1. A decision by a state supreme court as to the separability of
parts of a state statute from other parts found invalid by this
Court is binding on this Court. P.
272 U. S.
308.
2. Upon review of a state court's judgment, facts not in the
record and not noticed judicially cannot be considered. P.
272 U. S.
311.
3. Mere reference by the state supreme court to another case as
a controlling decision did not incorporate the record of that case
into the record of the one in which the reference was made.
Id.
4. There is no constitutional right to call a strike solely for
the purpose of coercing the employer to pay a disputed stale claim
of a former employee, a member of the union. P.
272 U. S.
311.
Page 272 U. S. 307
5. As applied to such a case, § 17 of the Kansas Industrial
Relations Act, making it unlawful "to induce others to quit their
employment for the purpose and with the intent to hinder, delay,
limit or suspend the operation" of mining, and § 19, making it a
felony for an officer of a labor union willfully to use the power
or influence incident to his office to induce another person to
violate § 17, are within the power of the state, and do not deny
the liberty guaranteed by the Fourteenth Amendment. P.
272 U. S.
309.
6. Neither the common law nor the Fourteenth Amendment confers
the absolute right to strike. P
272 U. S.
311.
116 Kan. 412 affirmed.
Error to a judgment of the Supreme Court of Kansas which
affirmed sentence imposed on Dorchy under 19 of the Kansas
Industrial Relations Act for using his influence as a labor union
official to induce a strike in violation of § 17.
See S.C.
264 U. S. 264 U.S.
286.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Section 17 of the Court of Industrial Relations Act, Laws of
Kansas Special Session 1920, c. 29, which reserving to the
individual employee the right to quit his employment at any time,
makes it unlawful to conspire "to induce others to quit their
employment for the purpose and with the intent to hinder, delay,
limit or suspend the operation of" mining. Section 19 makes it a
felony for an officer of a labor union willfully to use the power
or influence incident to his office to induce another person to
violate any provision of the Act.
Page 272 U. S. 308
Dorchy was prosecuted criminally for violating § 19. The jury
found him guilty through inducing a violation of § 17; the trial
court sentenced him to fine and imprisonment, and its judgment was
affirmed by the supreme court of the state.
Kansas v.
Howat, 112 Kan. 235. Dorchy duly claimed in both state courts
that § 19, as applied, was void because it prohibits strikes, and
that to do so is a denial of the liberty guaranteed by the
Fourteenth Amendment. Because this claim was denied, the case is
here under § 237 of the Judicial Code as amended.
This is the second writ of error. When the case was first
presented, it appeared that, after entry of the judgment below,
certain provisions of the Act had been held invalid by this Court
in
Charles Wolff Packing Co. v. Court of Industrial
Relations, 262 U. S. 522. The
question suggested itself whether § 19 had not necessarily fallen
as a part of the system of so-called compulsory arbitration, so
that there might be no occasion to consider the constitutional
objection made specifically to it. That question being one of
statutory interpretation which had not been passed upon by the
state court, the case was reversed without costs and remanded for
further proceedings not inconsistent with the opinion of this
Court.
Dorchy v. Kansas, 264 U. S. 286.
Thereupon the Supreme Court of Kansas decided that § 19 is so far
severable from the general scheme of legislation held invalid that
it may stand alone with the legal effect of an independent statute,
and it reaffirmed the judgment of the trial court.
Kansas v.
Howat, 116 Kan. 412. By the construction thus given to the
statute we are bound. The only question open upon this second writ
of error is whether the statute. as so construed and applied. is
constitutional.
The state court did not, in either of its opinions, mention the
specific objection to the validity of § 19 now
Page 272 U. S. 309
urged. In the second, it discussed only the question of
statutory construction. In the first, it stated merely that the
case is controlled by
State v. Howat, 109 Kan. 376.
Court of Industrial Relations v. Charles Wolff Packing
Co., 109 Kan. 629, and
State v. Howat, 109 Kan. 779.
In these cases, which came to this Court for review in
Howat v.
Kansas, 258 U. S. 181, and
Charles Wolff Packing Co. v. Court of Industrial
Relations, 262 U. S. 522;
267 U. S. 267 U.S.
552, there was no occasion to consider the precise claim now urged
-- the invalidity of § 19 when treated as an independent statute.
Nor was this question referred to in any way. But the claims made
by Dorchy below properly raised it, and, as the judgment entered
involves a denial of the claim, we must pass upon it. The question
requiring decision is not, however, the broad one whether the
legislature has power to prohibit strikes. It is whether the
prohibition of § 19 is unconstitutional as here applied.
Dahnke-Walker Milling Co. v. Bondurant, 257 U.
S. 282,
257 U. S. 289.
The special facts out of which the strike arose must therefore be
considered.
Some years prior to February 3, 1921, the George H. Mackie Fuel
Company had operated a coal mine in Kansas. Its employees were
members of District No. 14, United Mine Workers of America. On that
day, Howat, as president, and Dorchy, as vice-president, of the
union, purporting to act under direction of its executive board,
called a strike. So far as appears, there was no trade dispute.
There had been no controversy between the company and the union
over wages, hours, or conditions of labor, over discipline or the
discharge of an employee, concerning the observance of rules, or
over the employment of nonunion labor. Nor was the strike ordered
as a sympathetic one in aid of others engaged in any such
controversy. The order was made and the strike was called to compel
the company to pay a claim of one Mishmash for $180. The men were
told this, and they
Page 272 U. S. 310
were instructed not to return to work until they should be duly
advised that the claim had been paid. The strike order asserted
that the claim had
"been settled by the joint board of miners and operators but
[that] the company refuses . . . to pay Brother Mishmash any part
of the money that is due him."
There was, however, no evidence that the claim had been
submitted to arbitration, nor of any contract requiring that it
should be. The claim was disputed. It had been pending nearly two
years. So far as appears, Mishmash was not in the company's employ
at the time of the strike order. The men went out in obedience to
the strike order, and they did not return to work until after the
claim was paid, pursuant to an order of the Court of Industrial
Relations. While the men were out on strike, this criminal
proceeding was begun.
Besides these facts, which appear by the bill of exceptions, the
state presents for our consideration further facts which appear by
the record in
Kansas v. Howat, 109 Kan. 376;
258 U. S. 258 U.S.
181, one of the cases referred to by the Supreme Court of Kansas in
its first opinion in the case at bar. These show that Dorchy called
this strike in violation of an injunction issued by the state
court, and that the particular controversy with Mishmash arose in
this way. Under the contract between the company and the union, the
rate of pay for employees under 19 was $3.65 a day, and for those
over 19, the rate was $5. Mishmash had been paid at the lower rate
from August 31, 1917, to March 22, 1918, without protest. On that
day, he first demanded pay at the higher rate, and claimed back pay
from August 31, 1917 at the higher rate. His contention was that he
had been born August 31, 1898. The company paid him, currently at
the higher rate beginning April 1, 1918. It refused him the back
pay on the ground that he was in fact less than nineteen years old.
One entry in the Mishmash family Bible gave
Page 272 U. S. 311
August 31, 1898, as the date of his birth; another August 31,
1899. Hence, the dispute. These additional facts were not put in
evidence in the case at bar.
Kansas v. Howat, 109 Kan.
376, was a wholly independent proceeding. Mere reference to it by
the court as a controlling decision did not incorporate its record
into that of the case at bar.
See Pacific R. Co. v. Missouri
Pacific Ry. Co., 111 U. S. 505,
111 U. S.
517-518. And it does not appear that the court treated
these facts as matters of which it took judicial notice. We must
dispose of the case upon the facts set forth in the bill of
exceptions.
The right to carry on business -- be it called liberty or
property -- has value. To interfere with this right without just
cause is unlawful. The fact that the injury was inflicted by a
strike is sometimes a justification. But a strike may be illegal
because of its purpose, however orderly the manner in which it is
conducted. To collect a stale claim due to a fellow member of the
union who was formerly employed in the business is not a
permissible purpose. In the absence of a valid agreement to the
contrary, each party to a disputed claim may insist that it be
determined only by a court.
Compare Guaranty Trust Co. v. Green
Cove R. Co., 139 U. S. 137,
139 U. S. 143;
Red Cross Line v. Atlantic Fruit Co., 264 U.
S. 109. To enforce payment by a strike is clearly
coercion. The legislature may make such action punishable
criminally, as extortion or otherwise.
Compare People v.
Barondess, 16 N.Y.S. 436; 133 N.Y. 649. And it may subject to
punishment him who uses the power or influence incident to his
office in a union to order the strike. Neither the common law nor
the Fourteenth Amendment confers the absolute right to strike.
Compare Aikens v. Wisconsin, 195 U.
S. 194,
195 U. S.
204-205.
Affirmed.