American Federation of Labor v. Mann , 1945 Tex. App. LEXIS 496 ( 1945 )

On Motions for Rehearing.

All parties to the appeal have filed motions for rehearing; and all urge that we erred in not passing on the validity of Sec. 4a of the Act in question, Vernon’s Ann.Civ.St. art. 5154a. This for the reason that the pleadings of the CIO were sufficient to allege a justiciable controversy; that the evidence raised the issue; that all parties tried the case upon the theory and assumption that its validity was involved; and that therefore, under Texas Rules of Civil Procedure No. 67, it should be deemed to have been pleaded. The amended petition of the A F of L does not contain any factual allegations raising the validity of Sec. 4a. However, a reexamination of the pleadings of the CIO discloses the following: “Members of plaintiff unincorporated associations who are aliens do and have volunteered for such work (solicitation of members) and have received and do receive such reimbursement and remuneration.” The record of trial also shows that some unions along the Mexican border have officers and organizers who are aliens, some of whom do not reside in Texas, but live in Mexico and commute back and forth into and out of Texas in their work. On the issue of the need for' services of aliens and felons in the operation of some unions, Howard McKenzie, Vice President of the National Maritime Union, a CIO affiliate, testified that such union was organized for both economic and political purposes. That while the union preferred not to have aliens and felons in places of leadership, if forbidden to do so, that union could not function in Texas. He testified, among; other things, as follows:

“Q. I want to ask one more question about aliens and felons. I believe you said it would be destructive to your union if felons couldn’t serve as officers and organizers; is that what you said? A. Yes; only I explained what I meant by that, because I don’t want the record to show that we are in favor of hiring a murderer and what have you. As a matter of fact, we have had lots of gangsters; we had to expel out of our union thieves, gunmen, what have you; I said that there are members of our union who have been framed on felony charges and fines, because of their union activities. We know on the other hand that there are people whom we have expelled from the union that went around Texas ports a few years ago with guns on their hips, and murdered our people. Some of those people who fought for the union went to jail; they were the leaders of the union, and some of our present leaders are men who have been convicted for a crime, and I suppose if we went back to the childhood of all these people, we might have taken a loaf of bread when ten years old; that word ‘felony’ is a very broad term. We would not permit a person to hold office in our union where he was guilty of any crime which — and he could not hold a job unless we know he had the approval of the average American citizen. In other words, there is nobody holds office in our organization who has done anything, and if he has done anything he still deserves a second chance and a right to function, and we can take any of our officers or any of our people on board ships and show you that to be a fact.

“Q. The same thing is true with aliens, —you couldn’t function without aliens ? A. So far as that law is concerned, incidentally, it would be very easy to frame the union leaders and convict them technically, and thereby break the union.

“Q. Your union couldn’t function, according to your testimony, if you had citizens of the United States in your three branches in Texas instead of having felons or aliens there; is that your testimony? A. That was my testimony.

“Q. It was? A. Yes, sir.”

In view of such pleadings and testimony, and the fact that the case was tried on the theory that a justiciable controversy as to Sec. 4a was presented, we now consider the validity of that section of the Act, which provides:

“Sec. 4a. It shall be unlawful for any alien or any person convicted of a felony charge to serve as an officer or official of a labor union or as a labor organizer as defined in this Act. This Section shah not apply to a person who may have been convicted of a felony and whose rights of citizenship shall have been fully restored.”

Appellants urge that under the holding in Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 11, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.l917B, 283, this section is clearly unconstitutional as discriminating against aliens, and denies “to aliens the opportunity of earning a livelihood * * That case held invalid an Arizona statute, Laws 1915, Initiative Measure, p. 12, which required “Any company, corporation, partnership, association or individual” employing more than five workers at any one time “regardless of kind or class of work, or sex of workers, shall employ not less than eighty (80) per cent qualified electors or native born citizens of the United States or some sub-division thereof”; and made it a penal offense for any such employer not to do so. That statute applied to all types of 'business, primarily to private enterprises, and restricted employment to native born citizens or qualified electors. As there pointed out even citizens of the State might be neither native born nor qualified electors, yet they came under the ban of the statute, thus violating the equal protection provisions of the Federal Constitution. That statute did not purport to relate to the “common property of the citizens of the state” nor attempt to regulate an organization which the Legislature has declared “affect the public interest and are charged with a public use,” as does the law here involved. In such cases it has been uniformly held that the state, under its police power, may prescribe reasonable regulations.

Sec. 4a in no sense denies any person the right to work or to earn a livelihood, whether he be alien or felon. It merely prohibits such persons from occupying a place of leadership, influence, and trust in a character of organization which admittedly affects the public interest both economically and politically. Clearly the public interest is vitally affected by the impact of such activities on- local as well as national affairs; and in seeing to it that those activities are directed and conducted by men who have not been convicted of a felony, and who are in sympathy with American institutions, the state clearly has the right to provide appropriate safeguards to that end. It is a matter of common knowledge that during the present war strikes have occurred in essential war industries which have so impaired, or threatened to impair, prosecution of the war that the Federal Government has taken over their operation. This but emphasizes the vital public interest in the operation of unions and in the character of leadership thereof.

In the protection of the public interest numerous restrictions and limitations upon the rights and privileges of aliens and felons, not applicable to citizens, have been imposed and upheld. The most common of these are denial of licenses to engage in certain professions affecting the public, to engage in the liquor business, etc.; to act as guardian of a minor who is a citizen; to act as an executor or administrator; to be employed on public works; to receive certain social security benefits, pensions, etc.; to vote; to hold public office; to serve as jurors. Nor is an alien subject to military service, if he elects to claim exemption therefrom. We need not cite statutes and cases so providing, nor do the instances above enumerated include all such denials to aliens or felons, not applicable to citizens, which have been recognized as within the power of the state to enact. These matters are discussed in 2 Am.Jur., p. '465, § 7 et sequens, to which we refer. Such restrictions and limitations upon the rights of aliens are in essence discriminations as between citizens and noncitizens, but they are grounded upon sound principles of public policy, designed for the protection and preservation of our fundamental institutions, and have long been recognized as a valid exercise of the police power of the state in matters affecting the public interest. Determination of what character of organization, enterprise, business, activity or operation affects the public interest is primarily a matter for determination by the Legislature; as is the extent of the regulation necessary to protect the public. So long as such regulation bears a reasonable relation to that end it is valid. We think there can be no doubt but Sec. 4a of said Act bears such reasonable relationship to the purposes and objectives of the law in question, and that it is a valid enactment.

To the extent indicated all of said motions are granted. In all other respects, they are overruled.

Granted in part and in part overruled.