The Kansas statute declaring it a misdemeanor punishable by fine
or imprisonment for an employer to require all employee to agree
not to become or remain a member of any labor organization during
the time of the employment, so far as it applies to such a case as
the present, where an employee at will, a man of full age and
understanding, was merely required to freely choose whether he
would give up his position of employment or would agree to refrain
from association with the union while so employed, the case being
free from any element of coercion or undue influence,
held
repugnant to the "due process" clause of the Fourteenth
Amendment.
Adair v. United States, 208 U.
S. 11, followed to the effect that it is the
constitutional right of an employer to dispense with the services
of an employee because of his membership in a labor union, just as
it is the constitutional right of an employee to quit the service
of an employer who employs nonunion men.
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 terminable at will.
Page 236 U. S. 2
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 which
is that of personal employment by which labor and other services
are exchanged for money or other forms of property.
A state cannot, by designating as "coercion" conduct which is
not such in truth, render criminal any normal and essentially
innocent exercise of personal liberty, for to permit this would
deprive the Fourteenth Amendment of its effective force in this
respect.
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.
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.
It being 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.
The Fourteenth Amendment recognizes "liberty" and "property" as
coexistent human rights, and debars the states from any unwarranted
interference with either.
Since a state may not strike down the rights of liberty or
property directly, 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 the
exercise of those rights, and then invoking the police power in
order to remove the inequalities, without other object in view.
The Fourteenth 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.
Page 236 U. S. 3
Without intimating anything inconsistent with the right of
individuals to join labor unions, or questioning the legitimacy of
such organizations so long as they conform to the laws of the land,
as others are required to do,
held that the individual has
no inherent right to join a labor union 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.
There may not be one rule of liberty for the labor organization
or it members and a different and more restrictive rule for
employers.
The employee's 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
accorded to 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, and, having
accepted employment on those terms, the employee 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.
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.
87 Kan. 752 reversed.
The facts, which involve the constitutionality under the due
process clause of the Fourteenth Amendment of the statute of Kansas
of 1909 making it unlawful for employers to coerce, require, or
influence employees not to join or remain members of labor
organizations, are stated in the opinion.
Page 236 U. S. 6
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 c. 222 of the Session Laws of that
year, found also as §§ 4674 and 4675, Gen.Stat.Kansas 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."
"SEC 2. Any individual or member of any firm, or any
Page 236 U. S. 7
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 fifty dollars 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), 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 Fourteenth
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.
Page 236 U. S. 8
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 Pacific
Co. v. Schuyler, 227 U. S. 601,
227 U. S. 611,
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
Page 236 U. S. 9
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,
101 U. S.
470-471;
Hackley v. Headley, 45 Mich. 569, 576;
Emery v. Lowell, 127 Mass. 138, 141;
Custin v.
Viroqua, 67 Wis. 314, 320. 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, 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. 424, 428, c. 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
Page 236 U. S. 10
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 Fifth
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.
208 U. S.
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
Page 236 U. S. 11
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 Fifth Amendment, it is too clear for
argument that the states are prevented from the like interference
by virtue of the corresponding clause of the Fourteenth 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
Page 236 U. S. 12
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
208 U. S.
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) 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
Page 236 U. S. 13
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.
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
Page 236 U. S. 14
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
Page 236 U. S. 15
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 &c. R. Co., 149 U.
S. 308,
149 U. S. 314;
Richardson v. McChesney, 218 U. S. 487,
218 U. S. 492;
Missouri, Kan. & Texas Ry. v. Cade, 233 U.
S. 642,
233 U. S. 648.
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
S.W. Ry. v. Arkansas, 235 U. S. 350,
235 U. S. 362,
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
Page 236 U. S. 16
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. 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 Fourteenth 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
Page 236 U. S. 17
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
Fourteenth 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
Page 236 U. S. 18
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,
169 U. S. 391;
Chicago, B. & Quincy R. Co. v. McGuire, 219 U.
S. 549,
219 U. S. 566;
Erie R. Co. v. Williams, 233 U. S. 685, 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 Fourteenth Amendment debars the
states from striking down personal liberty or property rights, or
materially restricting their normal exercise, excepting
Page 236 U. S. 19
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
Page 236 U. S. 20
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;
Jacobs v. Cohen, 183 N.Y. 207, 213-214;
Plant v.
Woods, 176 Mass. 492;
Berry v. Donovan, 188 Mass.
353;
Brennan v. United Hatters, 73 N.J.L. 729, 738. 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
Page 236 U. S. 21
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
Page 236 U. S. 22
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 of Ohio
(1893), 30 Cinc.Law Bull. 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 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 Fourteenth Amendment, and therefore
beyond legislative interference. In
Coffeyville Brick Co. v.
Perry, 69 Kan. 297, the court had under consideration c 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 Fourteenth Amendment, and also of the
Bill of Rights of the state
Page 236 U. S. 23
constitution.
* 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.
Page 236 U. S. 24
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
Railway Co. v. Brown, 80 Kan. 312, 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
Page 236 U. S. 25
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,
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, 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, the court had under
consideration a statute (Wisconsin Laws 1899, c. 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
Page 236 U. S. 26
upon able and learned reasoning that has a much wider reach. In
People v. Marcus (1906), 185 N.Y. 257, the statute dealt
with (N.Y.Laws 1887, c. 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.
208 U. S.
175). A like result was reached in
State ex Rel.
Smith v. Daniels (1912) 118 Minn. 155, 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 Mines Co. v. Goldfield Miners' Union, 159 F. 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 Fourteenth Amendment,
and therefore void.
Judgment reversed, and the cause remanded for further
proceedings not inconsistent with this opinion.
*
"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."
MR. JUSTICE HOLMES, dissenting:
I think the judgment should be affirmed. In present conditions,
a workman not unnaturally may believe that
Page 236 U. S. 27
only by belonging to a union can he secure a contract that shall
be fair to him.
Holden v. Hardy, 169 U.
S. 366,
169 U. S. 397;
Chicago, Burlington & Quincy R. Co. v. McGuire,
219 U. S. 549,
219 U. S. 570.
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, and
Lochner v. New York, 198 U. S. 45,
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;
Plant
v. Woods, 176 Mass. 492, 505. 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.* This far-reaching result
is attained because the statute is declared to be an infraction
Page 236 U. S. 28
of the constitutional protection afforded under the Fourteenth
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. 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
Page 236 U. S. 29
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,
169 U. S. 391;
Atkin v. Kansas, 191 U. S. 207;
Muller v. Oregon, 208 U. S. 412,
208 U. S. 421;
McLean v. Arkansas, 211 U. S. 539;
Chicago, Burlington & Quincy R. Co. v. McGuire,
219 U. S. 549;
Atlantic Coast Line v. Riverside Mills, 219 U.
S. 186,
219 U. S. 202;
Erie R. Co. v. Williams, 233 U. S. 685,
233 U. S. 699.
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.
C., B. & Q. R. Co.
v. McGuire, 219 U. S. 549,
219 U. S.
565;
German Alliance Insurance Co. v. Lewis,
233 U. S.
389."
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
Page 236 U. S. 30
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 Fourteenth Amendment was ratified and became a
part of the fundamental law of the Union.
Barbier v.
Connolly, 113 U. S. 27.
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. 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 Fifth Amendment to the
Constitution,
Page 236 U. S. 31
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 tenth § 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
Page 236 U. S. 32
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
Page 236 U. S. 33
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
Page 236 U. S. 34
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,
74 U. S. 514,
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, preclude all such inquiries as
impracticable and futile."
Soon Hing v. Crowley, 113 U. S. 703,
113 U. S. 710.
"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 Central &c. R. Co. v.
Reynolds, 183 U. S. 471,
183 U. S.
480.
The act must be taken as an attempt of the legislature to enact
a statute which it deemed necessary to the good
Page 236 U. S. 35
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
Page 236 U. S. 36
a particular stipulation in an agreement because it is deemed to
be opposed in its operation to the security and wellbeing 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.
Insurance Co. v.
Morse, 20 Wall. 445. 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
Page 236 U. S. 37
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."
Insurance Co. v.
Morse, 20 Wall. 445,
87 U. S.
451.
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
Page 236 U. S. 38
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
Page 236 U. S. 39
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
Page 236 U. S. 40
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.
Page 236 U. S. 41
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, 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
Page 236 U. S. 42
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
169 U. S.
397.)
This language was quoted with approval in
Chicago,
Burlington & Quincy R. Co. v. McGuire, 219 U.
S. 549,
219 U. S. 570,
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.
* 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.