Opinion
41305 Record Nos. 5372, 5373, 5374, 5375.
January 15, 1962.
Present, All the Justices.
Master and Servant — Non-employee Participating in Picketing — Conviction under Code Sec. 1950, section 40-64 Upheld.
Appellants participated in the picketing of a company whose employees were on strike though they were not themselves employees. For this action they were convicted and fined under the provisions of Code Sec. 1950, section 40-64(3), and appealed on the ground this subsection was unconstitutional. Adhering to prior decision, the court held the section constitutional and affirmed the convictions.
Error to judgments of the Circuit Court of the city of Radford. Hon. W. S. Jordan, judge presiding.
Affirmed.
The opinion states the case.
John M. Goldsmith and Robert S. Irons (Goldsmith Irons, on brief), for the plaintiffs in error.
D. Gardiner Tyler, Assistant Attorney General (Frederick T. Gray, Attorney General, on brief), for the Commonwealth.
The appellants were convicted and fined $50 each for violating the third paragraph of Sec. 40-64 of the 1950 Code of Virginia, which is in the following words:
"When a strike or lockout is in progress, no person who is not, or immediately prior to the time of the commencement of any strike or lockout was not, a bona fide employee of the business or industry being picketed shall participate in any picketing or any picketing activity with respect to such strike or lockout."
The employees of Kenrose Manufacturing Company were on strike and were picketing the company's plant. The appellants were not employees of the company but they participated in the picketing. They contend that paragraph three of Sec. 40-64 is unconstitutional. They concede that its constitutionality was expressly sustained in Dougherty v. Commonwealth, 199 Va. 515, 100 S.E.2d 754 (1957). They say in their brief: "The facts in the Dougherty case are incapable of valid distinction from the cases of Waxman, Giordano, Correll and Spence," the cases now before the court; and "If this court shall find in their favor, it must overrule its prior decision in Dougherty v. Commonwealth. There is no escape from this conclusion."
The Dougherty case was carefully considered and the conclusion reached was in our opinion correct. For the reasons therein stated we again hold that paragraph three of Sec. 40-64 is constitutional and the judgments of conviction appealed from are accordingly
Affirmed.