City of Reno v. District Court , 59 Nev. 416 ( 1939 )

I concur in the majority opinion of my learned associates to the extent that this court has jurisdiction to determine, by certiorari, the question presented, but I am forced to dissent as to that part of the majority opinion which holds sections 2 and 4 of the ordinance in question to be unconstitutional.

In determining the primary question before the court, namely, whether the ordinance under consideration is constitutional or unconstitutional, it is well to keep in mind the well-recognized rule of law, which prevails in most jurisdictions, and particularly the rule which prevails in this state, namely:

"When a statute (or ordinance) is assailed as being unconstitutional, every presumption is in favor of its validity, all doubts must be resolved in its favor, and, unless it is clearly in derogation of some constitutional provision, it must be sustained." Vineyard Land Stock Co. v. District Court,42 Nev. 1, 171 P. 166.

In the case of Thomas et al. v. City of Indianapolis et al.,195 Ind. 440, 145 N.E. 550, 552, 35 A.L.R. 1194, where the court had under consideration the identical ordinance that we here have under consideration, and in considering sections 2 and 4 of said ordinance, and in holding said ordinance to be constitutional, used the following language:

"The word `picketing,' as used in this ordinance, has a well-defined meaning. It has been defined as the maintenance of an organized espionage upon the works or places of business of an employer and those going to and from them, and it has been remarked that the word `picket' is borrowed from the nomenclature of warfare, and is strongly suggestive of a hostile attitude toward the individual or corporation against whom a labor organization has a grievance. * * *

"The courts, in the cases last cited, assert generally that there can be no such thing as peaceful picketing, and that no matter what the declared intention of the persons so engaged may be, the inevitable result is to create turmoil, disturbances, and breeches of the peace. It is probable that the city council, which passed the ordinance in question, took the latter view, and believed that all picketing was inimical to the peace and good order of the public, and that the public welfare would best be subserved by prohibiting all picketing in the manner described in the ordinance."

It will be noted that many of the cases cited, and quoted from in the majority opinion, contain such expressions as: "Picketing is lawful if it does not have an immediate tendency to intimidation of the other party to the controversy." Since picketing, in any form, is "strongly suggestive of a hostile attitude toward the person or persons picketed," it follows that picketing is at least "intimidating" and "annoying," and is therefore an infringement upon the personal rights guaranteed to others. I am of the opinion that if picketing, in any form, does not at least intimidate or coerce the other person, in an effort to compel such person picketed to submit to the demands of those picketing, then the act of picketing becomes a vain and useless act, and in my opinion, the personal rights guaranteed under the constitution mean rights other than vain and useless acts. As said by this court in the case of Ex Parte Boyce, 27 Nev. 299, 75 P. 1, 2, 65 L.R.A. 47, 1 Ann. Cas. 66, that individual rights are "subordinate to the greater obligation not to injure others." This rule was also followed and quoted with approval in the case of Branson v. Industrial Workers of the World, 30 Nev. 270, at page 296, 95 P. 354.

In the case of Senn v. Tile Layers Protective Union Local No. 5 et al., 301 U.S. 468, 57 S. Ct. 857, 862, 81 L. Ed. 1229, cited in the majority opinion, Mr. Brandeis, speaking for the court, and in holding a Wisconsin statute to be constitutional, which legalized so-called "peaceful picketing" used the following language:

"The state may, in the exercise of its police power, regulate the methods and means of publicity as well as the use of public streets."

He then continued by saying that such regulation, "is not an invasion of the liberty guaranteed by the Constitution." I find nothing in the Senn case, supra, holding a statute or ordinance prohibiting so-called "peaceful picketing" to be a violation of any of the liberties guaranteed by the constitution.

This court, in a number of decisions, has held the rule in effect to be: that where a legislative body has adopted a statute (or ordinance) of another state, the act of adoption raises the presumption that such legislative body making the adoption enacted the statute (or ordinance) in the light of the construction that had been placed upon such statute (or ordinance) in the parent state. While this court is not bound thereby, yet it is persuasive and should be followed unless some substantial reason requires the application of another rule. Ormsby County et al. v. Kearney et al. 37 Nev. 314, at page 371, 142 P. 803; O'Brien et al. v. Trousdale et al., 41 Nev. 90, at page 102, 167 P. 1007; In re Walker River Irrigation District, 44 Nev. 321, at page 332,195 P. 327; Menteberry v. Giacometto, 51 Nev. 7, at page 14,226 P. 49; Hard v. Depaoli et al., 56 Nev. 19, at page 30, 41 P.2d 1054. Applying the foregoing rule, I am of the opinion that greater weight should be given to the opinion in the Thomas case, supra, than many of the decisions from other jurisdictions relied upon in the majority opinion.

Being in accord with the authorities which hold any form of picketing to be an infringement upon the personal rights of others, I am therefore of the opinion that the city of Reno was within its constitutional rights in passing the ordinance in question.

ORR, J., having disqualified himself, the Governor designated Honorable JAMES DYSART, Judge of the Fourth Judicial District, to sit in his stead.