State v. Packard , 122 Utah 369 ( 1952 )

CROCKETT, Justice.

Russell Packard was convicted of an offense described as: “Failure to register with the Industrial Commission before commencing employment”, he having started to work for the Utah Wholesale Grocers Company at a time when its employees were out on strike. The conviction was appealed to the district court, which dismissed the proceeding upon the ground that the statutes requiring such registration are unconstitutional. That ruling is before us for review.

The sections under attack are 49-1-29 to 32, U. C. A. 1943; the one with which we are chiefly concerned being Sec. 29, which provides as follows:

“It is the duty of every person before commencing employment with any person, firm or corporation whose employees are out on labor strike called by a national recognized union to register with the industrial commission of Utah.” (Emphasis added.)

Other sections provide that the registrant shall give his name, residence, and the time, place, nature of the work and for whom it is to be performed, which record must be open for public inspection.

Defendant contends, inter alia, that the statute above quoted is invalid because:

1. It is vague and uncertain; and

2. It is unreasonably discriminatory.

The first reason advanced as to vagueness is the suggestion that the words “commencing employment” may be interpreted to apply not only to new employees but also to persons previously employed but who merely went back to work or continued in employment, and thus, in a sense, “commencing” to work after a strike has been called. This seems to be a strained attempt to import vagueness into a context which is clear and understandable. The word commence means “begin” — “perform the first act of” — “take the first step” — or “to start”, 7 Words and Phrases, p. 726. In the context of the statute the term “commencing” seems neither vague nor ambiguous. It has a fixed. meaning which is commonly understood. It would apply only to persons commencing employment anew, that is, for the first time, while the strike is in progress and would not apply to former employees who merely returned to work and thus continued, in employment.

As to the phrase “called by a national recognized union”, the problem with respect to vagueness is considerably different. Without the words just quoted, this law would have required all persons to register before commencing employment at any plant whose employees were out on any strike. In this form, it passed the Senate but was amended from the floor of the House by the insertion of the quoted phrase, which amendment was later concurred in by the Senate. Restricting the application of the statute to strikes “called by a national recognized union” which would exclude strikes by “other unions” effected a substantially different meaning than the original one.

As so amended, this statute is unique in this state, insofar as we have been able to find, and therefore there appears to be no judicial precedent to assist in an analysis thereof except that of our own district courts. It was first enacted in 1937, S. L. U. 1937, Ch. 53. In connection with a prosecution brought under it, State v. Tanner, District Court Crim. Case #10,694, Honorable Herbert M. Schiller, then district judge, in 1938 declared the statute unconstitutional. In a written decision, which was included as a part of the record in this case, he made an able and somewhat comprehensive analysis of the statute, for which we are indebted to him. From aught that appears, this statute was thereafter regarded as unconstitutional and void, no further use being made of it until the initiation of this prosecution in March of 1951. Upon submission of the question again to the district court, Honorable Joseph G. Jeppson, in accordance with the prior action of judge Schiller, also ruled it unconstitutional. It is not suggested that the aforementioned rulings are binding upon this court, but reference is made to the correctness and uniformity of their decisions upon the statute in question, and with which we are in accord.

It is recognized that statutes should not be declared unconstitutional if there is any reasonable basis upon which they may be sustained as falling within the constitutional framework. Newcomb v. Ogden City, etc., 121 Utah 503, 243 P. 2d 941; State Board of Education v. Commission of Finance, 122 Utah 164, 247 P. 2d 435, and that a statute will not be held void for uncertainty if any sort of sensible, practical effect may be given it. Norville v. State Tax Comm., 98 Utah 170, 97 P. 2d 937, 126 A. L. R. 1318; State v. Packer Corp., 77 Utah 500, 297 P. 1013; see also State v. Packer Corp., 78 Utah 177, 2 P. 2d 114, Packer Corp. v. State, 285 U. S. 105, 52 S. Ct. 273, 76 L. Ed. 643.

The statute under consideration would curtail one of the basic freedoms vouched safe by our state constitution. The founders of our commonwealth, realizing that in our complex society, it is impossible for each man to establish and operate his own enterprise for earning a livelihood, so that the majority must of necessity work for others, provided in Article XII, Sec. 19 of the Utah State Constitution:

“Every person in this State shall be free to obtain employment whenever possible, * * *”

and declared any malicious interference therewith to be prohibited. This freedom to work complements and makes more meaningful the other rights guaranteed as part of our constitutional liberties. Admittedly, the right is not absolute. It may be limited by reasonable regulations correlated with the general welfare. For example, the qualifications prerequisite to engaging in the professions, trades and many occupations; the regulation of hours, wages, safety and other controls necessary for the common good. But even for such proper purpose, great caution must be observed in permitting encroachments upon basic rights, assured by the constitution, and such restriction can be effected only in accordance with constitutional prerogatives and where clearly expressed standards are set up.

This court a number of times has applied the principle which is well stated in the case of Connolly v. General Construction Co., 269 U. S. 385, 46 S. Ct. 126, 127, 70 L. Ed. 322,

“* * * a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. * * *”

In the City of Price v. Jaynes, 113 Utah 89, 191 P. 2d 606, 607, a city ordinance which provided that

“the right * * * to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated”

was held so vague and uncertain that it did not define a crime; State v. Musser, 118 Utah 537, 223 P. 2d 193, 194; Musser v. State, 333 U. S. 95, 68 S. Ct. 397, 92 L. Ed. 562, that the phrase “to commit any act injurious * * * to public morals” U. C. A. 1943, 103-11-1(5), was unconstitutional for vagueness.

Appropriate to our problem is the case of In re Peppers, 189 Cal. 682, 209 P. 896, 897, wherein an act providing that

“oranges shall be considered unfit for shipment when frosted to the extent of endangering the reputation of the citrus industry”

St. 1921, p. 1234, § 10, was struck down as uncertain because it provided no standard upon which the shipper could determine whether he was violating the act. Analogous also is the case of Cook v. State, 26 Ind. App. 278, 59 N. E. 489, in which a statute, Rev. St. 1897, § 6600, prohibiting the hauling over wet or thawing roads of a load of more than 2,000 pounds on a “narrow-tired wagon” or more than 2,500 pounds on a “broad-tired wagon” was held void for uncertainty because there was no standard by which one could determine what the statute meant by the comparative terms “broad” and “narrow”.

The limitations of language are such that neither absolute exactitude of expression nor complete precision of meaning are to be expected, and such standard cannot be required. On the other hand there is no disagreement among the courts that where a rule is set up, the violation of which subjects one to criminal punishment, the restrictions upon conduct should be described with sufficient certainty, so that persons of ordinary intelligence, desiring to obey the law, may know how to govern themselves in conformity with it, and that no one should be compelled at the peril of life, liberty or property, to speculate as to the meaning of penal statutes. Price v. Jaynes, supra; State v. Musser, supra; U. S. v. L. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 65 L. Ed. 516; Stromberg v. People of State of Cal., 283 U. S. 359, 51 S. Ct. 532, 75 L. Ed. 1117; Connolly v. General Construction Co., supra; Lanzetta v. New Jersey, 306 U. S. 451, 59 S. Ct. 618, 83 L. Ed. 888; see Law Ed. annotations in connection with latter two cases.

Concerning the question of uncertainty or vagueness of statutes, the authorities seem to be in accord that the test a statute must meet to be valid is: It must be sufficiently definite (a) to inform persons of ordinary intelligence, who would be law abiding, what their conduct must be to conform to its requirements; (b) to advise a defendant accused of violating it just what constitutes the offense with which he is charged, and (c) to be susceptible of uniform interpretation and application by those charged with responsibility of applying and enforcing it.

How does the statute in question fit these requirements? If one desired to go to work at a plant where a strike was in progress, how would he determine whether he must first register with the Industrial Commission? Because of the amendment which restricted the application of this law to strikes called by “a nationally recognized union”, it would be necessary to ascertain what character of union is meant by that phrase. Observe that the statute does not say, “called by a national union” which is the phrase that counsel attempts to define and interpret for us, but the wording is, “a national recognized union”. From the context of the statute and the legislative record, it appears that the word “national” should have been “national^/”; that is, it should have been an adverb modifying the verb “recognized” rather than an adjective modifying the noun “union”. However, whichever the way it was meant, uncertainties would exist which make the statute void.

“National recognition” implies something quite different than “national existence”; that is, in one sense, a union could exist as a national union, but still leave unanswered questions as to whether it is a national recognized union. Does the statute imply that there has to be recognition of the union by some duly constituted national authority or organization? It would be necessary to ask, recognized by whom? the public generally? by labor organizations? by industrial leaders? by the N. L. R. B.? If the average citizen (whoever he may be) has heard of the union, does that give it national recognition? There is, of course, no legal standard referred to in the statute or known to us, by which it may be determined what a “nationally recognized” union is.

The State offers no specific answer to such questions. Their argument that the statute is sufficiently definite to be understandable, as stated in their brief is:

“The phrase 'called by a nationalZ?/ [sic] recognized union,’ therefore merely limits the act’s application to those situations where the strike is called by the larger unions — those which organize in whole industries on a nationwide scale, or extending over geographical areas crossing state lines.”

Let us examine these suggested tests for determining what such a union is:

“The larger unions”: larger than what? It would be as difficult to tell how big a union would have to be in order to qualify as a “larger union” as it would be to tell the width of a “narrow tired wagon” or or how much frost in an orange would “endanger the reputation of the citrus industry”. Certainly this comparative term furnishes no definite standard for determining which unions are referred to by the statute.

“Which organize in whole industries”: Obviously, unions cannot organize whole industries at one stroke; does the statute mean that no protection would be afforded during the process of development and organization, but the protective cloak of the statute would enshroud it only after the whole industry were organized? Again, would it be contended that a well known union would not be classified as a “nationally recognized union” if it were shown that substantial portions of a given industry were not yet organized by it?

“On a nation wide scale or extending over geographical areas crossing state lines”: The same questions recur. Does that mean every state in the union, or any state having any part of the industry in respect to which the union operates ? How many states would the union have to be in, 2, 7 or 48 ? Exploration of this thought leads to the conclusion that it would be difficult, if not impossible, to tell on the basis of geographical distribution, whether a union would be classified as “a nationally recognized union”, whatever that phrase may be thought to mean.

Other questions present themselves: Would a large and powerful independent plant union, wholly local in character and not affiliated with any other union, be within the classification? If a strike were in progress called by such a union, would registration be required? Suppose a strike were called by a very small local unit of a large and widely distributed union such as, for example, the United Mine Workers, but the parent union gave no authority or sanction to the strike called by the local unit. Would such a strike be “called by a nationally recognized union” and would a new worker have to register?

It is not to be doubted that the Teamsters Union, involved in the strike in the instant case, is a union which would meet any reasonable test for being classified as a “nationally recognized union” if such a thing there be. Defendant also concedes this. However, the test of constitutionality of the statute is not whether one or more unions can conveniently be identified as being within the statute, but whether the statute is sufficiently clear so that persons of ordinary intelligence could tell which unions the statute would apply to and which it would not, and thus be able to know how to comply with the law. Here the uncertainties are such that one might well be perplexed to know whether he had to register before going to work. Therefore, the statute is so indefinite and uncertain that it is unconstitutional, as ruled by the lower court.

Even if it should be assumed that the phrase we have just discussed adequately specifies just which unions would be covered and which excluded, so the statute would be sufficiently definite in meaning to inform persons subject to it when they must register, it would be vulnerable to defendant’s other attack: that is, in affording protection to some unions and businesses and excluding others, it would be unreasonably discriminatory.

Statutes may deal with different classes differently, if all within the same class are treated uniformly, and so long as there is some reasonable basis for differentiation between classes related to the purpose of the statute. State v. Mason, 94 Utah 501, 78 P. 2d 920, 117 A. L. R. 330; State v. J. B. & R. E. Walker, Inc., 100 Utah 523, 116 P. 2d 766. Conversely, a statute is unconstitutional as being unreasonably discriminatory if it differentiates between such classes without any reasonable basis bearing on the purpose sought to be accomplished by the statute. Gronlund v. Salt Lake City, 113 Utah 284, 194 P. 464; Slater v. Salt Lake City, 115 Utah 476, 206 P. 2d 153, 9 A. L. R. 2d 712.

The question arises: Would there by any valid reason for making a distinction between “nationally recognized unions” and “other unions” in relation to the purposes sought to be accomplished by this statute?

The purpose of the legislation was apparently to promote industrial peace and eliminate possible violence or strife in connection with strikes; that is, requiring registration by persons going to work during strikes would likely discourage them from taking such employment, or at least, by making them more readily identifiable to law enforcement authorities, would make them be less apt to engage in any violence or other unlawful activities in connection with such labor disputes; particularly, it is said the statute was purposed to counteract and prevent the use of “goon squads” or “strike breakers”. This practice has been indulged in in some parts of the country by the bringing in of transient or irresponsible persons for the express purpose of breaking strikes and has resulted in violence. Such difficulties would occur in connection with the activities of the smaller unions and smaller plants or businesses in the same way and with the same bad consequences as in the larger unions and larger plants. In fact if there be any difference, the smaller unions and smaller businesses would probably be more vulnerable to the ills attendant upon violence or strife and would therefore be more in need of protection than the larger and presumably more powerful ones. It is well known that unions are at times highly competitive among themselves; to confer an advantage upon one union or group of unions, depriving others of it, would be an unfair discrimination for which no reason consistent with the purposes of the statute could be assigned. In fact, to deprive either the smaller unions or smaller businesses of any protection afforded their competitors would be unjustly discriminatory. As originally introduced, the act proposed to give them equal protection; as amended, it purports to cover some and exclude others. There appears to be no valid reason for such differentiation which is in any way correlated to the purposes of the statute, nor in fact any reason why they are not all entitled to whatever benefits might have been conferred by this law.

Accordingly, we hold that it is unconstitutional and void.

Judgment affirmed.

McDonough, j., concurs.