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An Analysis of the Police Power of the State.
By HARRY W. Laidler.

Following closely in the wake of the Danbury Hatters' case, the decision in the Kansas Labor Statute Case (Coppage v. Kansas) handed down by the Supreme Court of the United States on January 25, 1915, has been taken by thousands of citizens as but another evidence of the economic bias of our judiciary and of its utter failure adequately to adjust ancient legal principles to the intricate industrial life of today.

The Kansas decision in substance declared unconstitutional a state statute which prevented an employer from forcing an employee to agree not to join a trade union during his term of office. By this decision it is thus seen to be perfectly legal for an employer to cease relations with or "boycott" a worker, if the latter does not "boycott" union labor. The conclusions reached are even more adverse to labor than are those in the famous Adair decisions of 1908, which, according to many labor leaders, virtually legalized the blacklist.

The facts of the Coppage case are briefly as follows: In 1903 a Kansas Statute was passed making it a misdemeanor for any employer to require a worker to agree not to join a labor union or remain as a member of such, as a condition of obtaining or retaining a position. On July 1, 1911, T, B. Coppage, superintendent of the St. Louis and San Francisco Railway Company, at Fort Scott, Kansas, requested A. R. Hedges, a switchman, to sign an agreement that he would withdraw from the Switchman's Union of America and remain outside of its ranks so long as he was employed by the Company. Hedges refused to comply and was discharged. Legal proceedings followed. The case finally reached the Kansas Supreme Court, where the constitutionality of the statute was upheld. On January 25th of this year the Kansas judgment was reversed by the U. S. Supreme Court, Justice Pitney rendering the decision. Justice Holmes dissented on the same grounds as in the Adair case of 1908, and Justice Day issued a separate dissenting opinion, concurred in by Justice Hughes.

Justice Pitney contended that the statute in question constituted an interference with liberty of contract guaranteed by the Fourteenth amendment, and thus must be deemed to be arbitrary, "unless it be supportable as a reasonable exercise of the police power of the state." A statute, he

declared, may be sustained as a legitimate exercise of this police power if it is passed to prevent coercion and to promote the public health, safety, morals or general welfare of the people. No coercion, however, here appears the plaintiff was absolutely free to choose whether he wished to retain his membership in the trade-union or to keep his job. The act bears no possible relation to the public welfare, etc., "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.' An endeavor so to level inequalities would deny to citizens the right of private property guaranteed by the Fourteenth amendment, since inequality is the inevitable result of a system of private property.

Alleged Grounds of Unconstitutionality.

Justice Holmes, as in the Adair case, took a more enlightened view and showed that the statute, far from interfering with freedom of contract, might be looked upon as actually preparing the way for such treedom. He declared:

"In present conditions a workman may not unnaturally believe that only by belonging to a union can he secure a contract that shall be fair to him. 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 workingman to enact legislation of this sort is not my concern, but I am strongly of the opinion that there is nothing in the Constitution of the United States to prevent it." (Italics mine.)

Justice Day sought to distinguish the case from the Adair decision. He declared that the right of contract was not absolute; that those who attack the legislation have the burden of proving that it conflicts with some constitutional restraint or that the public welfare is not subserved by the legislation, that the local legislature is itself a judge of the necessity of such legislation, and that the legislature's enactments might only be set aside if they can be shown to be arbitrary and capricious. Since this statute simply protected the legal right of an employee to join a union, its passage could not be considered an abuse of legislative power.

The Justice also declared that the court had no right to inquire into the motives of the legislature and that even if its object was that of equalizing the relative positions of contractual parties, and of protecting "those who might otherwise be unable to protect themselves," no substantial objection could be raised.

No Absolute Right of Contract.

Justice Day scoffed at the assertion that coercion is not present when an employer forces an employee to sign an agreement to leave a union or leave his job. "In view of the relative position of employer and employed," he declared, "who is to deny that the stipulation here insisted upon and forbidden by the law is essentially coercive? No forms of words can strip it of its true character.'

We cannot help but feel with the dissenting justices that the Kansas Statute was a legitimate exercise of the police power of the state; that in inquiring into the motives of the legislature, the court unduly interfered with the legislative function; that, in concentrating on the alleged rights of the employer, it interfered unduly with those of the worker, and that the legislature can reasonably step in to lessen gross inequalities of position under the police power of the state. While we also agree that there is a real distinction between the Kansas Statute' and the Erdman provision dealt with in the Adair Case, difference or no difference, the constitutionality of the former statute should have been sustained.


Definition of Boycott.

A boycott in labor disputes may be defined as a combination of workmen to cease all dealings with another, an employer or, at times, a fellow worker, and, usually, also to induce or coerce third parties to cease such dealings, the purpose being to persuade or force such other to comply with some demand or to punish him for non-compliance in the past.

The boycott may be divided into the primary, the secondary and the compound boycotts. A primary boycott, an unimportant form, may be defined as a simple combination of persons to suspend dealings with a party obnoxious to them, involving no attempt to persuade or coerce third parties to suspend dealings also.

A secondary boycott consists of a combination of workmen to induce or persuade third parties to cease business relations with those against whom they have a grievance. A compound boycott appears when the workmen use coercive and intimidating measures in preventing third parties from dealing with the boycotted firms.

Compound boycotts are of two kinds-those involving threats of pecuniary injury and those involving threats of actual physical force and violence.

The primary, secondary and compound forms of the boycott may be directed against a fellow workman or against an employer of labor. If directed against a workman, it is sometimes called a labor boycott. In enforcing a boycott, effort is sometimes made to induce or coerce customers to withdraw patronage from the "unfair" employer; sometimes, to induce or coerce sellers to cease supplying an "unfair" employer with needed material; sometimes, to induce or coerce employees to quit work. The last named form is known in law as a labor boycott.

Legality of the Boycott.

Five states-Alabama, Colorado, Illinois, Indiana and Texas-prohibit boycotting by name. Thirty-three states make illegal one or more forms under statutes relating to "Conspiracy," "Coercion," "Intimidation," "Interference with Employment," and "Enticing Employees."

The common law decisions in the states have generally held the primary boycotts legal. As nearly as can be ascertained, the highest courts have flatly decided against secondary or compound boycotting in some fourteen states-Connecticut, Massachusetts, Vermont, Maryland, New Jersey, Pennsylvania, Virginia, Illinois, Michigan, Minnesota, Missouri, Washington, Louisiana and Wisconsin. In the latter two states, labor boycotts only have been condemned.

In three states-New York, Montana and California-the secondary, and, in the latter two, a form of the compound boycott, have been declared legal. The cases, among others, in which boycotting has been proclaimed legal are:-Lindsay Co. v. Montana Federation of Labor (Montana, 1908) 96 Pac. 127; Parkinson & Co. v. Building Trades Council (Calif., 1908) 98 Pac. 1027; Pierce v. Stablemen's Union (Calif., 1909) 103 Pac. 324; National Protective Association v. Cummings (N. Y., 1902) 63 N. E. 369; and Mills v. U. S. Printing Co. (N. Y., 1904) 99 App. Div. 605.

Clayton Anti-Trust Law and Boycotts.

The question now uppermost in the minds of union men is, can the courts similarly reach the funds of the unions. under the new Clayton amendment? Little light was thrown on this subject by the recent decision, since the new law, passed long after the commencement of the suit, was not considered in this case.

The two sections of the Clayton bill which bear on this subject are sections 6 and 20. Trade unionists can get little comfort from section 6, which merely states that the existence of labor organizations shall not be jeopardized by the

Sherman law, and that their members shall not be restrained from carrying out the legitimate objects of the organizations in a lawful manner. The effect of this section is probably to prevent the use of injunctions against those acts which are considered lawful under the common law.

The section on which the unionists chiefly rely is section 20 which provides:

(1) "No restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from ceasing to patronize or employ any person to such dispute, or from recommending or persuading others by peaceful and lawful means so to do * or (2) from

doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor (3) shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States."

The act thus prevents the use of injunctions in federal courts against workers employing the primary boycott and the secondary boycott where mere persuasion is used to induce third parties to cease relations with the firm involved in the dispute. This passage does not seem, however, to touch tertiary boycotts, nor compound boycotts in which the workers threaten to cease dealings with parties who continue their relations with the boycotted firm. The second part of the section, broadly interpreted, would still further free the use of interstate boycotts from the federal injunctive process, but such interpretation is by no means certain. The third clause seems to free the acts specified not only from the federal injunction, but also from civil and criminal proceedings under the Sherman act and other federal laws, inasmuch as only violators of laws warrant such proceedings.

Until, therefore, that part of the Clayton amendment relating to the activities of labor organizations is definitely interpreted, the only form of boycotting which the unions may feel reasonably safe in pursuing without violating the act, and without being held liable for treble damages, is the peaceful and lawful persuading of third parties to cease relations with a party to the dispute, such persuasion being unaccompanied by threats of loss of business or any coercive


Danbury Hatters' Case and the Supreme Court.

(From The Survey, Jan. 16, 1916.)

In 1897 the United Hatters of North America began a determined fight for the closed shop and were said within a few years to have unionized 70 of the 82 principal factories. In 1902 the officers of the union approached Loewe, a Danbury hat manufacturer. He refused to concede their demands. On July 25 of that year 250 employes were called out on strike. Then began the boycott. Unions through

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