In re W. T. BLANEY, on Habeas Corpus, 30 Cal. 2d 643

CARTER, J. Prior to the commencement of this proceeding, one H. C. Ramser, doing business as the Upholstery Supply Company, hereinafter referred to as Ramser, prosecuted an action for damages and injunctive relief in the Superior Court of Los Angeles County against various labor unions, W. T. Blaney, a member and business representative of Van Storage and Furniture Drivers, Packers and Helper’s Local Union No. 389 (hereinafter referred to as Van Storage Union), one of the unions.

Various business firms who employed labor, and who were either suppliers, carriers or customers of Ramser (hereinafter referred to as dealers) were made parties defendants. Ramser manufactures and assembles commodities that go into furniture and sells furniture supplies. The members of Van Storage Union were picketing Ramser and demanding a closed shop contract. A temporary restraining order was issued, generally forbidding Blaney from doing various acts which were aimed at persuading the dealers to refrain from dealing with Ramser.

It is disputed whether most of Ramser’s employees were members of the union and whether Ramser is engaged in interstate commerce, but those matters are of. no significance here in view of the limited scope of the restraining order. The restraining order commanded Blaney and his union to refrain from attempting to do or doing any of the following: “ (

a) Combining or agreeing to cease performing or to cause any employee of [the dealers] to cease performing any service or services for said [dealers], or any of them, or causing or agreeing to cause or threatening to cause any loss or injury to such [dealers] or any of them, for the purpose of inducing or compelling such [dealers] or any of them to refrain from doing business with [Ramser] or furnishing any supplies to [Ramser] in his business, or purchasing any supplies from [Ramser], or carrying, shipping, or receiving any freight or merchandise for [Ramser]; or “(

b) In any way carrying out or effectuating any such combination or agreement, or in any way giving any notices or making any threats intended or tending to effectuate or carry out any such agreement; “(

c) Provided, however, that nothing herein is intended or shall be construed to prohibit peaceful picketing when the same is not done pursuant to or for the purpose of carrying out any combination or agreement herein restrained or enjoined.” After application therefor an order to show cause why Blaney should not be punished for violation of the restraining order was issued and he was found guilty of contempt and committed to the county jail.

The judgment of contempt recites that Ramser’s action was to secure injunctive relief against the violation by Blaney of the legislative act (approved by a referendum of the people November 3, 1942), commonly referred to as the “hot cargo law.” (Lab. Code, §§ 1131-1136, as added by Stats. 1941, ch. 623.) He seeks relief by way of habeas corpus.

In the judgment the court found six counts of violation of the restraining order as follows: (1) that Blaney stated to a customer of Ramser that if it accepted merchandise from him the union would picket and boycott its plant and products; (2) that similar statements were made to another of Ramser’s customers and also that the public and labor would be informed that the customer was selling “unfair” products and a picket line was established; (3) that Blaney told a supplier of Ramser he must not supply him because there was a strike at Ramser’s place of business and all products of Ramser were to be picketed.

The supplier complied with Blaney’s demand; (4) that conduct similar to the above was followed as to another of Ramser’s customers; (5) that Blaney told the Railway Express Agency, Inc., that if it accepted for shipment products of Ramser it would be picketed; (6) that the Southern Pacific Company, a common carrier, was informed that if it permitted Ramser to unload from its freight cars, products which had been shipped to him, it would be picketed.

Thus it appears that Blaney agreed with the other members of his union to cause and threaten to cause employees of the dealers to cease performing services, and the dealers from doing business with Ramser; that on certain dates Blaney, in furtherance of the agreement, stated to Ramser’s dealers that if they accepted Ramser’s merchandise they also would be picketed and “tied up” by picketing and boycotting; that some dealers were picketed, the pickets claiming that dealing with Ramser was unfair to organized labor and the like.

The “hot cargo act” reads: “The ‘hot cargo’ and ‘secondary boycott’ are hereby declared to be unlawful.” (Lab.

Code, § 1131.) “As used in this chapter, ‘hot cargo’ means any combination or agreement resulting in a refusal by employees to handle goods or to perform any services for their employer because of a dispute between some other employer and his employees or a labor organization or any combination or agreement resulting in a refusal by employers to handle goods or perform any services for another employer because of an agreement between such other employer and his employees or a labor organization. “(b) [‘Secondary boycott.’] As used in this chapter, ‘secondary boycott’ means any combination or agreement to cease performing, or to cause any employee to cease performing any services for any employer, or to cause any loss or injury to such employer, or to his employees, for the purpose of inducing or compelling such employer to refrain from doing business with, or handling the products of any other employer because of a dispute between the latter and his employees or a labor organization or any combination or agreement to cease performing, or to cause any employer to cease performing any services for another employer, or to cause any loss or injury to such other employer, or to his employees, for the purpose of inducing or compelling such other employer to refrain from doing business with, or handling the products of any other employer, because of an agreement between the latter and his employees or a labor organization. “(c) [‘Labor organization.’] As used in this chapter, ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. “(d) [‘Employer.’] As used in this chapter, the term ‘employer’ includes any person acting in the interest of an employer, directly or indirectly and any association of employers, including growers and other hirers of labor. “(e) [‘Employee.’] As used in this chapter, the term ‘employee’ includes any natural person who works for any person for compensation.” (Lab.

Code, § 1134.) “Any act, combination or agreement which directly or indirectly causes, induces or compels a violation of any of the provisions of this chapter, or inflicts any loss, injury or damage on anyone because of his refusal to violate any of the provisions of this

chapter shall be unlawful.” (Lab. Code, § 1132.) Provision is made for injunctive relief and damages to a person injured by a violation of the statute. (Lab. Code, § 1133.) The identification of the constitutional protection of the right of free speech, press and assembly, with the publicizing of labor disputes or problems through the medium of picketing, boycotting and otherwise, has been established. (Thomas v. Collins, 323 U.S. 516 [65 S.Ct. 315, 89 L.Ed. 430]; Cafeteria Union, Local 302 v. Angelos, 320 U.S. 293 [64 S.Ct. 126, 88 L.Ed. 58]; Hotel Employees’ Local v.

Board, 315 U.S. 437 [62 S.Ct. 706, 86 L.Ed. 946] ; Bakery Drivers’ Local v. Wohl, 315 U.S. 769 [62 S.Ct. 816, 86 L.Ed. 1178] ; Carpenters’ Union v. Ritter’s Cafe, 315 U.S. 722 [62 S.Ct. 807, 86 L.Ed. 1143] ; A. F. of L. v. Swing, 312 U.S. 321 [61 S.Ct. 568, 85 L.Ed. 855]; Carlson v. California, 310 U.S. 106 [60 S.Ct. 746, 84 L.Ed. 1104] ; Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093] ; Senn v. Tile Layers’ Union, 301 U.S. 468 [57 S.Ct. 857, 81 L.Ed. 1229] ; In re Porterfield, 28 Cal.2d 91, 114 [168 P.2d 706, 167 A.L.R. 675] ; Park & T. I. Corp. v.

International etc. of Teamsters, 27 Cal. 2d 599, 608 [165 P.2d 891, 162 A.L.R. 1426] ; James v. Marin- ship Corp., 25 Cal.2d 721, 729-730 [155 P.2d 329, 160 A.L.R. 900] ; Emde v. San Joaquin County etc. Council, 23 Cal.2d 146, 154, 161 [143 P.2d 20, 150 A.L.R. 916]; People v. Dail, 22 Cal.2d 642, 651 [140 P.2d 828]; Magill Bros. v. Bldg. Service etc. Union, 20 Cal.2d 506, 511 [127 P.2d 542] ; In re Bell, 19 Cal.2d 488, 497 [122 P.2d 22]; Steiner v. Long Beach Local No. 128, 19 Cal.2d 676 [123 P.2d 20] ; McKay v. Retail Auto S. L.

Union No. 1067, 16 Cal.2d 311, 319, 333 [106 P.2d 373] ; In re Lyons, 27 Cal.App.2d 293 [80 P.2d 745] .) It has been phrased by this court in various ways. “It is now settled law that workmen may lawfully combine to exert various forms of economic pressure upon an employer, provided the object sought to be accomplished thereby has a reasonable relation to the betterment of labor conditions, and they act peaceably and honestly. (Citations) This right is guaranteed by the federal Constitution as an incident of freedom of speech, press and assemblage, (citations) and it is not dependent upon the existence of a labor controversy between the employer and his employee. ’ ’ (Steiner v.

Long Beach Local No. 128, supra, at p. 682.) “Various means of economic suasion such as picketing, the primary and secondary boycotts, and refusal to work together, often go to make up concerted efforts to induce nonmember employees to join a particular union.

Such conduct may be performed in the exercise of civil liberties, guaranteed by both our federal and state Constitutions.” (In re Porterfield,, supra, p. 114.) It has been indicated, however, that the protection afforded by the free speech guarantee of the right to publicize a labor dispute by picketing, boycotting or otherwise is not absolute or necessarily controlled by the clear and present danger test. (That test is the accepted one in the ordinary free speech cases. (Thomas v. Collins, supra.)) Generally, as stated in Thornhill v.

Alabama, supra, at page 103 : “It is true that the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist. This is but an instance of the power of the State to set the limits of permissible contest open to industrial combatants.” And the purpose of the economic pressure and the means used to exert it must be lawful, (Park & T. I. Corp. v. International etc. of Teamsters, supra; James v.

Marinship Corp., supra.) but that proposition poses the question in terms of results. Rather it is merely stating the problem in other words. The question still remains as to what purposes or what means may be declared unlawful by the Legislature or the courts without violating the provisions of the Constitution.

Specifically, restraint may be laid by the state where the past conduct of the pickets is so characterized by extreme violence and riotous conduct that peaceful activity is inescapably connected therewith and cannot be separated, and there is an unravelable enmeshment of the peaceful with the unlawful conduct. (Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 [61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200]; Steiner v. Long Beach Local No. 128, supra.) It has been held that the information disseminated by the pickets must be truthful. (Magill Bros. v. Bldg. Service etc. Union, supra; Park & T. I.

Corp. v. International etc. of Teamsters, supra.) But in that connection the use of such words as ‘ ‘unfair ’’ or “unfair to organized labor” is not a falsification of facts and “to use loose language or undefined slogans that are part of the conventional give-and-take in our economic and political controversies—like ‘unfair’ or ‘fascist’ is not to falsify facts. ’ ’ (Cafeteria Employees Union v. Angelos, supra; see Park & T. I. Corp. v.

International etc. of Teamsters, supra.) It has been held that a state may validly declare that its welfare will not be served if “in a controversy between a contractor and building workers’ union, the unions were permitted to bring to bear the full weight of familiar weapons of industrial combat against a restaurant business, which, as a business, has no nexus with the building dispute but which happens to be owned by a person who contracts with the builder.” (Carpenters Union v.

Ritter’s Cafe, supra, 726.) The court there stated that it was not “confronted—with a limitation upon speech in circumstances where there exists an ‘interdependence of economic interest of all engaged in the same industry.’ ” (Carpenters Union v. Ritter’s Cafe, supra, 727.) And in Bakery Drivers Local v.

Wohl, supra, the court held that a labor union of drivers of bakery wagons was constitutionally protected in picketing the customers and bakery suppliers to advise those persons of its grievance against peddlers of such commodity who obtained it from the bakeries and sold it to the customers, all in order to induce the peddlers to work only six days a week and to hire a union member one day a week. And A. F. of L. v.

Swing, supra, holds that the constitutional guarantee is infringed by the state’s limitation of peaceful picketing by labor unions to cases in which the controversy is between the employer and his employees. Regardless of the area to which the concerted labor activity, such as picketing or boycotting may be constitutionally limited, and the facts of the case at bar as above disclosed, the statute here involved cannot stand. It and the restraining order issued pursuant to it are too sweeping, vague and uncertain.

It permits the prior censorship of matters undeniably protected by the constitutional guarantee of free speech and press. (See Near v. Minnesota, 283 U.S. 697 [51 S.Ct. 625, 75 L.Ed. 1357].) It makes enjoinable the mere combination or agreement resulting in the refusal by employees to handle goods for their employer because of a dispute between some other employer and his employees or a labor organization. (Lab.

Code, § 1134(a).) Under that provision should a group of employees or a union merely agree to give publicity to their disputes with their employers by radio or newspaper, if that agreement and publicity results in persuading the employees of some other employer to withhold services from their employer, an injunction will lie. In other words, their freedom to publicize their labor disputes or even to agree to do so is penalized. This result is made even more likely by the provision that any agreement which indirectly induces the withholding of services amounts to an unlawful act. (Lab.

Code, § 1132.) Likewise, under the secondary boycott provision (Lab. Code, § 1134(b)) a mere agreement to cause any employee to cease performing services for an employer or to cause an employer not in the dispute to cease dealing with the employer in the dispute for the purpose of bringing pressure upon the latter is denounced. There is also encompassed within its terms the mere agreement to publicize a labor dispute with the purpose of persuading other employees to cease dealing with the employer in the dispute.

The inducement or persuasion to refrain from dealing may be accomplished merely by advising the dealer of the controversy and requesting him to refrain from dealing, a matter beyond doubt within the realm of the right of free speech. Merely because the object, the intermediate object (the main objective being to correct a grievance against the employer with whom the dispute exists), is to induce third persons (the dealers) to assist in exerting the economic pressure, does not create an unlawful aim.

Nor is the communication of the facts of the existence of the dispute to them (the dealers) and persuading them to withhold their business, an unlawful means of furthering the campaign against the employer with whom the controversy exists. A statute so broadly and loosely drawn—which places it within the power of a court to grant injunctive relief, which by its terms may be used to strike down the right to freedom of speech, is a prior restraint upon that right and falls squarely within the rule recently declared by this court.

In In re Bell, 19 Cal.2d 488 [122 P.2d 22], the ordinance made it a crime “for any person to loiter, stand, or sit upon any public highway, alley, sidewalk or crosswalk so as to in any manner hinder or obstruct the free passage . . . of persons or vehicles. . . (P. 496.) The court stated the rule to be that (at p. 495): “The ordinance must be judged on its face to determine whether its unconstitutionality prohibits acts that fall within the category of peaceful picketing. (Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093] ; Carlson v. California, 310 U.S. 106 [60 S.Ct. 746, 84 L.Ed 1104]; Hague v.

C.I.O., 307 U.S. 496, 518 [59 S.Ct. 954, 83 L.Ed. 1423] ; Schneider v. State, 308 U.S. 147, 162-165 [60 S.Ct. 146, 84 L.Ed. 155]; Lovell v. Griffin, 303 U.S. 444, 451 [58 S.Ct. 666, 82 L.Ed. 949]; Stromberg v. California, 283 U.S. 359, 369, 370 [51 S.Ct. 532, 75 L.Ed. 1117]; see Near v. Minnesota, 283 U.S. 697 [51 S.Ct. 625, 75 L.Ed. 1357] ; Yick Wo v. Hopkins, 118 U.S. 356 [6 St.Ct. 1064, 30 L.Ed. 220].) If certain of its provisions operate to prohibit peaceful picketing, they are invalid even though they also prohibit acts that may properly be made illegal.

A penal statute that ‘does not aim specifically at evils within the allowable area of State control, but on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press . . . lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure’ and ‘results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.’ (Thornhill v.

Alabama, supra, at 97.) It is not the function of the court to determine whether the restrictions imposed by the legislation can be validly applied to the facts of a particular case. ‘Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas. ’ (Thornhill v. Alabama, supra, at 97; Hague v. C.I.O., supra; Lovell v. Griffin, supra; Schneider v.

State, supra.) Language prohibiting conduct that may be prohibited and conduct that may not affords no reasonably ascertainable standard of guilt and is therefore too uncertain and vague to be enforced. (Stromberg v. California, supra, 369-370; Herndon v. Lowry, 301 U.S. 242, 261-263 [57 S.Ct. 732, 81 L.Ed. 1066]; Lanzetta v. New Jersey, 306 U.S. 451 [59 S.Ct. 618, 83 L.Ed. 888] ; De Jonge v. Oregon, 299 U.S. 353 [57 S.Ct. 255, 81 L.Ed. 278]; Hague v. C.I.O., supra; Schneider v. State, supra; In re Harder, 9 Cal.App.2d 153, 155 [49 P.2d 304]; Territory of Hawaii v.

Anduha, 48 F.2d 171.)”. (Emphasis added.) Likewise, it is said in Thornhill v. Alabama, 310 U.S. 88, 96 [60 S.Ct. 736, 84 L.Ed. 1093], concerning a statute denouncing picketing: “The State urges that petitioner may not complain of the deprivation of any rights but his own. It would not follow that on this record petitioner could not complain of the sweeping regulations here challenged. “There is a further reason for testing the

section on its face. Proof of the abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas. (Citations.) The eases when interpreted in the light of their facts indicate that the rule is not based upon any assumption that application for the license would be refused or would result in the imposition of other unlawful regulations. Rather it derives from an appreciation of the character of the evil inherent in a licensing system.

The power of the licensor against which John Milton directed his assault by his ‘Appeal for the Liberty of Unlicensed Printing’ is pernicious not merely by reason of the censure of particular comments but by reason of the threat to censure comments on matters of public concern.

It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion. (Citation.) One who might have had a license for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it. (Citations.) A like threat is inherent in a penal statute, like that in question here, which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press.

The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. It is not any less effective or, if the restraint is not permissible, less pernicious than the restraint on freedom of discussion imposed by the threat of censorship.

An accused, after arrest and conviction under such a statute, does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him. (Citation.) Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.” [Emphasis added.] See, also, Carlson v.

California, 310 U.S. 106, 112 [60 S.Ct. 746, 84 L.Ed. 1104] ; Cantwell v. Connecticut, 310 U.S. 296, 306 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352]; Hague v. C.I.O., 307 U.S. 496, 518 [59 S.Ct. 954, 83 L.Ed. 1423]; Lanzetta v. New Jersey, 306 U.S. 451 [59 S.Ct. 618, 83 L.Ed. 888]; Lovell v. Griffin, 303 U.S. 444, 452 [58 S.Ct. 666, 82 L.Ed; 949]; Stromberg v.

California, 283 U.S. 359, 369 [51 S.Ct. 532, 75 L.Ed. 1117]; In re Porterfield, supra, 115.) The statute in question contains the provision that “If any provision of this chapter, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this chapter, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall be not affected thereby.” (Lab. Code, § 1136.) That separability clause cannot save it. As stated in Lanzetta v.

New Jersey, supra, at page 453: “If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. . . . No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.

All are entitled to be informed as to what the State commands or forbids.” [Emphasis added.] While the instant statute does not directly impose criminal penalties, it does provide for injunctive relief in the event of its violation and the penalty for disobeying an injunction is contempt of court. It is a coercive measure and a person does not know in advance whether its application to his conduct will be constitutional or unconstitutional.

He should not be required at his peril to make that determination, or as stated in In re Porterfield, supra, at page 120: ‘ ‘ The potential severability of the ordinance, however, can have no effect upon the instant matter. As far as petitioner is concerned the existence of the statute as a whole was an operative fact. The consequences of its existence as such cannot be ignored. In order for petitioner to have secured a license he would have had to have complied with the terms of the ordinance as written. In Smith v.

Gaboon (1931), 283 U.S. 553, 563-565 [51 S.Ct. 582, 75 L.Ed. 1264], a private carrier for hire was convicted of the charge of operating vehicles upon the highways without having obtained the certificate of public convenience and necessity and without having paid the tax required by a statute of the State of Florida. Upon habeas corpus defendant successfully contested the constitutionality of certain provisions of the statute as applied to private carriers. It was contended in support of the conviction, however, that a savings clause removed the infirmity of the statute.

In denying the efficacy of the contention and holding that defendant was entitled to assert his constitutional right by virtue of the invalidity of the statute upon its face, the United States Supreme Court stated (page 563 of 288 U.S.) : ‘The effect of this savings clause is merely that, if one provision is struck down as invalid others may stand..

But until such separation has been accomplished by judicial decision, the statute remains with its inclusive purport, and those concerned in its application have no means of knowing definitely what eventually will be eliminated and what will be left. ’ ” Such a statute, in the language of the Supreme Court of the United States in Thornhill v.

Alabama, supra, “Lends itself to harsh and discriminatory enforcement by local prosecuting officials [in the instant case the trial court is granting temporary restraining order and preliminary and permanent injunctions] against particular groups deemed to merit their displeasure,” and “results in a continuous and pervasive restraint on all freedom of discussion [of the labor controversy] that might reasonably be regarded as within its purview.” It is true that if the statute is severable, that is, if the void part described above can be eliminated, then the court is faced with the necessity of determining whether the portion which remains, or any part of such remainder, which was violated by Blaney, is valid and enforceable.

But if the statute is not severable, then the void part taints the remainder and the whole becomes a nullity. It is also true that in considering the issue of severability, it must be recognized that the general presumption of constitutionality, fortified by the express statement of a severability clause, normally calls for sustaining any valid portion of a statute unconstitutional in part.

This is possible and proper where the language of the statute is mechanically severable, that is, where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase, or even single words. (See In re Bell, 19 Cal.2d 488, 498 [122 P.2d 22], Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv.

L.Rev. 76, 79.) On the other hand, where there is no possibility of mechanical severance, as where the language is so broad as to cover subjects within and without the legislative power, and the defect cannot be cured by excising any word or group of words, the problem is quite different and more difficult of solution. It is the latter situation which is presented by this case. As we have seen the hot cargo act applies generally to “any combination or agreement’’ which has the result of causing third parties to refuse to deal with or handle the goods of the employer involved in the dispute.

Its provisions are not segregated in such a way as to differentiate between peaceful publicizing of the facts of a labor dispute, and secondary boycotts involving economic pressure against third parties directly or indirectly connected with the dispute. The only way in which such segregation could be made would be by judicial

interpretation, first holding that the act as it stands is wholly unconstitutional, but then determining that, by inserting qualifications and exceptions in the statutory language, a judicially reformed statute might be given some effect. Such a step seems to have been contemplated by the Legislature in enacting the unusual form of severability clauses in the act heretofore quoted (Lab. Code, § 1136).

By this type of provision, the Legislature has in effect sought to delegate to the courts the task of rewriting the statute, directing them to set forth, in a succession of judicial opinions upholding or annulling judgments enforcing the provisions of the act, thus determining in advance the extent to which the Legislature may go in providing regulations in this field.

It is an inescapable result that, in the meantime, those individuals who guess correctly will be released by the courts, and those who guess incorrectly will be punished; but that no one, employer, employee, union or any one will know what the law is until, after violation of the statute, and judgment thereon, a higher court is given an opportunity to pass on the question of its validity as applied to the particular “person or circumstance.” Such a theory of judicial construction cannot be supported on either practical or legal grounds, and two well-settled propositions condemn the legislation under review here in toto: First, where an entire statute in general terms infringes upon the constitutional right of free speech, it will be stricken down in its entirety; and second, where, by reason of invalidity of some applications of a criminal statute it fails to state definite criteria of guilt, the whole constitutes an unconstitutional denial of due process of law.

Similar legislation was held void on these grounds in the Bell case, 19 Cal. 2d 495, 497, and in other decisions as heretofore stated. The Legislature manifestly sought, in the instant case, to prohibit every form of boycott, including some kinds which are occasionally characterized as “primary.” The deliberately chosen language, covering all such activities in general terms, with no attempt at segregation or classification, leaves this court with no alternative but to nullify the act. The statute provides that it shall be in “ effect until May 1, 1943, and thereafter: (

a) During the continuance of the existence of the National emergency declared by the President of the United States to exist, by his proclamation issued under date of September 8, 1939. (

b) During any period of war between the United States of America and any foreign power, legally declared to exist.” (Lab.

Code, § 1135.) And further, that “This act is enacted for the purpose of preserving tranquillity among the citizens of this commonwealth and to insure during this present critical period of National emergency and intensive armament the unobstructed production and distribution of the products of our factories and fields, for the continued protection and preservation of our democratic way of life and for the general welfare of the people of this State.” (Stats. 1941, ch. 623, § 2.) In view of the result we are compelled to reach herein it is unnecessary to decide whether or not the statute is still in force.

Nor are we concerned with whether it would be a valid measure during actual hostilities of war. The proceedings herein and all acts of which complaint are made occurred after the cessation of the actual warfare or hostilities in which this country was engaged at the time of the enactment of the statute, although legally speaking a state of war may be said still to exist. The emergency presented since the cessation of hostilities is not one of getting sinews of war to the battlefields but is one of economic and social concern only.

The possible clear and present danger existing during hostilities ceases to exist once they cease. The actual existence of the emergency and not the limitation of the law to a prescribed period gives validity to the exercise of police power, and when the emergency ceases, the valid operation of the statute ends if it can be supported only by reason of the emergency. (Hourigan v. North Bergan Tp., 113 N.J.L. 143 [172 A. 193, 785].) It is true that the urgency created by the economic and social problems which are the aftermath of war still remain.

Such urgency is clearly insufficient to support the broad restraint on freedom of speech and the press embraced in the instant statute. It was aptly said by Mr. Justice Holmes, in his dissenting opinion in Abrams v. United States, 250 U.S. 616, 627 [40 S.Ct. 17, 63 L.Ed. 1173], in amplifying the rule stated in the majority opinion written by him in Schenck v.

United States, 249 U.S. 47 [39 S.Ct. 247, 63 L.Ed. 470] (dealing with the statutes concerning the obstruction of the war effort in the first world war): “I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.

The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. “But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. . . .

Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command. ‘Congress shall make no law . . . abridging the freedom of speech.’ ” It is urged that from the record it appears that picketing was done which barred ingress and egress to and from Ramser’s place of business and that compulsion was exerted on common carriers to violate their lawful duty as such carriers to accept goods for transportation, which acts constitute unlawful picketing and unlawful purpose or object respectively, but the restraining order and judgment of contempt are clearly predicated upon a violation of the “hot cargo act” as seen from the initial recitation therein and we do not decide whether Blaney could have properly been found guilty of contempt for his acts in connection with common carriers.

The above considerations dispose of the essential issue in the proceeding before us, and it is both unnecessary and undesirable to venture into a discussion of the permissible limits of legislative regulation of secondary boycotts. This subject is difficult, highly controversial, and has engendered conflicting decisions by the state courts, without any sure guide in the decisions of the United States Supreme Court. Only the most general principles have been laid down by that court.

We know that when a union aims its power of secondary boycott against businesses not connected with the industrial dispute, it goes beyond the limits of constitutional protection and is subject to regulation by the state (Carpenters & Joiners Union v. Ritter’s Cafe, supra), and we know also that the state cannot confine the concerted action of labor to steps against the unfair employer alone (Cafeteria Employees Union v. Angelos, supra; Bakery Drivers Local v. Wohl, supra).

Somewhere between these extremes, the line may be drawn, but it should be drawn in a case wherein the issue is directly presented, and is necessary for the decision, in order that an authoritative and binding pronouncement may be made by this court and, perhaps, by the United States Supreme Court.

The Legislature manifestly sought, in the instant case, to prohibit every form of boycott, including some kinds which are occasionally characterized as “primary.” The deliberately chosen language, covering all such activities in general terms, with no attempt at segregation or classification, leaves this court with no alternative but to nullify the act.

Only by a carefully drawn statute which separately treats the various forms of concerted action loosely termed “secondary boycotts,” can the Legislature hope to accomplish the object of regulating those forms which may ultimately be held to be within its constitutional power. It is therefore ordered that petitioner be discharged. Gibson, C. J., Traynor, J., and Sehauer, J., concurred.