The State v. Julow
| Decision Date | 18 June 1895 |
| Parties | The State v. Julow, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction. -- Hon. James R Claiborne, Judge.
The defendant, being tried upon an information, was fined $ 50 and appeals to this court.
The information had for its origin, the following statute "Section 1. No employer, superintendent, foreman, or other person exercising superintendence or authority over any mechanic, miner, engineer, fireman, switchman, baggageman brakeman, conductor, telegraph operator, laborer or other workingman, shall enter into any contract or agreement with any such employer requiring said employee to withdraw from any trade union, labor union, or other lawful organization of which said employee may be a member, or requiring said employee to refrain from joining any trade union, labor union or other lawful organization, or requiring any such employee to abstain from attending any meeting or assemblage of people called or held for lawful purposes, or shall by any means attempt to compel or coerce any employee into withdrawal from any lawful organization or society.
Section 2. Corporations, and the managers, superintendents overseers, master mechanics, foremen, officers and directors, and others exercising authority for and on behalf of corporations doing business in this state, shall be subject to the provisions of this act, and, upon conviction of the violation of any of its provisions, to the punishment prescribed by it.
Section 3. Any person or corporation violating any of the provisions of this act shall, upon conviction, be punished by a fine of not less than fifty dollars nor more than one thousand dollars, or imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment."
The particular portion of section 1, on which the information is bottomed, is that in italics.
The information, in substance, charged that George Julow, was on the twenty-third of May, 1894, a foreman or superintendent of the Hamilton-Brown Shoe Company, and as such exercised authority over one Richard C. Simmonds, then a mechanic or workman and employee of said Hamilton-Brown Shoe Company, but not under contract for any definite period of time; that at the same time Simmonds was a member of the Lasters' Protective Association of America, a lawful labor organization or society; that on the date last aforesaid, Julow notified Simmonds that unless he withdrew from membership of said association, he could no longer work for or be employed by said shoe company; that Simmonds refused to withdraw from said association, and thereupon, he was on said date, for the reason aforesaid, by Julow discharged from the service of said shoe company.
The evidence supported the charge contained in the information. The defendant introduced no evidence on his part, nor did he make any admission as to the truth of such charge but having previously demurred to the sufficiency of the information without success, at the close of the testimony of the state, he unsuccessfully renewed his attack on the information and the evidence offered in support thereof, by moving for his discharge, which motion being denied, and he found guilty and judgment rendered against him as aforesaid for $ 50, he moved for a new trial and in arrest, but without avail; hence this appeal.
Reversed.
S. D. Jones & Williams for appellant.
An individual's necessities, be they as dire as the mind can imagine, can never per se in the judgment of criminal law constitute compulsion or coercion. Queen v. Dudley, L. R. 14 Q. B. Div. 273. Direct or positive coercion exists, where one is by physical force compelled to do an act against his will -- as where enemies seize a party and compel him through fear of death to fight against his friends. Implied coercion exists, where a person is legally under subjection to another; and in consequence of such legal subjection is induced to act contrary to his will -- as where in some instances a wife commits an offense in the presence of her husband. 1 Bouv. Law Dict., p. 328 [5 Ed.], under head "Coercion." See also as defining compulsion as a defense to crime. 1 Whart. Crim. Law [9 Ed.], sec. 94. But the servant is not in legal subjection to the master, nor the agent to the principal, nor the inferior to the superior; therefore, the command of the superior to the inferior, or of the principal to the agent, or of the master to the servant, does not amount to coercion in criminal law. Hays v. State, 13 Mo. 246; Schmidt v. State, 14 Mo. 137; 1 Bouv. Law Dict., p. 328; 6 Am. and Eng. Encyclopedia of Law, p. 90, note under head "Master and Servant;" 4 Am. and Eng. Encyclopedia of Law, p. 707. For the meaning of the words compulsion, coercion and duress, see Bouvier's Law Dictionary and Anderson's Law Dictionary, under those words respectively. To constitute duress there must be a seizure of the property or arrest of the person of an individual, or a threat or attempt to seize the property or arrest the person of an individual. Wolfe v. Marshal, 52 Mo. 167; Claflin v. McDonough, 33 Mo. 412; Buchanan v. Sahlein, 9 Mo.App. 552; 6 Am. and Eng. Encyclopedia of Law, p. 57, et seq. Where the facts are undisputed, or are admitted, it is a question of law whether they are sufficient to constitute duress, compulsion, or coercion in contemplation of law. Davis v. Luster, 64 Mo. 43; Claflin v. McDonough, 33 Mo. 412; Buchanan v. Sahlein, 9 Mo.App. 552. The doing of an act which is in itself lawful can not constitute duress. No duress in contemplation of law can arise from the doing of a lawful act. Davis v. Luster, 64 Mo. 43; Hackley v. Headley, 45 Mich. 569; Dunham v. Griswold, 100 N.Y. 224; Schneyder v. Braden, 58 Ind. 143; Wilcox v. Howland, 23 Pick. 167; Brown v. Pierce, 7 Wall. 205; 6 Am. and Eng. Encyclopedia of Law, p. 71. Where one only does or threatens to do that which he has a lawful right to do, there can result in contemplation of law no duress therefrom. Davis v. Luster, 64 Mo. 43; Hackley v. Headley, 45 Mich. 569; Whittaker v. Improvement Co., 34 W.Va. 217; Wilson S. M. Co. v. Curry, 126 Ind. 161; Skeate v. Beale, 11 Ad. & Ellis, 983. Though a man's business necessities be very urgent, indeed necessitous, and in consequence he yields, there is in this no duress in law. Silliman v. United States, 101 U.S. 465; Hackley v. Headley, 45 Mich. 569; Custin v. Viroqua, 67 Wis. 314; Emery v. Lowell, 127 Mass. 138. Mere embarrassment, or loss of credit, or mortification, do not amount to duress in law. De La Cuesta v. Ins. Co., 136 Pa. St. 62. The law has no concern with mere guilty intention unconnected with an overt act or outward manifestation. The mere intent to commit a crime is not a crime. Howell v. Stewart, 54 Mo. 400; State v. Rider, 90 Mo. 54; 1 Bishop's New Crim. Law, sec. 204. Where an attempt to commit a crime is punishable, it is essential to conviction that the means employed in the attempt are at least apparently adapted to the end. 1 Whart. Crim. Law [9 Ed.], sec. 182 et seq. Where the means used in an alleged attempt to commit a crime are absolutely and apparently inadequate to the end, then there is no attempt in contemplation of law. 1 Whart. Crim. Law, sec. 183; 1 Bishop's New Crim. Law, sec. 749; Robinson v. State, 31 Texas, 170; Smith v. State, 32 Texas, 593; State v. Napper, 6 Nevada, 113; Blake v. Bernard, 9 Carr. & Payne, 626; Regina v. James, 1 Carr. & Kirwan, 530. The right of the wage-earner to freely choose his own employer; and the right of the employer to engage for his service only whom he chooses to so engage; and the right of both to freely dissolve the relation of master and servant, unless there is a contract between them to the contrary, is now thoroughly understood, and is settled law. Arthur v. Oaks, 63 F. 310, U.S.C. C. A. 7th Cir. The right of all persons sui juris to freely contract in regard to a lawful subject-matter is fundamental; and a legislative enactment, which abridges this right in certain classes of individuals, or in those who follow certain trades or employments, is unconstitutional and void. State v. Loomis, 115 Mo. 307, and the cases therein cited.
R. F. Walker, Attorney General, for the state.
The meaning of "an attempt to compel or coerce," as applied to this statute, is clearly defined by the act itself, and it is not necessary to cite authorities in support of the position that the appellant, by his act in discharging Simmonds, under the circumstances stated, brought himself expressly within its provisions. Laws of Mo. 1893, p 187. It is elementary that where a person is under the legal subjection of another, as Simmonds was under Julow, and it is sought to make him do any act contrary to his will, it may be properly said that the act is done from coercion. Davis v. State, 30 Weekly Law Bulletin (Ohio), 342. This case construes the act of the general assembly of Ohio, approved April 14, 1892, similar to the act of 1893, supra, (89 Ohio Laws, 269). The bill of rights in the constitution of Ohio is similar to the bill of rights in the constitution of Missouri. A statutory enactment should not be declared unconstitutional unless a clear and substantial conflict exists between it and the constitution. Every presumption is in favor of the constitutionality of legislative acts, and a case must be practically free from doubt before an act of the legislature should be declared unconstitutional. All property is held subject to the general police power of the state to so regulate and control its use as to secure the general safety and public welfare. The statute under discussion does not seek to limit the authority of employers to discharge employees for any inefficiency or failure to properly discharge their...
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