In re Opinion of the Justices

• Decision Date: 15 April 1930
• Citation: 171 N.E. 234,271 Mass. 598
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 598

171 N.E. 234

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 15, 1930.

Opinion of the Justices of the Supreme Judicial Court in answer to questions propounded by resolutions of the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court have considered the order adopted on April 4, 1930, and transmitted to them on April 8, 1930, requiring their opinion on the question whether the provisions of the bill printed as House document No. 299, if enacted into law, would be in conflict with the Constitution of this commonwealth or of the United States. Copy of the order is hereto annexed. The proposed bill is adequately described in its title in substance as an act declaring provisions in contracts of employment whereby either party undertakes not to join, become or remain a member of a labor union, or of any organization of employers, or undertakes in such event to withdrawn from the contract of employment, to be against public policy and void.

[1] A contract similar to those described in the proposed bill was assailed and its validity was under consideration in Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461. It there was said at pages 250, 251 of 245 U. S.,38 S. Ct. 65, 72: ‘That the plaintiff was acting within its lawful rights in employing its men only upon terms of continuing non-membership in the United Mine Workers of America is not open to question. Plaintiff's repeated costly experiences of strikes and other interferences while attempting to ‘run union’ were a sufficient explanation of its resolve to run ‘non-union,’ if any were needed. But neither explanation nor justification is needed. Whatever may be the advantages of ‘collective bargaining,’ it is not bargaining at all, in any just sense, unless it is voluntary on both sides. The same liberty which enables men to form unions, and through the union to enter into agreements with employers willing to agree, entitles other men to remain independent of the union and other employers to agree with them to employ no man who owes any allegiance or obligation to the union. In the latter case, as in the former, the parties are entitled to be protected by the law in the enjoyment of the benefits of any lawful agreement they may make. This court repeatedly has held that the employer is as free to make non-membership in a union a condition of employment, as the working man is free to join the union, and that this is a part of the constitutional rights of personal liberty and private property, not to be taken away even by legislation, unless through some proper exercise of the paramount police power.' It is not necessary to consider whether the extent of the ‘paramount police power’ in this connection can extend beyond provisions to secure that such contracts be free from coercion because it is plain that the proposed bill does not avoid insuperable difficulties now to be mentioned.

In Adair v. United States, 208 U. S. 161, 28 S. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764, an act of Congress was attacked whereby a penalty was imposed upon an employer of labor for making a contract of the same general nature as those described in the proposed bill or for discharging an employee because of membership in a labor union, the acts thus denounced being declared misdemeanors. It was held in an exhaustive opinion that the act was violative of the provisions of the Fifth Amendment to the Federal Constitution forbidding Congress to enact any law depriving a person of liberty or property without due process of law. In Coppage v. Kansas, 236 U. S. 1, 35 S. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960, the main point for consideration was the validity of a statute of Kansas declaring it a misdemeanor for an employer to make a contract indistinguishable in its essential features from those described in the proposed bill. It was held after elaborate discussion and review of decided cases that the statute was repugnant to the guaranties contained in the Fourteenth Amendment to the Constitution of the United States. It there was said at page 14 of 236 U. S.,35 S. Ct....