American Federation of Labor v. Mann, 9446.

• Decision Date: 04 April 1945
• Docket Number: No. 9446.,9446.
• Citation: 188 S.W.2d 276
• Parties: AMERICAN FEDERATION OF LABOR et al. v. MANN et al.
• Court: Texas Court of Appeals

188 S.W.2d 276

AMERICAN FEDERATION OF LABOR et al. v. MANN et al.

No. 9446.

Court of Civil Appeals of Texas. Austin.

April 4, 1945.

On Rehearing May 9, 1945.

Second Rehearing Denied May 30, 1945.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Travis County; J. D. Moore, Judge.

Suit by the American Federation of Labor and others against Gerald C. Mann and others, under the Uniform Declaratory Judgment Act, Vernon's Ann.Civ.St. art. 2524—1 et seq., to test constitutionality of Vernon's Civ.St. art. 5154a, and for injunctive relief against prosecutions thereunder, consolidated with an action by the Congress of Industrial Organizations and others against same defendants seeking same relief. From judgment entered, the plaintiffs appeal.

Modified and affirmed.

Joseph A. Padway and Herbert S. Thatcher, both of Washington, D. C., Sewall Myer, of Houston, Leonard Brown, of San Antonio, and Hart & Brown, of Austin (by James P. Hart, of Austin), for appellants American Federation of Labor et al.

Lee Pressman and Martin Raphael, both of Washington, D. C., Maurice Sugar and Ernest Goodman, both of Detroit, Mich., Arthur Mandell and Herman Wright, both of Houston, and William Standard, of New York City, for appellants Congress of Industrial Organizations et al.

Grover Sellers, Atty. Gen., and Fagan Dickson, Asst. Atty. Gen., for appellees Gerald C. Mann et al.

BAUGH, Justice.

The American Federation of Labor, certain affiliated Labor unions, and several individuals sued the Attorney General, the Secretary of State, and all District and County Attorneys of the State of Texas, under the Uniform Declaratory Judgment Act of Texas, art. 2524—1, Vernon's Ann. Civ.St. to test the constitutionality of Acts Reg. Sess. 48th Leg., 1943, c. 104, known as H.B. 100, Vernon's Ann.Civ.St. art. 5154a; and for injunctive relief against prosecutions thereunder. The Congress of Industrial Organizations, and certain affiliated unions and individuals filed a similar suit against the same defendants, seeking the same relief, and these suits were consolidated and tried to the court without a jury. The trial court held Secs. 4, 7 and 10a of said Act unconstitutional, but upheld the other provisions of the Act, and denied the injunctive relief sought, from which judgment this appeal is prosecuted.

It is to be noted also that since this appeal was taken the Supreme Court of the United States has (Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 328, 89 L Ed. ___) in a 5 to 4 decision, held that Sec. 5 of said Act, as applied under the facts of that particular case, "contravenes the Constitution"; but with the express reservation: "Nor do we undertake to determine the validity of Section 5 in any other application than that made upon the facts of this case." In the same opinion the court recognizes the power of the State to require registration of a paid labor organizer under such circumstances "as when he undertakes the collection of funds or securing of subscriptions, he enters a realm where a reasonable registration or identification requirement may be imposed." The Supreme Court of Texas held that Sec. 5 (Ex parte Thomas, 141 Tex. 591, 174 S.W. 2d 959) required only that; and was designed for the protection of both labor and the public against abuses, impostors, fraud, or paid organizers who might not be accredited agents of the union they purported to represent. Thus the application of Sec. 5, as a registration statute, to paid labor organizers who solicit members through other methods than those used by Thomas in the cited case—that is, otherwise than as a part of a public speech to assembled employees —is left entirely undetermined; but with the implication that it is valid if properly applied, and invalid only when applied in an improper and unauthorized manner. From the foregoing opinions we conclude that Sec. 5 of the Act is a valid exercise by the State of its police power, and requires registration as therein provided of all labor union organizers as defined in Sec. 2 of said Act; but that such registration is not necessary as a prerequisite to, nor a limitation upon, the constitutional right of free speech as defined and considered in Thomas v. Collins, supra.

We are confronted at the outset, and before considering the other provisions of the Act itself, with the contentions of appellees, seasonably raised by proper pleas in the trial court, that this is a suit against the State not maintainable under the Uniform Declaratory Judgment Act, Acts 1943, 48 Leg. p. 265, Ch. 164, Vernon's Ann.Civ. St. art. 2524—1, against the state without its consent, which consent has never been granted. It may be conceded that the same rule of state immunity from suit without its consent applies to suits under the Uniform Declaratory Judgment Act as applies to other suits. Hoyt v. Board of Civil Service Com'rs, 21 Cal.2d 399, 132 P.2d 804; Bell Tel. Co. v. Lewis, 313 Pa. 374, 169 A. 571; Empire Trust Co. v. Board of Commerce and Nav., 124 N.J.L. 406, 11 A.2d 752; 16 Am.Jur., p. 331, Sec. 61; Anderson Declaratory Judgments, p. 119, Sec. 40. It is to be noted also that the Declaratory Judgment Act itself authorizing in Sec. 2 thereof, "any person interested," etc. to bring such a suit, specifically defines in Sec. 13 what is meant by "person" as used in the Act, and significantly omits from such term any reference to the State as a party against which such suit may be brought.

The appellees rely on the cases of Stephens v. T. & P. R. Co., 100 Tex. 177, 97 S.W. 309; and Walsh v. University of Texas, Tex.Civ.App., 169 S.W.2d 993, in support of their contentions that the instant case is one against the State, urging that the suit is primarily and fundamentally to test, by declaratory judgment, the validity of the law; and that the injunctive relief sought is but ancillary. The appellants, on the other hand, emphasize their contention that their suit is one for injunction against the enforcement of penal act which is unconstitutional; and that jurisdiction is referable to the cases holding that suits against state officers to restrain their action under an unconstitutional law is not a suit against the State, citing particularly Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764, and numerous Federal decisions following it; and Stanley v. Schwalby, 85 Tex. 348, 19 S.W. 264; Terrell v. Middleton, 108 Tex. 14, 191 S.W. 1138, 193 S.W. 139; Id., Tex.Civ.App., 187 S.W. 367; Anderson, Clayton & Co. v. State, 122 Tex. 530, 62 S.W.2d 107; National Biscuit Co. v. State, Tex.Civ.App., 129 S.W.2d 494. There has in the past been some confusion as to the line of demarcation between these two lines of decisions, but there now seems to have been evolved a fairly well settled rule. Even though the State have an interest in the vindication of its laws, unless the property or contract rights of the State, or its rights to collect taxes levied by such law, be foreclosed by the judgment, the suit is not forbidden. That is, the subject matter "must be an interest of value in a material sense to the state as a distinct entity." 49 Am. Jur., p. 307, Sec. 94. Neither the State's property nor its taxing power is involved in the instant case.

On the other hand, suits against state officers, "where the action is for relief against statutes claimed to be unconstitutional" is not deemed to be a suit against the State, even though the judgment be binding on the State. Such a rule has been almost uniformly recognized. See authorities above cited; 49 Am.Jur., p. 310, Sec. 95, and numerous cases cited in note 10 thereunder.

Nor does the fact that the suit here is one under the Declaratory Judgment Act, and injunctive relief sought as ancillary thereto, remove the instant case from the rule. While the most usual method of invoking such rule is through injunction or habeas corpus; in each instance the real issue before the court is the same—the constitutionality of the law involved. In the instant case the primary issue to be adjudicated is the same as if appellants had sought primarily only injunctive relief, instead of first a declaratory judgment and injunctive relief based thereon. In either case the court must first determine the validity of the law in question, and the right to an injunction, vel non, must depend upon the determination of that issue. Hence we see no distinction in principle in applying such rule as to immunity whether the suit be for injunction primarily or as ancillary if the right thereto in either or both instances be the same. We conclude, therefore that the instant case is ruled by the Federal cases following Ex Parte Young and the state cases following Stanley v. Schwalby and Terrell v. Middleton, supra; and that the trial court had jurisdiction to try same without legislative consent being first obtained to bring this suit.

We now come to the contentions made by appellants. The first may be disposed of before setting out the several provisions of the Act,—such contention being that the State does not have the power, under Art. I, Sec. 8 of the State Constitution, Vernon's Ann.St. and the Fourteenth Amendment of the U. S. Constitution, "to impose any previous restraint upon the exercise of civil liberties" by appellants, as the Act in question undertakes to do. Without any extended discussion of this issue here, or of the cases cited and reviewed at length in appellants' brief as supporting such contention, the following language of the Supreme Court of the United States in Thomas v. Collins, supra, is, we think, conclusive: "That the State has power to regulate labor unions with a view to protecting the public interest is, as the Texas court said, hardly to be doubted. They cannot claim special immunity from regulation," so long as such regulations do not "trespass upon the domains of free speech and free assembly." Only to the extent that such regulation, if otherwise reasonable, does so...