Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240 (1915)
Supreme Court of the United States.
T. B. COPPAGE, Piff. in Err.,
v.
STATE OF KANSAS.
No. 48.
Decided January 25, 1915.
Mr. Justice Pitney delivered the
opinion of the court:
In a local court in one of the counties of
Kansas, plaintiff in error was found guilty and adjudged to pay a fine, with
imprisonment as the alternative, upon an information charging him with a
violation of an act of the legislature of that state, approved March 13, 1903,
being chap. 222 of the Session Laws of that year, found also as §§ 4674 and
4675, Gen. Stat. (Kan.) 1909. The act reads as follows:
An Act to Provide a Penalty for Coercing or Influencing or Making Demands upon or Requirements of Employees, Servants, Laborers, and Persons Seeking Employment.
Be
it enacted, etc.:
Section
1. That it shall be unlawful for any individual or member of any firm, or
any agent, officer, or employee of any company or corporation, to coerce,
require, demand, or influence any person or persons to enter into any
agreement, either written or verbal, not to join or become or remain a member
of any labor organization or association, as a condition of such person or
persons securing employment, or continuing in the employment of such individual,
firm, or corporation.
Section
2. Any individual or member of any firm, or any agent, officer, or
employee of any company or corporation violating the provisions of this act,
shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be
fined in a sum not less than $50, or imprisoned in the county jail not less
than thirty days.
The judgment was affirmed by the supreme court of the state, two justices dissenting (87 Kan. 752, 125 Pac. 8), and the case is brought here upon the ground that the statute, as construed and applied in this case, is in conflict with that provision of the 14th Amendment of the Constitution of the United States which declares that no state shall deprive any person of liberty or property without due process of law.
The facts, as recited in the opinion of the
supreme court, are as follows: About July 1, 1911, one Hedges was
employed as a switchman by the St. Louis & San Francisco Railway Company,
and was a member of a labor organization called the Switchmen's Union of North
America. Plaintiff in error was employed by the railway company as
superintendent, and as such he requested Hedges to sign an agreement, which he
presented to him in writing, at the same time informing him that if he did not
sign it he could not remain in the employ of the company. The following is a
copy of the paper thus presented:
Fort
Scott, Kansas, _____, 1911.
Mr. T. B.
Coppage, Superintendent Frisco Lines, Fort Scott:
We, the
undersigned, have agreed to abide by your request, that is, to withdraw from
the Switchmen's Union, while in the service of the Frisco Company.
(Signed)
________
Hedges refused to sign this, and refused to
withdraw from the labor organization. Thereupon plaintiff in error, as
such superintendent, discharged him from the service of the company.
At the outset, a few words should be said
respecting the construction of the act. It uses the term 'coerce,' and
some stress is laid upon this in the opinion of the Kansas supreme court.
But, on this record, we have nothing to do with any question of actual or
implied coercion or duress, such as might overcome the will of the employee by
means unlawful without the act. In the case before us, the state court
treated the term 'coerce' as applying to the mere insistence by the employer,
or its agent, upon its right to prescribe terms upon which alone it would
consent to a continuance of the relationship of employer and employee. In
this sense we must understand the statute to have been construed by the court,
for in this sense it was enforced in the present case; there being no finding,
nor any evidence to support a finding, that plaintiff in error was guilty in
any other sense. The entire evidence is included in the bill of
exceptions returned with the writ of error, and we have examined it to the
extent necessary in order to determine the Federal right that is asserted
(Southern P. Co. v. Schuyler, 227 U. S. 601, 611, 57 L. ed. 662, 669, 43
L.R.A.(N.S.) 901, 33 Sup. Ct. Rep. 277, and cases cited). There is neither finding
nor evidence that the contract of employment was other than a general or
indefinite hiring, such as is presumed to be terminable at the will of either
party. The evidence shows that it would have been to the advantage of
Hedges, from a pecuniary point of view and otherwise, to have been permitted to
retain his membership in the union, and at the same time to remain in the
employ of the railway company. In particular, it shows (although no
reference is made to this in the opinion of the court) that, as a member of the
union, he was entitled to benefits in the nature of insurance to the amount of
$1,500, which he would have been obliged to forego if he had ceased to be a
member. But, aside from this matter of pecuniary interest, there is
nothing to show that Hedges was subjected to the least pressure or influence,
or that he was not a free agent, in all respects competent, and at liberty to
choose what was best from the standpoint of his own interests. Of course,
if plaintiff in error, acting as the representative of the railway company, was
otherwise within his legal rights in insisting that Hedges should elect whether
to remain in the employ of the company or to retain his membership in the
union, that insistence is not rendered unlawful by the fact that the choice
involved a pecuniary sacrifice to Hedges. Silliman v. United States, 101
U. S. 465, 470, 471, 25 L. ed. 987-989; Hackley v. Headley, 45 Mich. 569, 576,
8 N. W. 511; Emery v. Lowell, 127 Mass. 138, 141; Custin v. Viroqua, 67 Wis.
314, 320, 30 N. W. 515. And if the right that plaintiff in error
exercised is founded upon a constitutional basis, it cannot be impaired by
merely applying to its exercise the term 'coercion.' We have to deal,
therefore, with a statute that, as construed and applied, makes it a criminal
offense, punishable with fine or imprisonment, for an employer or his agent to
merely prescribe, as a condition upon which one may secure certain employment
or remain in such employment (the employment being terminable at will), that
the employee shall enter into an agreement not to become or remain a member of
any labor organization while so employed; the employee being subject to no
incapacity or disability, but, on the contrary, free to exercise a voluntary
choice.
In Adair v. United States, 208 U. S. 161, 52
L. ed. 436, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764, this court had to deal with
a question not distinguishable in principle from the one now presented.
Congress, in § 10 of an act of June 1, 1898, entitled, 'An Act Concerning
Carriers Engaged in Interstate Commerce and Their Employees' (30 Stat. at L.
424, 428, chap. 370), had enacted 'that any employer subject to the provisions
of this act, and any officer, agent, or receiver of such employer, who shall
require any employee, or any person seeking employment, as a condition of such
employment, to enter into an agreement, either written or verbal, not to become
or remain a member of any labor corporation, association, or organization; or
shall threaten any employee with loss of employment, or shall unjustly
discriminate against any employee because of his membership in such a labor
corporation, association, or organization . . . is hereby declared to be guilty
of a misdemeanor, and, upon conviction thereof . . . shall be punished for each
offense by a fine of not less than one hundred dollars and not more than one
thousand dollars.' Adair was convicted upon an indictment charging that
he, as agent of a common carrier subject to the provisions of the act, unjustly
discriminated against a certain employee by discharging him from the employ of
the carrier because of his membership in a labor organization. The court
held that portion of the act upon which the conviction rested to be an invasion
of the personal liberty as well as of the right of property guaranteed by the
5th Amendment, which declares that no person shall be deprived of liberty or
property without due process of law. Speaking by Mr. Justice Harlan, the
court said (p. 174): 'While, as already suggested, the right of liberty and
property guaranteed by the Constitution against deprivation without due process
of law is subject to such reasonable restraints as the common good or the
general welfare may require, it is not within the functions of government--at
least, in the absence of contract between the parties--to compel any person in
the course of his business and against his will to accept or retain the
personal services of another, or to compel any person, against his will, to
perform personal services for another. The right of a person to sell his
labor upon such terms as he deems proper is, in its essence, the same as the
right of the purchaser of labor to prescribe the conditions upon which he will
accept such labor from the person offering to sell it. So the right of
the employee to quit the service of the employer, for whatever reason, is the
same as the right of the employer, for whatever reason, to dispense with the
services of such employee. It was the legal right of the defendant
Adair--however unwise such a course might have been--to discharge Coppage [the
employee in that case] because of his being a member of a labor organization,
as it was the legal right of Coppage, if he saw fit to do so,--however unwise
such a course on his part might have been,--to quit the service in which he was
engaged, because the defendant employed some persons who were not members of a
labor organization. In all such particulars the employer and the employee have
equality of right, and any legislation that disturbs that equality is an
arbitrary interference with the liberty of contract, which no government can
legally justify in a free land.'
Unless it is to be overruled, this decision
is controlling upon the present controversy; for if Congress is prevented from
arbitrary interference with the liberty of contract because of the 'due
process' provision of the 5th Amendment, it is too clear for argument that the
states are prevented from the like interference by virtue of the corresponding
clause of the 14th Amendment; and hence, if it be unconstitutional for Congress
to deprive an employer of liberty or property for threatening an employee with
loss of employment, or discriminating against him because of his membership in
a labor organization, it is unconstitutional for a state to similarly punish an
employer for requiring his employee, as a condition of securing or retaining
employment, to agree not to become or remain a member of such an organization
while so employed.
It is true that, while the statute that was
dealt with in the Adair Case contained a clause substantially identical with
the Kansas act now under consideration,--a clause making it a misdemeanor for
an employer to require an employee or applicant for employment, as a condition
of such employment, to agree not to become or remain a member of a labor
organization,--the conviction was based upon another clause, which related to
discharging an employee because of his membership in such an organization; and
the decision, naturally, was confined to the case actually presented for
decision. In the present case, the Kansas supreme court sought to
distinguish the Adair decision upon this ground. The distinction, if any
there be, has not previously been recognized as substantial, so far as we have
been able to find. The opinion in the Adair Case, while carefully
restricting the decision to the precise matter involved, cited (208 U. S. on
page 175), as the first in order of a number of decisions supporting the
conclusion of the court, a case (People v. Marcus, 185 N. Y. 257, 7 L.R.A.(N.S.)
282, 113 Am. St. Rep. 902, 77 N. E. 1073, 7 Ann. Cas. 188) in which the statute
denounced as unconstitutional was in substance the counterpart of the one with
which we are now dealing.
But, irrespective of whether it has received
judicial recognition, is there any real distinction? The constitutional
right of the employer to discharge an employee because of his membership in a
labor union being granted, can the employer be compelled to resort to this
extreme measure? May he not offer to the employee an option, such as was
offered in the instant case, to remain in the employment if he will retire from
the union; to sever the former relationship only if he prefers the
latter? Granted the equal freedom of both parties to the contract of employment,
has not each party the right to stipulate upon what terms only he will consent
to the inception, or to the continuance, of that relationship? And may he
not insist upon an express agreement, instead of leaving the terms of the
employment to be implied? Can the legislature in effect require either
party at the beginning to act covertly; concealing essential terms of the
employment--terms to which, perhaps, the other would not willingly consent--and
revealing them only when it is proposed to insist upon them as a ground for
terminating the relationship? Supposing an employer is unwilling to have in his
employ one holding membership in a labor union, and has reason to suppose that
the man may prefer membership in the union to the given employment without it--we
ask, can the legislature oblige the employer in such case to refrain from
dealing frankly at the outset? And is not the employer entitled to insist
upon equal frankness in return? Approaching the matter from a somewhat
different standpoint, is the employee's right to be free to join a labor union
any more sacred, or more securely founded upon the Constitution, than his right
to work for whom he will, or to be idle if he will? And does not the
ordinary contract of employment include an insistence by the employer that the
employee shall agree, as a condition of the employment, that he will not be
idle and will not work for whom he pleases, but will serve his present
employer, and him only, so long as the relation between them shall continue?
Can the right of making contracts be enjoyed at all, except by parties coming
together in an agreement that requires each party to forego, during the time
and for the purpose covered by the agreement, any inconsistent exercise of his
constitutional rights?
These queries answer themselves. The
answers, as we think, lead to a single conclusion: Under constitutional
freedom of contract, whatever either party has the right to treat as sufficient
ground for terminating the employment, where there is no stipulation on the
subject, he has the right to provide against by insisting that a stipulation
respecting it shall be a sine qua non of the inception of the
employment, or of its continuance if it be terminable at will. It follows
that this case cannot be distinguished from Adair v. United States.
The decision in that case was reached as the
result of elaborate argument and full consideration. The opinion states
(208 U. S. 171): 'This question is admittedly one of importance, and has
been examined with care and deliberation. And the court has reached a
conclusion which, in its judgment, is consistent with both the words and spirit
of the Constitution, and is sustained as well by sound reason.' We are
now asked, in effect, to overrule it; and in view of the importance of the
issue we have reexamined the question from the standpoint of both reason and
authority. As a result, we are constrained to reaffirm the doctrine there
applied. Neither the doctrine nor this application of it is novel; we
will endeavor to restate some of the grounds upon which it rests. The principle is
fundamental and vital. Included in the right of personal liberty and the
right of private property--partaking of the nature of each--is the right to
make contracts for the acquisition of property. Chief among such
contracts is that of personal employment, by which labor and other services are
exchanged for money or other forms of property. If this right be struck down or
arbitrarily interfered with, there is a substantial impairment of liberty in
the long-established constitutional sense. The right is as essential to
the laborer as to the capitalist, to the poor as to the rich; for the vast
majority of persons have no other honest way to begin to acquire property, save
by working for money.
An interference with this liberty so serious
as that now under consideration, and so disturbing of equality of right, must
be deemed to be arbitrary, unless it be supportable as a reasonable exercise of
the police power of the state. But, notwithstanding the strong general
presumption in favor of the validity of state laws, we do not think the statute
in question, as construed and applied in this case, can be sustained as a
legitimate exercise of that power. To avoid possible misunderstanding, we
should here emphasize, what has been said before, that so far as its title or
enacting clause expresses a purpose to deal with coercion, compulsion, duress,
or other undue influence, we have no present concern with it, because nothing
of that sort is involved in this case. As has been many times stated,
this court deals not with moot cases or abstract questions, but with the
concrete case before it. California v. San Pablo & T. R. Co. 149 U. S. 308,
314, 37 L. ed. 747, 748, 13 Sup. Ct. Rep. 876; Richardson v. McChesney, 218 U.
S. 487, 492, 54 L. ed. 1121, 1122, 31 Sup. Ct. Rep. 43; Missouri, K. & T.
R. Co. v. Cade, 233 U. S. 642, 648, 58 L. ed. 1135, 1137, 34 Sup. Ct. Rep.
678. We do not mean to say, therefore, that a state may not properly
exert its police power to prevent coercion on the part of employers towards
employees, or vice versa. But, in this case, the Kansas court of
last resort has held that Coppage, the plaintiff in error, is a criminal,
punishable with fine or imprisonment under this statute, simply and merely
because, while acting as the representative of the railroad company, and
dealing with Hedges, an employee at will and a man of full age and
understanding, subject to no restraint or disability, Coppage insisted that
Hedges should freely choose whether he would leave the employ of the company or
would agree to refrain from association with the union while so employed.
This construction is, for all purposes of our jurisdiction, conclusive evidence
that the state of Kansas intends by this legislation to punish conduct such as
that of Coppage, although entirely devoid of any element of coercion,
compulsion, duress, or undue influence, just as certainly as it intends to
punish coercion and the like. But, when a party appeals to this court for
the protection of rights secured to him by the Federal Constitution, the
decision is not to depend upon the form of the state law, nor even upon its
declared purpose, but rather upon its operation and effect as applied and
enforced by the state; and upon these matters this court cannot, in the proper
performance of its duty, yield its judgment to that of the state court.
St. Louis South Western R. Co. v. Arkansas, 235 U. S. 350, 362, 59 L. ed. 265,
35 Sup. Ct. Rep. 99, and cases cited. Now, it seems to us clear that a
statutory provision which is not a legitimate police regulation cannot be made
such by being placed in the same act with a police regulation, or by being
enacted under a title that declares a purpose which would be a proper object
for the exercise of that power. 'Its true character cannot be changed by
its collocation,' as Mr. Justice Grier said in the Passenger Cases, 7 How. 458,
12 L. ed. 775. It is equally clear, we think, that to punish an employer
or his agent for simply proposing certain terms of employment, under
circumstances devoid of coercion, duress, or undue influence, has no reasonable
relation to a declared purpose of repressing coercion, duress, and undue
influence. Nor can a state, by designating as 'coercion' conduct which is
not such in truth, render criminal any normal and essentially innocent exercise
of personal liberty or of property rights; for to permit this would deprive the
14th Amendment of its effective force in this regard. We, of course, do not
intend to attribute to the legislature or the courts of Kansas any improper
purposes or any want of candor; but only to emphasize the distinction between
the form of the statute and its effect as applied to the present case.
Laying aside, therefore, as immaterial for
present purposes, so much of the statute as indicates a purpose to repress
coercive practices, what possible relation has the residue of the act to the
public health, safety, morals, or general welfare? None is suggested, and
we are unable to conceive of any. The act, as the construction given to
it by the state court shows, is intended to deprive employers of a part of
their liberty of contract, to the corresponding advantage of the employed and
the upbuilding of the labor organizations. But no attempt is made, or
could reasonably be made, to sustain the purpose to strengthen these voluntary
organizations, any more than other voluntary associations of persons, as a
legitimate object for the exercise of the police power. They are not
public institutions, charged by law with public or governmental duties, such as
would render the maintenance of their membership a matter of direct concern to
the general welfare. If they were, a different question would be presented.
As to the interest of the employed, it is
said by the Kansas supreme court to be a matter of common knowledge that
'employees, as a rule, are not financially able to be as independent in making
contracts for the sale of their labor as are employers in making a contract of
purchase thereof.' No doubt, wherever the right of private property
exists, there must and will be inequalities of fortune; and thus it naturally
happens that parties negotiating about a contract are not equally unhampered by
circumstances. This applies to all contracts, and not merely to that
between employer and employee. Indeed, a little reflection will show that
wherever the right of private property and the right of free contract coexist,
each party when contracting is inevitably more or less influenced by the
question whether he has much property, or little, or none; for the contract is
made to the very end that each may gain something that he needs or desires more
urgently than that which he proposes to give in exchange. And, since it
is self-evident that, unless all things are held in common, some persons must
have more property than others, it is from the nature of things impossible to
uphold freedom of contract and the right of private property without at the
same time recognizing as legitimate those inequalities of fortune that are the
necessary result of the exercise of those rights. But the 14th Amendment,
in declaring that a state shall not 'deprive any person of life, liberty, or
property without due process of law,' gives to each of these an equal sanction;
it recognizes 'liberty' and 'property' as coexistent human rights, and debars
the states from any unwarranted interference with either.
And since a state may not strike them down
directly, it is clear that it may not do so indirectly, as by declaring in
effect that the public good requires the removal of those inequalities that are
but the normal and inevitable result of their exercise, and then invoking the
police power in order to remove the inequalities, without other object in
view. The police power is broad, and not easily defined, but it cannot be
given the wide scope that is here asserted for it, without in effect nullifying
the constitutional guaranty.
We need not refer to the numerous and
familiar cases in which this court has held that the power may properly be
exercised for preserving the public health, safety, morals, or general welfare,
and that such police regulations may reasonably limit the enjoyment of personal
liberty, including the right of making contracts. They are reviewed in
Holden v. Hardy, 169 U. S. 366, 391, 42 L. ed. 780, 790, 18 Sup. Ct. Rep. 383;
Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 566, 55 L. ed. 328, 338,
31 Sup. Ct. Rep. 259; Erie R. Co. v. Williams, 233 U. S. 685, 58 L. ed. 1155,
34 Sup. Ct. Rep. 761; and other recent decisions. An evident and
controlling distinction is this: that in those cases it has been held
permissible for the states to adopt regulations fairly deemed necessary to
secure some object directly affecting the public welfare, even though the
enjoyment of private rights of liberty and property be thereby incidentally
hampered; while in that portion of the Kansas statute which is now under
consideration--that is to say, aside from coercion, etc.-- there is no object
or purpose, expressed or implied, that is claimed to have reference to health,
safety, morals, or public welfare, beyond the supposed desirability of leveling
inequalities of fortune by depriving one who has property of some part of what
is characterized as his 'financial independence.' In short, an
interference with the normal exercise of personal liberty and property rights
is the primary object of the statute, and not an incident to the advancement of
the general welfare. But, in our opinion, the 14th Amendment debars the
states from striking down personal liberty or property rights, or materially
restricting their normal exercise, excepting so far as may be incidentally
necessary for the accomplishment of some other and paramount object, and one
that concerns the public welfare. The mere restriction of liberty or of
property rights cannot of itself be denominated 'public welfare,' and treated
as a legitimate object of the police power; for such restriction is the very
thing that is inhibited by the Amendment.
It is said in the opinion of the state court
that membership in a labor organization does not necessarily affect a man's
duty to his employer; that the employer has no right, by virtue of the
relation, 'to dominate the life nor to interfere with the liberty of the
employee in matters that do not lessen or deteriorate the service;' and that
'the statute implies that labor unions are lawful and not inimical to the
rights of employers.' The same view is presented in the brief of counsel
for the state, where it is said that membership in a labor organization is the
'personal and private affair' of the employee. To this line of argument
it is sufficient to say that it cannot be judicially declared that membership
in such an organization has no relation to a member's duty to his employer; and
therefore, if freedom of contract is to be preserved, the employer must be left
at liberty to decide for himself whether such membership by his employee is
consistent with the satisfactory performance of the duties of the employment.
Of course we do not intend to say, nor to
intimate, anything inconsistent with the right of individuals to join labor
unions, nor do we question the legitimacy of such organizations so long as they
conform to the laws of the land as others are required to do. Conceding the
full right of the individual to join the union, he has no inherent right to do
this and still remain in the employ of one who is unwilling to employ a union
man, any more than the same individual has a right to join the union without
the consent of that organization. Can it be doubted that a labor
organization--a voluntary association of working men--has the inherent and
constitutional right to deny membership to any man who will not agree that
during such membership he will not accept or retain employment in company with
nonunion men? Or that a union man has the constitutional right to decline
proffered employment unless the employer will agree not to employ any nonunion
man? (In all cases we refer, of course, to agreements made voluntarily,
and without coercion or duress as between the parties. And we have no
reference to questions of monopoly, or interference with the rights of third
parties or the general public. There involve other considerations, respecting
which we intend to intimate no opinion. See Curran v. Galen, 152 N. Y.
33, 37 L.R.A. 802, 57 Am. St. Rep. 496, 46 N. E. 297; Jacobs v. Cohen, 183 N.
Y. 207, 213, 214, 2 L.R.A.(N.S.) 292, 111 Am. St. Rep. 730, 76 N. E. 5, 5
Ann. Cas. 280; Plant v. Woods, 176 Mass. 492, 51 L.R.A. 339, 79 Am. St. Rep.
330, 57 N. E. 1011; Berry v. Donovan, 188 Mass. 353, 5 L.R.A.(N.S.) 899, 108
Am. St. Rep. 499, 74 N. E. 603, 3 Ann. Cas. 738; Brennan v. United Hatters, 73
N. J. L. 729, 738, 9 L.R.A.(N.S.) 254, 118 Am. St. Rep. 727, 65 Atl. 165, 169,
9 Ann. Cas. 698, 702). And can there be one rule of liberty for the labor
organization and its members, and a different and more restrictive rule for
employers? We think not; and since the relation of employer and employee
is a voluntary relation, as clearly as is that between the members of a labor
organization, the employer has the same inherent right to prescribe the terms
upon which he will consent to the relationship, and to have them fairly
understood and expressed in advance.
When a man is called upon to agree not to
become or remain a member of the union while working for a particular employer,
he is in effect only asked to deal openly and frankly with his employer, so as
not to retain the employment upon terms to which the latter is not willing to
agree. And the liberty of making contracts does not include a liberty to
procure employment from an unwilling employer, or without a fair
understanding. Nor may the employer be foreclosed by legislation from
exercising the same freedom of choice that is the right of the employee.
To ask a man to agree, in advance, to refrain
from affiliation with the union while retaining a certain position of
employment, is not to ask him to give up any part of his constitutional freedom.
He is free to decline the employment on those terms, just as the employer may
decline to offer employment on any other; for 'it takes two to make a
bargain.' Having accepted employment on those terms, the man is still
free to join the union when the period of employment expires; or, if employed
at will, then at any time upon simply quitting the employment. And, if
bound by his own agreement to refrain from joining during a stated period of
employment, he is in no different situation from that which is necessarily
incident to term contracts in general. For constitutional freedom of
contract does not mean that a party is to be as free after making a contract as
before; he is not free to break it without accountability. Freedom of contract,
from the very nature of the thing, can be enjoyed only by being exercised; and
each particular exercise of it involves making an engagement which, if
fulfilled, prevents for the time any inconsistent course of conduct.
So much for the reason of the matter, let us
turn again to the adjudicated cases.
The decision in the Adair Case is in accord
with the almost unbroken current of authorities in the state courts. In
many states enactments not distinguishable in principle from the one now in
question have been passed, but, except in two instances (one, the decision of
an inferior court in Ohio, since repudiated; the other, the decision now under
review), we are unable to find that they have been judicially enforced.
It is not too much to say that such laws have by common consent been treated as
unconstitutional, for while many state courts of last resort have adjudged them
void, we have found no decision by such a court sustaining legislation of this
character, excepting that which is now under review. The single previous
instance in which any court has upheld such a statute is Davis v. State (1893)
30 Ohio L. J. 342, 11 Ohio Dec. Reprint, 894, where the court of common pleas
of Hamilton county sustained an act of April 14, 1892 (89 Ohio Laws, 269),
which declared that any person who coerced or attempted to coerce employees by
discharging or threatening to discharge them because of their connection with
any lawful labor organization should be guilty of a misdemeanor, and upon
conviction fined or imprisoned. We are unable to find that this decision
was ever directly reviewed; but in State v. Bateman (1900) 10 Ohio S. & C.
P. Dec. 68, 7 Ohio N. P. 487, its authority was repudiated upon the ground that
it had been in effect overruled by subsequent decisions of the state supreme
court, and the same statute was held unconstitutional.
The right that plaintiff in error is now
seeking to maintain was held by the supreme court of Kansas, in an earlier
case, to be within the protection of the 14th Amendment, and therefore beyond
legislative interference. In Coffeyville Vitrified Brick & Tile Co.
v. Perry, 69 Kan. 297, 66 L.R.A. 185, 76 Pac. 848, 1 Ann. Cas. 936, the court
had under consideration chapter 120 of the Laws of 1897 (Gen. Stat. 1901, §§
2425, 2426), which declared it unlawful for any person, company, or
corporation, or agent, officer, etc., to prevent employees from joining and
belonging to any labor organization, and enacted that any such person, company,
or corporation, etc., that coerced or attempted to coerce employees by
discharging or threatening to discharge them because of their connection with
such labor organization should be deemed guilty of a misdemeanor, and upon
conviction subjected to a fine, and should also be liable to the person injured
in punitive damages. It was attacked as violative of the 14th Amendment,
and also of the Bill of Rights of the state Constitution. [FN1] The court
held it unconstitutional, saying: 'The right to follow any lawful vocation and
to make contracts is as completely within the protection of the Constitution as
the right to hold property free from unwarranted seizure, or the liberty to go
when and where one will. One of the ways of obtaining property is by
contract. The right, therefore, to contract cannot be infringed by the legislature
without violating the letter and spirit of the Constitution. Every
citizen is protected in his right to work where and for whom he will. He
may select not only his employer, but also his associates. He is at
liberty to refuse to continue to serve one who has in his employ a person, or
an association of persons, objectionable to him. In this respect the
rights of the employer and employee are equal. Any act of the legislature that
would undertake to impose on an employer the obligation of keeping in his
service one whom, for any reason, he should not desire, would be a denial of
his constitutional right to make and terminate contracts and to acquire and
hold property. Equally so would be an act the provisions of which should
be intended to require one to remain in the service of one whom he should not
desire to serve. . . . The business conducted by the defendant was its
property, and in the exercise of this ownership it is protected by the
Constitution. It could abandon or discontinue its operation at
pleasure. It had the right, beyond the possibility of legislative
interference, to make any contract with reference thereto not in violation of
law. In the operation of its property it may employ such persons as are
desirable, and discharge, without reason, those who are undesirable. It
is at liberty to contract for the services of persons in any manner that is
satisfactory to both. No legislative restrictions can be imposed upon the
lawful exercise of these rights.'
In Atchison, T. & S. F. R. Co. v. Brown,
80 Kan. 312, 23 L.R.A.(N.S.) 247, 133 Am. St. Rep. 213, 102 Pac. 459, 18 Ann.
Cas. 346, the same court passed upon chapter 144 of the Laws of 1897 (Gen.
Stat. 1901, §§ 2421-2424), which required the employer, upon the request of a
discharged employee, to furnish in writing the true cause or reason for such
discharge. The railway company did not meet this requirement, its
'service letter.' as it was called, stating only that Brown was discharged 'for
cause,' which the court naturally held was not a statement of the cause.
The law was held unconstitutional, upon the ground (80 Kan. 315) that an
employer may discharge his employee for any reason, or for no reason, just as
an employee may quit the employment for any reason, or for no reason; that such
action on the part of employer or employee, where no obligation is violated, is
an essential element of liberty in action; and that one cannot be compelled to
give a reason or cause for an action for which he may have no specific reason
or cause, except, perhaps, a mere whim or prejudice.
In the present case the court did not
repudiate or overrule these previous decisions, but, on the contrary, cited
them as establishing the right of the employer to discharge his employee at any
time, for any reason, or for no reason, being responsible in damages for
violating a contract as to the time of employment, and as establishing,
conversely, the right of the employee to quit the employment at any time, for
any reason, or without any reason, being likewise responsible in damages for a
violation of his contract with the employer. The court held the act of
1903 that is now in question to be distinguishable from the act of 1897, upon
grounds sufficiently indicated and answered by what we have already said.
In five other states the courts of last
resort have had similar acts under consideration, and in each instance have
held them unconstitutional. In State v. Julow (1895) 129 Mo. 163, 29
L.R.A. 257, 50 Am. St. Rep. 443, 31 S. W. 781, the supreme court of Missouri
dealt with an act (Missouri Laws 1893, p. 187) that forbade employers, on pain
of fine or imprisonment, to enter into any agreement with an employee requiring
him to withdraw from a labor union or other lawful organization, or to refrain
from joining such an organization, or to 'by any means attempt to compel or
coerce any employee into withdrawal from any lawful organization or society.'
In Gillespie v. People (1900) 188 Ill. 176, 52 L.R.A. 283, 80 Am. St. Rep. 176,
58 N. E. 1007, the supreme court of Illinois held unconstitutional an act
(Hurd's Stat. 1899, p. 844) declaring it criminal for any individual or member
of any firm, etc., to prevent or attempt to prevent employees from forming,
joining, and belonging to any lawful labor organization, and that any such
person 'that coerces or attempts to coerce employees by discharging or
threatening to discharge them because of their connection with such lawful
labor organization' should be guilty of a misdemeanor. In State ex rel.
Zillmer v. Kreutzberg (1902) 114 Wis. 530, 58 L.R.A. 748, 91 Am. St. Rep. 934,
90 N. W. 1098, the court had under consideration a statute (Wisconsin Laws
1899, chap. 332) which, like the Kansas act now in question, prohibited the
employer or his agent from coercing the employee to enter into an agreement not
to become a member of a labor organization, as a condition of securing
employment or continuing in the employment, and also rendered it unlawful to
discharge an employee because of his being a member of any labor organization.
The decision related to the latter prohibition, but this was denounced upon
able and learned reasoning that has a much wider reach. In People v.
Marcus (1906) 185 N. Y. 257, 7 L.R.A.(N.S.) 282, 113 Am. St. Rep. 902, 77 N. E.
1073, 7 Ann. Cas. 118, the statute dealt with (N. Y. Laws 1887, chap. 688), as
we have already said, was in substance identical with the Kansas act.
These decisions antedated Adair v. United States. They proceed upon broad
and fundamental reasoning, the same in substance that was adopted by this court
in the Adair Case, and they are cited with approval in the opinion (208 U. S.
175). A like result was reached in State ex rel. Smith v. Daniels (1912)
118 Minn. 155, 136 N. W. 584, with respect to an act that, like the Kansas statute,
forbade an employer to require an employee or person seeking employment, as a
condition of such employment, to make an agreement that the employee would not
become or remain a member or a labor organization. This was held invalid
upon the authority of the Adair Case. And see Goldfield Consol. Mines Co.
v. Goldfield Miners' Union, 159 Fed. 500, 513.
Upon both principle and authority, therefore,
we are constrained to hold that the Kansas act of March 13, 1903, as construed
and applied so as to punish with fine or imprisonment an employer or his agent
for merely prescribing, as a condition upon which one may secure employment
under or remain in the service of such employer, that the employee shall enter
into an agreement not to become or remain a member of any labor organization
while so employed, is repugnant to the 'due process' clause of the 14th
Amendment, and therefore void.
Judgment reversed, and the cause remanded for
further proceedings not inconsistent with this opinion.
Mr. Justice Holmes, dissenting:
I think the judgment should be
affirmed. In present conditions a workman not unnaturally may believe
that only by belonging to a union can he secure a contract that shall be fair
to him. Holden v. Hardy, 169 U. S. 366, 397, 42 L. ed. 780, 792, 18 Sup.
Ct. Rep. 383; Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 570, 55 L.
ed. 328, 339, 31 Sup. Ct. Rep. 259. If that belief, whether right or
wrong, may be held by a reasonable man, it seems to me that it may be enforced
by law in order to establish the equality of position between the parties in
which liberty of contract begins. Whether in the long run it is wise for
the workingmen to enact legislation of this sort is not my concern, but I am
strongly of opinion that there is nothing in the Constitution of the United
States to prevent it, and that Adair v. United States, 208 U. S. 161, 52 L. ed.
436, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764, and Lochner v. New York, 198 U. S.
45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133, should be overruled.
I have stated my grounds in those cases and think it unnecessary to add others
that I think exist. See further, Vegelahn v. Guntner, 167 Mass. 92, 104,
108, 35 L.R.A. 722, 57 Am. St. Rep. 443, 44 N. E. 1077; Plant v. Woods, 176
Mass. 492, 505, 51 L.R.A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011. I
still entertain the opinions expressed by me in Massachusetts.
Mr. Justice Day, dissenting:
The character of the question here involved
sufficiently justifies, in my opinion, a statement of the grounds which impel
me to dissent from the opinion and judgment in this case. The importance
of the decision is further emphasized by the fact that it results not only in
invalidating the legislation of Kansas, now before the court, but necessarily
decrees the same fate to like legislation of other states of the Union.
[FN2] This far-reaching result is attained because the statute is
declared to be an infraction of the constitutional protection afforded under
the 14th Amendment to the Federal Constitution, which declares that no person
shall be deprived of life, liberty, or property without due process of
law. The right of contract, it is said, is part of the liberty of the
citizen, and to abridge it, as is done in this case, is declared to be beyond
the legislative authority of the state.
That the right of contract is a part of
individual freedom within the protection of this Amendment, and may not be
arbitrarily interfered with, is conceded. While this is true, nothing is
better settled by the repeated decisions of this court than that the right of
contract is not absolute and unyielding, but is subject to limitation and
restraint in the interests of the public health, safety, and welfare, and such
limitations may be declared in legislation of the state. It would unduly
extend what I purpose to say in this case to refer to all the cases in which
this doctrine has been declared. One of them is: Frisbie v. United
States, 157 U. S. 160, 39 L. ed. 657, 15 Sup. Ct. Rep. 586. In that case,
it was declared, and in varying form has been repeated many times since:
'While it may be conceded that, generally
speaking, among the inalienable rights of the citizen is that of the liberty of
contract, yet such liberty is not absolute and universal. It is within
the undoubted power of government to restrain some individuals from all
contracts, as well as all individuals from some contracts. It may deny to
all the right to contract for the purchase or sale of lottery tickets; to the
minor the right to assume any obligations, except for the necessaries of
existence; to the common carrier the power to make any contract releasing
himself from negligence, and, indeed, may restrain all engaged in any
employment from any contract in the course of that employment which is against
public policy. The possession of this power by government in no manner
conflicts with the proposition that, generally speaking, every citizen has a
right freely to contract for the price of his labor, services, or property.'
See also Holden v. Hardy, 169 U. S. 366, 391,
42 L. ed. 780, 790, 18 Sup. Ct. Rep. 383; Atkin v. Kansas, 191 U. S. 207, 48 L.
ed. 148, 24 Sup. Ct. Rep. 124; Muller v. Oregon, 208 U. S. 412, 421, 52 L. ed.
551, 555, 28 Sup. Ct. Rep. 324, 13 Ann. Cas. 957; McLean v. Arkansas, 211 U. S.
539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206; Chicago, B. & Q. R. Co. v.
McGuire, 219 U. S. 549, 55 L. ed. 328, 31 Sup. Ct. Rep. 259; Atlantic Coast
Line R. Co. v. Riverside Mills, 219 U. S. 186, 202, 55 L. ed. 167, 180, 31
L.R.A. (N.S.) 7, 31 Sup. Ct. Rep. 164; Erie R. Co. v. Williams, 233 U. S. 685,
699, 58 L. ed. 1155, 1160, 34 Sup. Ct. Rep. 761. The Erie Railroad Case is a
very recent deliverance of this court upon the subject, wherein it was
declared:
'But liberty of making contracts is subject
to conditions in the interest of the public welfare, and which shall
prevail--principle or condition--cannot be defined by any precise and universal
formula. Each instance of asserted conflict must be determined by itself, and
it has been said many times that each act of legislation has the support of the
presumption that it is an exercise in the interest of the public. The
burden is on him who attacks the legislation, and it is not sustained by
declaring a liberty of contract. It can only be sustained by demonstrating
that it conflicts with some constitutional restraint, or that the public
welfare is not subserved by the legislation. The legislature is, in the
first instance, the judge of what is necessary for the public welfare, and a
judicial review of its judgment is limited. The earnest conflict of
serious opinion does not suffice to bring it within the range of judicial
cognizance. Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 565,
55 L. ed. 328, 337, 31 Sup. Ct. Rep. 259; German Alliance Ins. Co. v. Lewis, 233
U. S. 389, 58 L. ed. 1011, 34 Sup. Ct. Rep. 612.'
It is therefore the thoroughly established
doctrine of this court that liberty of contract may be circumscribed in the
interest of the state and the welfare of its people. Whether a given
exercise of such authority transcends the limits of legislative authority must
be determined in each case as it arises. The preservation of the police power
of the states, under the authority of which that great mass of legislation has
been enacted which has for its purpose the promotion of the health, safety, and
welfare of the public, is of the utmost importance. This power was not
surrendered by the states when the Federal Constitution was adopted, nor taken
from them when the 14th Amendment was ratified and became a part of the
fundamental law of the Union. Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923,
5 Sup. Ct. Rep. 357.
Of the necessity of such legislation, the
local legislature is itself the judge, and its enactments are only to be set
aside when they involve such palpable abuse of power and lack of reasonableness
to accomplish a lawful end that they may be said to be merely arbitrary and
capricious, and hence out of place in a government of laws, and not of men, and
irreconcilable with the conception of due process of law. McGehee on Due
Process of Law, page 306, and cases from this court therein cited.
By this it is not meant that the legislative
power is beyond judicial review. Such enactments as are arbitrary or
unreasonable, and thus exceed the exercise of legislative authority in good
faith, may be declared invalid when brought in review by proper judicial
proceedings. This is necessary to the assertion and maintenance of the
supremacy of the Constitution.
Conceding, then, that the right of contract
is a subject of judicial protection, within the authority given by the
Constitution of the United States, the question here is, was the power of the
state so arbitrarily exercised as to render its action unconstitutional and
therefore void? It is said that this question is authoritatively
determined in this court, in the case of Adair v. United States, 208 U. S. 161,
52 L. ed. 436, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764. In that case, a
statute passed by the Congress of the United States, under supposed sanction of
the power to regulate interstate commerce, was before this court, and it was
there decided that the right of contract protected by the 5th Amendment to the
Constitution, providing that no person shall be deprived of life, liberty, or
property without due process of law, avoided a statute which undertook to make
it a crime to discharge an employee simply because of his membership in a labor
organization. The feature of the statute which is here involved, making
it an offense to require any employee, or any person seeking employment, as a
condition of such employment, to enter into an agreement, either written or
verbal, not to become a member of any labor corporation, association, or
organization,--a provision exactly similar to that of the Kansas statute now
under consideration,--was not before the court upon the charge made or the
facts shown, and this provision was neither considered nor decided upon in
reaching the conclusion that an employer could not be made a criminal because
he discharged an employee simply because of his membership in a labor
organization. In the course of the opinion this fact was more than once stated,
and the question before the court declared to be:
'May Congress make it a criminal offense
against the United States--as by the 10th section of the act of 1898 it
does--for an agent or officer of an interstate carrier, having full authority
in the premises from the carrier, to discharge an employee from service simply
because of his membership in a labor organization?'
Such was the question before the court, and
that there might be no mistake about it, at the close of the opinion, the part
of the act upon which the defendant in that case was convicted was declared to
be separable from the other parts of the act, and that feature of the statute
the only subject of decision. Mr. Justice Harlan, concluding the opinion
of the court, said:
'We add that since the part of the act of
1898 upon which the first count of the indictment is based, and upon which alone
the defendant was convicted, is severable from its other parts, and as
what has been said is sufficient to dispose of the present case, we are not
called upon to consider other and independent provisions of the act, such,
for instance, as the provisions relating to arbitration. This decision
is therefore restricted to the question of the validity of the particular
provision in the act of Congress making it a crime against the United States
for an agent or officer of an interstate carrier to discharge an employee from
its service because of his being a member of a labor organization.'
(Italics mine.)
In view of the feature of the statute
involved, the charge made, and this express reservation in the opinion of the
court as to other features of the statute, I am unable to agree that that case
involved or decided the one now at bar.
There is nothing in the statute now under
consideration which prevents an employer from discharging one in his service at
his will. The question now presented is, May an employer, as a condition
of present or future employment, require an employee to agree that he will not
exercise the privilege of becoming a member of a labor union, should he see fit
to do so? In my opinion, the cases are entirely different, and the decision
of the questions controlled by different principles. The right to join
labor unions is undisputed, and has been the subject of frequent affirmation in
judicial opinions. Acting within their legal rights, such associations
are as legitimate as any organization of citizens formed to promote their
common interest. They are organized under the laws of many states, by
virtue of express statutes passed for that purpose, and, being legal, and
acting within their constitutional rights, the right to join them, as against
coercive action to the contrary, may be the legitimate subject of protection in
the exercise of the police authority of the states. This statute, passed
in the exercise of that particular authority called the police power, the
Limitations of which no court has yet undertaken precisely to define, has for
its avowed purpose the protection of the exercise of a legal right, by
preventing an employer from depriving the employee of it as a condition of
obtaining employment. I see no reason why a state may not, if it chooses,
protect this right, as well as other legal rights.
But it is said that the contrary must
necessarily result, if not from the precise matter decided in the Adair Case,
then from the principles therein laid down, and that it is the logical result
of that decision that the employer may, as a condition of employment, require
an obligation to forego the exercise of any privileges because of the exercise
of which an employee might be discharged from service. I do not concede
that this result follows from anything decided in the Adair Case. That
case dealt solely with the right of an employer to terminate relations of
employment with an employee, and involved the constitutional protection of his
right so to do, but did not deal with the conditions which he might exact or
impose upon another as a condition of employment.
The act under consideration is said to have
the effect to deprive employers of a part of their liberty of contract, for the
benefit of labor organizations. It is urged that the statute has no object or
purpose, express or implied, that has reference to health, safety, morals, or
public welfare, beyond the supposed desirability of leveling inequalities of
fortune by depriving him who has property of some part of his 'financial
independence.'
But this argument admits that financial
independence is not independence of law or of the authority of the legislature
to declare the policy of the state as to matters which have a reasonable
relation to the welfare, peace, and security of the community.
This court has many times decided that the
motives of legislators in the enactment of laws are not the subject of judicial
inquiry. Legislators, state and Federal, are entitled to the presumption that
their action has been in good faith and because of conditions which they deem
proper and sufficient to warrant the action taken. Speaking for this
court in Ex parte McCardle, 7 Wall. 506, 514, 19 L. ed. 264, 265, Chief Justice
Chase summed up the doctrine in a sentence when he said: 'We are not at
liberty to inquire into the motives of the legislature; we can only examine
into its power under the Constitution.' In Cooley's Constitutional
Limitations, 7th ed. 257, that eminent author says: 'They [the courts] must
assume that legislative discretion has been properly exercised. If
evidence was required, it must be supposed that it was before the legislature
when the act was passed; and if any special finding was required to warrant the
passage of the particular act, it would seem that the passage of the act itself
might be held equivalent to such finding.' 'The rule is general with
reference to the enactments of all legislative bodies that the courts cannot
inquire into the motives of the legislators in passing them, except as they may
be disclosed on the face of the acts, or inferable from their operation,
considered with reference to the condition of the country and existing
legislation. The motives of the legislators, considered as the purposes
they had in view, will always be presumed to be to accomplish that which
follows as the natural and reasonable effect of their enactments. Their
motives, considered as the moral inducements for their votes, will vary with
the different members of the legislative body. The diverse character of such
motives, and the impossibility of penetrating into the hearts of men and
ascertaining the truth, precludes all such inquiries as impracticable and
futile.' Soon Hing v. Crowley, 113 U. S. 703, 710, 28 L. ed. 1145, 1147,
5 Sup. Ct. Rep. 730. 'We must assume that the legislature acts according
to its judgment for the best interests of the state. A wrong intent
cannot be imputed to it.' Florida C. & P. R. Co. v. Reynolds, 183 U. S.
471, 480, 46 L. ed. 283, 287, 22 Sup. Ct. Rep. 176.
The act must be taken as an attempt of the
legislature to enact a statute which it deemed necessary to the good order and
security of society. It imposes a penalty for 'coercing or influencing or
making demands upon or requirements of employees, servants, laborers, and
persons seeking employment.' It was in the light of this avowed purpose
that the act was interpreted by the supreme court of Kansas, the ultimate
authority upon the meaning of the terms of the law. Of course, if the act
is necessarily arbitrary and therefore unconstitutional, mere declarations of
good intent cannot save it, but it must be presumed to have been passed by the
legislative branch of the state government in good faith, and for the purpose
of reaching the desired end. The legislature may have believed, acting
upon conditions known to it, that the public welfare would be promoted by the
enactment of a statute which should prevent the compulsory exaction of written
agreements to forego the acknowledged legal right here involved, as a condition
of employment in one's trade or occupation.
It would be impossible to maintain that
because one is free to accept or refuse a given employment, or because one may
at will employ or refuse to employ another, it follows that the parties have a
constitutional right to insert in an agreement of employment any stipulation
they choose. They cannot put in terms that are against public policy
either as it is deemed by the courts to exist at common law, or as it may be
declared by the legislature as the arbiter within the limits of reason of the
public policy of the state. It is no answer to say that the greater
includes the less, and that because the employer is free to employ, or the
employee to refuse employment, they may agree as they please. This matter
is easily tested by assuming a contract of employment for a year and the
insertion of a condition upon which the right of employment should
continue. The choice of such conditions is not to be regarded as wholly
unrestricted because the parties may agree or not, as they choose. And if
the state may prohibit a particular stipulation in an agreement because it is
deemed to be opposed in its operation to the security and well being of the
community, it may prohibit it in any agreement, whether the employment is for a
term or at will. It may prohibit the attempt in any way to bind one to
the objectionable undertaking.
Would anyone contend that the state might not
prohibit the imposition of conditions which should require an agreement to
forego the right on the part of the employee to resort to the courts of the
country for redress in the case of disagreement with his employer? While the
employee might be discharged in case he brought suit against an employer if the
latter so willed, it by no means follows that he could be required, as a
condition of employment, to forego a right so obviously fundamental as the one
supposed. It is therefore misleading to say that the right of discharge
necessarily embraces the right to impose conditions of employment which shall
include the surrender of rights which it is the policy of the state to
maintain.
Take another illustration: The right to
exclude a foreign corporation from carrying on a purely domestic business in
the state has been distinctly recognized by decisions of this court; yet it has
been held, and is now settled law, that it is beyond the authority of the state
to require a corporation doing business of this character to file in the office
of the secretary of state a written agreement that it will not remove a suit, otherwise
removable, to a Federal court of the United States. Home Ins. Co. v.
Morse, 20 Wall. 445, 22 L. ed. 365. In that case, the right to exclude
was held not to include the right to impose any condition under which the
corporation might do business in the state. In that connection this court
said:
'A man may not barter away his life or his
freedom, or his substantial rights. In a criminal case, he cannot, as was
held in Cancemi's Case, 18 N. Y. 128, be tried, in any other manner than by a
jury of twelve men, although he consent in open court to be tried by a jury of
eleven men. In a civil case he may submit his particular suit by his own
consent to an arbitration, or to the decision of a single judge. So he
may omit to exercise his right to remove his suit to a Federal tribunal, as
often as he thinks fit, in each recurring case. In these aspects any
citizen may, no doubt, waive the rights to which he may be entitled. He
cannot, however, bind himself in advance by an agreement, which may be specifically
enforced, thus to forfeit his rights at all times and on all occasions,
whenever the case may be presented.' Home Ins. Co. v. Morse, 20 Wall.
445, 451, 22 L. ed. 365, 368.
It may be that an employer may be of the
opinion that membership of his employees in the National Guard, by enlistment
in the militia of the state, may be detrimental to his business. Can it
be successfully contended that the state may not, in the public interest,
prohibit an agreement to forego such enlistment as against public policy?
Would it be beyond a legitimate exercise of the police power to provide that an
employee should not be required to agree, as a condition of employment, to
forego affiliation with a particular political party, or the support of a
particular candidate for office? It seems to me that these questions
answer themselves. There is a real, and not a fanciful, distinction between the
exercise of the right to discharge at will and the imposition of a requirement
that the employee, as a condition of employment, shall make a particular
agreement to forego a legal right. The agreement may be, or may be
declared to be, against public policy, although the right of discharge
remains. When a man in discharged, the employer exercises his right to
declare such action necessary because of the exigencies of his business, or as
the result of his judgment for other reasons sufficient to himself. When
he makes a stipulation of the character here involved essential to future
employment, he is not exercising a right to discharge, and may not wish to
discharge the employee when, at a subsequent time, the prohibited act is
done. What is in fact accomplished, is that the one engaging to work, who
may wish to preserve an independent right of action, as a condition of employment,
is coerced to the signing of such an agreement against his will, perhaps
impelled by the necessities of his situation. The state, within
constitutional limitations, is the judge of its own policy and may execute it
in the exercise of the legislative authority. This statute reaches not
only the employed, but, as well, one seeking employment. The latter may
never wish to join a labor union. By signing such agreements as are here
involved he is deprived of the right of free choice as to his future conduct,
and must choose between employment and the right to act in the future as the
exigencies of his situation may demand. It is such contracts, having such
effect, that this statute and similar ones seek to prohibit and punish as
against the policy of the state.
It is constantly emphasized that the case
presented is not one of coercion. But in view of the relative positions
of employer and employed, who is to deny that the stipulation here insisted
upon and forbidden by the law is essentially coercive? No form of words
can strip it of its true character. Whatever our individual opinions may
be as to the wisdom of such legislation, we cannot put our judgment in place of
that of the legislature and refuse to acknowledge the existence of the conditions
with which it was dealing. Opinions may differ as to the remedy, but we
cannot understand upon what ground it can be said that a subject so intimately
related to the welfare of society is removed from the legislative power.
Wherein is the right of the employer to insert this stipulation in the
agreement any more sacred than his right to agree with another employer in the
same trade to keep up prices? He may think it quite as essential to his
'financial independence,' and so in truth it may be if he alone is to be
considered. But it is too late to deny that the legislative power reaches
such a case. It would be difficult to select any subject more intimately
related to good order and the security of the community than that under
consideration--whether one takes the view that labor organizations are
advantageous or the reverse. It is certainly as much a matter for
legislative consideration and action as contracts in restraint of trade.
It is urged that a labor organization--a
voluntary association of working men--has the constitutional right to deny
membership to any man who will not agree that during such membership he will
not accept or retain employment in company with nonunion men. And it is
asserted that there cannot be one rule of liberty for the labor organization
and its members and a different and more restrictive rule for employers.
It, of course, is true, for example, that a
church may deny membership to those who unite with other denominations, but it
by no means follows that the state may not constitutionally prohibit a railroad
company from compelling a working-man to agree that he will, or will not, join
a particular church. An analogous case, viewed from the employer's
standpoint, would be: Can the state, in the exercise of its legislative power,
reach concerted effort of employees, intended to coerce the employer as a
condition of hiring labor, that he shall engage in writing to give up his
privilege of association with other employers in legal organizations, corporate
or otherwise, having for their object a united effort to promote by legal means
that which employers believe to be for the best interest of their business?
I entirely agree that there should be the
same rule for employers and employed, and the same liberty of action for
each. In my judgment, the law may prohibit coercive attempts, such as are
here involved, to deprive either of the free right of exercising privileges
which are theirs within the law. So far as I know, no law has undertaken
to abridge the right of employers of labor in the exercise of free choice as to
what organizations they will form for the promotion of their common interests,
or denying to them free right of action in such matters.
But it is said that in this case all that was
done in effect was to discharge an employee for a cause deemed sufficient to
the employer,--a right inherent in the personal liberty of the employer
protected by the Constitution. This argument loses sight of the real
purpose and effect of this and kindred statutes. The penalty imposed is
not for the discharge, but for the attempt to coerce an unwilling employee to
agree to forego the exercise of the legal right involved as a condition of
employment. It is the requirement of such agreements which the state
declares to be against public policy.
I think that the act now under consideration,
and kindred ones, are intended to promote the same liberty of action for the
employee, as the employer confessedly enjoys. The law should be as
zealous to protect the constitutional liberty of the employee as it is to guard
that of the employer. A principal object of this statute is to protect
the liberty of the citizen to make such lawful affiliations as he may desire
with organizations of his choice. It should not be necessary to the
protection of the liberty of one citizen that the same right in another citizen
be abridged or destroyed.
If one prohibitive condition of the sort here
involved may be attached, so may others, until employment can only be had as
the result of written stipulations, which shall deprive the employee of the
exercise of legal rights which are within the authority of the state to
protect. While this court should, within the limitations of the
constitutional guaranty, protect the free right of contract, it is not less
important that the state be given the right to exert its legislative authority,
if it deems best to do so, for the protection of rights which inhere in the
privileges of the citizen of every free country.
The supreme court of Kansas, in sustaining
this statute, said that 'employees, as a rule, are not financially able
to be as independent in making contracts for the sale of their labor as are
employers in making a contract of purchase thereof,' and in reply to this it is
suggested that the law cannot remedy inequalities of fortune, and that so long
as the right of property exists, it may happen that parties negotiating may not
be equally unhampered by circumstances.
This view of the Kansas court, as to the
legitimacy of such considerations, is in entire harmony, as I understand it,
with the former decisions of this court in considering the right of state
legislatures to enact laws which shall prevent the undue or oppressive exercise
of authority in making contracts with employees. In Holden v. Hardy, 169
U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, this court, considering
legislation limiting the number of hours during which laborers might be
employed in a particular employment, said:
'The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases self- interest is often an unsafe guide, and the legislature may properly interpose its authority. . . . But the fact that both parties are of full age and competent to contract does not necessarily deprive the state of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. 'The state still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety and welfare are sacrificed or neglected, the state must suffer.'' (Page 397.)
This language was quoted with approval in Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 570, 55 L. ed. 328, 339, 31 Sup. Ct. Rep. 259, in which a statute of Iowa was sustained, prohibiting contracts limiting liability for injuries, made in advance of the injuries received, and providing that the subsequent acceptance of benefits under such contracts should not constitute satisfaction for injuries received after the contract. Certainly it can be no substantial objection to the exercise of the police power that the legislature has taken into consideration the necessities, the comparative ability, and the relative situation of the contracting parties. While all stand equal before the law, and are alike entitled to its protection, it ought not to be a reasonable objection that one motive which impelled an enactment was to protect those who might otherwise be unable to protect themselves.
I therefore think that the statute of Kansas,
sustained by the supreme court of the state, did not go beyond a legitimate
exercise of the police power, when it sought, not to require one man to employ
another against his will, but to put limitations upon the sacrifice of rights
which one man may exact from another as a condition of employment. Entertaining
these views, I am constrained to dissent from the judgment in this case.
I am permitted to say that Mr. Justice Hughes
concurs in this dissent.
Footnotes:
FN1 Constitution of the state of
Kansas.
. . . Bill
of Rights.
Section 1. All men are possessed of
equal and inalienable natural rights, among which are life, liberty, and the
pursuit of happiness.
* * *
Section 18. All persons, for injuries
suffered in person, reputation, or property, shall have remedy by due course of
law, and justice administered without delay.
FN2 Statutes like the Kansas statute
have been passed in California, Colorado, Connecticut, Indiana, Massachusetts,
Minnesota, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Pennsylvania,
Porto Rico, and Wisconsin. Bulletin of the Bureau of Labor Statistics No.
148, volumes 1 and 2; Labor Laws of the United States.