaceful, that there was no violence, 
and that plaintiff’s employees and customers had free 
egress and ingress to the said store without harassment or 
molestation. That the pickets were orderly and made no 
comments to any of plaintiff’s customers or employees. 
That the pickets carried placards which were truthful 
and contained no misrepresentations or fraudulent state­
ments. That the words on the placards were to the effect 
that plaintiff refused to hire at its Canal Store a propor- 
[fol. 43] tion of Negro and white clerks approximating the 
proportion of Negro and white customers at such store; 
and that plaintiff refused to discharge or transfer the em­
ployee who fired a pistol in the congested area adjacent 
to plaintiff’s store.

Further your affiant sayeth not.
Louis Richardson.

Subscribed and sworn to before me this 23rd day of 
May, 1947.

Robert L. Condon, Notary Public in and for the 
County of Contra Costa, State of California. (Seal)

[fob 44] [Affidavit of service by mail omitted in printing]



32

I n  S u pe r io r  C o urt  op C ontra  C osta C o u n t y  

[Title omitted]

M em o r a n d u m  op P o in ts  and  A u t h o r it ie s—Filed May 26
1947

I
Actual fraud consists in any of the following acts . . . 

‘ ‘ The suggestion as a fact of that which is not true by one 
who does not believe it to be true;” California Civil Code 
1572.

[fol. 45] [File endorsement omitted]

II
Untruthful picketing constitutes illegal economic coercion 

and will be enjoined. The Constitutional guarantee of free- 
[fol. 46] dom of press, assemblage and speech has as an 
incident the right of workmen to combine to bring certain 
forms of economic pressure to bear upon an employer, pro­
vided however, that the object sought to be accomplished 
thereby has a reasonable relationship to the betterment of 
labor conditions and they act reasonably and honestly.
Steiner vs. Long Beach, Local No. 128 (1942, 19 Cal., 
2nd 676)

A. ‘ ‘ The policy of this State which characterizes the use 
of false or fraudulent statements in picketing is unlawful 
is within the permissible limits which a state may impose 
upon industrial combatants without impairing the right of 
free speech.”

Magill Bros. vs. Building Service etc. Union, 20 Cal. 2nd 506.

III
An employer is entitled to an injunction prohibiting pick­

eting of his business when the following facts exist: (1) 
None of its employees are engaged in a labor dispute or 
strike against it and are satisfied with all terms of their 
employment including wages, hours and working conditions ; 
(2) The wages and conditions in effect are as good or better 
than those of any other business of the same nature in the 
same general locality; (3) The banners and signs carried



33

by the pickets convey false information to the general 
public in as far as the employer is concerned.
[fob 47] Magill Bros. vs. Building Service Etc. Union, 20 
Cal. 2nd 506; Euclid Candy Company vs. International 
Longshoremen and Warehousemens’ Union (1942-49 Cal. 
App. 2nd 137).

IV
Although permitted considerable latitude in picketing 

the places of business of Lucky Stores, Incorporated, de­
fendants should be held by this Court to the following limi­
tations :

(1) Their conduct should not be fraudulent or lacking in 
good faith.

(2) They shall be truthful and honest in the exercise of 
such powers.

(3) They shall act in such a manner as not. to violate 
good morals or natural justice, and if the union’s very 
great powers are exercised in derogation of these rules, 
they should be enjoined.

Magill Bros. vs. Building Service Etc. Union, 20 Cal. 2nd 
506.

V
“ The purpose of the defendants in having members of 

one race discharged in order to employ the members of 
another race will not justify (this) direct damage to the 
plaintiff in the conduct of its business.” The dispute here 
is solely racial. The members of the defendant organiza­
tions do not belong to a single trade or industry, nor are 
they picketing Lucky Stores, Incorporated because of 
grievances of hours, of labor or wages.

The preliminary injunction should therefore, be granted.
A. S. Beck Shoe Corporation vs. Johnson, 274 N. Y. 
Supp. 946.

Hoey & Hoey, Attorneys for Plaintiff.

3—61



34

[fo l. 48 ] I n  S u p e r io r  C ourt of C ontra  C osta C o u n t y

[Title omitted]

O rder for  I ssu a n c e  of P r e l im in a r y  I n ju n c t io n —May 26,
1947

The hearing on the order to show cause and temporary 
restraining order heretofore issued out of the Court, comes 
regularly before the Court at this time, Hoey and Hoey, by 
Francis Hoey appearing as counsel for plaintiff and moving- 
party, and Edises; Treuhaft and Condon, by Robert Con­
don, appearing as counsel for the defendants.

Counsel for defendants file in open Court the Counter 
Affidavits of John Hughes and Louis Richardson.

The matter is argued to the Court by counsel and sub­
mitted to the Court for consideration and decision and the 
Court having fully considered the same and being- duly 
advised in the premises orders that a preliminary injunc­
tion issue out of the Court enjoining and restraining said 
defendants as prayed for in the complaint on file herein.

[fols. 49-51] Bond on injunction for $1,000.00 approved 
and filed June 5, 1947, omitted in printing.

[fol. 52] [File endorsement omitted]

I n  S u pe r io r  C ourt  of C ontra  C osta C o u n ty  

[Title omitted]

O rder G r a n t in g  P r e l im in a r y  I n ju n c t io n —Filed June 5,
1947

An order having heretofore, to-wit: on the 20th day of 
[fol. 53] May, 1947, issued in the above entitled action re­
quiring the defendants to be and appear before this court 
at the hour of ten o’clock a. m. on the 26th day of May, 
1947, then and there to show cause why they, their agents, 
servants, employees and attorneys should not be enjoined 
and restrained during the pendency of this action from the 
commission of certain acts as in the complaint filed in 
this action are particularly set forth and described, and 
proof having been made to the satisfaction of the court that



copies of said order and complaint were personally served 
upon defendants in the time required by the order, and 
the hearing of said order having come regularly on to be 
heard, Hoey & Hoey, by Francis Hoey, appearing as counsel 
for plaintiff, and Robert Condon appearing as counsel for 
defendants, and the court being fully advised in the prem­
ises, and good cause appearing therefor:

It is hereby ordered that a preliminary injunction be, 
and the same is hereby granted restraining defendants from 
picketing or taking position in front of any of the places 
of business of Lucky Stores, Incorporated, for the purpose 
of compelling plaintiff to do any of the following acts:

(1) the selective hiring of negro clerks, such hiring to 
be based on the proportion of white and negro customers 
who patronize plaintiff’s stores;

(2) the discharge of those employees participating in 
the apprehension and arrest of McKinnley Jackson, a col­
ored person accused of the theft of sis pounds of bacon from 
one of plaintiff’s store units located near the Canal Housing 
[fol. 54] Project, Richmond, California.

Plaintiff shall give a surety bond in the sum of One 
Thousand Hollars ($1000).

Hated this 4 day of June, 1947.
Hugh H. Honovan, Judge of the Superior Court.

[fols. 55-58] Citations in usual form showing service on 
Louis Richardson and John Hughes, filed June 23, 1947, 
omitted in printing.

[fo l. 59] I n  S u p e r io r  C ourt op C ontra  C osta C o u n ty

M in u t e  E n tr y  o p  J u d g m e n t— June 23,1947
Francis Hoey, counsel for plaintiff and Robert Condon, 

appearing in behalf of defendants, appear in open Court at 
this time.

Thereupon counsel for defendants orally moves the Court 
to vacate and set aside the order granting preliminary in­
junction, heretofore made and entered herein; on the 
grounds that John Hughes and Louie Richardson, two of



36

the defendants herein, violated said order granting pre­
liminary injunction, by picketing and carrying banners in 
front of the business of Lucky Stores, Incorporated, the 
plaintiff herein.

Said motion is submitted to the Court for consideration 
and decison and the Court having fully considered the same 
and being duly advised in the premises, orders that said 
motion to dissolve the other granting preliminary injunc­
tion, be and the same is hereby denied.

The Court finds that the said John Hughes and Louie 
Richardson, are guilty of contempt of Court for wilfully 
disregarding the order of the Court heretofore made on 
the 4th day of June, 1947, and it is ordered that said defend­
ants be punished by imprisonment in the Contra Costa 
County Jail for a period of two (2) days. It is further 
[fol. 60] ordered that the defendants and each of them, pay 
a fine of $20.00, to the County of Contra Costa,

Thereupon on motion of Robert Condon, counsel for said 
defendants, a 10 day stay of execution is granted herein.

[fol. 61] Clerk’s Certificate to foregoing transcript omitted 
in printing.

[fol. 62] [File endorsement omitted]

l x  D is t r ic t  C ourt  or A p p e a l , S tate  oe C a l ifo r n ia , F ir st  
A ppe l l a t e  D is t r ic t , D iv isio n  O n e

No. 13535
J o h n  H u g h e s  and Louis R ic h a r u so n , Petitioners,

v.
S u pe r io r  C ourt  of t h e  S ta te  of C a l ifo r n ia  in  and  for  t h e  

C o u n t y  of C ontra  C osta , Respondent
P e t it io n  fo r  W r it  of C ertiorari—Filed June 23, 1947

To the Honorable, the District Court of Appeal, First 
Appellate District, Division One, of the State of California, 
the petitioners John Hughes and Louis Richardson respect­
fully say:

I
That the Superior Court of the State of California in and 

for the County of Contra Costa, the respondent herein, is



37

now, and has been at all times herein mentioned, an inferior 
tribunal exercising judicial functions.

II
That on the 20th day of May, 1947, a Complaint was filed 

in the said Superior Court entitled “ Lucky Stores, Incor­
porated, a Corporation, Plaintiff, vs. Progressive Citizens 
of America, an unincorporated association; Progressive 
[fol. 63] Citizens of America, Canal Club, an unincorporated 
association; Canal Precinct Club, Richmond Chapter, Pro­
gressive Club of America, an unincorporated association; 
Mrs. E. Williams, individually and in her representative 
capacity; Mrs. F. Anderson, individually and in her repre­
sentative capacity; Glen Mapes, individually and in his 
representative capacity; John Hughes, individually and in 
his representative capacity; The National Association for 
the Advancement of Colored People, an unincorporated 
association; First Doe, Second Doe, Third Doe, Fourth Doe, 
Fifth Doe, Sixth Doe, Seventh Doe, Eighth Doe, Ninth Doe, 
Tenth Doe, Eleventh Doe, Twelfth Doe, Thirteenth Doe, 
Fourteenth Doe, Fifteenth Doe, Sixteenth Doe, Seventeenth 
Doe, Eighteenth Doe, Nineteenth Doe, Twentieth Doe, 
Twenty-first Doe, Twenty-second Doe, Twenty-third Doe, 
Twenty-fourth Doe and Twenty-fifth Doe, Defendants.” , 
being case No. 39861 in the docket of the respondent; that 
on the 20tli day of May, 1947, a summons was issued in the 
said case, and on the 20th day of May, 1947, a temporary 
restraining order and order to show cause were issued by 
the respondent ; that on the 27th day of May, 1947, pursuant 
to the order to show cause, a hearing was held before the 
Honorable Hugh H. Donovan, Judge of the respondent, at 
the Court House of respondent in Martinez, California; 
that at such time and place, Honorable Hugh H. Donovan, 
Judge of respondent, issued at the request of the plaintiff, 
Lucky Stores, Incorporated, in said action, a preliminary 
injunction restraining the defendants, including your peti­
tioners, from picketing or taking a position in front of any 
of the places of business of Lucky Stores, Incorporated, the 
[fol. 64] plaintiff in the said action; that a copy of the Order 
Granting Preliminary Injunction is attached hereto, marked 
Exhibit A, and by this reference incorporated herein as if 
set forth in full at this point; that on the 21st day of June, 
1947, your petitioners picketed in front of the Canal Store 
of Lucky Stores, Incorporated, which store is located in the



38

City of Richmond, County of Contra Costa, State of Cali­
fornia, bearing placards which carried the following legend: 
“ Lucky Won’t Hire Negro Clerks in Proportion to Negro 
Trade—Don’t Patronize” ; that on the 21st day of June, 
1947, your petitioners were served with a citation to appear 
on the 23rd day of June, 1947 before Honorable Hugh IT. 
Donovan, Judge of respondent, and show cause why they 
should not be adjudged in contempt; that on the 23rd day 
of June, 1947, Honorable Hugh H. Donovan found and ad­
judged your petitioners in contempt of the aforesaid pre­
liminary injunction and sentenced your petitioners to two 
days in the County Jail or to pay Twenty Dollars fine for 
the said contempt.

I l l
That the respondent, and the Honorable Hugh H. Dono­

van as Judge thereof, acted in excess and beyond its juris­
diction in issuing the aforesaid preliminary injunction and 
in finding your petitioners guilty of contempt in th a t:

A. On the 21st day of June, 1947, and prior to the 20th 
day of May, 1947, your petitioners and the defendants in 
the said case No. 39861, above referred to, were picketing 
to secure a change of employment policy and working con­
dition of Lucky Stores, Incorporated by seeking to have 
[fol. 65] Lucky Stores, Incorporated hire at its Canal Store 
in the City of Richmond, County of Contra —, State of Cali­
fornia, a number of Negro clerks proportionate to the num­
ber of Negro customers of said Canal Store, and to compel 
Lucky Stores, Incorporated to discharge one employee of 
its Canal Store. A demand for these changes in employment 
policy was made by your petitioners upon Lucky Stores, 
Incorporated before any picketing was done at the said 
Canal Store, which demand related to future vacancies and 
did not, with the one exception noted, contemplate the dis­
charge of any of the present personnel of said Canal Store.

B. Your petitioner John Hughes is a member and officer 
of Progressive Citizens of America, an unincorporated as­
sociation, an organization with a substantial number of 
Negroes as members, in the City of Richmond, County of 
Contra Costa, State of California. Your petitioner Louis 
Richardson is a member and officer of the National Associ­
ation for the Advancement of Colored People, an organiza­
tion with a substantial number of Negroes as members, in



39

the City of Richmond, County of Contra Costa, State of 
California.

C. Your petitioners, individually, and as officers of the 
Progressive Citizens of America and the National Associa­
tion for the Advancement of Colored People, respectively, 
and the defendants in Case No. 39861, have an interest in 
promoting the employment by Lucky Stores, Incorporated 
of Negro personnel and in improving the employment pos­
sibilities of Negro citizens, particularly of those Negro citi­
zens who are members of the defendant organizations.
[fob 66] D. The picketing conducted by your petitioners 
in their individual and representative capacities, and by the 
defendants in Case No. 39861, was designed to promote and 
foster the aforesaid interest in increasing the employment 
possibilities of Negro citizens.

E. The City of Richmond, County of Contra Costa, State 
of California, has a large and growing Negro population in 
excess of ten thousand persons; unemployment among this 
Negro population is greatly disproportionate to the unem­
ployment among the white persons in Richmond; tradition­
ally, many industries and occupations are closed to Negroes 
and will remain closed unless the Negro people can make 
effective their demand to obtain equality of opportunity for 
employment and to prevent economic discrimination 
against Negroes.

F. The picketing by your petitioners on the 21st day of 
June, 1947, and by the defendants in Case No. 39861, prior 
to the 20th day of May, 1947, when the aforesaid prelimi­
nary restraining order was issued, was peaceful and orderly, 
without force or violence; the pickets did not prevent the 
customers and employees of Lucky Stores, Incorporated, in 
going to and from the said Canal Store; the picketing was 
unaccompanied by misrepresentation, threats or intimida­
tion of any sort.

Gr. The right of your petitioners as aforesaid to picket 
the said Canal Store of Lucky Stores, Incorporated, is one 
guaranteed by the Constitution of the United States in the 
First and Fourteenth Amendments thereof, and by Article I, 
Section 9 of the Constitution of the State of California.



40

[fol. 67] IV
That counsel for the defendants in the aforementioned 

Case No. 39861 raised the constitutional and jurisdictional 
question prior to issuance of the preliminary injunction by 
motions, a written memorandum and oral argument, and 
that counsel for your petitioners raised the constitutional 
and jurisdictional question at the time your petitioners were 
found guilty of contempt.

V
That your petitioners are without a plain, speedy and 

adequate remedy other than by the issuance of the writ 
hereinafter prayed, inasmuch as the respondent has found 
them guilty of contempt, a non-appealable order.

VI
The real party in interest and the party whose interest 

would be directly affected by this proceeding is Lucky 
Stores, Incorporated, a corporation.

Wherefore, your petitioners pray that a Writ of Certi­
orari be issued out of this Court to the said Superior Court 
of California in and for the County of Contra Costa, com­
manding it to certify fully at a time and place specified in 
said writ, a transcript of the record and proceedings, in­
cluding the pleadings and all papers on file, in the case en­
titled “ Progressive Citizens of America, an unincorporated 
association; Progressive Citizens of America, Canal Club, 
an unincorporated association; Canal Precinct Club, Rich­
mond Chapter, Progressive Club of America, an unincorpo- 
[fol. 68] rated association; Mrs. E. Williams, individually 
and in her representative capacity; Mrs. F. Anderson, indi­
vidually and in her representative capacity; Glen Mapes, 
individually and in his representative capacity; John 
Hughes, individually and in his representative capacity; 
The National Association for the Advancement of Colored 
People, an unincorporated association; Richmond Chapter 
of The National Association for the Advancement of Col­
ored People, an unincorporated association; First Doe, 
Second Doe, Third Doe, Fourth Doe, Fifth Doe, 
Sixth Doe, Seventh Doe, Eighth Doe, Ninth Doe, Tenth 
Doe, Eleventh Doe, Twelfth Doe, Thirteenth Doe, Four­
teenth Doe, Fifteenth Doe, Sixteenth Doe, Seventeenth Doe,



41

Eighteenth Doe, Nineteenth Doe, Twentieth Doe, Twenty- 
first Doe, Twenty-second Doe, Twenty-third Doe, Twenty- 
fourth Doe and Twenty-fifth Doe, Defendants”, Case No. 
39861, that the same may be reviewed by this Court, 
and that thereupon this Court do review said proceeding 
and do annul said judgment of contempt and said prelim­
inary injunction, and for such other relief as may be just.

Edises, Treuhaft & Condon, By Robert L. Condon, 
1440 Broadway, Oakland, California. Tel: Glen- 
court 7512.

[fol. 69] Duly sworn to by John Hughes and Louis Rich­
ardson. Jurat omitted in printing.

[fols. 70-72] Exhibit “A ” Omitted. Printed side page 72 
ante.

[fol. 73] Receipt of a copy of the within Petition for Writ 
of Certiorari is hereby admitted this 23rd day of June, 1947. 

Superior Court of the State of California in and for 
the County of Contra Costa, W. T. Paasch, by 
W. E. Tarsell. Francis Collins, District Attorney, 
Contra Costa County, by Francis W. Collins. 
Lucky Stores, Incorporated, by Hoey & Hoey, Its 
Attorneys.

[fol. 74] [File endorsement omitted]
I n  D ist r ic t  C ourt  of A p p e a l , S ta te  of C a l ifo r n ia , F irst  

A p p e l l a t e  D is t r ic t , D iv is io n  O n e

No. 13535
J o h n  H u g h e s  and  L o u is  R ic h a r d so n , Petitioners,

v.
S u per io r  C ourt  of t h e  S tate  of C a l ifo r n ia  in  and  for  t h e  

C o u n ty  of C ontra  C osta, Respondent
W r it  of C ertiorari—Filed July 11, 1947

The People of the State of California to Superior Court 
of the State of California in and for the County of Contra 
Costa, Respondent:

Whereas, it has been represented to this court by the veri­
fied petition on file herein of John Hughes and Louis Rich­



42

ardson, the parties beneficially interested, that in a certain 
action pending before you entitled Lucky Stores, Incor­
porated, a corporation, Plaintiff, v. Progressive Citizens of 
America, an unincorporated association; Progressive Citi­
zens of America, Canal Club, an unincorporated associa­
tion ; Canal Precinct Club, Richmond Chapter, Progressive 
Club of America, an unincorporated association; Mrs. E. 
Williams, individually and in her representative capacity; 
Mrs. F. Anderson, individually and in her representative 
capacity; Glen Napes, individually and in his representative 
capacity; John Hughes, individually and in his representa­
tive capacity; The National Association for the Advance­
ment of Colored People, an unincorporated association; 
[fol. 75] Richmond Chapter of the National Association for 
the Advancement of Colored People, an unincorporated as­
sociation; First Doe, Second Doe, Third Doe, Fourth Doe, 
Fifth Doe, Sixth Doe, Seventh Doe, Eighth Doe, Ninth Doe, 
Tenth Doe, Eleventh Doe, Twelfth Doe, Thirteenth Doe, 
Fourteenth Doe, Fifteenth Doe, Sixteenth Doe, Seventeenth 
Doe, Eighteenth Doe, Nineteenth Doe, Twentieth Doe, 
Twenty-first Doe, Twenty-second Doe, Twenty-third Doe, 
Twenty-fourth Doe, and Twenty-fifth Doe, Defendants; you, 
exercising Judicial functions, have exceeded your jurisdic­
tion, and that there is no appeal, nor, in the judgment of the 
court, any plain, speedy, and adequate remedy, and 

Whereas, by an order of this court duly given and made 
in the above-entitled action on the 1st day of July, 1947, it 
was ordered that a writ of certiorari should issue to you, 

We, Therefore, Command You, that you certify and 
return to this court at State Building, in the City of San 
Francisco, State of California, on the 25th day of August, 
1947, at 10 o ’clock a. m., a full, true and complete transcript 
of the record and proceedings in the action aforesaid, in­
cluding all papers on file, minute orders and other docu­
ments on file in said case, to the end that the same may be 
reviewed by this court and such action taken thereon as of 
right and as according to law shall be taken and done, and 
that you then and there have this writ, and in the meantime, 
we command and require you to desist from further pro­
ceedings in the matter to be reviewed.

Witness the Honorable A. F. Bray, J., acting presiding 
judge and the judges of the District Court of Appeal, 
First Appellate District, Division One, in the State of



43

California, attested by my hand and the seal of said court 
this 1st day of July, 1947.

Walter S. Chisholm, Clerk, District Court of Appeal, 
State of California, in and for the First Appellate 
District. (Seal.)

[fol. 76] Receipt of a copy of the within Writ of Certiorari 
is hereby admitted this 3d day of July, 1947.

Superior Court of the State of California in and for 
the County of Contra Costa, W. T. Paasch, County 
Clerk, by M. E. Kelly; Francis Collins, District 
Attorney, Contra Costa County, by W. Taylor; 
Lucky Stores, Incorporated, by Hoey & Iioey, by 
Little, Its Attorneys.

[fol. 77] [File endorsement omitted]

I n  t h e  D ist r ic t  C o urt  of A p p e a l , S tate  of C a l ifo r n ia , 
F ir st  Ap p e l l a t e  D is t r ic t , D iv isio n  O n e

[Title omitted]

A n sw e r  and  R e t u r n  to W r it  of C ertio ra ri— Filed August
15, 1947

To the Honorable, District Court of Appeal, First Appel­
late District, Division One, of the State of California:
The return of respondent, The Superior Court of the 

State of California, in and for the County of Contra Costa, 
and of Lucky Stores, Incorporated, the real party in inter­
est, in obedience of the Writ of Certiorari granted in this 
proceeding is as follows:

I
Respondent herein, The Superior Court of the State of 

[fol. 78] California, in and for the County of Contra Costa, 
is and has been at all times mentioned an inferior tribunal 
exercising judicial functions.

II
Respondent admits each and every, all and singular, the 

allegations contained in Paragraph II of the Petition for 
Writ of Certiorari.



44

III
Respondent denies that the respondent, The Superior 

Court of Contra Costa County, acted in excess and beyond 
its jurisdiction in issuing the preliminary injunction and 
in finding petitioners guilty of contempt and further, an­
swering Paragraph III, Subdivision A of the Petition, this 
answering- respondent admits that petitioners and defend­
ants in Case Number 39861 did picket the Canal Street Store 
of Lucky Stores, Incorporated, and did demand the pro­
portional hiring of Negro clerks and the discharge of Lucky 
employees, but denies that the demands related to future 
vacancies and alleges the demands made contemplate the 
discharge of some of the present personnel of said Canal 
Store.

Alleges that said pickets were placed in front of Lucky’s 
Canal Street Store after the events leading up to the arrest 
and apprehension of McKinnley Jackson, which events are 
more fully described in respondent’s Exhibit “ C,” being 
the affidavit of Benjamin J. Linsner, store manager of the 
Canal Street store, annexed hereto and incorporated herein 
[fol. 79] by reference as though fully set forth in this 
answer.

IV
Denies on information and belief the allegations con­

tained in Paragraph III, Subdivision B, C, and D of the 
Petition and further by way of answer to Subdivision E of 
Paragraph III of the Petition respondent denies on infor­
mation and belief the allegations contained in that part 
of said Subdivision beginning with the words ‘ ‘ the City of 
Richmond” and ending with the words “ equality of oppor­
tunity for employment. ’ ’ Respondent denies that Lucky has 
discriminated against the Negro race and alleges that its 
policy throughout has been to hire employees on their indi­
vidual merit and capacity and in this connection respondent 
refers to the affidavit of Otto Meyer, Vice-President of 
Lucky Stores, Incorporated, marked Exhibit “ A,” and the 
affidavit of Albert West, Secretary-Treasurer of Retail 
Clerks Union, Local 1179, marked Exhibit “ B,” annexed 
hereto and by reference incorporated herein as though fully 
set forth in this answer.

And further answering the allegations contained in Sub­
division F of Paragraph III of the Petition for Writ of 
Certiorari respondent admits the picketing prior to the 20th



45

day of May, 1947, and the picketing on the 21st day of June, 
1947, was without force and violence, hut denies that said 
picketing was unaccompanied by misrepresentation.

[fol. 80] Y
Respondent denies that the right of petitioners to picket 

the said Canal Street store, or any other store, is one guar­
anteed by the First and Fourteenth Amendments of the 
Constitution of the United States or by Article I, Section 9 
of the Constitution of the State of California.

VI
Admits the allegations contained in Paragraph IV of the 

Petition.
All of which the respondent hereby certifies and returns 

as commanded by said writ.
Hoey & Hoey, Attorneys for Lucky Stores, Incor­

porated, Real Party in Interest.

[fob 81] Duly sworn to by Francis Hoey. Jurat omitted 
in printing.

[fo b  82] E x h ib it  “ A ”  to A n sw e r  and  R e t u r n

Affidavit
S tate  of C a l ifo r n ia ,

County of Alameda, ss :
Otto P. Meyer, being first duly sworn, deposes and says:
That he is the Vice President of Lucky Stores, Incor­

porated, the real party in interest, in the above entitled 
matter; that he knows of his own knowledge the policy of 
employment followed by Lucky Stores, Incorporated, in 
the matter of hiring and discharging its employees, and 
that the policy long established by said corporation is to 
hire persons purely upon a basis of physical cleanliness, 
mental alertness, moral integrity, and qualifications as to 
experience for a particular job sought to be filled;

That said corporation does not now, nor has it in the 
past, discriminated against the hiring of persons of the 
colored race, and in fact does presently employ seven per­



46

sons of the colored race, to wit: Ed Wallace, John J. Rob­
erts, Joe E. Morris, Arthur L. Warner, Levi Perry, James 
Wagner, and Hollis Haliburton. The company’s experi­
ence to date is that its business is not impaired as a result 
of the employment of Negroes, and the company intends to 
continue to employ in its stores applicants for employ­
ment on the basis of their individual qualifications without 
regard to race, color or national origin. Notice of the 
[fol. 83] company’s intention was given to a Mr. Mapps 
and to Hughes and Richardson, petitioners, on or about the 
10th day of May, 1947, and on or about that date affiant, 
as representative of Lucky Stores, Incorporated, refused 
the demand of Hughes and Richardson that Lucky Stores, 
Incorporated, employ Negroes in proportion to the number 
of Negro patrons and refused also to discharge Mr. Ben­
jamin W. Linsner, manager of the Canal Street Store.

Affiant further deposes and says that said corporation 
has collective bargaining agreements for all of its em­
ployees, except executive and administrative employees, 
with local Labor Unions, in the City and County of San 
Francisco, County of Alameda, County of Santa Clara, 
San Mateo County, and County of Contra Costa; all of said 
Labor Unions are affiliated with the American Federation 
of Labor; that said collective bargaining agreements pro­
vide that corporation, as employer, shall employ only mem­
bers of the particular Union involved, in good standing and 
through the office of the Union, provided that in the event 
the Union cannot meet the request of the employer for an 
employee, the employer may hire a person not affiliated 
with such a Union; that such Union shall maintain a list 
of unemployed members, together with their qualifications, 
and that said employer corporation, must, in good faith, 
secure replacements from said list of unemployed Union 
members, and may only hire a non-member of the Union 
[fol. 84] when the Union cannot furnish a satisfactory 
employee.

Affiant further deposes and says that on information and 
belief that at the present time all of the Unions who are the 
collective bargaining agents for corporation’s employees, 
have and maintain lists of unemployed persons of said 
Unions which would contain satisfactory employees should 
said corporation desire or need additional employees, or 
to replace any present employee.



47

Tour affiant further deposes and says that during No­
vember, 1946, the Knights Political League, a Negro Or­
ganization, represented to affiant and other officers of Lucky 
Stores, Incorporated, that Negroes were having a difficult 
time obtaining employment in the Bay Area and had not 
yet been received into retail stores; the representatives of 
this organization requested that Lucky employ Negroes as 
well as AVhites in its retail stores. That, as a consequence 
in January, 1947, when a vacancy occurred in the Canal 
Street Store, the company employed John Roberts, a Negro; 
he was employed on the same basis as any other store 
employee, and he was given the same training and oppor­
tunity as other employees; that Roberts was first taught 
the trimming of produce, the sorting of bottles and other 
relatively simple tasks, and was then given training in 
stocking the shelves and pricing the goods; that this is 
the type of training given to all clerks at the beginning of 
[fol. 85] their employment with Lucky Stores, Incorporated; 
that thereafter Roberts was put on as a bagger at the 
checking stand and learned how to check out merchandise, 
and that finally he was taught to do checking, i.e., totaling 
the prices of the customers’ merchandise and collecting 
therefor; that he is now a completely qualified sales clerk 
and is employed on the same basis without discrimination 
as all other experienced clerks in the store and is in line 
for advancement to the positions of assistant manager and 
manager on the same basis as other clerks. That the 
checkers, including Roberts, check out goods, handle cash, 
stock the shelves, sign for incoming merchandise, and also 
perform other necessary work as sweeping the floor, sorting 
bottles and the like.

Your affiant further deposes and says that early in 
March, 1947, a second Negro, Joe Morris, was likewise em­
ployed on the same basis as Roberts; that both Roberts and 
Morris are still employed by the company in the Canal 
Street Store, and in all respects are treated the same and 
enjoy the same privileges as white employees.

Otto P. Meyer.
Subscribed and sworn to before me this 15th day of 

August, 1947.
Frederick J. Schoeneman, Notary Public in and for 

the County of Alameda, State of California. 
(Seal.)



48

[fo l. 86] E x h ib it  ‘‘B ”  to A nsw er  and R etu r n

Affidavit
S tate oe Ca lifornia ,

County of Alameda, ss :
Albert West, being first duly sworn, deposes and says:
That he is an officer, to w it: Secretary-Treasurer of Retail 

Clerks Union, Local No. 1179, affiliated with the American 
Federation of Labor through the Retail Clerks International 
Protective Association;

That said Retail Clerks Union, Local 1179 entered 
into a collective bargaining agreement with Lucky Stores, 
Incorporated, plaintiff corporation herein, on the 19th day 
of September, 1946;

That said collective bargaining agreement provides, 
amongst other things, that the employer Lucky Stores, In­
corporated, recognizes the Union, Retail Clerks Union, 
Local 1179 as the sole collective bargaining agency for all 
employees working for the employer within the jurisdiction 
of the Union; said agreement further provides that said 
employer shall employ only members of the Union in good 
standing and through the office of the Union; that the Union 
shall maintain a list of unemployed members, together with 
their qualifications, and in the event said list contains no 
members satisfactory to the employer, employer may hire 
a non-member of the Union.
[fol. 87] Your affiant further deposes and says that as 
Secretary Treasurer of said Union, to wit: Retail Clerks 
Union, Local 1179, that said Union has at present a list of 
unemployed members who are qualified to fill any positions 
which may now be open, or as replacements for present store 
clerk employees of plaintiff corporation, and that if plain­
tiff corporation desires or needs new employees or replace­
ments of present employees they could not at present hire 
any person not a member of the Union, to w it: Retail Clerks 
Union, Local 1179, except in accordance with the terms and 
conditions of said collective bargaining agreement.

Your affiant further deposes and says that said Union, 
to wit: Retail Clerks Union, Local 1179, does not discrimi­
nate in accepting applications for membership in said Union, 
on the basis of color, creed or religion. That such applicants 
must be persons of good moral character and have the phys­
ical and mental ability and alertness to perform the work



49

required to be done by members of said Union in retail 
stores.

Your affiant further deposes and says that there are 
presently members of Retail Clerks Union, Local No. 1179 
who are of the colored race, three of whom are presently em­
ployed as clerks by plaintiff corporation, Lucky Stores, 
Incorporated.

Albert West.

Subscribed and sworn to before me this 15th day of 
August, 1947. Frederick J. Schoeneman, Notary 
Public in and for the County of Alameda, State of 
California. (Seal.)

[fo l. 88] E x h ib it  “ C ”  to A n sw e r , and  R e t u r n

Affidavit
S ta te  of C a l ifo r n ia ,

County of Alameda, ss :
Benjamin W. Linsner, being first duly sworn, deposes 

and says:
That he is the Manager of the Canal Street Store of 

Lucky Stores, Incorporated.
That shoplifting is prevalent in the Canal Street Store. 

That on or about April 20,1947, Lucky Stores, Incorporated, 
placed private detectives in the Canal Street Store for the 
purpose of detecting and preventing shoplifting.

That your affiant further deposes and says that on April 
28, 1947, at about 12:45 p. m. he observed that McKinnley 
Jackson, removed bacon from the self-service meat counter 
and took a bag of sweet potatoes from the produce depart­
ment; that Jackson then passed through the check stand 
with only the potatoes in his apparent possession, and that 
Jackson paid for only the potatoes; that affiant followed 
Jackson out of the store, and when he was a few feet outside 
said, “ Hey, Mister, will you please come back into the store? 
I think there has been a mistake.”

Your affiant further deposes and says that Jackson, in­
stead of complying, threw the potatoes in affiant’s face and 
ran across the parking lot adjacent to the Canal Street 
[fol. 89] Store spilling bacon as he went.

4—61



50

Your affiant further deposes and says that Mr. Young, 
District Manager for Lucky Stores, Incorporated, was in 
the parking lot at the time, and that Mr. Young observed 
affiant and two detectives chasing Jackson; that Mr. Young 
tried to block Jackson and then tackled him as one would 
do in football.

Your affiant further deposes and says that Jackson was 
then asked to go to the store; that Jackson was walking in 
front of affiant and the two detectives and Mr. Young; that 
Jackson, on the way back to the store, slipped away between 
some automobiles and ran across the street.

Your affiant further deposes and says that one of the 
detectives followed Jackson across the street, and that the 
detective fired a shot into the ground for the purpose of 
frightening Jackson and making him stop; that Jackson 
was finally apprehended in the next block by a Richmond 
policeman; that the Richmond policeman brought Jackson 
back to the store and turned him over to the store detectives 
who held him there for a few minutes until the Richmond 
Police took Jackson into custody.

Your affiant further deposes and says that no one struck 
Jackson or in any way molested him except as set forth 
above.

Benjamin W. Linsner.

Subscribed and sworn to before me this 15th day of 
August, 1947. Frederick J. Schoeneman, Notary 
Public in and for the County of Alameda, State of 
California. (Seal.)

[fol. 90] [File endorsement omitted]

I n  D ist r ic t  C ourt  of A p p e a l , S tate  of C a l ifo r n ia , F irst  
A p p e l l a t e  D is t r ic t , D iv is io n  I

[Title omitted]

A n s w e r  to P e t it io n  fo r  W r it  of  C ertiorari

Come now Superior Court of the State of California, in 
and for the County of Contra Costa, and Honorable Hugh H. 
Donovan, respondents above-named, and Lucky Stores,



51

Incorporated, and answering the petition for writ of cer­
tiorari on file herein admit, deny and allege as follows:

I
That Lucky Stores, Incorporated, as appears from the 

writ of certiorari on file herein, is the real party in interest 
in this proceeding.
[fol. 91] II

Respondent herein, Superior Court of the State of Cali­
fornia, in and for the County of Contra Costa, is and has 
been at all times mentioned an inferior tribunal exercising 
judicial functions.

III
Respondent denies that respondent, Superior Court of 

the County of Contra Costa, acted in excess and beyond its 
jurisdiction in issuing the preliminary injunction and in 
finding petitoners guilty of contempt.

IV
Denies on information and belief the allegations con­

tained in Paragraph III, Subdivisions B, C, and D of the 
petition, and further by way of answer to Subdivision E of 
Paragraph III of the petition respondent denies on informa­
tion and belief the allegations contained in that part of said 
Subdivision beginning with the words, “ the City of Rich­
mond, ’ ’ and ending with the words, ‘ ‘ equality of opportunity 
for employment.” Respondent denies that Lucky has dis­
criminated against the Negro race and alleges that its policy 
throughout has been to hire employees on their individual 
merit and capacity.

And further answering the allegations contained in Sub­
division F of Paragraph III of the petition for writ of cer­
tiorari respondent admits the picketing prior to the 20th 
[fol. 92] day of May, 1947, and the picketing on the 21st day 
of June, 1947, was without force and violence, but denies 
that said picketing was unaccompanied by misrepresenta­
tion.

V
Respondent denies that the right of petitioners to picket 

said Canal Street Store, or any other store, is one guaran­
teed by the First and Fourteenth Amendments of the Con­



52

stitution of the United States or by Article 1, Section 9 of 
the Constitution of the State of California.

VI
Admits the allegations contained in Paragraph IV of the 

petition.
VII

Respondent, Superior Court of the State of California, 
in and for the County of Contra Costa, alleges that acting 
as it did at the time of the hearing prior to the granting of 
the preliminary injunction upon the verified complaint, 
counter-affidavits, and argument of counsel with facts before 
it which would sustain its jurisdiction to issue the pre­
liminary injunction; that pursuant to the agreement reached 
by counsel for petitioners and counsel for Lucky Stores, 
Incorporated, as appears more fully from the stipulation 
on file herein, a citation for contempt was issued and served 
without an affidavit for contempt or other formalities being 
carried out.

All of which the respondent hereby certifies and returns 
[fol. 93] as commanded by said writ.

Hoey & Hoey, Attorneys for Respondents.

[fol. 94] Duly sworn to by Hugh H. Donovan. Jurat omit­
ted in printing.

[fols. 95-98] [Pile endorsement omitted]

Isr t h e  D is t r ic t  C o urt  of A p p e a l , S tate  of C a l ifo r n ia , 
F ir st  A p p e l l a t e  D is t r ic t , D iv is io n  O n e

[Title omitted]

R e s p o n d e n t ’s P e t it io n  for  a H ea r in g  by  t h e  S u p r e m e  
C ourt— Filed December 30, 1947

After Decision by the District Court of Appeal, State of 
California, First Appellate District, Division One, and 
Numbered Therein 1, Civil No. 13,535.

[fo l. 99] P reface

Respondent, the Superior Court of the County of Contra 
Costa, is seeking a hearing in this Court after an adverse



53

decision in the District Court of Appeal, upon the ground 
that it is necessary to secure uniformity of decision and/or 
the settlement of important questions of law.

The hearing prayed for is necessary for the settlement 
of two important questions of law: (1) Whether evidence 
may properly be received and considered by a District 
Court of Appeal at the time of the hearing of the Writ 
of Certiorari; (2) Whether negroes may picket a grocery 
store, where admittedly no labor dispute exists between the 
employer and employees, for the purpose of demanding 
employment of members of their race in proportion to the 
number of negro customers patronizing this store.

Respondent further contends that on the question of what 
evidence is admissible before a District Court of Appeal 
on a hearing of a Writ of Certiorari, a divergence exists 
between the view taken by the District Court of Appeal in 
this action and that followed by the District Courts of 
Appeal in two earlier, yet fairly recent cases.

Respondent contends that in this cause, said District 
Court of Appeal made a mistake of law, and that said 
cause is one in which the principle involved is important, 
[fol. 100] and a serious doubt exists as to the correctness 
of said decision, and owing thereto, said opinion has done 
an injustice to respondent Superior Court and also to the 
real party in interest, Lucky Stores, Incorporated, which 
may be rectified or corrected only by a hearing in this court, 
and a revision and reversal of said decision.

S t a t e m e n t  of t h e  C ase

During the month of November, 1946, officers of the 
Knights ’ Political League, a negro organization, explained 
to representatives of Lucky Stores, Incorporated that 
negroes had not been employed at retail stores and asked 
that negroes as well as Whites be employed in Lucky’s 
retail units. When a vacancy occurred in the Canal Street 
Store, John Roberts, a negro, was hired as a clerk, and 
subsequent to that time, Joe Morris, a negro, has been 
employed in a similar capacity. These employees have 
received the same training and perform duties similar to 
those of white clerks.

On April 28, 1947, or thereabouts, one McKinley Jackson 
was observed taking bacon and meat from the delicatessen 
counter. When he left the store without paying for this



54

food, lie was asked to stop by the store manager. Jackson 
immediately began to run and was chased by employees of 
the Canal Street Store, one of whom “ tackled” him as one 
[fol. 101] would in a football game. Then, while walking 
back to the store, accompanied by employees of Lucky Stores, 
Incorporated, Jackson slipped away and ran into the area 
of the housing project. A detective hired by Lucky gave 
chase, and to frighten Jackson, fired a shot into the ground. 
A policeman of the City of Richmond finally apprehended 
Jackson who was then returned to the store where he was 
detained until taken into custody by the Richmond police. 
Following this episode, demand was made upon Lucky 
Stores, Incorporated “ (1) To hire negro clerks in propor­
tion to negro customers patronizing the Canal Street Store; 
(2) To discharge those employees who were involved in 
the apprehension and arrest of McKinley Jackson.” These 
demands Lucky refused.

A picket line was then established by the Progressive 
Citizens of America and the National Association for the 
Advancement of the Colored People in front of the Canal 
Street Store, the pickets carrying placards which repre­
sented Lucky Stores, Incorporated as having adopted a 
“ Jim Crow” policy, and which asked that Lucky Stores, 
Incorporated meet the demands previously made.

A complaint for injunction was filed on behalf of Lucky 
Stores, Incorporated in the Superior Court of the County 
of Contra Costa, against the Progressive Citizens of Amer­
ica and several individuals, praying for an injunction per- 
[fol. 102] manently restraining the named defendants 
therein from demanding of Lucky Stores, Incorporated: 
(1) The hiring of negro clerks, such hiring to be based upon 
the proportion of negro and white customers patronizing 
plaintiff’s store, (2) The discharge of those employees of 
Lucky Stores, Incorporated who participated in the appre­
hension and arrest of McKinley Jackson, a colored person, 
accused of the theft of six pounds of bacon from one of 
Lucky’s store units.

A hearing was held and an order granting a preliminary 
injunction based upon the verified complaint, counter- 
affidavits, points and authorities, and argument was made 
restraining defendants from compelling Lucky Stores, In­
corporated to do either of the acts named in the complaint.

Then, on the 21st day of June, 1947, defendants, Hughes



55

and Richardson, picketed the Canal Street Store of Lucky 
Stores, Incorporated at Richmond, California, carrying- 
placards which read: “ Lucky Won’t Hire Negro Clerks in 
Proportion to Negro Trade—Don’t Patronize.” Hughes 
and Richardson were adjudged in contempt of the order 
granting the preliminary injunction and sentenced by the 
Superior Court of the County of Contra Costa to two days 
in the County Jail or to pay a fine of $20.

On the same day, a petition for a Writ of Certiorari was 
[fol. 103] filed in the District Court of Appeal; and later, 
on the 1st day of July, 1947, the Writ issued.

A return to the Writ of Certiorari was filed on behalf 
of Lucky Stores, Incorporated in which were incorporated 
the affidavits of Mr. Otto Meyer, vice-president of Lucky 
Stores, Mr. Benjamin Linsner, manager of Lucky’s Canal 
Street Store, and Mr. Albert West, secretary of the Retail 
Clerks Union. None of these had been filed nor con­
sidered by the lower Court. The matter was submitted to 
the District Court of Appeal upon oral argument and 
written briefs.

Three questions were raised in the District Court of 
Appeal:

1— Whether or not the affidavits incorporated in the 
return of the real party in interest, Lucky Stores, In­
corporated, should be considered by the District Court 
of Appeal;

2— Did the picketing which was enjoined by the lower 
t . Court constitute an inducement of breach of the col­

lective bargaining agreement between Lucky Stores, 
Incorporated and the Retail Clerks Union; and

3— Whether the demand by defendants for propor­
tional hiring of negroes, based upon the number of 
negro customers patronizing Lucky’s Canal Street 
Store, was an improper objective, and can this demand 
properly be urged through the medium of a picket 
line where there is no labor dispute between the em­
ployer and the group or persons who are picketing?

[fol. 104] On November 20, 1947, the District Court of 
Appeal rendered its decision annulling the contempt order 
of the Superior Court of Contra Costa County, The District 
Court concluding: (1) That the actions of defendants,



56

Progressive Citizens of America and the National Associ­
ation for the Advancement of the Colored People, and the 
other named individuals, in picketing the Canal Street 
Store did not constitute an inducement of breach of the 
collective bargaining agreement between Lucky Stores, In­
corporated and the employees; (2) That it could not prop­
erly receive and consider affidavits incorporated in the 
return of Lucky Stores at the hearing of the Writ, and (3) 
That the demand for proportional hiring was a proper one 
when urged through the medium of a picket line.

[fol. 105] I

The Affidavits Incorporated in the Return of the Real 
Party in Interest, Lucky Stores, Incorporated, Should Have 
Been Considered by the District Court of Appeal at the Pro­
ceeding in Certiorari.

The affidavits of Lucky’s employees were incorporated in 
the Return to the Writ of Certiorari. These had not been 
considered by the lower Court at the time of the granting of 
the preliminary injunction. The District Court of Appeal, 
in its opinion, held that they could not properly be consid­
ered by it because they contained facts not before the trial 
court. (4 Cal. Jur. P. 1107, Sec. 69)

However, in Wilde vs. Superior Court, 53 Cal. App. 2nd 
168 (1942), the Court permitted the introduction of evi­
dence in the Appellate Court which not only supplemented, 
but contradicted the record of the lower Court, and previous 
decisions had recognized that further and additional evi­
dence in the reviewing Court or the inferior tribunal may 
be proper to supplement the record, though not to contradict 
it, Los Angeles vs. Young, 118 Cal. 295 (1897), In re Madera 
Irrigation District, 92 Cal. 296, 335 (1891), Blair vs. Hamil­
ton, 32 Cal. 50, and again in Triplett vs. Superior Court, 57 
Cal. App. 2nd, 536 (1943), the Appellate Court concluded 
that it could receive and consider the new evidence, not 
for the purpose of impeaching the record of the Court below, 
[fol. 106] but for the purpose of explaining and supple­
menting that record, and for the purpose of developing the 
true facts upon which must rest the answer to the question 
of the lower Court’s jurisdiction.

The facts stated in the affidavits go largely to a specifica­
tion showing that Lucky Stores, Incorporated is not dis­
criminating against negroes. No evidence of any discrimi­



57

nation was introduced by the petitioners in the lower Court, 
and the claim that the Court should in effect take judicial 
notice of such discrimination was first made in this Court, 
nor was there any assertion by petitioners in the lower 
Court that it was without jurisdiction to decide the questions 
there involved.

A divergence exists between the conclusion reached by 
the District Court of Appeal in its opinion in this case and 
that arrived at by the District Court of Appeal in the earlier 
Wilde and Triplett Cases. Therefore, on the ground that 
it is necessary to secure uniformity of decision on the ques­
tion of what is admissible before a District Court of Appeal 
upon a hearing of a Writ of Certiorari, Respondent respect­
fully requests that an order be made that this case be heard 
and determined by this Supreme Court.

[fol. 107] II

The Objective of Employment of Negroes in Proportion 
to Negro Patronage Is an Improper One.

The record of the lower Court and the opinion of the 
District Court of Appeal plainly reveal the objective sought 
by petitioners in placing a picket line in front of Lucky’s 
Canal Street Store; the line was placed there for the pur­
pose of securing hiring by Lucky of negro clerks in propor­
tion to negro patronage.

In the cases of James vs. Marinship, 25 Cal. 2nd 721 
(1944), Williams vs. International Brotherhood of Boiler 
Makers, 25 Cal. 2nd 586 (1946), Thompson vs. Moore Dry 
Dock Company, 27 Cal. 2nd 595 (1946), the Court was con­
cerned with the question of racial discrimination in employ­
ment, and in all three, the principle announced precluded 
discrimination in favor of negroes and against Whites. 
Nevertheless, the broad inference to be drawn from these 
cases is that the law will afford protection not only to 
negroes who are discriminated against, but will also protect 
against discrimination to Whites. The duty created by the 
rules in these cases is the general one to refrain from dis­
crimination of any type, and not merely to refrain from 
discrimination against negroes. Thus, the objective of 
proportional hiring which petitioners sought to attain 
through the establishment of a picket line was an improper 
[fol. 108] one when viewed in the light of these three cases. 
The objective compels, rather than prevents, discrimination



58

because it necessarily precludes a selection of employees 
on the basis of individual merit and capacity and substi­
tutes in its stead, the solitary standard of the color of a 
man’s skin. On the facts of the instant case, then, there is 
danger of discrimination against those Whites who do have 
the ability to act as clerks in Lucky’s Canal Street Store, 
but who are excluded because of the hiring of negro clerks 
in proportion to the number of negro customers patronizing 
that store, has the effect of diminishing the number of White 
clerks who could or would have been hired had the “ propor­
tional hiring” principle not been adopted.

The record shows, further, that Lucky employed both 
Whites and negroes and that the hiring is accomplished 
without adverting first to the race or color of the applicant. 
Now, the demand of petitioners, if followed, would compel 
discrimination rather than prevent it, and if successful in 
attaining the demands made, then the dangers pointed out 
by Judge Rosenman in the case of A. S. Beck Shoe Corpo­
ration vs. Johnson, 274 N. Y. S. 946; 163 Misc. 363 (1934), 
become apparent :

“ . . . If they were permitted and if they succeeded 
in their purpose, it would then become equally proper 
for some organization composed of white persons to 
picket the premises, insisting that all negro employees 
be discharged and that white employees be re-employed, 
[fol. 109] If this were permitted, there is substantial 
danger that race riots and race reprisals might result 
in this and other communities. They would serve as 
precedent for similar activity in the interest of various 
racial or religious groups. The effect upon the social 
well-being of communities throughout the state would 
be far reaching.”

Also, it may be asked, if petitioners’ principle be adopted, 
what is to prevent any pressure group, whether organized 
on racial, religious, national or other arbitrary lines, from 
bringing economic pressure to bear upon an employer for 
the purpose of compelling an employment of its members 
in proportion to the patronage which the employer enjoys 
from that group ?

Recent legislative enactments in several eastern states 
make it unlawful for an employer to consider race as a factor



59

in determining an applicant’s eligibility. (Chapt. 118, New 
York Laws, 1945, Sec. 131; New Jersey 1937 Revised Stat­
utes, Chapt. 25, Title 18.) These states deny, therefore, to 
anyone the right to adopt a policy of employment based 
upon the number or proportion of a race which patronizes 
a particular business establishment; and again, Ludwig 
Teller in his work: “ A Labor Policy for America”, 1945, 
proposes the prohibition of discrimination in employment 
“ because of such persons’ race, color, creed. . . .” (See 
also Executive Order No. 9346, dealing with the President’s 
fair employment practices)
[fob 110] Justification for the picketing in this case is 
urged by petitioners upon the ground that Lucky has dis­
criminated against negroes in the employment of clerks in 
its Canal Street Store. The claim of justification for the 
demand, on the ground of discrimination, was first made in 
the Petition for Writ of Certiorari1 and in the Supporting- 
Memorandum ; 2 the Return of Lucky and specifically the 
affidavit of Otto Mayer, reveal that it has adopted a non- 
discriminatory employment policy, and that negroes and 
Whites were employed in the Canal Street Store on terms of 
equality.3 This affidavit, along with the others incorporated 
in the Return, were not considered by the District Court 
of Appeal on the ground that they were not before the 
lower Court at the time of the hearing on the preliminary 
injunction. These assertions by Lucky Stores, Incorporated 
[fol. 111] were not and cannot be controverted. In fact, 
the lower Court must be deemed to have found on the basis 
of pleadings and evidence before it that Lucky did not dis­

1. . . traditionally, many industries and occupations are 
closed to negroes and will remain closed unless the negro 
people can make effective their demand to obtain equality of 
opportunity for employment and to prevent economic dis­
crimination against negroes.” (Petition, p. 8, par. 3.)

2 ‘ ‘ This was part of a general purpose of petitioners to 
combat racial discrimination in employment against negro 
citizens.” (Memo. p. 5.)

3 Actually the last stated facts may be drawn as an infer­
ence from the allegations of the complaint. (Tr. 34, 36.)



60

criminate, and that negro clerks were in fact employed by 
Lucky.* 2 * 4 5
[fols. 112-113] Petitioners persist in their assertion that 
justification for the picketing can be made out because of 
racial discrimination . . .:

. . the purpose of the picketing here by the peti­
tioners was to combat racial discrimination (Pet. Supp.

4 Tr. (1) P. 6, Verified Complaint.
VI “ . . . in that it is acting in concert with said 

Canal Club and the other defendants to enforce un­
reasonable and unjustifiable demands of defendants for 
the hiring of additional negro clerks in stores of the 
plaintiff.

(2) p. 7, Verified Complaint.
VIII “ Plaintiff alleges that the establishment of 

picket lines in front of plaintiff’s stores in order to 
enforce the demand for hiring of additional negro 
clerks. . . .” Transcript (3) p. 22, Memorandum 
in Opposition to Preliminary Injunction:

I “ the request to increase the proportion of negro 
clerks is clearly compatible with the contract.

(4) p. 30, Counter Affidavit of Louis Richardson, 
petitioner herein. “ Your affiant, and those with him 
request that the increase in in the proportion of negro 
to White clerks take place as white clerks quit their 
employ or were transferred by plaintiff, and also at 
p. 41 of the t r : “ . . . that the words on the placards 
were to the effect that plaintiff refused to hire at its 
Canal Street Store a proportion of negro and white 
clerks approximating the negro and white customers 
at such stores.

(5) p. 34. Tr. Counter Affidavit of John Hughes, 
petitioner herein: “ Your affiant, and those with him 
request that the increase in the proportion of negro to 
white clerks take place as white clerks quit their em­
ploy or are transferred by plaintiff, and again at p. 36, 
t r : “ That the words on the placards were to the effect 
that plaintiff refused to hire at its store a proportion of 
Negro and white clerks approximating the number of 
white and negro customers at such store. ’ ’



61

Memo. p. 13) : . . petitioners were not com­
bating discrimination . . .  is acting with sound 
public policy. In other words, if the purpose of the 
picketing in this case were to combat discrimination 
against negroes as such, this purpose is ‘legal’ ” . (Pet. 
Supp. Memo. p. 15) “ The refusal of Lucky Stores, 
Incorporated, to discuss petitioners request . 
certainly is evidence of discriminatory policy on their 
part. (Tr. p. 6).

but this contention must be regarded as fully accepted by the 
decision of the lower Court in this case. That Court must 
be assumed to have found that there was no discrimination.

Wherefore, Respondent prays for an order that this 
case be heard and determined by this Supreme Court, 
believing that a re-examination of the record made by this 
Court after hearing, will result in a revision and reversal 
of said District Court’s decision herein.

Martinez, Californa, December 30, 1947.
Respectfully submitted, Superior Court of the State 

of California, in and for the County of Contra 
Costa, by Francis W. Collins, District Attorney 
of the County of Contra Costa, State of Califor­
nia. Lucky Stores, Incorporated, Real Party in 
Interest, by Hoey and Hoey, its Attorneys.

[fo l. 114] A p p e n d ix

I n  D ist r ic t  C ourt  of A p p e a l  op C a lifo r n ia  

[Civ. No. 13535. First Dist., Div. One. Nov. 20, 1947]

J o h n  H u g h e s , et al., Petitioners, 
v.

S u pe r io r  C ourt op C ontra  C osta C o u n ty , Respondent
1. Contempt—Certiorari.—Certiorari is the appropriate 

method to test the jurisdiction of the superior court where



62

the validity of a contempt adjudication is challenged on 
constitutional grounds.

2. Certiorari—Hearing—Review as Confined to Record. 
—The province of the writ of certiorari is to review the rec­
ord of an inferior court and to determine from that record 
alone whether such court has exceeded its jurisdiction; 
(evidence outside that record is not permitted.

3. Id.—Hearing—Review as Confined to Record.—In the 
consideration of the questions raised by issuance of a writ 
of certiorari, the reviewing court is limited to the factual 
record presented to the trial court and cannot entertain 
affidavits that seek to present factual issues not there pre­
sented.

4. Interference—With Contract Relations.—While under 
certain circumstances a deliberate and intentional interfer­
ence with an existing contract may be tortious and action­
able, such interference may, in a proper case, be justified 
and privileged.

5. Labor—Picketing.—The interest of labor in improving 
working conditions is of sufficient social importance to jus­
tify peaceful labor tactics otherwise lawful, though they 
have the effect of inducing breaches of contract between em­
ployer and employee or employer and customer.
[fol. 115] 6. Interference—With Contract Relations.—The
economic interest of negroes in securing employment for 
members of their race, and in attempting to alleviate the re­
sults of a discriminatory labor policy, are of sufficient social 
importance to justify interference with a collective bargain­
ing contract between an employer and a union.

7. Labor—Picketing.—Where the picketers have a direct 
economic interest to protect, and such protection is in accord 
with public policy, they may lawfully picket, regardless of 
existence or nonexistence of a labor dispute.

2 See 4 Cal. Jur. 1107; 10 Am. Jur. 544.
McK. Dig. References: 1 Contempt, § 77; 2 Certiorari, 

§ 76; 3 Certiorari, § 77; 4, 6 Interference, § 1; 5, 7-11 Labor, 
§ 23.

7 See 7 Cal. Jur. 10-Yr. Supp. (1945 Rev.) 476; 31 Am. 
Jur. 948.



63

8. Id.—Picketing.—It is in accord with sound public pol­
icy to permit negroes to picket in an attempt to secure equal­
ity in employment practices from employers who cater to 
negro patronage.

9. Id.—Picketing.—The right to picket is not limited to 
labor disputes but may be exercised whenever the economic 
interests of the picketers is sufficiently important to war­
rant this interference with the rights of those against whom 
the picketers are operating.

10. Id.—Picketing.—In the picketing of a food store by 
negroes to compel “ proportional” hiring of negro help 
therein, and to secure discharge of an objectionable em­
ployee, with publicity given only to the demand for “ pro­
portional” negro employment, even if picketing to secure 
discharge of the employee was unlawful it would not justify 
a total injunction against the lawful as well as the unlawful 
picketing.

11. Id.—Picketing.—Picketing to secure “ proportional” 
hiring of negroes in a food store that catered to negro 
patronage, was lawful where a discriminatory labor policy 
existed as to them.

Proceeding in certiorari to annul an adjudication of con­
tempt. Judgment of contempt annulled.

Esises, Truehaft & Condon for Petitioners.
Hoey & Hoey and Frederick Schoeneman for Respondent.

Op in io n
P eters, P . J.

Petitioners were adjudged guilty of contempt in that, 
in violation of the terms of a preliminary injunction, they 
admittedly continued to picket a certain grocery store 
located in Richmond, California, and operated by Lucky 
Stores, Incorporated. They seek by this proceeding in 
certiorari to have this adjudication of contempt annulled, 
it being their contention that the preliminary injunction 
upon which the adjudication of contempt depends was 
[fol. 116] violative of their constitutional rights. [1] Cer­
tiorari is the appropriate method to test the jurisdiction 
of the superior court where the validity of a contempt ad­
judication is challenged on constitutional grounds. (Fort- 
enbury v. Superior Court, 16 Cal. 2d 405 [106 P. 2d 411]; 
Kreling v. Superior Court, 18 Cal. 2d 884 [118 P. 2d 470].)



64

The main problem presented in this proceeding is whether 
negroes may be lawfully enjoined from peacefully picketing 
a retail establishment that caters to negro trade, for the 
purpose of inducing the operators of that establishment, 
in the course of personnel changes, to hire negro workers 
in proportion to negro patronage.

A chronological summary of events as disclosed by the 
clerk’s transcript, filed by way of return, is as follows:

May 20, 1947—Lucky Stores filed in the Superior Court 
of Contra Costa County a verified complaint for injunction, 
naming various organizations and individuals as defend­
ants. So far as pertinent here, the complaint alleges that 
there exists a collective bargaining contract between a 
designated clerks’ union and the plaintiff under which the 
union is recognized as the sole collective bargaining agent 
for all employees working for plaintiff; that the contract 
provides that, the plaintiff will only employ members of 
the union through the union unless the union cannot meet 
the request of the plaintiff or unless the persons on the 
unemployed list of the union are not satisfactory to the 
employer, in which events the plaintiff may employ 
nonunion employees, who, however, must join the union 
within a specified time; that the defendants have demanded 
that plaintiff “ agree to hire negro clerks, such hiring to be 
based upon the proportion of white and negro customers 
patronizing plaintiff’s stores, and that the plaintiff dis­
charge those employees participating in the apprehension 
and arrest of McKennly Jackson,” who had been accused 
of shoplifting; that these demands were refused by plain­
tiff; that such demands, if complied with, would violate 
the contract of plaintiff with the union; that no labor dis­
pute exists between plaintiff and the retail clerks ’ union; 
that by reason of the refusal of plaintiff to comply with 
their demands defendants have picketed plaintiff’s store; 
that unless such picketing is restrained, plaintiff will suffer 
irreparable injury and be forced to close the store in ques­
tion ; that such picketing for such a purpose is an infringe­
ment upon plaintiff’s right to do business, and would 
require plaintiff to violate the union contract above men­
tioned ; that plaintiff has no adequate remedy at law. The 
[fol. 117] prayer is for a permanent injunction restraining 
such picketing for such purposes, and for a temporary



65

restraining order until the hearing. The union agreement 
is attached as an exhibit to this complaint.

May 26, 1947—John Hughes, one of the petitioners in 
the present proceeding, filed a counteraffidavit in the injunc­
tion proceedings. He therein avers that he is a member 
and an officer in several of the organizations sought to be 
enjoined; that he makes the affidavit in both his representa­
tive and personal capacities; that on May 17, 1947, he and 
Louis Richardson, the other petitioner, and others, met 
with some officials of Lucky Stores; that affiant protested 
against the actions of certain employees of Lucky Stores 
in arresting one Jackson, charged with petty theft; that 
the protest was based on claimed unnecessary force, in­
cluding the firing of a pistol shot in a crowded area, by 
one of Lucky’s employees, in effecting the arrest; that 
affiant and the others with him requested the discharge of 
the employee that fired the shot; that one of the officials 
of Lucky Stores stated that the employee who fired the 
shot was no longer working at the store in question; that 
affiant later learned this representation was false; that 
affiant and those with him also requested that Lucky Stores, 
so far as the store here involved is concerned, “ hire 
gradually . . . negro clerks until the proportion of negro 
clerks to white clerks approximated the proportion of 
negro and white customers. Tour affiant and those with 
him requested that the increase in the proportion of negro 
to white clerks take place as white clerks quit their employ 
or were transferred by plaintiff. Your affiant and those 
with him explicitly stated that they were not requesting 
the discharge of any of the present employees of the Canal 
Store [the store in question], but were requesting only the 
vacancies be filled with negroes until the approximate 
proportion was reached” ; that about 50 per cent of Lucky’s 
customers at this store are negroes; that Lucky’s represen­
tatives refused to discuss the proposal and the discussion 
ended; that affiant and those with him had no knowledge 
of the union contract mentioned in the complaint; that 
subsequently the officials of the union in question have 
informed affiant that such union accepts negroes as mem­
bers and have no objection to the hiring of negro clerks 
by Lucky Stores as long as such clerks join the union; that 
the union in question has negro members presently unem­
ployed, and can supply qualified negro clerks to any em-

5— 61



G6

ployer requesting- such help; that on May 19, 1947, members 
of several of the organizations sought to be enjoined 
[fob 118] picketed the Canal Store and continued to do so 
until May 21, 1947, when the picketing ceased; that there 
never were more than six pickets patrolling an area more 
than 1001 feet wide; that the pickets were peaceful and 
there was no violence; that the employees and customers 
of Lucky’s had free ingress and egress to and from the 
store without molestation; that the pickets were orderly 
and made no comments to customers or employees; that 
the placards carried by the pickets were truthful; that the 
words on the placards, were to the effect that Lucky Stores 
refused to hire at its Canal Street store a proportion of 
negro and white clerks approximating the proportion of 
negro and white customers of the store.

Louis Richardson, the other petitioner herein, filed an 
affidavit containing* essentially the same averments con­
tained in the Hughes affidavit. These affidavits were not 
controverted by the plaintiff in the trial court.

On this same day—May 26, 1947—a hearing on the order 
to show cause and temporary restraining order was had. 
The matter was submitted to the court on the complaint, 
counteraffidavits, points and authorities, and argument. 
No affidavits at all were filed by the plaintiff. The court 
determined that plaintiff was entitled to the preliminary 
injunction.

Ju n e  5 ,1947—The trial court made and issued its formal 
order granting the preliminary injunction. By the terms 
of that order the various persons and organizations, in­
cluding petitioners, named in the complaint were enjoined 
from picketing* for the purpose of compelling Lucky Stores 
to hire a proportional number of negro clerks or dis­
charging those employees participating in the arrest of 
Jackson, and Lucky Stores was required to post a $1,000- 
bond, which was done.

June 21, 1947—A citation issued from the trial court to 
petitioners and others ordering them to show cause on 
June 23, 1947, why they should not be punished for con­
tempt for violating the injunction. This was duly served 
on petitioners the day of its issuance.

It was stipulated between the parties that on June 21, 
1947, the two petitioners picketed the Canal Street store 
carrying a placard reading: “ Lucky won’t hire Negro 
Clerks in proportion to- Negro trade, don’t patronize,” and



67

while so picketing, petitioners were served with a citation, 
it having been agreed that petitioners would waive the 
affidavit normally required.
[fol. 119] June 23, 1947—Petitioners moved the court to 
vacate the preliminary injunction. This motion was denied. 
The court then found that the two petitioners wdlfully 
violated the injunction, and adjudged that they should be 
imprisoned for two days and pay a fine of $20. A 10-day 
stay of execution was granted. On the same day—June 23, 
1947—this petition for certiorari was filed in this court.

After this court had granted the writ, the superior court 
filed its return and answer in which it is admitted that the 
picketing was without force or violence. In addition, Lucky 
Stores, through its attorney, filed what purports to be an 
answer and return to the writ of certiorari to which are 
attached certain affidavits. By this pleading and by these 
affidavits Lucky Stores seeks to present to this court certain 
facts and factual issues that were not presented to, were 
not considered by, and were not before the trial court. It is 
not necessary to summarize these factual matters because 
they are not properly before this court.

[2] It is elementary law that the province of the writ of 
certiorari is to review the record of an inferior court and 
to determine from that record, and from that record alone, 
whether such court has exceeded its jurisdiction. Evidence 
dehors that record is not permitted. (See discussion and 
many cases collected 4 Cal. Jur. p. 1107, § 69.) I t is true 
that where certain jurisdictional facts were in fact before 
the trial court but do not appear in the record, those facts 
may be shown to the appellate court on the return to the 
writ. (See discussion 4 Cal. Jur. p. 1110, §71.) But this 
is not an exception to the general rule. I t is merely per­
mitting a party to show what actually was before the 
inferior tribunal even though that particular fact does not 
appear formally in the record. Most of the cases cited 
by Lucky Stores to substantiate its position that we should 
consider the questioned affidavits fall within the category 
last mentioned. Such cases do not support the contention 
that an appellate court on such a writ may consider facts 
and factual issues not presented to or considered by the 
trial court.

There are two cases cited by Lucky Stores that do con­
tain language that tends to support its contention that this 
court may properly consider the affidavits asserting the



68

existence of facts never presented to the trial court. The 
first of these is Wilde v. Superior Court, 53 Cal. App. 2d 
168 [127 P. 2d 560], a proceeding- in certiorari to review 
a contempt adjudication for practicing law in violation of 
a disbarment order. The appellate court did take testi- 
[fol. 120] mony not considered or presented below, and 
held that such procedure was proper, citing certain habeas 
corpus proceedings that were not in fact review proceed­
ings, but, in a real sense, were original proceedings in 
the appellate court. The Wilde case held, however, that, 
independent of such new evidence, the record introduced 
below demonstrated that the trial court had exceeded its 
jurisdiction. What was said about the taking of factual 
testimony in the appellate court that was not presented 
below must be held to have been dicta, and, in view of the 
many cases announcing the rule stated above, it must be 
held to have been erroneous dicta. In the other case relied 
upon—Triplett v. Superior Court, 57 Cal. App. 2d 536 
[135 P. 2d 4]—the appellate court in a, certiorari proceed­
ing did receive in evidence and did consider and rely upon 
an affidavit not presented to the trial court. The authority 
relied upon for such procedure was the dicta in the Wilde 
case. These two cases are completely out of line with an 
otherwise unbroken line of authorities, and, in our opinion, 
should be disregarded.

[3] We, therefore, hold that we are limited in our con­
sideration of the problems here involved to the factual 
record presented to the trial court, and may not consider 
the portions of the return of Lucky Stores and its sup­
porting affidavits seeking* to present factual issues and facts 
not presented to the trial court.

The respondent first seeks to support the adjudication of 
contempt on the theory that petitioners’ conduct tended to 
induce a breach of contract between Lucky Stores and the 
retail clerks’ union. The verified complaint for an injunc­
tion is primarily based on this theory, and this point was 
fully briefed before the trial court. As will later appear, 
the trial judge rendered an oral opinion in support of the 
adjudication of contempt, and he therein justified the order 
on grounds Other than inducement of breach of contract. 
The reasons why the trial judge did not attempt to base 
his decision on this ground are quite apparent.

In the first place, there are no facts pleaded that demon­
strate that petitioners’ actions in picketing to secure the



69

proportional hiring of negro clerks would necessarily result 
in a breach of contract between the union and Lucky Stores. 
The picketing negroes did not demand the discharge of any 
existing employees, except the employee who had fired the 
shot in arresting Jackson, and the picketing was not 
directed at this last-mentioned objective. The demand was 
that, as white help quit or was transferred, they be replaced 
with negroes. The evidence shows that the union in walling 
[fol. 121] to accept negro clerks, and that, in fact, at all 
times here pertinent, it had qualified negro clerks in the 
union who were unemployed.

[4] In the second place, and this is a complete answer to 
this contention, while it is now the law of California that, 
under certain circumstances, a. deliberate and intentional 
interference with an existing contract is tortious and action­
able (Imperial Ice Co. v. Rossier, 18 Cal. 2d 33 [112 P. 2d 
631]), it is clearly the law that such interference may, in a 
proper case, be justified and therefore privileged. The 
Rossier case expressly recognizes that justification may 
exist for such an interference with the contract rights of 
others. It is there stated (18 Cal. 2d at p. 35) : “ Such 
justification exists when a person induces a breach of con­
tract to protect an interest that has greater social value 
than insuring the stability of the contract. (Rest. Torts, 
§ 767.) Thus, a person is justified in inducing the breach 
of a contract, the enforcement of which would be injurious 
to health, safety,, or good morals. [Citing two cases and the 
Restatement of Torts, § 767(d).] [5] The interest of
labor in improving working conditions is of sufficient 
social importance to justify peaceful labor tactics other­
wise lawrful, though they have the effect of inducing 
breaches of contracts between employer and employee 
or employer and customer. [Citing many cases.] In 
numerous other situations justification exists (see Rest. 
Torts, secs. 766 to 774), depending upon the importance of 
the interest protected.” It should be noted that in the 
comment on clause (d) of section 767 of the Restatement 
of Torts, cited supra, which is the section that enumerates 
the interests that create the privilege, it, is stated that 
attempts to prevent racial discrimination come within the 
privilege. That this is so wmuld seem quite clear. 
[6] The economic interest of negroes in securing employ­
ment for members of their race, and in attempting to 
alleviate the results of a discriminatory employment policy,



70

are of sufficient social importance to justify the interference 
with the type of contract here involved.

This brings us to the main question presented on this 
appeal, namely, whether negroes lawfully and peacefully 
may picket for the purpose of inducing the operators of 
a retail establishment that caters to negro trade, in the 
course of personnel changes, to hire negro workers in 
proportion to negro patronage. The trial court has held 
that such picketing should be enjoined. The court rendered 
an oral opinion, in which the grounds of the decision are 
fully set forth. The court first stated that it was convinced 
[fol. 122] that this state should follow a decision of the 
trial court in New York—A. S. Beck Shoe Corp. v. Johnson, 
153 Misc. 363 [274 N.Y.S. 946]—holding that the right of 
picketing is limited to labor disputes in the limited sense 
of those words, and that picketing for the purpose here 
involved was not in the furtherance of a labor dispute. 
The judge in the instant case then stated: “ The controversy 
here is not a labor dispute. The defendants do not con­
stitute a labor union or a labor organization of any kind. 
I  don’t think there is any question about that. They do not 
propose [to be] nor are they all members of any single 
trade or class of trades. Their demands are not connected 
with any one industry. The questions! about which they are 
now picketing have no connection with wages, hours of 
labor, unionization, or betterment of working conditions.” 
As a second ground for the issuance of the injunction the 
trial court then stated: “ It is solely a racial dispute. As­
suming that the means were peaceful and were devoid of 
misrepresentation, disorder and violence, the Court is still 
of the opinion that the purpose sought does not justify the 
means used, and that injunctive relief is warranted. The 
acts of the defendants are irreparably injuring the plain­
tiff’s business. Not only do they tend to keep prospective 
colored customers out of the stores of the plaintiff but 
they must necessarily have the effect of keeping out white 
customers also. The purpose of the defendants in having 
members of one race discharged in order to employ the 
members of another race will not justify this direct damage 
to the plaintiff in the conduct of its business. The acts 
here shown are also contrary to sound public policy. If 
they were permitted and if they succeeded in their purpose 
it would then become equally proper for some organization 
composed of white persons to picket the premises insisting



71

that all negro employees be discharged and that white em­
ployees be re-employed. If this were permitted there is 
substantial danger that race riots and race reprisals might 
result in this and other communities. They would serve 
as precedent for similar activities in the interests of various 
racial or religious groups and the effect upon the social 
well being of communities throughout the state would be 
far reaching. A balancing of advantages to the defendants 
as against the disadvantages to this plaintiff and to the 
social order as a whole clearly points to disapproval of the 
acts complained of.

“ As a matter of principle, based upon a sound public 
policy, the Court cannot lend its assistance to this move­
ment. It must protect not only this plaintiff but the com- 
[fol. 123] munity as a whole from the dangers which exist 
in continued activity along these lines. I should like very 
much to see this position tested in the Appellate Courts.”

This opinion fully states the strongest arguments that can 
be advanced in support of the view that such picketing 
should be enjoined. Contained therein is every major argu­
ment made by the respondents and the various amici curiae 
who have filed briefs in support of the trial court. The trial 
judge is to be commended for thus setting forth in full his 
reasons for granting the injunction. There can be no doubt 
at all that the views expressed by the trial judge find direct 
support in the Beck case, supra. That case is a one-man 
opinion of a trial judge. It is factually on all fours with the 
present case. There, an association of negroes had made 
demands on the proprietor of a Harlem shoe store that he 
hire a percentage of negro clerks. The proprietor refused 
to accede to these demands and certain negroes began to 
picket the store. The opinion shows, unlike the present case, 
that the picketing was accompanied by violence. The court 
granted the injunction, however, without reference to the 
fact of violence. In his opinion the judge gave as his rea­
sons exactly the same reasons given by the trial judge in the 
instant case. (The Beck case has been the subject of much 
discussion. See 83 Univ. of Pa. L. Rev. 383; 35 Colum, L. 
Rev. 121; 48 Harv. L. Rev. 691.)

There is at least one case from an appellate court that 
supports the conclusions of the trial court in the instant 
case, and that is Green v. Samuelson, 168 Md. 421 [178 A. 
109, 99 A, L, R, 528]. In that case certain individuals and



72

organizations made demands for the hiring of negroes in 
certain stores operated by the white plaintiffs in a section of 
Baltimore where negroes outnumbered whites. When these 
demands were not met, picketing commenced, and an action 
was brought to restrain such activities. The trial court 
enjoined the picketing and the Court of Appeals affirmed 
that portion of the judgment. The following observations 
were made by the court:

“ The defendants contend that this case is, or is akin to, a 
labor dispute, because their purpose is to secure employ­
ment for members of thier race and thus improve its con­
ditions. . . . Their grievance is that the . . . mer­
chants depend almost wholly on colored patronage for their 
existence and that these merchants do nothing for them in 
return. That there is some merit in their complaint cannot 
be disputed, as the planting of a white store in an exclusively 
[fol. 124] colored community is an exploitation of the in­
habitants for profit, but the defendants cannot right their 
wrongs by means that are unlawful. . . . ” (P. I l l
[178 A.].)

“ The general purpose of colored persons to improve the 
condition of their race may not be improper, but they must 
adopt lawful means to accomplish this end, and must not 
resort to intimidation and threats which may easily lead 
to breach of the peace and physical violence. . . (P.
112 [178 A.].)

“ They may, by organization, public meetings, propa­
ganda, and by personal solicitation, persuade white em­
ployers to engage colored employees and to induce their 
people to confine their trade to those who accede to their 
wishes. . . . The complaint here is not with the thing 
intended to be done but the means employed to do it. . . . ” 
(P. 112 [178 A.].)

These are the strongest authorities and arguments relied 
upon by respondents. They are all predicated upon the 
basic premises that the right of picketing is limited to labor 
disputes, in the most limited sense of those terms; that 
picketing to secure the employment of negroes in negro- 
occupied areas does not involve a labor dispute; that the 
interests sought to be protected by such picketing are racial 
and not economic; and that such picketing based on racial 
considerations is against public policy. In our opinion,



73

every one of these premises is demonstrably unsound, both 
on principle and authority.

In the first place, when a group that has been discrimi­
nated against in employment in a certain industry band to­
gether and try to secure an abandonment of those discrimi­
natory policies and practices, and the employers refuse to 
abandon such practices, the dispute between the employer 
and this group in a very real sense is a “ labor dispute.” 
The United States Supreme Court has expressly so held in 
the case of New Negro Alliance v. Sanitary Grocery Co., 303 
U. S. 552 [58 S. Ct. 703, 82 L. Ed. 1012], That case arose 
in the District of Columbia. The district court enjoined the 
petitioners, and the Circuit Court of Appeals affirmed, from 
picketing a certain store for the purpose of inducing the 
hiring of negro personnel. The United States Supreme 
Court reversed. The petitioners in that case were a corpo­
ration composed of colored persons, organized for the 
mutual improvement of its members and the promotion of 
civic, educational and charitable purposes, and the officers 
of that corporation. The court stated the problem involved 
as follows (p. 559) : “ The case, then, as it stood for judg­
ment, was th is: The petitioners requested the respondent to 
[fol. 125] adopt a policy of employing negro clerks in cer­
tain of its stores in the course of personnel changes; the 
respondent ignored the request and the petitioners caused 
one person to patrol in front of one of the respondent’s 
stores on one day carrying a placard which said: ‘Do Your 
P a r t! Buy Where You Can Work! No Negroes Employed 
Here! ’ and caused or threatened a similar patrol of two 
other stores of respondent. The information borne by the 
placard was true. The patrolling did not coerce or intimi­
date respondent’s customers; did not physically obstruct, 
interfere with, or harass persons desiring to enter the store, 
the picket acted in an orderly manner, and his conduct did 
not cause crowds to gather in front of the store. ’ ’

The focal point of the case was whether the Norris-La- 
Guardia Act, prohibiting the use of injunctions in labor dis­
putes, applied so as to make improper the action of the 
district court in granting the injunction in this case. The 
court stated (p. 559): “ The trial judge was of the view that 
the laws relating to labor disputes had no application to 
the case. . . . The Court of Appeals thought that the dis­
pute was not a labor dispute within the Norris-LaGuardia



74

Act because it did not involve terms and conditions of em­
ployment sucli as wages, hours, unionization or betterment 
of working conditions, and that the trial court, therefore, 
had jurisdiction to issue the injunction. We think the con­
clusion that the dispute was not a labor dispute within the 
meaning of the Act, because it did not involve terms and 
conditions of employment in the sense of wages, hours, 
unionization or betterment of working conditions is errone­
ous.”

The court had previously pointed out that ‘ ‘ The relation 
of employer and employes does not exist between the re­
spondent and the petitioners or any of them. The petition­
ers are not engaged in any business competitive with that 
of respondent, and the officers, members, or representatives 
of the Alliance are not engaged in the same business or occu­
pation as the respondent or its employes.” (P. 555.)

The court then analyzed some of the pertinent provisions 
of the statute and then stated (p. 561) : “ The desire for fair 
and equitable conditions of employment on the part of per­
sons of any race, color, or persuasion, and the removal of 
discriminations against them by reason of their race or 
religious beliefs is quite as important to those concerned as 
fairness and equity in terms and conditions of employment 
can be to trade or craft unions or any form of labor organi­
zation or association. Pace discrimination by an employer 
may reasonably be deemed more unfair and less excusable 
[fol. 126] than discrimination against workers on the ground 
of union affiliations. There is no justification in the appar­
ent purposes or the express terms of the Act for limiting its 
definition of labor disputes and cases arising therefrom by 
excluding those which arise with respect to discrimination 
in terms and conditions of employment based upon differ­
ences of race or color.”

At page 562 the court said: “ It was intended [by the Act] 
that peaceful and orderly dissemination of information by 
those defined as persons interested in a labor dispute con­
cerning ‘terms and conditions of employment’ in an in­
dustry or a plant or a place of business should be lawful; 
that, short of fraud, breach of the peace, violence, or conduct 
otherwise unlawful, those having a direct or indirect inter­
est in such terms and conditions of employment should be at 
liberty to advertise and disseminate facts and information 
with respect to terms and conditions of employment, and



75

peacefully to persuade others to concur in their views re­
specting an employer’s practices. ’ ’ (See, also, Milk Wagon 
Drivers’ Union v. Lake Valley etc. Co., 311 U. S. 91 [61 
S. Ct. 122, 85 L. Ed. 63].)

It is true, of course, that this case is one interpreting the 
words “ labor dispute” as those terms were used in the stat­
ute, hut the rationale of that opinion supports the conclu­
sion that if it is necessary to find the existence of a “ labor 
dispute” before picketing can be justified, then such terms 
should be broadly interpreted and, so interpreted, the type 
of dispute here involved is a “ labor dispute.” (See Rot- 
wein on Labor Law, p. 80, § 96.)

The public policy of this state, as declared by the courts, 
is in exact accord with the statutory policy of the Norris- 
LaGuardia Act as interpreted in the New Negro Alliance 
case. The courts of this state have unequivocally deter­
mined that picketing is justified even though the relation­
ship of employer-employee does not exist and where no dis­
pute at all exists between the employer and employee. Thus, 
in McKay v. Retail Auto S. L. Union No. 1067,16 Cal. 2d 311 
[106 P. 2d 373], the sales employees of the Howard Auto­
mobile Company had entered into a mutually satisfactory 
bargaining contract with their employer. The salesmen 
did not want to join a union, and they were entirely satisfied 
with the terms of their employment. Nevertheless, the 
union picketed the plant for the purpose of compelling the 
employees to join their union, or compelling the employer to 
discharge the employees. The nonunion employees sought 
an injunction. It was held that the union had the right 
[fob 127] peacefully to picket, that the union had a direct 
interest in the betterment of labor conditions, and that a 
dispute between employer and employee was not essential to 
justify peaceful picketing. At page 324 the Supreme Court, 
after citing many authorities upholding the right to picket 
where a bona fide labor dispute exists, stated, in reference 
to the point under discussion: “ The plaintiffs do not chal­
lenge the soundness of these principles but urge that they do 
not apply here because there is no ‘ strike ’ and no ‘ labor dis­
pute. ’ It is said that the related craft members ‘ only ceased 
working because of the penalty imposed for passing a picket 
line’ placed around the company’s premises by the ‘ir­
responsible’ Salesmen’s Union. Such an interpretation 
of the facts assumes a lack of solidarity among the affiliated



76

crafts and an unwillingness on the part of the members 
to cooperate in the action directed against the employer— 
an assumption which is negatived by every circumstance in 
the case. Moreover, as has been pointed out in C. S. Smith 
Metropolitan MM. Go. v. Lyons (post, p. 389 [106 P. 2d 414]) 
the term ‘ labor dispute ’ is a broad one, and, in the absence 
of statutory definition, may be properly applied to any 
controversy ‘which is reasonably related to employment 
and to the purposes of collective bargaining.’ ” (See, also, 
Parlt T. I. Corp., v. International etc. of Teamsters, 27 
Cal. 2d 599 [165 P. 2d 891,162 A. L. E. 1426].)

Thus, if it were necessary to hold that in order to justify 
peaceful picketing, a “ labor dispute” must exist, we would 
be compelled to hold that the controversy here involved is 
“ reasonably related to employment” and is therefore a 
“ labor dispute” within the broad meaning of those terms. 
But we do not desire to hold that the right to picket is 
limited to labor disputes.

In the first place, from a standpoint of principle there can 
be no such limitation on the right to picket. [7] Whatever 
the true constitutional basis of the right to picket may be, wTe 
are convinced that where the picketers have a direct eco­
nomic interest to protect, and the protection of such interest 
is in accord with public policy, they may lawfully picket 
regardless of the existence or nonexistence of a labor dis­
pute. That negroes have such an eeonorific interest to 
protect is obvious. That they are an economically discrimi- 
nated-against group is too clear to require discussion. We 
are here faced with a situation where the employment policy 
of Lucky Stores, and of other employers, some of whom 
appear here as amici curiae, has resulted in discrimina­
tion in the hiring of negroes. Not only are they the last to 
be hired and the first to be fired, but many of the group 
[fol. 128] can secure employment in only the most menial 
positions. Thus, white employers, operating in negro dis­
tricts, economically exploiting this group, making their 
profits from it, now urge that the negroes should not be 
permitted to picket for the purpose of securing economic 
equality and fairness in employment, because, forsooth, such 
a dispute is not a “ labor dispute,” but a “ racial” dispute. 
The argument contains its own refutation. Obviously, the 
negroes have an economic interest to protect every bit as 
important as that of a union that desires to compel noncon­



77

senting* employees to join the union or to compel the em­
ployer to fire them. That interest is entitled to protection, 
is in accord with sound public policy, and, in our opinion, 
justifies that form of self-help known as picketing. The 
fact, if it be a fact, that such disputes may lead to some 
violence is no ground to deny the right. While, of course, 
race conflicts are to be discouraged, so is racial discrimina­
tion to be discouraged, and the prevention of the latter is a 
most important part of our public policy. (James v. Marin- 
ship Corp., 25 Cal. 2d 721 [155 P. 2d 329, 160 A. L. R. 900] ; 
Williams v. International etc. of Boilermakers, 27 Cal. 2d 
586 [165 P. 2d 903]; Thompson v. Moore Drydock Co., 27 
Cal. 2d 595 [165 P. 2d 901].) Some violence is a possible 
concomitant of any attempt to improve by self-help the lot 
of previously subjected groups, as the turbulence of some 
labor disputes indicates. If violence occurs, the courts 
possess full power to enjoin the violence even to the extent 
of enjoining completely the right to picket. (Milk Wagon 
Drivers’ Union v. Meadow-moor Co.. 312 U. S. 287 [61 S. Ct. 
552, 85 L. Ed. 836, 132 A. L. R. 1200].) The courts of the 
various states in general and of this state in particular have 
been quite liberal in upholding the right of labor to picket. 
This is so because the courts have believed, and quite 
properly so, that the raising of the living standards of any 
large subjugated group that otherwise may become an 
economic burden on the community as a whole is in accord 
with sound public policy. Every argument that can and 
has been made in support of the right of labor to picket can 
properly be made in support of the right of the negro race 
to secure economic equality. The essential public policy 
behind both demands is identical. But, say respondent and 
the supporting amici curiae, if negroes may picket to 
secure fair employment practices, then whites may also 
picket to gecure the discharge of negroes, and other racial, 
religious and minority groups may picket to secure rights 
claimed by them. Those questions are not now before us. 
[fol. 129] Those problems can be decided when and if they 
arise. Each case must be decided upon its own facts. [8] 
All that we are here holding is that it is in accord with sound 
public policy to permit negroes, a discriminated-against 
and subjugated group in our society, to picket to attempt to 
secure equality in employment practices from those em­
ployers who cater to negro patronage. The right is granted



78

not because the pieketers are members of a minority group, 
but because that minority group is economically discrimi­
nated against, and is attempting to rectify that condition. 
Beyond that we do not have to and do not go in this case. 
[9] We conclude therefore, that on principle the right to 
picket is not limited to labor disputes but may be exercised 
whenever the economic interest of the pieketers is suffi­
ciently important to warrant this interference with the 
rights of those against whom the pieketers are operating.

In the second place, the cases clearly demonstrate that the 
right to picket is not limited to labor disputes. In Bakery 
Drivers Local v. Wohl, 315 U. S. 769 [62 S. Ct. 816, 86 L. Ed. 
1178], the New York courts had enjoined certain union mem­
bers from picketing some independent bakery goods ped­
dlers to induce those peddlers not to work seven days a week, 
and to hire a union man one day a week. The Supreme 
Court stated (p. 774) : “ So far as we can ascertain from 
the opinions delivered by the state courts in this case, those 
courts were concerned only with the question whether there 
was involved a labor dispute within the meaning of the New 
York statutes, and assumed that the legality of the injunc­
tion followed from a determination that such a dispute was 
not involved. Of course that does not follow: one need 
not be in a ‘labor dispute’ as defined by state law to have a 
right under the Fourteenth Amendment to express a griev­
ance in a labor matter by publication unattended by violence, 
coercion, or conduct otherwise unlawful or oppressive.”

In the case of In re Lyons, 27 Cal. App. 2d 293 [81 P. 2d 
190], the members of two unions sought to induce the owners 
of independent grocery stores not to operate on Sunday, and 
when this demand was refused, started to picket. The trial 
court issued a restraining order which Lyons violated, and 
he was found in contempt. On habeas corpus the appellate 
court, in speaking of the store owners, stated (p. 294):

“ They had no dispute nor difference with organized labor 
concerning wages, hours or conditions of employment, 
unionization of employees, employing nonunion labor or any 
other matter that usually gives rise to labor troubles or 
[fol. 130] differences. The only controversy was over the 
closing of their places of business on Sunday. . . .

‘ ‘ This case is simply one in which a group of citizens at­
tempted to force the shopkeepers to close their places of 
business on Sundays. That the group composed the mem-



79

bersli ip of two labor unions is unimportant. Union mem­
bers have no greater right to attempt to force a place of 
business to close on Sunday than has any other group of 
citizens and at the same time no less right. We must 
measure the rights of the respective parties to the Sunday 
closing controversy by general principles, and insofar as 
the cases dealing with picketing in labor disputes announce 
those general principles, they are applicable here. ’ ’

The court also said (pp. 298-299): “ We cannot see how 
the right to peacefully picket, under the guaranty of free 
speech, could be confined to cases in which there exists a dis­
pute between an employer and organized labor over hours 
or conditions of employment, rate of pay, unionization of 
employees or employment of nonunion men and not extended 
to a dispute between a businessman and any citizen or group 
of citizens who may differ with him on a question of business 
policy. The guaranty of the right of free speech is general 
and extends to every class or group of citizens. As that 
guaranty is not confined to labor organizations, decisions in 
those cases announcing the principles upon which the right 
rests in the cases involving the ordinary labor dispute are 
important and, controlling here. Because we have a differ­
ence of opinion on the question of closing a mercantile 
establishment on Sunday as the cause of the peaceful picket­
ing, that fact should not make the rules announced in those 
decisions any less applicable. Citizens have just as much and 
no less right to differ on the wisdom of Sunday closing as 
they have to entertain different opinions on conditions of 
employment or rates of pay. The exact method used in con­
veying these opinions to the public is unimportant provided 
they are peacefully and quietly done in an orderly manner 
and not in violation of the provisions of a statute or an 
ordinance.”

The same rules were announced in In re Bell, 37 Cal. App. 
2d 582, 585 [100 P. 2d 339], where it was stated: “ There 
is no doubt that peaceable picketing is recognized as lawful 
under the Fourteenth Amendment to the federal Constitu­
tion, and article, I, sections 9 and 10 of the California Con­
stitution. [Citing cases.] The right to picket by lawful 
means is not confined to particular groups or unions, but 
may be enjoyed by all individuals or classes who desire to 
[fol. 131] thereby convey to the public their opinions re­
garding labor controversies or to promote their causes by 
presenting persuasive facts to other workmen, in a legiti­



80'

mate manner, free from force, violence, intimidation or 
threats. The constitutional privilege may not he conferred 
upon one class and denied to others. It is guaranteed to 
all on the same basis, upon the theory that it is a lawful 
exercise of the constitutional guaranty of freedom of 
speech, press and assemblage.”

These cases stand unequivocally for the proposition that 
the right to picket is not and constitutionally cannot be 
limited to labor unions and to labor disputes. It will be 
noted that in some of the opinions quoted the right to picket 
is placed directly and without limitation on the state and 
federal constitutional guarantees of free speech. We have 
intentionally refrained from discussing the constitutional 
source of the right. The Supreme Court of this state and 
of the United States have both frequently announced that 
the right to picket finds its protection in, and is measured 
by, the constitutionally guaranteed right of free speech. 
(See McKay v. Retail Auto. 8 . & L. Union No. 1067 ,16 Cal. 
2d 311 [106 P. 2d 373] ; In re Blaneyf 30 Cal. 2d [184 P. 2d 
892]; Sewn v. Tile Layers Union 301 U. S. 468 [57 S. Ct. 
857, 81 L. Ed. 1229] ; Carlson v. State of California, 310 
U. S. 106 [60 S. Ct. 746, 84 L. Ed. 1 1 0 4 ]Thornhill v. State 
of Alabama, 310 U. S. 88 [60 S. Ct. 736, 84 L. Ed. 1093]; 
A. F. of L. v. Swing, 312 U. S. 321 [61 S. Ct. 568, 85 L. Ed. 
855) ; Cafeteria Employees Union v. Angelos, 320 U. S. 
293 [64 S. Ct. 126, 88 L. Ed. 58].) If the extent of the right 
is measured by this test then all peaceful, nonviolent, truth­
ful picketing would be lawful, where not accompanied by a 
great and present danger to the public, and the object or 
purpose of picketing would be a false factor. But the Su­
preme Court of the United States has also indicated that 
the right to picket is not as broad as the right of free speech, 
and has held that considerations of public policy may limit 
the right—see Carpenters Union v. Ritter’s Cafe, 315 U. S. 
722 [62 S. Ct. 807, 86 L. Ed. 1143]. There are several most 
interesting articles discussing these and other cases. See 
Teller, Picketing and Free Speech, 56 Harv. L. Rev. 180; 
Dodd, Picketing and Free Speech: a Dissent, 56 Harv. L. 
Rev. 513; Teller, Picketing and Free Speech: a Reply, 56 
Harv. L. Rev. 532.) In many of the state cases the right to 
picket is not based on such broad grounds. These cases 
hold that picketing, being a form of self-help and of eeo-

1 Advance Report Citation: 30 A. C. 648.



81

[fol. 132] nomic coercion, is prima facie a tort but may be 
justified or privileged if the interest sought to be protected, 
when weighed against the injury to the employer, from a 
standpoint of public policy, should be protected. Under 
this theory the right to picket is measured by the yardstick 
of social and economic consequences. This is the view 
adopted by the Restatement of Torts, section 775, et seq. 
(See, also, 1 Teller on Labor Disputes and Collective Bar­
gaining, chapter eight, p. 319, et seq.; 1947 Cumulative Sup­
plement, p. 69, §136.) We do not find it necessary to choose 
between these two concepts. In the present case, even if 
the most limited concept of the nature of the right to picket, 
as set forth in the Restatement, be accepted, it must be held 
that the picketing here involved was lawful. The attempt 
to secure economic equality has long been recognized as the 
basis of labor’s right to picket. Such a purpose is a lawful 
one. That is exactly what petitioners are seeking here. 
Even Mr. Teller, who is the most articulate champion of 
the limited view of the nature of the right to picket as set 
forth in the Restatement, has stated: “ Aggravating cir­
cumstances surrounding the negro’s search for work reflect 
the proximate connection between the negro’s demands and 
the labor contract . . . Insecure, dispossessed, intensely 
exploited, the American Negro worker clings to the crags 
of life in the face of overwhelming counter availing forces. 
Abolition of slavery has not meant emancipation of the 
negro . . . Within the framework of the labor con­
tract, therefore, and as limited by the subject matter of 
employment conditions, race, color and creed ought to be 
accorded the privilege of picketing upon the reasonable 
assumption that its benefit to the individuals involved is 
worth more than its cost to society.” (1 Teller, Labor Dis­
putes and Collective Bargaining, §136, at p. 427.) Mr. Jus­
tice Murphy expressed this same thought in his concurring 
opinion in Steele v. Louisville <& Nashville R. R. Co., 323 
U. S. 192, at p. 209 [65 S. Ct. 226, 89 L. Ed. 173], in the 
following language: “ The Constitution voices its disappro­
val whenever economic discrimination is applied under au­
thority of law against any race, creed or color. A sound 
democracy cannot allow such discrimination to go unchal­
lenged.” In James v. Marinship Corp., 25 Cal. 2d 721 [155 
P. 2d 329,160 A. L. R. 900], our State Supreme Court recog­
nized a definite national and state public policy to prevent

6—61



82

unequal treatment of persons because of their color. (See, 
also, Williams v. International etc. of Boilermakers, 27 Cal. 
2d 586 [165 P. 2d 903] ; Thompson v. Moore Drydock Co., 
[fol. 133] 27 Cal. 2d 595 [165 P. 2d 901].) It follows, of 
course, that when negroes seek to prevent discrimination 
in employment practices by demanding the hiring of 
negroes in proportion to negro patronage, such demand 
does not violate any principle of public policy. To the 
contrary, if the negro is to rise to a position of economic 
integrity, that being a desirable public aim, he must be 
afforded the means by which to achieve such elevation. 
The right to protest peacefully against those who would 
deny him economic equality is the most elementary tool 
with which he should be permitted to commence his ascent. 
The alternative—the economic shackling of negroes to 
their present economic status—is far more dangerous to 
our social development than the imaginary difficulties en­
visaged by the trial court in this case.

There are several minor points that should be discussed. 
It will be remembered that, in their original demands, the 
organizations and individuals enjoined requested not only 
the gradual hiring of negro clerks in proportion to negro 
patronage, but also the discharge of a particular worker 
who had allegedly used undue force in arresting a negro 
accused of the theft of bacon from the store in question. 
Picketing for this purpose as well as for the purpose of 
securing employment for negroes was enjoined. The actual 
picketing, however, did not publicize this phase of the dis­
pute and did not seek this result. The placards displayed 
merely referred to the failure of the store proportionally 
to employ negroes. [10] Even if picketing to secure the 
discharge of this employee were unlawful (a point we do 
not deside), this would not justify a total injunction against 
lawful as well as the assumed unlawful picketing. As was 
said in Park .& T. I. Corp. v. International etc. of Team­
sters, 27 Cal. 2d 599, at page 607 [165 P. 2d 891, 162 
A.L.R. 1426]: “ Unlawful conduct in connection with con­
certed activities does not necessarily call for an injunction 
totally prohibiting the activities. A union may continue 
its concerted activities if they can be purged of the elements 
that make them unlawful.’’ Here the two elements are 
severable. Moreover, the complete answer to this phase 
of the case is that petitioners were adjudged to be in con­
tempt not because they picketed to secure the discharge of



83

this employee, but because they carried placards demanding 
the proportional hiring of negro clerks.

[11] The respondent also urges that even if picketing 
to secure economic equality were lawful, picketing to secure 
“ proportional” hiring of negroes is unlawful. Such an ar­
gument disregards the realities. Carried to its logical con- 
[fols. 134-135] elusion it would mean that a store whose 
patronage is entirely negro, and where many clerks were 
hired, by the token hiring of one negro, could prevent the 
picketing of such establishment aimed at preventing such 
discrimination and exploitation. Even if it be assumed 
that a demand for a mathematical quota, discrimination 
being absent, would, be an unlawful demand, in the present 
case it is the fact that discrimination here exists that makes 
what otherwise, it may be assumed would be unlawful, law­
ful. Beyond that we need not go.

The judgment of contempt is annulled.
Bray, J., and Finley, J. pro tern., concurred.

[fol. 136] Receipt of a copy of the within Petition for a 
Hearing by the Supreme Court is hereby admitted this 
30th day of December, 1947.

Robert N. Condon, Edises, Treuhaft and Condon, At­
torneys for Petitioners.

[fols. 137-139] [File endorsement omitted]

I n t h e  D istrict  C ourt op A ppeal,, S tate op C alifornia , 
F irst A ppellate  D istrict , D ivision  O ne

[Title omitted]

P e t it io n e r ’s A nsw er  to P etitio n  for H earing by t h e  
S u pr em e  C ourt— Filed January 9, 1948

[fol. 140] Questions Presented
1. The main question presented by this case has been 

framed by the District Court of Appeals as follows: . .
whether negroes may be lawfully enjoined from peacefully 
picketing a retail establishment that caters to negro trade, 
for the purpose of inducing the operators of that establish­
ment in the course of personnel changes, to hire negro



84

workers in proportion to negro patronage.” (82 A. C. A. 
p. 493. See also p. 498)

2. In its petition for hearing, respondent raises a further 
question: whether evidence not presented to the trial court 
may properly be received and considered by The District 
[fol. 141] Court of Appeal at the time of the hearing on the 
Writ of Certiorari. It is Petitioners’1 contention that this 
is a subsidiary and relatively minor issue of the case.

Statement of the Case
Petitioners object to Respondent’s 2 Statement of the 

Case since it includes, as fact, matters which are not part 
of the record. All the alleged facts, related in the Petition 
for Hearing from the beginning* of the Statement of the Case 
on page 2, line 9, to page 3, line 9, are not in the record and 
are apparently to be gleaned from three affidavits which 
The District Court of Appeals refused to consider, and 
which alleged facts were never evidenced before the trial 
court.

The District Court of Appeals, in its “ chronological 
summary of events” (82 A. C. A. 493-496), has set forth a 
Statement of the Case with brevity and exceptional clarity 
to which Petitioners respectfully refer the Court for a full 
exposition of the facts. Petitioners will briefly set forth the 
more salient features of The District Court’s summary.

On May 20, 1947, Lucky filed a verified complaint with 
Respondent against various organizations and individuals. 
The gravamen of the complaint was that the defendants 
[fol. 142] had demanded that plaintiff Lucky agree to hire 
Negro clerks in proportion to Negro and white patronage 
and to discharge certain employees who had arrested one 
McKennly Jackson, and that defendants had picketed in 
support of their demands. The complaint contained numer­
ous references to a collective bargaining contract between 
Lucky and a designated clerks union, and the primary theory 
of the complaint appears to have been that the defendants 
were inducing, or attempting to induce, a breach of this

1 Hughes and Richardson, petitioners in the District Court 
of Appeals, will be referred to herein as “ Petitioners.”

2 The Superior Court of Contra Costa County will be 
called “ Respondent” herein. Lucky Stores, Incorporated 
will be referred to as “ Lucky.”



85

collective bargaining agreement. There was also an allega­
tion that defendants were infringing on plaintiff’s “ right 
to do business” and the customary allegations of irrepara­
ble injury and the inadequacy of the legal remedy. No 
affidavits in support of the complaint were filed. A tempo­
rary restraining order and an order to show cause were 
signed the same day the complaint was filed.

Defendants filed Counter-Affidavits by Hughes and Rieh- 
ardson,3 both plaintiff and defendants filed points and 
authorities, and on May 26, 1947, oral argument was had 
before Honorable Hugh H. Donovan of Respondent. Re­
spondent granted a preliminary injunction forbidding 
picketing in support of defendant’s demands, the formal 
order being signed June 5, 1947.

On June 21, 1947, a citation was issued to Petitioners, 
Hughes and Richardson, to show cause why they should not 
be judged in contempt of the preliminary injunction. It was 
[fol. 143] stipulated that on this date the two Petitioners 
had picketed one store of Lucky with placards which read 
“ Lucky won’t hire Negro Clerks in proportion to Negro 
trade—Don’t Patronize.”

On June 23, 1947, the petitioners were adjudged in con­
tempt of the preliminary injunction and each was sentenced 
to be imprisoned for two days and to pay a fine of $20.00.4 A 
ten day stay of execution was granted. The same day, a 
petition for certiorari was filed in the District Court of 
Appeal.

On July 1, 1947, the District Court of Appeal granted the 
writ. Respondent made its return and in addition Lucky 
filed a purported answer and return, to which were attached 
certain affidavits, raising some factual matters which had 
never been presented to the trial court.

On November 20,1947, by a unanimous decision, The Dis­
trict Court of Appeal, with the opinion written by Presiding 
Justice Peters, annulled the judgment of contempt. The 
Court decided the main question, as quoted above, as well

3 A summary of the Counter-Affidavits appears in the 
Decision below, 82 A. C. A., 494-495, and will not be repeated 
here.

4 Petitioners received both fine and imprisonment, not in 
the alternative, as stated in Respondent’s Petition for Hear­
ing (p. 9).



86

as all the subsidiary issues, in favor of Petitioners.5 It 
[fol. 144] should be noted that at all times it has been con­
ceded that the picketing herein was peaceful and orderly. 
In addition it seems clear that the placards carried by Peti­
tioners were truthful and without misrepresentation.

In the discussion that follows, Petitioners will deal first 
with the question concerning the affidavits and then with 
the main issue.

I
The Affidavits, Attached to the Return and Answer of 

Lucky Stores, Incorporated, Alleging Factual Matters Not 
Before the Trial Court, Were Properly Excluded by the 
District Court of Appeal.

In the words of Justice Peters in the decision below (82 
A. C. A. 496),

“ It is elementary law that the province of the writ of 
certiorair is to review the record of an inferior court 
and to determine from that record, and from that record 
alone, whether such court has exceeded its jurisdiction. 
Evidence dehors that record is not permitted.” (em­
phasis added)

Jurisdictional facts that are before an inferior tribunal, 
but which do not formally appear in the record, may be 
shown on the return, but not new matters.

In the instant case, Lucky without any showing of sur­
prise or that the matters were newly discovered—indeed 
such showing would be impossible—is attempting by affi­
davits in an appellate court, to show certain new facts and

5 In addition to its decision on the main issues the Court 
held: 1) That certiorari was an appropriate remedy; 2) 
That Affidavits attached to Lucky’s return and answer 
should not be considered by the Court; 3) That the injunc­
tion and contempt order could not be supported on the 
theory of inducement of breach of contract; 4) that it was 
unnecessary to decide the legality of the demands and 
original picketing relating to the discharge of certain of 
Lucky’s personnel who had arrested Jackson, since the 
picketing found contumacious did not seek this result. Re­
spondent apparently has abandoned its original inducement 
of breach of contract theory, since it does not raise it in its 
Petition for Hearing.



87

to raise new factual issues, never considered by the trial 
[fol. 145] court. Although Respondent cites other author­
ity,6 the only cases seemingly in support of its position are 
Wilde v. Superior Court, 53 Cal. App. (2d) 168 and Triplett 
v. Superior Court, 57 Cal. App. (2d) 536. As was pointed 
out by Justice Peters, however, in the Wilde case, the actual 
decision was based upon the record below, and the state­
ments relating to factual testimony in an appellate court 
were merely dicta. The Triplett case relied entirely upon 
the Wilde dicta. Moreover, in the Triplett case, both parties 
presented affidavits to the appellate court and objection to 
the consideration of new matters was first made in a petition 
for rehearing. In effect, therefore, the objecting party in 
the Triplett case invited the error and hence could scarcely 
complain of it. (See 57 Cal. App. (2d) at page 540) Thus 
analyzed, there does not appear to be the divergence in 
decision claimed by Respondent.

A better answer to Respondent’s contentions on this 
question, however, is that the issue is not controlling. In 
its Statement of the Case in its Petition here, Respondent 
has drawn freely upon the rejected affidavits. The only 
fact alleged by the affidavits and set forth in its Statement 
[fol. 146] of the Case here, which appears at all relevant 
is the allegation that Lucky had hired since 1946 two Negro 
clerks. Apparently, it is Respondent’s contention that this 
proves that Lucky did not discriminate against Negroes, 
and therefore it contends that Lucky was entitled to the 
preliminary injunction that Respondent issued.

Assuming, arguendo, that Lucky had in fact hired two 
Negro clerks, this is surely not adequate proof of a non- 
discriminatory policy. Before any such inference could be 
drawn, other facts would be needed. How many white clerks 
in addition to the two Negroes does Lucky employ at its 
many stores? How many Negroes have applied for jobs'?

6 Respondent cites Blair v. Hamilton, 32 Cal. 50, Los An­
geles v. Young, 118 Cal. 295 and In re Madera Irrigation 
District, 92 Cal. 296. The first two cases are illustrations 
of the general rule that all the facts before the inferior 
tribunal may be considered by the reviewing court even 
though not technically or formally pai’t of the record. The 
Madera case is not a case of certiorari or other extraordi­
nary writ and does not seem in point.



88

How many vacancies have been filled with white persons 
during the time the two Negroes were hired! What instruc­
tions, if any, has Lucky given the clerks union or to its per­
sonnel department, relating to the color of prospective em­
ployees? These questions should be answered, before the 
conclusion could follow that the “ token” hiring of two 
Negroes establishes a non-discriminatory policy on the part 
of Lucky.

It is submitted therefore that even if the affidavits were 
considered non-discrimination would not be shown. If this 
be so, obviously, the main issue would be decided in exactly 
the same way. It seems, therefore, unnecessary to take the 
time of this Court on the grounds of asserted lack of uni­
formity of decision to have a hearing on a proJecural point 
which would not require a reversal even if the District 
[fol. 147] Court of Appeals had decided it erroneously.

II
Negroes May Not Be Lawfully Enjoined from Peacefully 

Picketing a Retail Establishment That Caters to Negro 
Trade for the Purpose of Inducing the Operators of That 
Establishment, in the Course of Personnel Changes to Hire 
Negro Workers in Proportion to Negro Patronage.

The carefully reasoned opinion by Presiding Justice 
Peters in the District Court of Appeal on the main issue 
makes supererogatory any extended discussion by Peti­
tioners. While important, particularly to the Negro people 
of California, the principles involved in this case are not 
novel and the law applied by the District Court of Appeal 
is well established. New Negro Alliance v. Sanitary 
Grocery, 303 IJ. S. 552, a case with almost identical facts, 
establishes the principle that Negroes, as a group consist­
ently discriminated against, have a right to publicize by 
picketing their demands for increased employment. While 
technically the case involved the construction of the Federal 
anti-injunction Statute, the public policy of California relat­
ing to picketing is in exact accord with the Norris-La- 
Guardia Act, despite the fact that California has no such 
statute. McKay v. Retail Auto S. L. Union No. 1067, 16 
Cal. (2d) 311; Park & Tilford etc. Gory. v. In t’l etc. Team­
sters, 27 Cal. (2d) 599. Accordingly, it would seem that the 
doctrine of the New Negro Alliance case should control, 
[fol. 148] The main authority upon which Respondent re­



89

lies is an inferior court decision in New York, A. S. Beck 
Shoe Corp. v. Johnson, 153 Misc. 363, 274 N. Y. S. 946. 
The Beck case, decided in 1934 before the constitutional 
nature of peaceful picketing was ever alluded to, was urged 
by the grocery in the New Negro Alliance case and its rea­
soning was rejected by the United States Supreme Court. 
Moreover, the Beck case, although not cited, was in effect 
overruled by Lifshitz v. Straughn, 261 App. Div. 757, 27 
N. Y. S. (2d) 193, and it can no longer be considered the 
law of New York.

Petitioners find surprising, to say the least, Respondent’s 
reliance on James v. Marinship, 25 Cal. (2d) 721; Williams 
v. Boilermakers, 25 Cal. (2d) 586 and Thompson v. Moore- 
Dry Dock Co., 27 Cal. (2d) 595 as authority for their posi­
tion. According to Respondent, these landmark cases, 
which so materially advanced the struggle of the Negro for 
full and fair employment in basic industry, which imposed 
the responsibility upon organized labor to give equality 
of treatment to Negro workers, are to shackle Negroes seek­
ing employment, and the advancement of their economic 
interest in the retail grocery trade. It would be an un­
realistic distortion, it is submitted to adopt Respondent’s 
position. When the time comes that employers hire Negroes 
and discriminate against whites, then Respondent’s argu­
ment might be worthy of consideration. Such is not the 
case here.

Respondent’s whole case, apparently, rests upon its con­
tention that Lucky has a non-discriminatory employment 
[fol. 149] policy. As pointed out, this contention is unsup­
ported by the record and is not demonstrated even if the 
rejected affidavits are considered. Assuming, however, 
that Lucky’s employment policy was free from racial dis­
crimination, the injunction was still improperly granted. 
It cannot be denied that Negroes, as a group, have far more 
limited employment possibilities than whites. Negroes 
traditionally are the last to be hired and the first to be dis­
charged. Many industries are closed to them entirely.7

7 For illustrations of cases involving actual or threatened 
economic discrimination against Negroes, see Tunstall v. 
Brotherhood of L. F. R. E., 323 U. S. 210: Alston v. School 
Board of Norfolk, 112 F. (2d) 992, cert, den. 311 U. S. 693; 
Chaires v. Atlanta, 164 Ga. 755, 139 S. E. 559; cf. Tick Wo 
v. Hopkins, 118 U. S. 356.



90

They have therefore a definite economic interest in securing 
additional employment for themselves. With such economic 
interest, their right to picket peaceably, to disseminate at 
the site of the controversy truthful information to the pub­
lic about their aspirations, is firmly bedded in the constitu­
tion. Park & Tilford etc. Corp. v. In t’l etc. Teamsters, 
supra; In re Blaney, 30 A. C. 648. Discrimination, or lack 
of it, does not limit this right. For example, in the McKay 
case, the union demanded that the employer hire only union 
men, an obvious discrimination against the non-union work­
ers. The right to picket was not thereby lost to the union, 
despite its discriminatory demand. The same is equally 
true in this case.

The opinion below is well reasoned, in conformity with the 
[fol. 150] law as enunciated by this Court and the United 
States Supreme Court, and Petitioners respectfully contend 
that the decision of the District Court of Appeal should 
stand, and that a reexamination by this Court is unneces­
sary.

Respectfully submitted, Edises, Treuhaft & Condon, 
by Robert L. Condon.

Oakland, California, January 9, 1948.

[fol. 151] [File endorsement omitted]

Copy

I n  t h e  S u pr em e  C ourt op California  in  B ank  

No. S. F. 17685

J o h n  H u g hes  and Louis R ichardson , Petitioners,
v.

S uperior  C ourt op t h e  S tate of California , in  and for t h e  
County  of C ontra C osta, Respondent

Op in io n — Filed November 1, 1948
Petitioners through certiorari seek annulment of a judg­

ment of the superior court of Contra Costa County by which 
petitioners were found guilty of contempt of court for wil­
fully violating a preliminary injunction. The injunction



91

restrained petitioners and certain other individuals, as well 
as five named unincorporated associations, “ from picketing 
or taking position in front of any of the places of business 
of Lucky Stores, Incorporated, for the purpose of com­
pelling . . . [Lucky Stores, Incorporated, hereinafter
termed “ Lucky” ] to do any of the following acts:

“ (1) the selective hiring of negro clerks, such hiring to be 
based on the proportion of white and negro customers who 
[fol. 152] patronize . . . [Lucky’s] stores.” *

We have concluded that, upon the principles enunciated 
in James v. Marinship Corp. (1944), 25 Cal. 2d 721, 745, and 
Parh & Tilford I. Corp. v. Iwt. etc. of Teamsters (1946) 27 
Cal. 2d 599, 607, 614, the injunction properly restrained 
picketing for the purpose described, and that the judgment 
of contempt should be affirmed.

The controlling issue is whether the sole objective in­
volved—the discriminatory hiring of a fixed proportion of 
Negro employes regardless of all other considerations—is 
lawful. Relative to this issue it is to be particularly noted 
that here the only activity enjoined is “ picketing . . .  for 
the purpose of compelling . . . [Lucky] to . . . [en­
gage in] the selective hiring of negro clerks . . . based 
on the proportion of white and negro customers who patron­
ize . .  . [Lucky’s] stores.” This is in contrast to the 
situation which was presented in Parle d  Tilford I. Corp. v. 
Jnt. etc. of Teamsters (1946), supra, 27 Cal. 2d 599, wherein 
[fol. 153] the injunction which had been issued broadly for­
bade “ concerted activities” for any purpose. As stated in 
that case (p. 614 of 27 Cal. 2d), “ Since defendants, in con­
nection with their concerted activities made unlawful de­
mands that plaintiff sign a closed shop contract and coerce 
its employees to join defendant unions, it was permissible 
for the trial court to enjoin defendants from making such

* The injunction also restrained picketing for the purpose 
of compelling Lucky to discharge certain employes who had 
participated in the apprehension of a man accused of theft 
from one of Lucky’s stores located in the City of Richmond. 
However, at the oral argument before this court counsel for 
the respective parties agreed that the issue concerning the 
discharge of such employes had been dropped from the case. 
We therefore treat the injunction as being directed solely 
against “ selective” or “ proportional” hiring.



92

demands,” but (p. 607 of 27 Cal. 2d), “ The injunction . . . 
was not limited to enjoining such demands but prohibited 
defendant’s concerted activities and thus prevented de­
fendants from exercising their right under the law of this 
state and of the federal government to engage in such ac­
tivities for a closed shop.” It is also to be borne in mind 
that the proceeding before us is not an appeal from the 
order granting an injunction but is a petition for certiorari 
to annul a contempt adjudication.

Petitioners allege that on June 21, 1947, approximately 
three weeks after the injunction issued, they picketed in 
front of Lucky’s Canal Store, “ which store is located in the 
City of Richmond, County of Contra Costa, State of Cali­
fornia, bearing placards which carried the following legend: 
‘Lucky Wont Hire .Negro Clerks in Proportion to Negro 
Trade—Dont Patronize’ that on the same day they were
served with a citation to appear before the superior court 
on June 23, 1947, and show cause why they should not be 
adjudged in contempt; that on June 23 they were found 
guilty of “ contempt of the aforesaid preliminary injunc­
tion” and received sentence. Petitioners allege further 
[fol. 154] that both on June 21, 1947, and prior to issuance 
of the injunction petitioners and the other defendants 
named in the injunction proceedings “ were picketing to se­
cure a change of employment policy and working condition 
of Lucky . . .  by seeking to have Lucky . . . hire at 
its Canal Store . . .  a number of Negro clerks propor­
tionate to the number of Negro customers of said Canal 
Store . . .  A demand for these changes in employment 
policy was made by your petitioners upon Lucky . . .
before any picketing was done at the said Canal Store, 
which demand related to future vacancies and did not . . . 
contemplate the discharge of any of the present personnel 
of said Canal Store.” Each petitioner alleges that he is a 
member and officer of one of the associations named as de­
fendants in the injunction and that each of such associa­
tions has a “ substantial number of Negroes as members, in 
the City of Richmond.” It is also alleged that petitioners 
“ individually, and as officers” of the associations “ have an 
interest in promoting the employment by Lucky . . .  of 
Negro personnel and in improving the employment possi­
bilities of Negro citizens, particularly of those Negro citi­
zens who are members of the defendant organizations.



93

“ D. The picketing conducted by your petitioners in their 
individual and representative capacities, and by the defend­
ants . . . [named in the injunction] was designed to
promote and foster the aforesaid interest in increasing the 
[fol. 155] employment possibilities of Negro citizens.

“ E. The City of Richmond, County of Contra Costa, 
State of California, has a large and growing Negro popula­
tion in excess of ten thousand persons; unemployment 
among this Negro population is greatly disproportionate 
to the unemployment among the white persons in Richmond; 
traditionally, many industries and occupations are closed 
to Negroes and will remain closed until the Negro people 
can make effective their demand to obtain equality of op­
portunity for employment and to prevent economic dis­
crimination against Negroes.

“ F. The picketing . . . [at all times] was peaceful and 
orderly, without force or violence; the pickets did not pre­
vent the customers and employees of Lucky . . .  in going 
to and from the said Canal Store; the picketing was unac­
companied by misrepresentation, threats or intimidation 
of any sort.”

Petitioners urge that the preliminary injunction violated 
their constitutional right of free speech and was therefore 
in excess of the court’s jurisdiction and void. If their posi­
tion is sound, a judgment holding them guilty of contempt 
of the injunction will be annulled upon certiorari. (For- 
tenbury v. Superior Court (1940), 16 Cal. 2d 405, 407-409; 
Kreling v. Superior Court (1941), 18 Cal. 2d 884.)

After the certiorari petition was filed and the writ issued, 
respondent superior court and Lucky, the real party in 
[fol. 156] interest, joined in filing an answer and return. 
They admit that the picketing by petitioners was without 
force or violence, but deny that it “ was unaccompanied by 
misrepresentation.” They allege that Lucky’s “ policy 
throughout has been to hire employees on their individual 
merit and capacity” and deny that Lucky has discriminated 
against the Negro race; certain affidavits in support of this 
allegation and denial are attached to the answer and return.

Respondent and Lucky contend, among other points, that 
the picketing here involved, and upon which the judgment 
of contempt is based, was for the attainment of an unlawful



94

objective, viz: not to induce Lucky not to discriminate 
against, but, rather, expressly to compel Lucky to discrimi­
nate arbitrarily in favor of, one race as against all others 
in the hiring of a portion of its clerks; and that therefore 
the injunction was properly issued and the judgment of con­
tempt should stand. With this position, upon the record 
here, we must agree.

It is now established as the law that “ the right to picket 
peacefully and truthfully is one of organized labor’s lawful 
means of advertising its grievances to the public, and as 
such is guaranteed by the Constitution as an incident of 
freedom of speech.” (McKay v. Retail Auto. S. L. Union 
No. 1067 (1940), 16 Cal. 2d 311, 319, and cases there cited; see 
also Magill Bros. v. Blclg. Service etc. Union (1942), 20 Cal. 
2d 506, 511-512; People v. Dail (1943), 22 Cal. 2d 642, 651; 
[fol. 157] In re Blaney (1947), 30 Cal. 2d 643, 647.) Never­
theless, as emphasized in James v. Marinship Corp. (1944), 
supra, 25 Cal. 2d 721, 728-729 (see also authorities there 
cited), the state may protect against abuses of the right; 
“ the object of concerted labor activity must be proper and 
. . . must be sought by lawful means, otherwise the per­
sons injured by such activity may obtain damages or injunc­
tive relief.” (See also Park d  Tilford I. Corp. v. Int. etc. 
of Teamsters (1946), supra, 27 Cal. 2d 599, 603; N. W. Pac. 
R. R. Co. v. Lumber & S. W. Union (1948), 31 A. C. 448, 452.)

In the Marinship case the court was concerned with the 
“ fundamental question . . . whether a closed union
coupled with a closed shop is a legitimate objective of or­
ganized labor.” (P. 730 of 25 Cal. 2d.) We held that a 
union which holds a closed shop contract or other form of 
labor monopoly must admit Negroes “ to membership under 
the same terms and conditions applicable to non-Negroes 
unless the union and the employer refrain from enforcing 
the closed shop agreement against them.” There was not 
in that case any contention that the number of Negroes ad­
mitted to membership in the union or hired by the employer 
must be proportional, regardless of all other considerations, 
to the number of Negroes residing in the area or doing 
business with the employer. The judgment awarding a 
preliminary injunction which “ was clearly intended to do 
no more than eliminate discrimination upon the basis of 
race and color alone,” was affirmed. (P. 745 of 25 Cal. 2d; 
[fol. 158] see also Williams v. Int. etc. of Boilermakers



95

(1946), 27 Cal. 2d 586, 588-593; Thompson v. Moore Dry- 
doch Co. (1946), 27 Cal. 2d 595, 597-598.)

It is apparent that the same principles which impelled 
affirmance of the judgment in Marinship require that the 
injunction and the contempt order in the case now before us 
be upheld. The parties in their briefs argue as to whether 
Lucky does or does not discriminate against Negroes in its 
employment of clerks, as to whether that matter was con­
sidered or determined by the trial court, and as to whether 
the affidavits treating of that matter and attached to the 
answer and return are properly before this court. It may 
be assumed for the purposes of this decision, without decid­
ing, that if such discrimination exists, picketing to protest 
it would not be for an unlawful objective. However, no such 
broad purpose is shown to have motivated the activities 
here and the judgment of contempt is not affected by such 
proposition. Petitioners themselves specifically allege that 
their activities were “ to secure a change of employment 
policy and working condition of Lucky . . .  by seeking 
to have Lucky . . . hire at its Canal Store . . .  a 
number of Negro clerks proportionate to the number of 
Negro customers of said Canal Store . . the injunc­
tion which petitioners violated was directed at and limited 
to the narrow issue of “ selective hiring of negro clerks . . . 
based on the proportion of white and negro customers” ; 
[fol. 159] and the placards carried by petitioners in the 
course of such violation bore the words : “ Lucky Wont Hire 
Negro Clerks in Proportion to Negro Trade—Dont Patron­
ize. ’ ’ The fact that the hiring by Lucky of a small propor­
tion of Negro employes might tend to show discrimination 
against Negroes is beside the point; likewise it is immaterial 
here that Lucky denied any such discrimination. The con­
trolling points are that the injunction is limited to prohibit­
ing picketing for a specific unlawful purpose and that the 
evidence justified the trial court in finding that such narrow 
prohibition was deliberately violated.

If Lucky had yielded to the demands of petitioners, its 
resultant hiring policy would have constituted, as to a pro­
portion of its employes, the equivalent of both a closed shop 
and a closed union in favor of the Negro race. It would 
have had no choice but to employ only members of the Negro 
race in a fixed number of clerical positions, thus effectuat­
ing a closed Negro shop as to those positions. Moreover,



96

because race and color are inherent qualities which no de­
gree of striving or of other qualifications for a particular 
job could meet, those persons who are born with such quali­
ties constitute, among themselves, a closed union which 
others cannot join. It was just such a situation—-an arbitrary 
discrimination upon the basis of race and color alone, 
rather than a choice based solely upon individual qualifica­
tion for the work to be done—which we condemned in the 
Marinsliip case, supra, (25 Cal. 2d 721, 737, 745). The fact 
[fol. 160] that those seeking such discrimination do not 
demand that it be practiced as to all employes of a particu­
lar employer diminishes in no respect the unlawfulness of 
their purpose; they would, to the extent of the fixed propor­
tion, make the right to work for Lucky dependent not on fit­
ness for the work nor on an equal right of all, regardless 
of race, to compete in an open market, but, rather, on mem­
bership in a particular race. If petitioners were upheld in 
their demand then other races, white, yellow, brown and 
red, would have equal rights to demand discriminatory 
hiring on a racial basis. Yet that is precisely the type of 
discrimination to which petitioners avowedly object.

There has been some suggestion that the case of New 
Negro Alliance v. Sanitary Grocery Go. (1937), 303 U. S. 
552, is in some way in point in this litigation, and isolated 
excerpts of the language in that opinion have been quoted 
to us. But there is no serious contention that the Norris-La 
Guardia Act (Act of March 23, 1932, c. 90, 47 Stat. 70, 73, 
U. S. C. Tit. 29) operates in this case to divest the state 
courts of jurisdiction in the premises and, in the New Negro 
Alliance case, the only “ matter in controversy,” as ex­
pressed by the court, was (p. 554 of 303 U. S.) “ Whether 
the case made by the pleadings involves or grows out of a 
labor dispute within the meaning of section 13 of the 
Norris-La Guardia Act” and, consequently, whether the 
[fol. 161] United States District Court, by sections 4 and 7 
of the act, was deprived of jurisdiction to issue an order in 
the premises. The question involved in the cited case is 
not one which we reach, and as that case contains neither a 
discussion of any of the considerations which impel our 
decision nor of any controlling constitutional principle, it 
provides no precedent of value in resolving any issue now 
before us.

Petitioners assert that in Park & Tilford I. Corp. v. Int. 
etc. of Teamsters (1946), supra, 27 Cal. 2d 599, 607, we “ held



97

that peaceful picketing could not be enjoined regardless of 
the object of such picketing.” No such sweeping license 
was announced in that case. The judgment there enjoined 
defendants from, among other activities, “ any and all 
picketing or boycotting of plaintiff or of plaintiff’s business, 
products or merchandise. ” (P. 603 of 27 Cal. 2d.) We held, 
as previously shown, that at least one of the purposes of 
defendants in picketing was unlawful and that the judgment 
should be modified by limiting the injunction to the enjoin­
ing of defendants from continuing their activities in con­
nection with that purpose; defendants’ activities in con­
nection with lawful demands and purposes were freed from 
the injunction. By contrast, the injunction in the case nowT 
before us is limited to enjoining picketing for a specifically 
[fol. 162] designated unlawful purpose, viz: discrimination 
in favor of persons of the Negro race, based on race alone, 
and hence, arbitrary. Such injunction appears to have been 
properly issued, and the judgment of contempt based 
thereon will be affirmed.

Lucky contends, further, that the picketing here in issue 
was not “ a lawful exercise of the right” and not within the 
constitutional guarantee of free speech, because the defend­
ants had “ no relation to the labor contract,” the picketing 
was not directed at working conditions, and the dispute “ is 
solely racial.” Lucky also urges that acceding to peti­
tioners’ demands for proportional hiring would necessarily 
result in breach of its collective bargaining contract with 
the Retail Clerks Union. However, by reason of the con­
clusion we have reached as to the unlawfulness of peti­
tioners’ objective in their activities, and in view of the 
narrow limit of the injunction which issued and was violated, 
we do not reach these or other contentions of the parties.

The judgment of contempt is affirmed.
Schauer, J.

We concur: Shenk, J., Edmonds, J., Spence, J.

7—61



98

[fol. 163] I n  S u p r e m e  C ourt  o f  C a l ifo r n ia

[Title omitted]

D is s e n t in g  O p in io n
I dissent.
As the majority make no attempt to state the facts with 

particularity, it seems advisable to do so here. The con­
troversy centered around a grocery store in Richmond, 
Contra Costa County, one of a chain operated by Lucky 
Stores, Incorporated. Petitioners were adjudged guilty 
of contempt in that, in violation of the terms of a prelimi­
nary injunction, they admittedly continued to picket the 
store in question. They seek by this proceeding in certi­
orari to have the adjudication of contempt annulled, charg­
ing that their constitutional rights have been violated. 
This Court has held that certiorari is the appropriate 
method to test the jurisdiction of the superior court where 
it is challenged on constitutional grounds. (Fortenbury v. 
Superior Court, 16 Cal. 2d 405; Kreling v. Superior Court, 
18 Cal. 2d 884.)

Lucky Stores sought an injunction in the Superior Court 
of Contra Costa County, naming petitioners and various 
organizations and individuals as defendants. In its veri­
fied complaint it alleged that it was a party to a col­
lective bargaining contract with a certain clerk’s union 
wherein it had agreed to employ only members of the union 
unless the union could not meet its demands, or unless the 
unemployed members of the union were not satisfactory to 
it, in wdiich event it might employ non-union members, but 
[fol. 164] that such non-union employees must then join 
the union within a specified time. It was further alleged 
that these petitioners and other defendants demanded that 
Lucky Stores agree to hire Negro clerks in such proportion 
as the Negro customers bore to the white customers who 
patronized the store, and that plaintiff (Lucky Stores) dis­
charge those employees who had participated in the appre­
hension and arrest of one Jackson who had been accused 
of shoplifting'. Lucky Stores alleged that these demands 
were refused because to comply with them would violate 
the contract existing between it and the union, and that no 
labor dispute exists between it and the union, and that as 
a result of its refusal to comply, the petitioners and other 
defendants have picketed its store. It is contended that



99

this picketing will cause irreparable injury, that it is an 
infringement on plaintiff’s right to do business, and would 
require it to violate its contract with the union.

In response to the order to show cause why a preliminary 
injunction should not issue, petitioner Hughes filed a coun­
ter-affidavit in the injunction proceeding in which he sets 
forth the following facts: That he is a member and an offi­
cer in several of the organizations sought to be enjoined, 
and that he makes the affidavit in both his personal and 
representative capacities; that he and the other petitioner, 
Richardson, met with some officials of Lucky Stores and 
protested the treatment accorded Jackson; that he re- 
[fol. 165] quested Lucky Stores, so far as this particular 
store is concerned, to hire gradually Negro clerks until the 
proportion of Negro to white clerks approximated the pro­
portion of Negro to white customers. This proportional 
hiring was to take place as the white clerks left the employ 
of the store in question, or were transferred by plaintiff to 
other stores owned and operated by it. It was specifically 
stated that petitioner did not request the discharge of any 
employees of the store, but only that vacancies be filled with 
Negroes until the approximate proportion was reached. 
It was further alleged that about 50 per cent of the cus­
tomers at this particular store were Negroes. At this 
time, petitioner had no knowledge of the contract existing 
between Lucky Stores and the union, but that subsequently 
the officials of the union informed petitioner that the union 
accepted Negro members, and that it had such qualified 
members presently unemployed, and could supply Negro 
clerks to any employer requesting such help. Petitioner 
states further that on May 19, 1947, members of several of 
the organizations sought to be enjoined, picketed the store 
in question. This picketing was confined to not more 
than six pickets patrolling an area more than 100 feet 
wide; that the pickets were peaceful and there was 
no violence, no comments were made to customers or em­
ployees, other than the placards which were carried by the 
pickets. The words on the placards were to the effect that 
Lucky Stores refused to hire, at this particular store, a pro­
portionate number of Negro clerks.
[fol. 166] The affidavit of Richardson, the other petitioner, 
was to the same effect, and contained substantially the same 
statements. Neither of these affidavits were controverted 
by the plaintiff in the trial court.



1 0 0

The trial court granted a preliminary injunction in favor 
of the plaintiff. Petitioners violated the terms of the in­
junction by picketing the store in question and were ad­
judged guilty of contempt of court.

It was agreed, at the oral argument before this Court, 
by counsel for the respective parties, that the issue con­
cerning Jackson had been dropped from the case. The sole 
question involved at the present time, therefore, is the right 
of petitioners to picket a retail store, thereby setting forth 
their grievances and demands and publicizing the same.

When the writ of certiorari issued, respondent superior 
court and Lucky Stores, as real party in interest, joined in 
filing an answer and return, alleging that the picketing 
was without force and violence, but denying that it was 
not accompanied by misrepresentation, and alleging that 
the policy of Lucky Stores was to hire its employees on 
their individual merit and capacity, and denying that there 
had been any racial discrimination. It was contended that 
the picketing here involved was for the attainment of an 
unlawful objective.

It is a well-established principle that the Fourteenth 
Amendment to the Federal Constitution invalidates legis- 
[fol. 167] lation that infringes substantive rights of a fun­
damental character. The decision of the Supreme Court 
of the United States in Cantwell v. Connecticut, 310 U. S. 
296, made it clear that a judicial decision in the field of 
substantive law might also be found to be a violation of 
due process. Bridges v. State of California, 314 IJ. S. 252, 
was the first case to decide that punishment for contempt 
may violate the guaranty of freedom of speech.

The United States Supreme — has held that picketing 
is identified with the freedom of speech guaranteed by the 
First Amendment to the Constitution of the United States. 
(Bakery Drivers Local v. Wohl, 315 U. S. 769; Milk Wagon 
Drivers Union, Local 753, v. Meadowmoor Dair-es, 312 
U. S. 287; Thornhill v. Alabama, 310 U. S. 88; Carlson v. 
California, 310 U. S. 106.) This Court has also so held 
in In re Blaney, 30 Cal. 2d 643, Northwestern Pacific Rail­
way Co. v. Lumber & Saw Mill Workers’ Union, 31 Cal. 2d 
441, Park & T. I. Corp. v. Int. etc. of Teamsters, 27 Cal. 2d 
599; McKay v. Retail Auto S. L. Union No. 1067, 16 Cal. 
2d 311, Magill Bros. v. Bldg. Service etc. Union, 20 Cal. 2d 
506, and others. In so holding, this Court has established 
as the law of this state that the right to picket peacefully



101

and truthfully is one of labor’s lawful means of advertising 
its grievances to the public.

It is quite true that the basic reason advanced in support 
of the fundamental right of freedom of speech for a free 
people grew out of the need to speak freely concerning 
[fol. 168] political matters,, but it is equally true that there 
is a need to speak freely with reference to economic mat­
ters. This may require a rather delicate balancing of in­
terests involved, in that labor’s right to speak freely with 
regard to its grievances may, in some respects, infringe 
on the employer’s right to conduct his business as he 
chooses. Labor, always in a less advantageous bargaining 
position, has been held privileged to picket in an endeavor 
to put before the public its position, needs, and desires.

It is conceded here that picketing is free speech and some­
thing more. It is not an absolute right, but may be said 
to be in a category by itself, and as such subject to reasonable 
regulation by the courts. The boundaries circumscribing the 
right to picket are said to be that the object of concerted 
labor activity must be proper and that it must be sought 
by lawful means, or the persons injured by such activity may 
obtain damages or injunctive relief. There is no dispute 
here concerning the means used since the picketing was 
admittedly peaceful. The dispute centers around the objec­
tive sought by petitioners.

The picket seeks, through economic pressure, to induce 
certain action on the part of another. The activity sought 
to be induced may be one or more of many things. He may 
be one of a number of employees seeking better hours, 
working conditions, better pay for his labor, or he may, 
[fol. 169] as in the present case, seek employment for him­
self and members of his race. It was held by this court 
in C. S. Smith Met. Market Co. v. Lyons, 16 Cal. 2d 389, and 
in the McKay case, supra, that labor may exert economic 
pressure upon employers provided that peaceful means 
are used and the purpose is one reasonably related to labor 
conditions. Despite the picketing the public might choose 
to patronize the merchant, but labor must be given some 
opportunity to put its case before the public, that the public 
may decide for itself whether or not the worker’s position 
is a just one.

In New Negro Alliance et al. v. Sanitary Grocery Com­
pany, Inc., 303 U. S. 552, it was held that petitioners, mem­
bers of a group organized to obtain advancement for the



1 0 2

benefit of colored persons, were parties to a “ labor dis­
pute” within the meaning of the Norris-LaGuardia Act. 
The facts were substantially the same as are presented 
here, except for the words on the placards which the Negroes 
carried. The court stated the case, on page 559, in the fol­
lowing language: ‘ ‘ The case, then, as it stood for judgment, 
was th is: The petitioners requested the respondent to adopt 
a policy of employing negro clerks in certain of its stores in 
the course of personnel changes: the respondent ignored 
the request and the petitioners caused one person to patrol 
in front of one of respondent’s stores on one day carrying 
a placard which said: ‘Do Your Part! Buy Where You 
[fol. 170] Can Work! No Negroes Employed Here!’ . . .” 
and said on page 561, “ The Act does not concern itself 
with the background or the motives of the dispute. The 
desire for fair and equitable conditions of employment on 
the part of persons of any race, color, or persuasion, and the 
removal of discriminations against them by reason of their 
race or religious beliefs is quite as important to those con­
cerned as fairness and equity in terms and conditions of 
employment can be to trade or craft unions or any form of 
labor organization or association. Race discrimination by 
an employer may reasonably be deemed more unfair and 
less excusable than discrimination against workers on the 
ground of union affiliation . . .” [Emphasis added.]

The public policy of this state, as declared by the courts, 
is in exact accord with the statutory policy of the Norris- 
LaGuardia Act as interpreted in the above case. It has 
been here determined that picketing is justified even though 
no dispute exists between employer and employees. (Mc­
Kay v. Retail etc., supra.) The Smith case, supra, pointed 
out that the term “ labor dispute” is a broad one, and in 
the absence of statutory definition, may be properly applied 
to any controversy which is reasonably related to employ­
ment and to the purposes of collective bargaining. (Park 
& T. I. Corp. v. Int. Etc. of Teamsters, supra.)

It is said that petitioners’ objective is unlawful for sev­
eral reasons: (1) That if the demand of the petitioners
had been complied with the result would have been, in effect, 
the equivalent of both a closed shop and a closed union in 
[fol. 171] favor of the Negro race; and (2) that such a 
result would have resulted in discrimination in favor of the 
Negro race; and (3) that petitioners’ objective was not 
a lawful exercise of the right to picket and hence, not within



103

the constitutional guaranty of free speech because petition­
ers had no relation to the labor contract; that the picketing 
was not directed at working conditions, but a racial dispute, 
and that a compliance with the demand would result in a 
breach of the contract between Lucky Stores and the Retail 
Clerks Union. The majority thought it unnecessary to dis­
cuss the latter point inasmuch as they found petitioners’ 
objective otherwise unlawful.

The majority, in holding that the judgment of contempt 
should be affirmed, state that the case of James v. Marinship 
Corp., 25 Cal. 2d 721, is controlling. The facts in the Marin­
ship case are as follows: Marinship, as employer, had a
closed shop agreement with a labor union, whereby it agreed 
to hire only members of a particular union. Plaintiff, a 
member of the Negro race, was not admitted to full member­
ship in the union, nor were other members of his race, but 
he, and they, were admitted to separate Negro lodges affil­
iated with the union. Negroes were forced to pay dues to 
these lodges in order to obtain work clearances for employ­
ment at Marinship. Marinship was under contract with 
the Federal Government wherein it was provided that it 
would not discriminate against any worker because of race, 
[fol. 172] color, creed or national origin. Plaintiffs were 
willing to become members of the union on equal terms with 
other members, but the union would not receive them on that 
basis. These, then, are the facts which led to the basic 
question there involved: Whether a closed union coupled 
with a closed shop is a legitimate objective of organized 
labor. This question was answered in the negative. It was 
held that the union may not maintain both a closed shop 
and an arbitrarily closed union.

A closed ship is defined as one that employs only union 
members. (Irving v. Joint List. Council, U. B. of Carpen­
ters, etc. [N. Y.], 180 Fed. 896, 899; Miners in General 
Group v. Hix [W. Va.], 17 S. E. 2d 810, 813.) A closed union 
is one which arbitrarily denies admittance to qualified work­
ers. I t was the combination of the two, resulting in discrim­
ination between the races, which brought about the end result 
—that the discriminated-against race was unable to obtain 
gainful employment in the closed shop, admittedly a vicious 
circle, which was forbidden by the decision in the Marin­
ship case. This is the case, which, according to the major­
ity, is supposedly analogous to the result sought to be 
achieved by petitioners here.



104

The Retail Clerk’s Union, which is involved here only 
incidentally, is not a closed union. It numbers among its 
members those of both the white and Negro races. It has 
also among its members, unemployed qualified Negro clerks. 
The contract between Lucky Stores and this union was not 
[fol. 173] a “ closed shop” agreement, but in reality, a 
“ union shop” agreement. (Markham-Callow v. Interna­
tional Woodworkers [Ore.], 135 Pac. 2d 727; Miners in 
General Group v. Hix [W. Va.], 17 S. E. 2d 810.) Lucky 
Stores agreed to hire union members, or if they could not 
be supplied, it might hire others, who must then become 
members of the particular union. Thus far, we have the 
normal situation involving a union and an employer. But 
the present case involves a tri-party situation, which the 
majority insist on considering as the usual one involving 
a union and an employer. Petitioners are asking that Negro 
clerks be hired, and they are quite willing, and would con­
sider their demands fully met if the unemployed qualified 
Negro clerks, presently members of the union involved 
were hired. The statement in the majority opinion that 
the right to work for Lucky Stores would be based on race, 
rather than qualification for the work, is absolutely with­
out foundation. Nothing could be more remote from the 
truth.

It is true that one must be born into the Negro race in 
order to qualify for membership within its ranks, but that 
is also quite true of the Caucasian, Chinese and Japanese 
races. But the majority have forgot that the State of Cali­
fornia is one of the United States of America where ‘ ‘ all men 
are created equal,” where all have equal rights, and where 
it has been repeatedly declared that discrimination shall not 
exist because of race, color or creed.
[fol. 174] The situation presented here does not fall within 
the rule announced in the Marinship case. It does not fall 
within the definitions of either a closed shop, or a closed 
union. It must be remembered that picketing for eAther a 
closed shop, or a closed union is not forbidden by law, but 
that the combination of the two is considered unlawful. It 
may be assumed for this purpose, that petitioners are ask­
ing that a certain proportion of their race be employed in 
this particular store and that the “ shop” would then be 
closed as to a certain number of employees, although it is 
difficult to perceive how “ closed” and “half closed” may be



defined as meaning the same thing. Petitioners are not 
asking that the union admit only Negro members, nor are 
they asking that it admit any Negro members. The Retail 
Clerks Union which is involved is an open one. This point 
is ignored, and the majority assume that petitioners are 
members of the Negro “ union” , that, of necessity, it is a 
closed “ union”, and for Lucky Stores to meet petitioners’ 
demand would result in a closed shop and a closed union, 
an unlawful result. As a necessary analogy then, we have 
every shop employing only white help operating a “ closed” 
shop with the aid of a “ closed union” , since only white per­
sons may belong to the white “ union” , and we have, as a 
result, many flagrant violations of the Marinship rule. This 
absurd situation follows from considering that a race of 
people constitute a “ union” .

The majority opinion states: “ If petitioners were upheld 
[fol. 175] in their demand then other races, white, yellow, 
brown and red, would have equal rights to demand dis­
criminatory hiring on a racial basis.” Petitioners are 
seeking non-discrimination, not discrimination. Discrimi­
nation is treatment which is not equal. It follows that non­
discrimination must be equal treatment. Petitioners are 
seeking just that, and nothing more. It has long been 
established in Equity, that the court will look through form 
to substance. It has also been said often and emphatically 
that in Equity each case must be decided on its own facts, 
hence it might logically follow that in a neighborhood pre­
dominately Chinese or Japanese, or on an Indian reserva­
tion that picketing for a proportional hiring of members of 
the particular race involved would be just, equitable and 
entirely in accord with sound public policy. It is not in­
volved here. But involved here is a store situated in a dis­
trict where the population is composed of a large majority 
of members of the Negro race. These members of the 
Negro race comprise at least fifty percent of the customers 
of the store in question. The petitioners by means of 
peaceful picketing and through the words printed on their 
placards were seeking to publicize their grievance to mem­
bers of their race, and to members of the white race in 
sympathy with their long struggle for freedom, so that 
economic pressure might be exerted to gain for them 
equality in the labor field. They requested only that a pro­
portionate number of Negro clerks be hired as replace­



106

ments were necessary. Not that any white person be fired 
that they might be hired.
[fol. 176] It must be admitted by every thinking person 
that Negroes are, and have been, constantly discriminated 
against. They are considered by some people as being fit 
for only the most menial positions. It was even found 
necessary for the Legislatures of the various states to pass 
laws that they might obtain shelter and food on an equal 
basis with members of the white race. The abolition of 
slavery did not free the Negro from the chains his color 
imposes on him. It has been said that Negroes may obtain 
equal opportunities with others for employment by organi­
zation, public meetings, propaganda, and by personal solici­
tation. The effectiveness of these methods may well be 
doubted. Labor, as a whole, found that the only way it 
might attain its objectives of better working conditions, 
hours and pay was to exert economic pressure on employers. 
Nothing else was heeded. Is the Negro here to be denied his 
only effective means of communicating to the public the 
facts in connection with the discrimination against him, and 
the only effective method by which he may achieve non­
discrimination ?

The majority assume, without deciding, that if racial dis­
crimination exists, picketing in protest of it would not be 
for an unlawful objective. How can it be said that picket­
ing to attain non-discrimination is unlawful? Petitioners 
are asking equal treatment, that which is guaranteed to them 
by the Constitution of the United States, and yet their ob­
jective is called “ unlawful.”
[fol. 177] The end result of the majority decision is to 
establish a rule which may be applied to prevent picketing 
for the purpose of publicizing the fact that an employer 
is discriminating against persons because of race or color 
in the selection of his employees. Because, if such em­
ployer should employ only one of such race or color in some 
menial position, such as janitor or messenger boy, any 
claim of discrimination, according to the majority view, 
would be unjustified, and picketing to prevent discrimina­
tion (even though thousands of qualified members of such 
race or color were refused employment for that reason) 
would be unlawful, and could be restrained by injunction. 
This must be the effect of the rule announced in the ma­
jority opinion. For if an employer who employs only one



107

or two of a certain race in 10,000 employees, when hundreds 
of qualified members of such race are seeking employment, 
and he can be picketed by the members of such race to 
induce the employment of an increased number of such mem­
bers, then, it must follow that such employer may be picketed 
for the purpose of inducing him to employ a sufficient num­
ber of the members of such race to indicate an intention not 
to discriminate against the members of such race in the 
selection of his employees. In other words, if the picketing 
is truthful and peaceful, it may be resorted to as the exer­
cise of the constitutional right of freedom of speech or 
press, and that is all petitioners did in this case.

It is my opinion, therefore, that the writ should issue 
[fol. 178] annulling the judgment of contempt rendered 
against the petitioners.

Carter, J.

[fol. 179] In S u p r e m e  C ourt  of C a l ifo r n ia

[Title omitted] 

D is s e n t in g  O p in io n

I dissent.
In my opinion this case was correctly decided by the Dis­

trict Court of Appeal and the judgment of contempt should 
be annulled for the reasons set forth in the opinion of that 
court by Presiding Justice Peters. (82 A. C. A. 491, 186 
P. 2d 756.) It is here necessary to direct attention only to 
those considerations that compel me to take issue with the 
majority opinion of this court.

That opinion holds that the object of the picketing was 
to limit certain jobs to a closed shop and a closed union 
and that such an object is unlawful by virtue of James v. 
Marinship, 25 Cal. 2d 721. In my opinion this holding is 
based on an erroneous application of that case. The union 
there had secured through its closed shop1 contract a 
monopoly of the jobs in a certain plant, and this court held 
that a union with such a monopoly cannot close its doors 
on racial grounds and simultaneously enforce its closed 
shop contract against those arbitrarily excluded from the 
union. In the present case petitioners seek, not a monopoly 
[fol. 180] of the jobs available, but only a share of those



108

jobs that they believe they would have had if there had been 
no discrimination against them. The union in the Marin- 
ship case was free to open its ranks to all. Here a group 
helpless to open its ranks to all is seeking a share of the 
available jobs in proportion to its patronage. Rules de­
veloped to curb abuses of those already in control of the 
labor market have no application to situations where the 
moving party is seeking to gain a foothold in the struggle 
for economic equality. Petitioners are seeking by reason­
able methods to discourage discrimination against them. It 
is unrealistic to compare them with those who sought to 
couple a closed union with a closed shop for the very pur­
pose of discrimination.

Those racial groups against whom discrimination is 
practiced may seek economic equality either by demanding 
that hiring be done without reference to race or color, or 
by demanding a certain number of jobs for members of 
their group. The majority opinion holds that economic 
equality cannot be sought by the second method if picketing 
is adopted as the means of attaining that objective. In the 
absence of a statute protecting them from discrimination 
it is not unreasonable for Negroes to seek economic equality 
by asking those in sympathy with their aims to help them 
secure jobs that may be opened to them by the enlistment 
of such aid. In their struggle for equality the only effective 
[fol. 181] economic weapon Negroes have is the purchasing 
power they are able to mobilize to induce employers to open 
jobs to them. (See New Negro Alliance v. Sanitary Grocery 
Co., 303 U. S. 552, 561; Bakery Drivers’ Local v. Wohl, 
315 U. S. 769, 775.) There are so fewr neighborhoods where 
Negroes can make effective appeals against discrimination 
that they may reasonably regard the seeking of jobs in 
neighborhoods where their appeal may be effective the only 
practical means of combating discrimination against them. 
In arbitrating the conflicting interests of different groups 
in society courts should not impose ideal standards on one 
side when they are powerless to impose similar standards 
upon the other. Only a clear danger to the community 
would justify judicial rules that restrict the peaceful mobili­
zation of a group’s economic power to secure economic 
equality. (See Mr. Justice Brandeis dissenting in Duplex 
Co. v. Deering, 254 IJ. S. 443, 488; C. S. Smith Met. Market 
Co. v. Lyons, 16 Cal. 2d 389, 403.) There is no reality in the



109

reasoning that those who seek to secure jobs where they 
have an opportunity to enlist public support on their behalf 
are thereby seeking illegal discrimination in their favor, 
for the fact remains that everywhere they turn for jobs they 
are likely to encounter the barrier of discrimination.

The picketing in this case is directed at persuading Lucky 
to take action that it may lawfully take on its own initiative, 
[fol. 182] No law prohibits Lucky from discriminating in 
favor of or against Negroes. It may legally adopt a policy 
of proportionate hiring. The picketing confronts Lucky 
with the choice of adopting a policy that is not illegal in 
itself or risking the loss of patronage that may result from 
the picketing. Had California adopted a fair employment 
practices act that prohibited consideration of the race of 
applicants for jobs, it might be said that the demand for 
proportional hiring would be a demand that Lucky violate 
the law. Neither the Legislature nor the people have 
adopted such a statute, and I find no implication in the ma­
jority opinion that its equivalent exists under the common 
law of this state.

It is important to note, apart from the lawfulness of the 
objective, that the picketing in this case has none of the 
nonspeech characteristics that would justify an injunction. 
It is established by numerous United States Supreme Court 
decisions that picketing is protected as an exercise of free 
speech. (Cafeteria Union, Local 302 v. Angelos, 320 U. S. 
293; Bakery Drivers’ Local v. Wohl, 315 U. S. 769; Carpen­
ters’ Union v. Bitter’s Cafe, 315 U. S. 722; A. F. of L. v. 
Swing, 312 U. S. 321; Milk Wagon Drivers’ Union v. Mea- 
dowmoor Dairies, 312 U. S. 287; Carlson v. California, 310 
U. S. 106; Thornhill v. Alabama, 310 U. S. 88; Senn v. Tile 
Layers’ Union, 301 U. S. 468.) As such the states must deal 
with it as a protected right under the First and Fourteenth 
[fol. 183] Amendments to the United States Constitution. 
Within the free speech guaranty, traditional modes of com­
munication are protected unless a clear and present danger 
of serious substantive evil is shown. (Thomas v. Collins, 
323 U. S. 516; Bridges v. California, 314 U. S. 252.) Al­
though picketing has not been so identified with other forms 
of speech that its permissible limits are governed by the 
same tests (Carpenters’ Union v. Bitter’s Cafe, supra, 315 
U. S. 722; Milk Wagon Drivers’ Union v. Meadowmoor 
Dairies, 312 U. S. 287), a state may not deny it protection



110

as free speech when the elements that differentiate it from 
other forms of speech are not present. (See Armstrong, 
Where Are We Going With Picketing, 36 Cal. L. Rev. 1, 
30-40.)

In recognition of the fact that picketing often entails 
more than speech, the United States Supreme Court has 
allowed states to place limitations on picketing as they 
could not on traditional modes of communication. In these 
decisions the Supreme Court has been concerned in the 
main with the evils attending certain forms of picketing. 
Thus violent or untruthful picketing is not protected. (Milk 
Wagon Drivers’ Union v. Meadowmoor Dairies, supra, 312 
U. S. 287; see Cafeteria Union, Local 302 v. Angelos, supra, 
320 U. S. 293, 295; Magill Bros. v. Building Service Etc. 
Union, 20 Cal. 2d 506.) Again special circumstances may 
justify a state’s limiting the places where and the persons 
against whom picketing may be carried on. (Carpenters’ 
[fol. 184] Union v. R itter’s Cafe, supra, 315 U. S. 722.) A 
state may declare, for instance, that the conscription of 
neutrals, dissociated from the dispute involved, may not be 
enforced by picketing those neutrals. (Carpenters’ Union 
v. R itter’s Cafe, supra, 315 U. S. 722, 728.) Since picketing 
is a form of protected free speech, some greater evil or more 
imminent danger must be found to justify its suppression 
than would be required to justify curtailment of action 
protected only by the due process clause independent of the 
First Amendment. (See Board of Education v. Barnette, 
319 U. S. 624, 639.)

A forceful advocate of the view that picketing is not free 
speech has discussed the nature of picketing as follows: 
‘ ‘ Picketing is the marching to and fro before given premises 
wTith a banner usually containing assertions that the pick­
eted person is ‘unfair to organized labor,’ or that his em­
ployees are on ‘ strike. ’ Sometimes the picket speaks these 
very same words or adds further assertions. This, substan­
tially, is labor’s method of stating its side of the contro­
versy. Rarely, if ever, does labor inform the public of all 
the differences which exist between it and the employer. 
Nor, indeed, can labor be expected to do so since few will 
stop to read or listen. Thus the picket appeals basically to 
sympathy; sometimes, however, he appeals to the custom­
er’s sense of embarrassment. Often, too, the picket depends 
[fol. 185] upon the observance by union members of the rule



I l l

—either formally embodied or tacitly understood—forbid­
ding the crossing of picket lines. Another purpose of the 
picket is to inform those delivering goods to or taking goods 
from, the picketed establishment that it is on the union’s 
unfair list. In the Ritter’s Cafe case the cafe employees 
had no quarrel with Ritter over the terms and conditions of 
their own employment; they refused, nevertheless, to cross 
the picket line established by the carpenters’ and painters’ 
unions, and furthermore, truckmen refused to make deliv­
eries necessary to Ritter’s business.” (Teller, Picketing 
and Free Speech, 56 Harv. L. Rev. 180, 201.) Virtually none 
of the nonspeech elements of picketing here described are 
present in this case.

If picketing does not contain substantial nonspeech ele­
ments and is primarily conducted to disseminate informa­
tion, limitations that differentiate picketing from other 
forms of speech should not be invoked. The picketing here 
is of this type. The facts of the dispute were fully pre­
sented by the banners. Since the picketing was not being 
carried on by a labor union, no generally observed rules of 
labor unions against crossing picket lines were brought into 
play and no deliveries were interferred with. All that was 
involved in this case was an orderly appeal to the public 
coupled with a clear and truthful statement of the facts of 
[fol. 186] the dispute. (See New Negro Alliance v. Sani­
tary Grocery Co., supra, 303 U. S. 552.) Under such cir­
cumstances the unlawful objective doctrine may not be in­
voked to differentiate picketing from traditional modes of 
communication. To do so unreasonably interferes with pe­
titioners’ right to publicize the facts of their dispute. (See 
James v. Marinship, supra, 25 Cal. 2d 721, 730; A. F. of L. v. 
Swing, supra, 312 U. S. 321, 325.)

Traynor, J.

[fol. 187] [File endorsement omitted]

I n  t h e  S u p r e m e  C ourt  op C a l ifo r n ia  in  B a n k  

[Title omitted]

P e t it io n  fo r  R e h e a r in g—Filed November 16, 1948
Come now John Hughes and Louis Richardson, your 

petitioners, and respectfully petition the Honorable Court



1 1 2

for a rehearing in the above-entitled matter after decision 
filed November 1, 1948 which affirmed the judgment of con­
tempt against them by respondent Superior Court. The 
opinion was written by Mr. Justice Schauer, concurred in 
by Justices Shank, Edmonds and Spence. Justices Carter 
and Traynor filed dissents.

Your petitioners earnestly contend that petitioners’ basic 
rights of freedom of speech, guaranteed by the First and 
Fourteenth Amendments to the United States Constitution 
have been struck down by the majority opinion. Moreover, 
the thousands of members of racial and religious minorities 
in the State of California will find that the majority opinion 
removes from them one needed weapon in their struggle for 
[fol. 188] economic equality and their realization of the 
dignity of man. The decision virtually outlaws all picket­
ing by Negroes or other minorities to secure employment 
in businesses such as the large retail chains, from which 
they, except in menial capacities, have been systematically 
excluded. Picketing is the most important weapon working 
people possess to enlist effectively the support of the gen­
eral public on their side of a dispute. In effect, the Court, 
by forbidding picketing, herein, has taken a large step 
backwards, since its decision will have the inevitable con­
sequence of helping to justify racial discrimination. In­
dustries now closed to minorities can cite the Court’s 
opinion as a justification for remaining closed. Lucky 
Stores and Safeway, an amicus herein, can continue their 
policy of refusing to hire Negroes except on a token basis. 
Negroes and other victims of a despicable caste system have 
been given a blow in their struggle for jobs. We respect­
fully submit that this Court, which has been outstanding in 
striking at the hateful system of racial discrimination, must 
be sympathetic to petitioners’ attempt herein to get jobs 
for Negroes as retail clerks in the City of Richmond. We 
further submit that the virtually undisputed facts of the 
case should require a result contrary to that reached by the 
majority.

In urging reconsideration, we make two principal conten­
tions wherein we believe the majority opinion was incorrect, 
[fol. 189] First, the objective of the picketing was not dis­
criminatory hiring of Negroes to the disadvantage of whites. 
Secondly, regardless of whether petitioners were seeking 
discrimination in favor of Negroes and against whites, they



113

were picketing for a lawful objective, and, since the means 
used were peaceful and truthful, the picketing is therefore 
constitutionally protected.

I

The Objective of the Picketing Was Not a Discriminatory 
Hiring of Negroes to the Disadvantage of Whites.

The majority states “ the controlling issue is whether 
the sole objective involved—the discriminatory' hiring of a 
fixed proportion of Negro employees regardless of other 
considerations—is lawful” (page 2, emphasis added). At 
the outset, therefore, in poising the problem, the Court 
assumes that petitioners were seeking to have Lucky Stores 
discriminate in favor of Negroes. Later in its opinion the 
Court states it agrees with Lucky’s position that petitioners 
were attempting “ expressly to compel Lucky to discrimi­
nate arbitrarily in favor of one race as against all others 
in the hiring of a portion of its clerks,” (page 6, emphasis 
added). The majority in its analysis of James v. Marin- 
ship, 25 Cal. (2d) 721, and in its determination that the 
James case controlled, again assumed that petitioners were 
seeking an “ arbitrary discrimination on the basis of race 
and color.”
[fol. 190] Petitioners respectfully submit that there is 
nothing in the record to justify this assumption. Petitioners 
were seeking jobs—jobs for people who traditionally are 
discriminated against. They were seeking jobs in an indus­
try—chain retail food—in which Negroes receive only token 
employment, if any.

Certainly the Court will agree that a Negro has a right 
to work in a chain food store if he can get a job. When an 
organization like the National Association for the Advance­
ment of Colored People, involved in this case, requests a 
store, such as Lucky, to employ Negro clerks, is it, per se, 
committing an “ unlawful” act? Does the Court consider 
that there is an “ unlawful” act when an employer agrees 
with the NAACP to hire, let us say, one Negro—solely be­
cause he is a Negro and one of the disproportionate number 
of Negro unemployed—that is the concern of the NAACP? 
Or if the Petitioners could “ lawfully” request Lucky to 
hire one Negro clerk solely because he is a Negro and out

8—61



114

of work, is it an “ arbitrary discrimination” if they sought 
jobs for five Negroes or ten Negroes? Is the line between 
“ arbitrary discrimination on the basis of race or color” , 
which the Court says it is striking down in this case, and 
the undoubted right of Negro organizations to find jobs for 
their people, so exact and readily ascertainable, that this 
Court can say it is “ arbitrary” and discriminatory” for 
[fol. 191] people to request a rough equality in the racial 
composition of the employees of a chain store and the 
neighborhood it serves ? What indeed is ‘4 arbitrary ’ ’ about 
the request made ? If petitioners sought all the jobs at the 
Canal Store for Negroes, perhaps this might be arbitrary. 
Is it not reasonable, however, to request employment oppor­
tunities based upon the racial composition of the customers ? 
At the Canal Store Lucky profits from the Negro community, 
since it is undisputed that at least half of its customers are 
Negro. Are the Negro people being “ arbitrary” and dis­
criminating on “ the basis of race and color alone” if they 
ask for the right to be employed where they spend their 
money? Certainly, the implication of New Negro Alliance 
v. Sanitary Grocery, 303 U. S. 552, is that this activity is 
reasonable and indeed desirable. We earnestly submit that 
the standard of employment sought was in this case reason­
able and not arbitrary. It was a practical way of achieving 
what all decent persons approve, a breakup of the discrimi­
nation by employers against Negro unemployed.

Moreover, discrimination cannot be proven by any exact 
slide rule. Roughly ten per cent of the population of the 
United States is colored. If there were no discrimination 
in the employ of Negroes, presumably the Negro population 
would find employment throughout the entire American 
[fol. 192] economy in approximately the same ratio; that 
is, of one Negro in each industry to nine whites. Presum­
ably therefore approximately ten per cent of retail clerks 
would be colored. Would it not be conceded that if there 
were no discrimination against the employment of Negroes, 
where the Negro largely lives in segregated areas, there 
would be a higher percentage of Negro clerks in those stores 
serving predominantly Negro patronage? Although this 
may sound speculative, the argument is advanced to show 
how essentially reasonable petitioners’ position has been. 
Petitioners have sought personnel changes from Lucky to 
make the actual racial composition of Lucky’s employees



115

conform to the pattern that would undoubtedly exist if the 
admitted fact of economic discrimination against Negroes 
disappeared from America. Petitioners have sought to 
ease in a small way the truly terrible burden the Negro 
carries. They have been fighting for the victims of dis­
crimination and they are not seeking discrimination against 
white persons. We submit therefore that they have picketed 
for a practical and reasonable solution of a difficult problem. 
They have not sought a “ discriminatory hiring of a fixed 
proportion of Negro employees regardless of all other con­
siderations,” as stated by the Court.

II
The Picketing Was for a Lawful Objective Regardless 

of Whether Its Effect in the Instant Case Involved Dis- 
[fol. 193] crimination in Favor of Negroes and Against 
Whites.

It is accepted, we suppose, that the means used herein 
were lawful, that is, the picketing was truthful and non­
violent. Accordingly, if the objective were lawful, the 
picketing clearly was constitutionally protected. Particu­
larly is this so, as Justice Traynor points out in his dissent, 
since there were practically no “ non-speech” elements of 
picketing present in the case.

Even if the majority of the Court is correct in its evalua­
tion that there was demand for a discriminatory hiring on 
the basis of race or color, we respectfully submit that this 
does not make the objective of the picketing unlawful. 
There is no Fair Employment Practices Act in California 
and it does not violate a statute—no matter how morally 
or socially wrong it may be—for an employer to discriminate 
in the hire of employees because of race or color. Accord­
ingly, it seems clear, for example, that Lucky could adopt 
a policy of hiring only Negroes at its Canal Store. Or it 
could adopt a policy of only hiring Caucasians or Orientals. 
At least, Lucky could so discriminate without violating any 
statute.

If Lucky unilaterally could change its employment policy 
and hire only Negroes, why cannot the petitioners request 
or demand that Lucky employ half Negro and half white 
[fol. 194] personnel! Why would this demand be “ an un­
lawful objective” ? Have petitioners not an interest to 
protect in view of the existing unemployment of Negroes!

9—61



116

Is not the elimination of the disproportionate Negro un­
employment in accord with sound public policy, regardless 
of its effect on the dominant white groups'?

Are petitioners to understand that this Court, under its 
general equity powers, has incorporated the principle 
underlying the various Fair Employment Practices Acts, as 
part of the general law of the State! The Court, in effect, 
says that petitioners were attempting to discriminate in 
employment because of race or color and that the picketing 
was for a “ specific unlawful purpose” (page 9, emphasis 
added). If petitioners cannot seek to impose discriminatory 
hiring practices, does it not follow that employers, such as 
Lucky, cannot maintain, discriminatory hiring practices. 
If the Court will enjoin petitioners from seeking what it 
says are discriminatory employment practices, surely it 
should be prepared to say that it is unlawful for any per­
son, including employers, to discriminate in hiring because 
of race or color.

If petitioners are correct in their contention that Lucky 
does discriminate against Negroes, by the logic of the Court’s 
decision, petitioners should be able to secure an injunction 
against Lucky to prohibit this discrimination. Nor can the 
Court say it is “ unlawful” for Negro people and their or­
ganizations to seek discrimination on behalf of Negroes and 
[fol. 195] that they will be enjoined if they so attempt, un­
less it is equally prepared to say that it is “ unlawful” for 
employers to discriminate against Negroes and that 
equitable relief can be obtained against them. We respect­
fully urge that the Court has the duty to state explicitly 
the full implications of the decision and that a rehearing 
should be granted for this purpose.

In conclusion, we respectfully reaffirm the position taken 
in our brief that we believe it to be an unrealistic distor­
tion to use the James case, a judicial landmark in the 
struggle of Negroes for economic equality, as the authority 
for a retrogressive decision which will seriously cripple 
the Negro people and other minorities in their continuing 
struggle. We respectfully request therefore that a rehear­
ing be granted and that upon reconsideration the decision 
of the District Court of Appeals be affirmed.

Respectfully submitted, Edises, Treuhaft & Condon, 
by Robert L. Condon, Attorneys for Petitioners.



117

[fol. 196] [File endorsement omitted]

I n  t h e  S u p r e m e  C ourt  of C a l ifo r n ia

[Title omitted]

A n sw e r  to P e t it io n  fo r  R e h e a r in g —-Filed November 24,
1948

[fol. 197] 1. Respondent, Lucky Stores, urges that in no
sense can it be said that petitioners sought equality in hir­
ing. Contrary to the statement of their position contained 
in their petition for rehearing, petitioners did ask this court 
to sanction discrimination in favor of the Negro race. Their 
policy and objective throughout wTas hiring by Lucky Stores 
based on a fixed proportion—a proportion based solely on 
color and no other requisite. This policy precluded en­
tirely any hiring by Lucky on a basis of individual capacity 
and performance. Lucky, in the trial court, the District 
Court of Appeal and in this Court, recognized the right 
[fol. 198] of the Negro race to secure jobs for the members 
of their race, but at the same time has insisted and still 
maintains that this right when sought to be perfected by 
the economic device of picketing must be urged in a man­
ner considered lawful by the courts of this state. Demand 
for hiring solely on the basis of color can only be character­
ized as a demand for preferential treatment of a particular 
race. This Court said in James vs. Marin ship, 25 Cal. (2d) 
721 at page 730:

‘ ‘ Thus a state may impose limitations upon picketing 
or other concerted action if the ‘end sought’ is not 
permissible under state law and public policy, though 
any such limitations are subject to review by the U. S. 
Supreme Court, and will be annulled, if they unrea­
sonably interfere with labor’s right to publicize the 
facts of a labor dispute.”

2. The demand here made is arbitrary in that to allow 
the demand and stamp it as “ lawful” would mean that 
hiring instead of being based upon individual merit and 
capacity must be governed by color alone. Membership in 
the Negro race as Mr. Justice Schauer pointed out in the



118

majority opinion would be the sole criterion, and approval 
by this court of the demand for proportional hiring* would 
mean that a person would belong to both a closed union and 
closed shop merely because he was born a member of the 
Negro race. (32 AC 896 at page 901) Again in James v. 
Marinship, 25 Cal. (2d) 721 at page 745, this court said:

[fol. 199] “ . . . the union may not maintain both
a closed shop and an arbitrarily closed or partially 
closed union.”

3. It is not reasonable to request employment oppor­
tunities based upon a racial co m p o sitio n  of the customers, 
because if race be approved as the only criterion, may it not 
be asked, why not also logically allow some other formula, 
for instance, religion, age-group, or education as the basis 
for a demand “ freely spoken” through the medium of the 
picketing device. Assuming petitioners have not sought 
discriminatory hiring of a fixed proportion of Negro em­
ployees regardless of all other considerations, as they al­
lege in their petition for rehearing, still the end result is 
exactly that. The demand for proportional hiring must 
necessarily, if considered lawful, be the forerunner of simi­
lar demands by interested ‘‘racial” and “ pressure groups,’’ 
demands which do not ‘ ‘ touch or concern ’ ’ the relationship 
of employer and employee, but merely the interest of an 
organized racial minority composed of members who are 
not even employees. In a situation of this type, involving 
demands of the nature considered here, a preference, a 
discrimination is created rather than alleviated.

4. A demand which creates and nurtures discrimination 
based upon race and color and which establishes a prefer­
ence for a particular race is an unlawful one. Judge Rosen- 
man in A. S. Beck Shoe Corporation vs. Johnson, et al., 
[fol. 200] 274 N. Y. S. 946 at page 954 said:

“ In the present case no claim is made that any inter­
ests of organized labor are involved. It is purely a 
dispute of one race as opposed to another.

“ The acts here shown are also contrary to a sound 
public policy. If they were permitted and if they suc­
ceeded in their purpose, it would then become equally 
proper for some organization composed of white per­



119

sons to picket the premises, insisting that all negro 
employees be discharged and that white employees be 
re-employed. If they were permitted, there is sub­
stantial danger that race riots and race reprisals might 
result in this and other communities. They would serve 
as precedent for similar activity in the interest of vari­
ous racial or religious groups. The effect upon the 
social well-being of communities throughout the state 
would be far reaching.

“ There is no precedent to warrant the use of this 
concerted action to the injury of this plaintiff for the 
purposes indicated. A balancing of advantages to the 
defendants as against the disadvantages to this plain­
tiff and to the social order as a whole, clearly points 
to disapproval of the acts complained of. As a matter 
of principle, based upon a sound public policy, the 
court cannot lend its assistance to this movement. It 
must protect not only this plaintiff but the community 
as a whole, from the dangers which exist in continued 
activities along these lines.”

5. The hiring of all Negroes or Whites would conceivably 
be discriminatory, but the record in this case does not reveal 
such a practice. Contrary to statements in the petition for 
re-hearing, Lucky does not maintain and the record in this 
[fol. 201] case does not show that Lucky has practiced a 
policy of discriminatory hiring. Its policy has followed the 
consistent pattern of hiring on the basis of individual merit 
and not because of membership in a special group. Spe­
cifically, the record here shows that Lucky hired Negro 
clerks not in any established proportion to the number of 
Negro customers patronizing the stores, but on the other 
hand did hire according to capacity to perform the job as­
signed to him, in short, upon an individual, rather than a 
racial basis. Respondent Lucky Stores feels there is no 
social justification for a policy founded on discrimination 
in favor of one race against another. Rather than par­
ticipate in the give and take of the market place, under a 
rule of equal protection to all races alike, petitioners have 
continually urged upon Lucky a hiring policy based upon 
special privilege for a single race.

Clearly, a demand that Lucky discriminate arbitrarily 
in favor of one race as against all others in the hiring of a



120

portion of its clerks is unlawful and was properly enjoined 
in tire trial court.

Respectfully submitted, Hoey and Hoey, Attorneys 
for Respondent and Real Party in Interest, Lucky 
Stores, Inc.

Dated November 24,1948.

[fol. 202] [Pile endorsement omitted]

I n  t h e  S u pr em e  C ourt oe California  

In Bank 

[Title omitted]

Order D e n y in g  R ehearing— Piled November 29,1948 

By the C ourt :

Petition for a rehearing is Denied.
Carter, J. and Traynor, J. voting for a rehearing.

Gibson, Chief Justice.
Dated Nov. 29,1948.

[fol. 203] Clerk’s Certificate to foregoing transcript omit­
ted in printing.

[fo l. 204] S u p r e m e  C ourt  of t h e  U n it e d  S ta tes , O ctober
T e r m , 1948

No. 408, Misc.

On petition for writ of Certiorari to the Supreme Court 
of the State of California.

O rder G r a n t in g  L eave, to P roceed  in  F orma P a u p e r is ; 
G r a n t in g  P e t it io n  for  W r it  of C ertiorari a n d  T r a n s­
f e r r in g  C a se  to A p p e l l a t e  D o ck et-—M a y  2, 1949

On consideration of the motion for leave to proceed herein 
in forma pauperis and of the petition for writ of certiorari, 
it is ordered by this Court that the motion to proceed in



forma pauperis be, and tlie same is hereby, granted; and 
that the petition for writ of certiorari be, and the same is 
hereby, granted. The case is transferred to the appellate 
docket as No. 761.

It is further ordered that the duly certified copy of the 
transcript of the proceedings below which accompanied the 
petition shall be treated as though filed in response to such 
writ.

Endorsed on Cover: In forma pauperis, Enter Bertram 
Edises, Vide 408, Misc. 0. T. 1948. File No. 53,763. Cali­
fornia, Supreme Court. Term No. 61. John Hughes and 
Louis Richardson, Petitioners, vs. Superior Court of the 
State of California in and for the County of Contra Costa. 
Petition for writ of certiorari and exhibit thereto. Filed 
February 21, 1949. Term No. 61 0. T. 1949.

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