Untitled Texas Attorney General Opinion ( 1943 )

,
1
TEE A-``ORNEY GENERAL
OF TEXAS
Honorable Sidney Lathem
Secretary of State
Austin, Texas
Dear Sir: Opinion No. O-5196
Re: Constitutionality of H.B. 100,
48th. Legislature, Reg. Sess.,
regulating labor unions.
We acknowledge receipt of your letter of April'6, 1943,
requesting an opinion on the validity under the State and Fed-
eral Constitutions of H.B. No. 100 relating to the regulation
of labor unions in this State. This bill has recently been en-
acted into law and we take it that your inquiry is directed
primarily to determining what your duties as Secretary of State
are under this law.
The only provisions of the Act which involve your of-
fice or the exercise of duties by you are Sections 1,2,3,5, and
6. Section 1 declares the public policy of the State to be
that labor unions "affect the public interest and are charged
with a public use." Section 2 contains a definition of terms
contained in the Act, including the term "labor union" which
is'defined as "every association, group, union, lodge, local,
branch, or subordinate organization of any union of working
men, incorporated or unincorporated, organlsedand existing
for the purpose of protecting themselves, and improving their
working conditions, wages or employment relationships in any
manner, but shall not include associat;ons or organizations
not commonly regarded as labor unions. Section 3 provides
for the filing of reports with the Secretary of State, contain-
ing certain enumerated information regarding the labor union
and its organization. SectIon 5 requires that union organi-
zers have an organizers' card which is to be issued by you
as Secretary of State upon written application filed in com-
pliance with the Act. Section 6 requires labor unions to file
with you all working agreements containing a "check off" pro-
vision, whereby the employer is authorized to and agrees to
deduct union dues and other collections from the workers'
check or salary and turn such sums over to the labor union.
We will now consider Section 1 of the Act and in that
connection the constitutional power of the Legislature to pass
laws regulating labor unions. This is a relatively new field
Hon. Sidney Latham - page 2 o-5196
of legislation. The first major legislation on the subject
in this country was the National Labor Relations Act of 1935
(29 U,S.C,A. Sec. 151, et seq.) commonly called the Wagner
Act, the validity of which was upheld by the Supreme Court
of the United States In National Labor Relations Board v.
Jones & Laughlin Steel Corp. (1937) 301 U.S. 1, 81 L. Ed. 893,
57 S. Ct. 615, 108 A.L.R. 1352.
The Legislature of the State of Wisconsin passed a
Wisconsin Labor Relations Act modeled after the Federal Act
and the Wisconsin Act, has been held constitutional. Wisconsin
Labor Relations Board v. Rueplng 'Leather Co. 228 Wis. 473;
279 N.W. 673. In that case it was poil;tted out that the power
of the State to pass such 1egislatFon is based upon the police
power" while the power of the Federal Government 'to deal with
the same subject is grounded upon and limited by the commerce
clause." The Wisconsin Supreme Court concludes that the Fea-
era1 Labor Relations Act does not prohibit State legislation
on the same subject. The Court said:
"The State may, therefore, regulate labor
relations in the interest of the peace, health, and
order of the State, and the Federal Government may
regulate this relationship to the extent that unregu-
lated it tends to obstruct or burden interstate com-
merce. Obviously, a possibility of conflict between
these powers exists only as to the portion of the
field with which Congress has competency to deal.
In the absence of a Federal statute either dealing
with or preempting the field, the police power of the
State has full operation, provided no undue or dls-
crimLnatory burdens are put upon interstate commerce."
279 N.W. po 676.
See, also, Allen-Bradley Local No. 1111, United Elec-
trical, Radio & Machine Workers of America et al v. Wiscon-
sin Employment Relations Board et al (1941j 237 Wis. 164, 295
N.W. 791, where it was held that t:heWisconsin Employment Peace
Act, enacted in 1939, was not in conflict with the National
Labor Relation Act.
The right of State regulation consistent with Federal
Law was announced by the Supreme Court of Illinois in the case
of Fansteel Metallurgical Carp, v. Lodge 66 of Amalga ted Ass'n
of Iron, Steel & Tin Workers of North America, et al F 1938)
295 Ill. App, 323, 14 N.E. (2d) 991.
The State of New York has a State Labor Relations Act
(N-Y. Laws 1937, C 443, amending Labor Law, Consol. Laws, C31)
the constitutionality of which has been upheld by the highest
.
Hon. Sidney Latham - page 3 o-5196
court of that State. Davega City Radio v. State Iabor Rela-
tions Board (1939) 281 N.Y. 13, 22 N.E. (2d) 145.
The State of Massachusetts has a State Labor Relations
Act (Mass. Gen Laws, (Ter. Ed.) C 150 A, amended St. 1938 C.
345,which has the same policy as the National Labor Relations
Abt, and which'the Supreme Judicial Court of Massachusetts
has held Is a valid exercise of State Legislative power. R.H.
White Co. v. I%n?phy,et al (1942) 38 N.E. (2d) 685.
The power of the states to regulate employers and em-
ployees and their activities insofar as such activities affect
the economic and general welfare has been sustained under the
State and Federal Constitutions as a proper exercise of the
police power reserved to each State. In Fenske Bros. v.
Upholsterers' International Union (1934) 358 Illinois 239,
193 N.E. 112, 97 A.L.R. 1318, the Anto-injunction Law of The
State of Illinois was attacked as a violation of the Fourteenth
Amendment of the Federal Constitution. In upholding the validity
of that statute the Supreme Court of Illinois said:
I'Itis well settled that the Legislature may, In the
exercise of the police power of the state, enact those
measures which have a tendency to promote the public
comfort, health, safety, morals, or welfare of society.
Massie v, Cessna, 239 Ill. 352, 88 N.E. 152, 28 L.R.A.
(N.S. 1108, 130 Am. St. Rep. 234; Condon v. Village of
Forest Park, 278 111. 218, 115 N.E. 825, L.R.A. 1917E,
314. The police power Is considered capable of develop-
ment and modification within certain limits, so that the
powers or governmental control may be adequate and
meet changing social and economic conditions. The
power is not circumscribed by precedents arising
out of past condltlons, but is elastic and capable
of expansion in order to keep pace with human pro-
gress e It is not a fixed quantity, but It is the
expression of social, economic, and political condi-
tions. People v. John Doe of Rosehill Cemetery,
334 111. 555, 166 N.E. 112; State Public Utilities
(CC?. v. City of Quincy, 290 Ill. 360, 125 N.E.
0 In the exercise of this power, the Legislature
may enact laws regulating, restraining, or prohi-
biting anything harmful to the welfare of the people,
even though such regulation, restraint, or prohibition
interferes with the liberty or property of an indi-
vidual. Neither the Fourteenth Amendment to the Fed-
eral Constitutlon nor any provision of the Constitu-
tion of this state was designed to interfere with the
police power to enact and enforce laws for the pro-
tection of the health, peace, morals, or general welfare
Hon. Sidney Latham - page 4 o-5196
of the people. Powell v. Pennsylvania, 127 U.S. 678,,
8 S. Ct. 992, 1257, 32 L. ed. 253; People v. Anderson,
355 Ill. 289, 189 N.E. 338; Town of Chancy's Grove v.
Van Scouoc, 357 Ill, 52, 191 N.E. 289."
In the recent case of Carpenters and Joiners Union
of America, Local No. 213, et al v. Ritter's Cafe
(1942) 315 U.S. 722, 62 St. Ct. 807, 86 L. Ed. 11&3etaafiirming
149 S.W. (2) 1694, error refused, the question involved the
right of peaceful picketing of an employer's restaurant when
the labor dispute involved the issue of employment of non-
union labor on a building which was being constructed for the
same employer at a point a mile and one-half away." The con-
tract for constructing the building gave the contractor the
right to-make his own arrangements regarding the employment
of labor, and notthe restaurant owner. In'upholding an injunc-
tion prohibiting the picketing of the restaurant, the Supreme
Court of the United State, speaking through Mr. Justice
Frankfurter, said:
"We must be mindful that "the right of
employers and employees to conduct their economic
affairs and to compete with others for a share in
the products of industry are subject to modification
or qualification in the interests of the society in
which they exist. This Is but an instance of the
Dower of the State to set the limits of Dermissible
hontest open to industrial combatants.' Thornhill v.
Alabama, 310 u.s, 88, 103, 104, 60 s, ct, 736, 745,
84 L. Ed. logjo
"It is not for us to assess the wisdom of
the policy underlying the law of Texas. Cur duty
is at an end when we find that the Fourteenth
Amendment does not deny her the power to enact
that policy into law."
The case of Tigner v, Texas, (1940), 310 U.S. 141, 149,
60 ST. Ct. 879, 84 L. Ed, 1124, rehearing denied 310 U.S. 659,
60 S, Ct. 1092, 84 L. Ed. 1422, affirming 132 S-W. (2) 885,
139 Cr. R. 452, involved the validity of the Texas Anti-trust
statute. (Art, 1642, Vernon's Annotated Penal Code). The
law was attacked on the ground that it violated 'the equal pro-
tectfon of the laws" clause of the Fourteenth Amendment in
that it did not "apply to agricultural products or livestock
in ,thehands of the producer or raiser. The Supreme Court of
the United States upheld the validity of the law and concluded
that "to write into law the differences between agriculture
and other economic pursuits was within the power of the Texas
Legislature,"
Hon. Sidney Latham - page 5 o-5196
This power of regulation and supervision has been ex-
tended to unincorporated associations or societies. People
of the State of New York ex rel. George W. Bryant v. Charles
F. Zimmerman, et al (1926) 241 N.Y. 405 150 N.E. 497, 43 A.L.R.
909, affirmed 278 U.S. 63, 73 L. Rd. 184, 63 Sup. Ct. 84.
The State of New York had a statute requiring "every .existing
membership corporation, and every existing unincorporated~
association having a membership of twenty or more persons,
which corporation or association requires an oath as a pre-
requisite or condition of membership, other than a labor
union or a benevolent order mentioned in the benevolent
orders Law" to file "with the Secretary of State a sworn copy
of its constitution, by-laws, rules, regulations and oath of
membership, together with a roster of its membership and a
list of its officers for the current year "and providing for
penalites. A member of the Ku Klux Klan was prosecuted for
knowingly being a member of an organization which had not com-
plied withthe law. The constitutionality of the Act was at-
tacked on the ground that it violated the "privileges and im-
munities" provision, "the due process of law" provision and
"the equal protection of the law" provision of the Fourteenth
Amendment. The Court dismissed the first contention as not
involving a Federal right, the right of joining and remaining
a member of an organization being "an incident of State rather
than United States citizenship. As to the second contention
the court said"
"The relator's contention under the due
process clause is that the statute deprives him of
liberty in that it prevents him from exercising
his right of membership in the association. But'
his liberty in this regard, like most other personal
rights, must yield to the rightful exertion of the
police power. There can be no doubt that under that
power the state may prescribe and apply to associa-
tions having an oath-bound membership any reasonable reg-
ulation calculated to confine their purposes and
activities within limits which are consistent with the
rights of others and the public welfare. The requirement
in Sec. 53 that each association shall file with the
secretary of state a sworn copy of the constitution, oath
of membership, etc with a list of members and officers,
is such a regulation. It proceeds on the twofold theory
that the state within whose territory and under whose
protection the association exists is entitled to be in-
formed of its nature and purpose, of whom it is composed
and by whom Its activities are conducted, and that requiring
this information to be supplied for the public files will
operate as an effective or substantial deterrent from the
violations of public and private right to which the
, -
Hon. Sidney Latham - page 6 o -5196
association might be tempted if such a disclosure were
not required. The requirement is not arbitrary, or
oppressive, but reasonable and likely to be of real
effect . . .
As to the third contention the Court said:
"The main contention made under the equal pro-
tection clause is that the statute discriminates against
the Knights of the Ku Klux Klan and other associations
in that it excepts from its requirements several asso,-
ciations having oath bound membership, such as labor
unions, the Masonic fraternity, the Independent Order
of Cdd Fellows,the Grand Army of the Republic and the
Knights of Columbus . . .I'
"We think it plain that the action of the
courts below in holding that there was a real and sub-
stantial basis for the distinction made between the two
sets of associations or orders was right and should
not be disturbed.
"Criticism is made of the classification
on the further ground that the regulation is confined
to associations having a membership of twenty or
more persons. Classifications based on numbers is not
necessarily unreasonable. There are many instances
in which it has been sustained. We think it not un-
reasonable in this instance. With good reason the
legislature may have thought that en association of
less than twenty persons would have only a negligible
influence and be without the capacity for harm that
would make regulation needful."
As to the broad power of the Texas Legislature to make
classifications for legislative purposes, see Miller et al. v.
El Peso County (1941) 136 Tex, 370, 150 S.W. (2) 1000.
It is no longer necessary as a basis for State regula-
tion for the business or activity to be "affected with a pub-
lic interest" In the sense that the public as e whole has a
direct interest or share in the activity or business. A
Nebraska statute (Neb. Comp. St. 1929 Sec. 48-528) fixing max-
imum fees to be charged by private employment agencies, re-
quiring the issuance of receipts to applicants end e return
of fees in the event no employment was obtained was upheld
recently by the Supreme Court of the United States. Olson v.
Nebraska (1941) 313 U.S. 236, 85 L. Ed. 1305, 61 Sup. Ct. 862,
133 A.L.R. 1500, In that case the Supreme Court referring to
businesses "affected with a public interest" said:
Hon. Sidney Latbam - page 7 o-5196
"It was said to be so affected if it had
been devoted to the public use' and if 'an interest
in effect' had been granted 'to the public in that use.'
;F;i.kC;. McBride, supra (277 U.S. 355, 72 L. ed. 915,
. . 545, 56 A.L.R. 1327). That test, lebelled by
Mr. Justice Holmes in his dissent In the Tyson case
A27zTU.S. at p. 446, 71 L. ed. 729, 47 S. ct. 426, 58
. 1236) as 'little more than a fiction,' was dis-
carded'in Nebie v. New York, supra (291 U.S. pp. 531-
539, 78 L. Ed. 958, 958, 54 s. Ct. 505, 89 A.L.R. 1469).
It was there stated that such criteria 'are not sus-
ceptible of definition and form an unsatisfactory
test of the constitutionality of legislation directed
et business practices or prices,' and that the phrase
'affected with a public interest' can mean 'no more
than that en industry, for adequate reason, Is subject
to control for the public good.' Id. 291 U.S. p. 536,
78 L. ed. 956, 54 S. Ct. 505, 89 A.L.R. 1469. And see
the dissenting opinion in Ribnik v. McBride, supra (277
U.S. et p. 359, 72 L. ea. 916, 48 S. Ct. 545, 56 A.L.R.
1327."
The Supreme Court of Texas no doubt considered the
authority of the Legislature to act in the furtherance of the
general welfare in upholding the constitutionality of the Un-
employment Compensation Act (Arts. 5221b-1 to 5221b-22, Ver-
non's Ann. Civil Statutes) although basing the opinion on the
State's taxing power. Friedman v. American Surety Co. of New
York, et al (1941) 137 Tex, ,149, 151 S.W. (2) 570.
In Exparte Frye (1941).156 S,W. (2) 531 our Court of
Criminal Appeals upheld the anti-violence statute relating to
labor disputes (Art. 1621~, Vernon's Ann. Penal Code) against
the charge that It violated the constitutional guarantee of
"equal protection of the law", "freedom of assembly" and other
provisions of our State and Federal Constitutions.
We have considered the case of St. Louis Southwester
Ry. Co. v. Griffin (1914) 106 Tex, 477, 171 S.W. 703, L.R.A.
1917B, 1108 in which the Supreme Court of Texas held the "Black-
listing Statute" (Gen Laws, 1908, Ch. 89 p. 160 unconstitu-
tional, but we do not believe that the decision will control
any of the questions of constitutionality under H.B. No. 100.
In H.B. 100 the Legislature has recited certain facts
and stated that "it Is here now declared to (be) the policy
of the State, in the exercise of its sovereign constitutional
police power, to regulate the activities and affairs of labor
unions, their officers, agents, organizers and other represen-
tatives." This declaration of policy on behalf of the State
Hon. Sidney Lathem - page 8 o-5196
and the finding of facts authorizing such a declaration are
matters peculiarly within the province of the Legislature.
Harris Count Flood Control Dlst. v. Mann (1940) 135 Tex. 23 ,
140 S.W. (2dy log89 Johnson v. Elliott, Tax Collector (1914
Tex. Civ..App. 168 S.W. 968, error refused. Black v. Hirsch
(1921) 246 U.S. 135, 65 L. ea. 865, 41 Sup. Ct. 458, 16 A.L.R.
165.
Upon a consideration of the foregoing authorities it
is our opinion that the Act as a whole is within a field which
is subject to regulation by the Legislature under the exercise
of the State's police power.
The definition of a labor union as contained in Sec.
2~(b)of the Act may upon first examination appear to be uncer-
tain but in our opinion the definition is not subject to this
objection. The first part of the definition specifically en-
umerates the various generic terms by which organizations of
this nature may be known and includes such associations within
the meaning of the term "labor union" when they are "organized
and existing" for definitely specified purposes, towit: of
protecting themselves, and improving their working conditions,
wages, or employment relationships in any manner." This is
in substance the meaning of a labor union as commonly known
and understood, and with slight variation in wording is the'
definition ordinarily given by the courts. See Words & Phrases
Permanent Ed, Vol 24, 'Labor Organization" p. 74 and pocket
;;rtl,P~17. "labor Union p* 77 and pocket part p. 18; Vol.
Trade Union" p. 209. See also Article 5152, R.C.S. 1925
which was first enacted in 1899. The last clause, "but shall
not include associations or organizations not commonly regard-
ed as labor unions" does not render the definition ambiguous.
As pointed out above, those organizations included in the
definition are as a matter of fact commonly regarded as labor
unions and this clause was no doubt added by the Legislature
through an abundance of precaution.
Section 3 of the Act makes no more stringent require-
ments of labor unions than those involved in the New York
Statute which applied to other unincorporated associations and
whose validity was sustained in the case of People of the State
of New York ex Rel, George W. Bryant v, Charles F. Zimmermann,
et al (1926) 241 N-Y. 465 150 N.E, 497, 43 A.L.R. 909, affirmed
278 u.s, 63, 73 L. Ed. 184, 63 sup. Ct. 84.
Section 5 of the Act which provides for the issuance
of Identification cards to labor organizers is in our opinion
a reasonable exercise of the police power by the Legislature.
Provisions of somewhat similar nature are found In a number of
the regulations by the State under the police power such as
c .
Hon. Sidney Latham - page 9 o-5196
solicitors or agents for insurance companies, real estate
dealers, and dealers end salesmen under the Securities Act.
Sections 12 et seq. of the Texas Securities Act (Art.
600a, Vernon's Ann. Civ. St.) require the registration of sales-
men and dealers in securities and make it unlawful for persons
not registered as dealers or salesmen to sell or offer for sale
securities in this State. Such provisions have been upheld by
the Texas Courts.
In affirming a conviction for selling securities with-
out having been registered, the Court of Criminal Appeals in
Atwood v. State (1938) 121 S.W. (2) 353 held that such legis-
lation came within the police power in the following language:
"It was within the police power of the
Legislature to constrain the conduct of dealers
in securities to the end that the public might
be protected against the imposition of unsub-
stantial schemes and securities based unon them".
Hall v. Geiger-Jones Co. 242 U.S. 539, 37 S. Ct.
217, 220, 61 L. Ed. 480, L.R.A. 1917F, 514, Ann.
Cas. 1917 C, 643."
A similar holding was made in Smith v. Fishback (T.C.
A. 1938) 123 S.W. (2) 771, at 778-779, and the Texas Supreme
Court sustained such exercise of the pol-Jcepower in Kedane
v. Clerk (1940) 143 S.W. (2) 1370
The apparent purpose of the Legislature in enacting
the provisions of the Act now under consideration was to pro-
tect the public from the impositions, misrepresentations or
fraud of unscrupulous and unauthorized persons purporting
to act in the name of and as the duly authorized represents-
tions of legitimate organized labor. This section provides a
means of establishing the identity, affiliations andcredentials
of those who hold themselves out as labor union organizers.
Not only is it for the protection of the public but it is
designed to afford protection to the union to the end that
persons purporting to act for it are in fact its bona fide
representatives.
We find no constitutional objectlon to Section 6, pro-
viding for the filing of working agreements withthe Secretary
of State, but on the contrary such regulation may be supported
on the basis of the principles enumerated in the cases herein-
above discussed at greater length.
The sections mentioned cover all portions of the Act
which relate to any duties or responsibilities imposed on the
Secretary of State and in our opinion these provisions are
Hon. Sidney Latham - page 10 o-5196
constitutional. Even though some of the other sections may be
invalid, it is the well established rule in this State that an
Act will not be held invalid as a whole if the invalid portion3
are severable from that which remains, 30 that they are com-
plete within themselves and are capable of being executed in
accordance with the apparent legislative Intent, wholly inde;
pendent of that which is rejected. 9 Tex. Jur. 472, 474, Sets.
55, 56 and cases cited therein. The Act by its own terms pro-
vides that "if any section or part whatsoever . . . shall be
held to be invalid . . s such invalidity shall not affect the
remaining portions thereof *0...fl Section 15, H.B. No. 100.
Upon consideration of the Act as a whole it Is our opinion
that the sections pertaining to the duties and responsibilities
of the Secretary of State are severable from the remainder of
the act and are valid and enforceable regardless of the vali-
dity of the remaining sections.
There are other sections of this Act, however, which
present serious constitutional objections and we consider ft
proper at this time to express our views thereon.
Section 4 of the Act provides:
"Sets 4. Officers. All officers, agents,
organizers, and representatives of such labor
union shall be elected by majority vote of the
members present and participating; provided, how-
ever, that labor unions, if they 30 desire, may
require more than a majority vote for election
of any officer, agent, organizer of representa-
tive, and may take any such vote to the entire
membership by mailed ballots. Such election
shall be held at least once each year, and the
determination taken by secret ballot, of which
election the membership shall be given at least
seven (7) days' notice by written or printed
notIce mailed to the member's last known ad-
dress, or by posting notice of such election
in a place public to the membership, or by an-
nouncement at a regular stated meeting of the
union, which ever is most convenient to the
union. The result of such election when held
shall be ascertained and declared by the presl-
dent and the secretary at the time in the pre-
3ence of the members or delegates participat-
ing.
"Provided, the requirement for annual elec-
tions hereln made, or the methods of holding
same, shall not apply to any labor union that
Hon. Sidney Latham - page 11 o-5196
for four (4) years prior to the effective date
of the law shall have held its elections for
officers, delegate3 and the like representa-
tEve3 less frequently than annually but which
have held such election8 either every three (3)
year8 or every four(b) years under their con-
stitution, bylaws, or other organization rules,
and which unions have during the last ten (10)
years charged not more than Ten Dollars ($10)
initiation fee to members."
The requirements of this section, briefly stated, are
that all unions shall:
1. Elect their officers, agents, organizers &-&rep-
resentatives by majority vote of the members present and,
participating.
2. Hold elections for such purposes at least once a
year.
3. Take the vote of their members by secret ballot.
4. Give at least seven days written notice of the
holding of such election to each member.
50 Declare the result of the election in the presence
of the members participating.
It has been said that the police power of the State
extends to all the great public needs, and that the liberty
of the individual must yield to reasonable regulation In the
interest of the public health, safety, welfare, and morals.
None of the liberties vouchsafed and protected by the Consti-
tution of the State and of the United States are absolutes.
Where a legitimate public interest is involved, each of such
liberties must be subject to reasonable regulation to the ex-
tent that the interest of the public may require. Even 80
specific a constitutional guaranty as that of free speech does
not grant an absolute immunity from all restraint. Any other
doctrine would transform liberty into license and utterly des-
troy the effectiveness of any organized civil government.
This does not mean that the liberties of the individual
may be impinged upon OP destroyed at will. The interest in-
volved of organized society must be sufficient to justify,
reasonably, curtailing the liberties of the individual in the
manner and to the extent involved. Unreasonable or oppressive
regulation i3 not tolerated, under our Constitution.
Honorable Sidney Latham, page 12 o-5196
We think it cannot be plausibly contended that the reg-
ulation of labor union8 embodied in Section 4 violates these
principles. The purpose of the section is fairly apparent.
It is designed to insure that the members of labor organization3
shall be afforded reasonable opportunity to exert a continuing
control over the functioning of.their organization. The means
provided for this purpose are fair and reasonable, not arbitrary
or oppressive, and are fairly calculated to achieve an end
sought by the Legislature. Likewise, it cannot be said~that
the public has no sufflclent interest to justify such regula-
tion. It is matter of common knowledge that labor union8 are
in position to, and do, exert a tremendous influence upon mat-
ters directly affecting the economic welfare of the people at
large, No less are they in position to exert a considerable
control over their members in matters directly affecting their
economic welfare. In view of these considerations, we think
it clear that the State ha8 a sufficient interest in their
operations to justify its requirements reasonably designed and
calculated to insure control, continuing in nature, over the
affair8 of their organization by a majority of the union mem-
bership.
It follows that Section 4 13 not, in our opinion, un-
constitutional on the ground that it is an unwarranted or un-
reasonable invasion of the liberties of these regulated by
its terms. Nevertheless, the entire section must fall, for
reasons which will be stated below.
It is to be noted that, in the second paragraph of the
section, the Legislature undertake8 to relieve from the obliga-
tions imposed by the first paragraph upon all labor unions,
certain labor union8 which, for four year8 prior to the effec-
tive date of the act, held their elections either every three
or every four year3 under their organization rules, and which
during the last ten year8 have charged not more than $10.00 a3
initiation fee to members.
Under the equal protection of the law3 clause of our
State and Federal Constitutions, reasonable classification is
permissible, but classification, to be valid, must rest upon
substantial difference8 germane to the object8 and purposes
of the law. The legislature cannot take what may be termed a
"natural cla39," Split that Cla83 in two upon considerations
which, looklng to the object3 and purpose3 of the law, do not
fairly serve to distinguish the two minor classes, and apply
the law to the one while exempting the other from its provi-
sions, This is arbitrary selection, not permissible classifi-
cation. 12 Am. Jur., Constitutional Law, Sets. 478, 479, 480,
481, 9 Tex, Jur., Constitutional Law, Sets. 119, 120; LOsSi%
v. Hughes, 244 S,W. 556; Davis v. Holland, 168 S.W. 11.
.
Honorable Sidney Latham, page 13
Do the characteristics made the basis for exempting
certain union8 from the operation of Section 4 suggest such
material differences as would fairly and reasonably justify
their exclusion from the policy which the legislature has
seen fit to apply to all other unions? We are of the opinion
they do not. The fact that certain unions may during the
last four year3 have held elections under their rules either
every three or every four gears and over the last ten years
have charged not more than $10.00 as initiation fee to
members does not reasonably indicate an absence of those con-
ditions which lead the legislature to require of other unions
annual elections, majority vote, secret ballot, notice of
election, and announcement of its result. The exemption
takes no account of the fact that such unions may not give
notlce of their elections or announce their result, or vote
by secret ballot, or elect their officer3 by majority vote.
Nor does it take into account the fact that such unions, under
the terms of the PPOViSO, would continue to be exempt from
the application of Section 4, though after the effective date
of the act they should charge initiation fees in excess of
$10.00 and change their time for holding election8 to every
ten or fifteen gears. The arbitrary character of the classi-
fication is further emphasized by noting that a union holding
its elections every two year3 over the last ten years and
during such time charging not more than $10.00 initiation fee
18 NOT exempt from SeCtiOn 4, though it3 election period8
approach more nearly the maximum determined by the legislature
to be reasonable to insure effective continuing control of the
union by the membership, than those holding their elections
every three or every four years, In short, there is nothing
in the bases of classification selected by the Legislature
which fairly and reasonably serves to justify the Legislative
failure to apply to the union3 possessing them provision3 of
the law designed to insure continuing control over unions by
a majority of their members.
The provision containing the exemption, then, is void.
And, since to enforce the provisions of Section 4 against such
union8 would be to include within it3 scope unions expressly
exempted by the Legislature, such provision is not severable
from the remainder of the Section. The result is that the en-
tire section must fall, For, if by striking out a void excep-
tion, proviso, or other restrictive clause, the,remainder by
rea3on of its generality will have a broader scope as to sub-
ject matter or territory, l's3operation would not be in accord
with the expressed legislative intent, and the whole Is made
void by the invalidity of the part, Anderson v. Wood, 137
Tex. 201, 152 S.W. (2d) 1084,
Section 7 of the Act provides:
Honorable Sidney Latham, page 14 o-5196
“Sec. 7. Fees, Dues, Fines and Assessments.
It Shall be unlawful for any labor union, its of-
ficers, agent or any member to make any charge or
exaction, or to receive any moneys for initiation
fees, dues, fines, assessments, or other pecuniary
exactions, which will create a fund in excess of
the reasonable requirement3 of such union, in
carrying out it3 lawful purpose or activities, if
such fees, dues, fines, assessments, or other pecun-
iary exaction3 create, or will create, an undue
hardship on the applicant for initiation to the
union, or upon the union members. Nothing in this
Section Shall be deemed or construed to prevent
the collection by a labor union of dues or asses3-
ments for purposes which are beneficial to the mem-
bers of the union according to the established prac-
tice, and/or to maintain fund8 or make investments
of funds for such beneficial purposes. Neither
shall this Section be Construed to prevent dues,
collections or other a38e38ments for old age bene-
fits, death and burial benefits, hospitalization,
unemployment, health and accident, retirement or
other forms of mutual insurance, for legislative
representation, grievance committee, or for gifts,
floral offerings, or other charitable purposes, or
any other legitimate purposes when the union
engages in or decide8 to engage in such a field
or practice; provided that the member3 contri-
buting share or can reasonably expect to share
in the benefit8 for which they are assessed;
neither shall this Section be construed to pre-
vent assessments, dues, or other collections,
except initiation fees, to be placed in the funds
or as a part of the funds of the union for the
use by the union in paying it3 member8 while such
members are on a strike; provided such fund3 Shall
remain under control of the labor union members.
This Section shall be liberally con3trued, however,
to prevent excessive initiation fees."
Summarized, this section prohibit8 the collection of
charges in excess of those reasonably required to carry on the
lawful functions of the union IF (and only if) such unnecessary
charges create or will create an '%ndue hardship" on member8
or applicants for membership, For violation3 of this section,
as for violations of other sections of the Act, the legislature
ha3 undertaken to impose civil penalties upon the union and
criminal penaities upon individuals,
Due process of law clause8 in our State and Federal
. I
Honorable Sidney Latham, page 15 o-5196
Constitutions have long been construed to require an element
of certainty in the commands of statutes. This requirement
is particularly stringent, insofar as statutes imposing
civil and criminal penalties are concerned. "That the terms
of a penal statute creating a new offense must be sufficient-
ly explicit to inform those who are subject to it what con-'
duct on their part will render them liable to its penalties,
is a well recognized requirement, consonant alike with or-
dinary notions of fair play and the settled rules of law. And
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 applica-
tion violates the first essential of due process of law.
International Harvester Co. v. Kentucky, 234 U.S. 216, 221,
58 L. Ed. 1284, 1287, 34 Sup. Ct. Rep. 583; Collins v. Ken-
tucky, 234 U.S. 634, 638, 58 L. Ed. 1510, 1511, 34 Sup. Ct.
Rep. 924." Connally v. General Construction Co., 70 L. Rd.
323 (wherein the court held that a statute which required a
contractor, under penalty, to pay his employees "not less
than the current rate of per diem wages in the locality where
the work is performed' is so uncertain as to deprive contrac-
tors of property without due process of law.)
The cases applying this principle of constitutional
law are many. A few examples will suffice to illustrate the
nature of the holdings.
In United States v. Cohan Grocery Co., 255 U.S. 81,
65 L. Ed. 516, 14 A.L.R. 1045, the Supreme Court of the United
States held that an Act of Congress imposing a penalty on any
person who should make "any unjust or unreasonable rate or
charge in handling or dealing in or with any necessaries" was
too indefinite and uncertain, fixing no ascertainable standard
of guilt.
In U.S. v. Capital Traction Co., 34 App. D.C. 592,
19 Ann, Cas. 68, a statute making it an offense for a street
railway company to run an insufficient number of cars to ac-
comodate passengers "without crowding" was held void for want
of sufficient certainty.
In Ex parte Slaughter, 92 Grim. Rep. 212, 243 S.W.
478, our Court of Criminal Appeals held void for lack of cer-
tainty a statute forbidding driving of motor vehicles on any
public highway "yhere the territory contiguous thereto &
closely built uo at a speed in excess of 18 miles per hour.
In Griffin v. State, 86 Tex, Grim. R. 498, 218 S.W.
494, the same court held invalid a statute which prohibited
the operation of motor vehicles at night with headlights
. .
Honorable Sidney Latham, page 16 o-5196
which projected forward "a light of such glare and briIliancy
as to seriously interfere with the sight of, or temporarily
blind the vision of, the driver of a vehicle approaching from
the opposite direction."
In Francis v. Allen, (Ariz.) 96 P.' (2d) 277, the court
held to be too uncertain the provision of an actregulating
transportation agencies which required that "an agent shall
not offer transportation by any carrier which is conducting
its business in a manner contrary to the public interest."
In Ex parte Peppers, (Cal.) 209 P. 896, a statute pro-
hibiting the shipment of oranges "when frosted to the extent
of endangering the reputation of the citrus industry" washeld
to be too uncertain to form the basis of a criminal prosecu-
tion. We quote briefly from the opinion:
$1. 9 . it does not purport to forbid the ship-
ment of all the frosted oranges. It thus concedes
that oranges may be frosted and may still be the
proper subject of shipment and consumption without
in any way 'endangering the reputation of the
citrus industry.' What defect then shall render
certain of such oranges unfit for shipment as 'en-
dangering the reputation of the citrus industry?'
What is the reputation of the citrus industy?
Is it for the production and shipment of oranges
of a certain standard of color, or of sweetness,
or of juiciness, or of palatability? How is the
producer whose oranges have been touched with
frost to know, from the terms of the act, whether
or when he will be violating it in offering his
fruit for shipment? D . e 0
We have pointed out that Section 7 does not prohibit
all charges in excess of the reasonable requirements of the
union, but only those charges in excess of the reasonable re-
quirements of the union which create or will create an undue
hardshi? upon member: or applicants for membership. Just as
in the orange case, cited above, the fact alone that oranges
were frosted did not prevent their shipment, so in this Act
the fact that charges are in excess of the reasonable require-
ments of the union will not render illegal their collection.
The charge must not only be in excess of the reasonable re-
quirements of the union; it must also create, presently, or in
the future (I.e. "will create") "undue hardship", on the mem-
bers or applicants against whom it is assessed.
In our opinion, this provision wholly fails to provide
a standard sufficient that those subject to its terms may reason-
. .
Honorable Sidney Latham, page 17 o-5196
ably determine what conduct on their part will render them sub-
ject to the penalties of the Act. By what standard is bne to
determine when an excessive charge creates (or will create) a
hardship on the members or applicants? But the fact that the
charge creates a hardship is not alone sufficient to condemn
it - the hardship must be "undue"! What factors are to be
taken into consideration in determining whether the hardshi,p
is "undue"? Not the fact that the charge is excessive in
relation to the needs of the organization, for the act impliedly
recognizes the right to collect excessive charges if they do
not create, either presently OP in the future, an "undue hard-
ship" upon the members or applicants. The fact of "undue
hardship" then, is to be determined, not by the nature of the
charge, but by its effect upon the members or applicants.
The requirement is similar to that of the statute involved in
the Griffin case, cited above, wherein the court observed
that the statute would require the driver of the motor vehicle
to judge of the effect of his lights upon the vision of each
approaching driver, which effect would necessarily vary with
the physical peculiarities of such driver and the circumstances
of the occasion of meeting.
In our opinion, upon the authorities cited, Section 7
of this Act is so indefinite and uncertain in its definition
of the offense as to violate the due process clause of the
State and Federal Constitutions.
Section 4a of the Act makes it unlawful for any all-en
"to serve as an officer OP official of a labor union or as a
labor organizerV as defined in the Act, With reference to
this provision the analogous cases are in apparent conflict.
Some courts have held invalid, restrictions based upon rest-
dence or citizenshi Others have upheld such provisions.
See 2 Am. Jur. 468~&2 and cases cited therein. From a con-
stitutional standpoint we belleve the courts will uphold this
provision in H-B, No, 100.
This question may also involve the civil rights of
aliens under existing treaties between the United States and
the country in which the artlcular alien is a citizen.
Magnani v. Harnett, (19397 14 N,Y.S, (2d) 107 257 Ohio App. D:::
487, affd. (1940) 25 N.E. (2d) 395, certiora& denied, 60
S. Ct. 1089, 301 U-S. 642, 84 L, Ed. 1490. For present pur-
poses we have not undertaken to go into thfs matter.
Section 10a of the Act provides that a member of the
armed forces of the United States, who is a member of a union
and who is unable to pay back dues and assessments shall be
reinstated without payment. We do not believe that the
Legislature has the power to compel the forgiveness of a debt
Honorable Sidney Latham, page 18 o-5196
or Interfere with the union's right of contract In this
respect. Article I, Section 16, Texas Constitution; Langever
v. Miller (Sup. Ct. 1934) 124 Tex. 80, 76 S.W. (2d) 1025,
g6 A.L.R. 836,
Very truly yours
s/Gerald C. Mann
Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
GCM:db:wc
APPROVED APR 12, 1943
ThisOpinion Considered and Approved in Limit&d Conference