1. Decision in this case is controlled by the principles
governing
Alabama State Federation of Labor v. McAdory,
ante, p.
325 U. S. 450. P.
325 U. S.
477.
2. This Court will not pass upon the constitutionality of
legislation in a suit which is not adversary, or in which there is
no actual antagonistic assertion of rights. P.
325 U. S.
475.
3. The Court cannot say that the present proceeding is adversary
as to § 7 of the Bradford Act (Alabama Laws of 1943, No. 298) in
view of the agreement by respondents to refrain from enforcing that
section until its validity is finally determined by this Court,
Page 325 U. S. 473
and in view of the decision in the
Alabama State Federation
of Labor case. P.
325 U. S.
475.
4. In the absence of an authoritative construction of § 16 by
the state courts, this Court cannot say whether that section will
be interpreted so as to include within its scope employees which
petitioners intend to admit to membership, and thus cannot pass on
the constitutional validity of the section as applied to the future
admission of members. P.
325 U. S.
476.
5. The contention in this case that § 16 of the Bradford Act
conflicts with the National Labor Relations Act does not appear to
have been properly presented to the state courts, nor to have been
passed upon by those courts, and this Court, upon review, is
without jurisdiction to consider it in the first instance. P.
325 U. S.
477.
Writ dismissed.
Certiorari, 324 U.S. 832, to review a judgment, 246 Ala.198, 20
So. 2d 40, which affirmed a judgment sustaining in part the
constitutionality of a state statute.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
This suit, brought in the state courts of Alabama for a
declaratory judgment adjudicating the constitutional validity of
the Bradford Act, No. 298 Alabama Laws of 1943, p. 252 (Code 1940,
Tit. 26, § 376
et seq.), and for an injunction,
Page 325 U. S. 474
is a companion case to
Alabama State Federation of Labor v.
McAdory, ante, p.
325 U. S. 450.
Petitioners are the Congress of Industrial Organizations, a
national labor organization, and certain affiliated labor
organizations whose members are employed within the State, and
certain of their officers. Petitioners brought the present suit in
the State Circuit Court against respondents, who are county
officers charged with the duty of enforcing the Act, praying a
declaratory judgment that the Act as a whole, and particularly §§ 7
and 16, among others, are unconstitutional under the Federal and
State Constitutions, and are invalid because in conflict with the
National Labor Relations Act, and praying that an injunction
issue.
After a trial upon evidence, the Circuit Court adjudged certain
sections of the Act, not here in issue, to be invalid in whole or
in part. In other respects, it held the Act constitutional and
valid. It found that the evidence disclosed no effort on the part
of respondents to enforce the provisions of the Act declared to be
invalid, and accordingly denied an injunction. On appeal, the
Supreme Court of Alabama affirmed, 20 So. 2d 40, for the reasons
stated in its opinion in the
Alabama State Federation of
Labor case.
We granted certiorari, 324 U.S. 832, on a petition which urged
that §§ 7 and 16 of the Act deprive petitioners of their civil
rights in violation of the constitutional guarantees of free speech
and assembly; that §§ 7 and 16 conflict with the National Labor
Relations Act, 49 Stat. 449, 29 U.S.C. § 151
et seq., and
that § 7 denies petitioners the equal protection of the laws
guaranteed by the Fourteenth Amendment on the ground that its
provisions have not been extended to employers' associations, and
that the Act excludes from its operation labor organizations which
are subject to the Railway Labor Act, 45 U.S.C. § 151
et
seq.
Page 325 U. S. 475
The record shows that the respondents have agreed not to enforce
§ 7 of the Act until the final decision as to the section's
validity by this Court in
Alabama State Federation of Labor v.
McAdory, supra. Since we have held in that case that it is
inappropriate to pass upon the constitutional validity of § 7 on
the record presented, we cannot say that the present proceeding is
adversary as to § 7. The Court will not pass upon the
constitutionality of legislation in a suit which is not adversary,
Bartemeyer v.
Iowa, 18 Wall. 129,
85 U. S.
134-135;
Chicago & G.T. R. Co. v. Wellman,
143 U. S. 339;
Atherton Mills v. Johnston, 259 U. S.
13,
259 U. S. 15;
Coffman v. Breeze Corps., 323 U.
S. 316,
323 U. S. 324,
or in which there is no actual antagonistic assertion of rights.
Cleveland v.
Chamberlain, 1 Black 419;
Swift & Co. v.
Hocking Valley R. Co., 243 U. S. 281,
243 U. S. 289;
Norton v. Vesta Coal Co., 291 U.S. 641;
United States
v. Johnson, 319 U. S. 302.
Upon an examination of the record in this case, we find that it
shows that petitioners, or some of them, have members who are
employed in the State of Alabama in industries whose employees are
subject to the National Labor Relations Act, and that they act in
the State and are certified as bargaining representatives of such
employees under the Act. But the extent to which they act in the
State as bargaining representatives of employees in industries
which are not subject to the National Labor Relations Act does not
appear, and consequently the record affords no adequate basis for
an adjudication of the extent to which, for that reason, the
petitioners, or some of them, may be rightly subject to local
regulation even though they also represent employees in other
industries which are subject to the National Act.
The record does not show whether or not petitioners provide
insurance benefits for their members. The State Supreme Court has
construed § 16 as inapplicable whenever it would otherwise
"interfere with or void any insurance
Page 325 U. S. 476
contract now in existence and in force," and, as construed, has
held it valid as applied to petitioners. On this state of the
record, we are unable to say to what extent § 16 can be deemed
applicable to members of any of petitioners because of existing
insurance arrangements. For this and the other reasons stated in
our opinion in the
Alabama State Federation of Labor case,
the record does not present a case calling for decision of the
constitutional validity of § 16 as applied to any existing union
members.
Petitioners nevertheless assert that they intend to admit such
supervisory employees as members in the future, and that the
Supreme Court of Alabama in the Alabama State Federation of Labor
case has held that such future "executive, administrative,
professional, or supervisory" employees are not excepted from the
provisions of § 16 by reason of their acquisition as such employees
of insurance benefits. Although there is evidence in the record
indicating that some of petitioners who have nonsupervisory members
admit to membership employees whom they designate as "supervisory"
in the words of the statute, and will continue to do so, there is
also evidence that they do not admit supervisory employees who have
the right to "hire and fire." The Supreme Court of Alabama did not,
in its opinion in this case or in the
Alabama State Federation
of Labor case, define the statutory language "executive,
administrative, professional, or supervisory employee." Thus, on
the basis of the record before us, we do not know whether those
employees which petitioners intend to admit to membership are such
as are included in § 16. We do not know that § 16 will not be
interpreted to embrace only those employees which have the
authority to employ and discharge employees. And so it does not
appear that the statute will be applied so as to raise the federal
question which we are asked to decide.
Page 325 U. S. 477
Further, the contention that § 16 conflicts with the National
Labor Relations Act,
cf. Hill v. Florida, 325 U.
S. 538, was not passed on by the Circuit Court, was not
raised by assignment of error in the Alabama Supreme Court, and
that court did not pass on that question either in its opinion in
this case or in its opinion in the
Alabama State Federation of
Labor case, which it adopted as controlling. The Alabama
Supreme Court will not consider errors which have not been
assigned,
Rowland v. Plummer, 50 Ala. 182, 197;
Pettibone-Taylor Co. v. Farmers Bank & Trust Co., 156
Ala. 666, 46 So. 751;
Malaney v. Ladura Consol. Mines Co.,
191 Ala. 655, 65 So. 666;
Nichols v. Hardegree, 202 Ala.
132, 79 So. 598;
Halle v. Brooks, 209 Ala. 486, 96 So.
341, or which have not been specifically and precisely raised in
the assignments of error,
Kinnon v. Louisville & Nashville
R. Co., 187 Ala. 480, 65 So. 397;
Carney v. M. C. Kiser
Co., 200 Ala. 527, 76 So. 853;
Hall v. Pearce, 209
Ala. 397, 399, 96 So. 608;
Jackson Lumber Co. v. Butler,
244 Ala. 348, 13 So. 2d 294, 298. Since the State Supreme Court did
not pass on the question now urged, and since it does not appear to
have been properly presented to that court for decision, we are
without jurisdiction to consider it in the first instance here.
Caperton v.
Bowyer, 14 Wall. 216,
81 U. S. 236;
Hulbert v. Chicago, 202 U. S. 275,
202 U. S.
280-281;
Dorrance v. Pennsylvania, 287 U.S.
660;
Chandler v. Manifold, 290 U.S. 665;
see also
Flournoy v. Wiener, 321 U. S. 253;
Charleston Fed. Sav. & Loan Assoc. v. Alderson,
324 U. S. 182, and
cases cited.
We find no other factual differences calling for comment between
the case presented by the record here and that presented in the
Alabama State Federation of Labor case. Our decision here
is therefore controlled by our decision in that case. The question
raised as to the equal protection of the laws is too unsubstantial
to merit review. The other issues, as presented by the record now
before us, are, for reasons stated at length in our opinion in the
Alabama State Federation of Labor case, inappropriate for
decision
Page 325 U. S. 478
in a declaratory judgment proceeding. The writ of certiorari is
accordingly
Dismissed.