People v. Marcus

• Decision Date: 25 May 1906
• Parties: PEOPLE v. MARCUS.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 257

77 N.E. 1073

PEOPLE

v.MARCUS.

Court of Appeals of New York.

May 25, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Harry Marcus was convicted of compelling one H. Scheinbaum to agree not to join or become a member of any labor organization as a condition of his securing employment from and continuing in the employment of a corporation of which accused was the manager. From an order of the Appellate Division (97 N. Y. Supp. 322), reversing such judgment, the people appeal. Affirmed.

Edward T. Bartlett, J., dissenting.

William Travers Jerome, Dist. Atty. (Robert S. Johnstone, of counsel), for the People.

Elias B. Goodman, Ernest F. Eidlitz, and Frederick Hulse, for respondent.

CHASE, J.

It is provided by section 1 of the Fourteenth amendment of the Constitution of the United States that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ It is provided by section 1 of article 1 of the Constitution of the state of New York that ‘no member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers,’ and by section 6 of said article that no person shall ‘be deprived of life, liberty, or property without due process of law. * * *’ The free and untrammeled right to contract is a part of the liberty guarantied to every citizen by the federal and state Constitutions. Personal liberty is always subject to restraint when its exercise affects the safety, health, or moral and general welfare of the public; but, subject to such restraint, an employer and employé may make and enforce such contract relating to labor as they may agree upon. In 1887 the Legislature added to the Penal Code section 171a, as follows: ‘Any person or persons, employer or employers of labor, and any person or persons of any corporation or corporations on behalf of such corporation or corporations, who shall hereafter coerce or compel any person or persons, employé or employés, laborer or mechanic, to enter into an agreement, either written or verbal from such person, persons, employé, laborer or mechanic, not to join or become a member of any labor organization, as a condition of such person or persons securing employment, or continuing in the employment of any such person or persons, employer or employers, corporation or corporations, shall be deemed guilty of a misdemeanor.’ The constitutional right of the Legislature to enact that section of the Penal Code is challenged by the defendant, and the question is now presented for consideration, because of the arrest and conviction of the defendant for a violation thereof.

On December 1, 1904, the H. Marcus Skirt Company, a corporation, as the party of the first part, and H. Scheinbaum, as the party or the second part, entered into an agreement, the material parts of which are as follows: ‘Party of the first part agrees to employ party of the second part as a piece worker, and party of the first part agrees to pay for all finished work only on each and every Tuesday. Party of the second part hereby agrees not to belong to any labor union or to take part in any strike against the party of the first part, and to work as an individual in the open shop of party of the first part. Party of the second part further agrees that in the event of not complying with all the articles herein mentioned to forfeit to the party of the first part his money due for all work unpaid. Party of the second part also agrees to deposit $1.00 each week, which will be deducted from his salary until the amount reaches ten dollars; same to be held as a forfeit in the event of his not complying with all the above stipulations. H. Marcus Skirt Company agrees to keep party of the second part employed as long as he proves satisfactory.’ Thereafter an information was filed in a Court of Special Sessions in which it alleged that the defendant is a person of said corporation and an employer of labor, and that he ‘did on behalf of such corporation, and as such employer of labor, coerce and compel one Hyman Scheinbaum to enter into a written agreement on the part of and from him the said Hyman Scheinbaum not to join or become a member of any labor organization as a condition of the said Hyman Scheinbaum securing employment from and continuing in the employment of the said H. Marcus Skirt Co.’ On such information a warrant was issued and the defendant was arraigned and pleaded guilty. He thereupon made a motion in arrest of judgment upon the ground ‘that it appears upon the face of the information that the facts therein stated do not constitute a crime * * * that the statute upon which said information is based contravenes the Fourteenth amendment of the Constitution of the United States, and is therefore null and void, and that said statute contravenes the Constitution of the state of New York, in that it restrains the right to free contract for a purpose not calculated, intended, convenient, or appropriate to protect the public health or to serve the public comfort or safety.’ The motion in arrest of judgment was denied, and the defendant was fined $5, which he paid under protest, and an appeal was taken to the Appellate Division, which reversed the judgment of conviction. People v. Marcus, 110 App. Div. 255,97 N. Y. Supp. 322. From the order of reversal, this appeal it taken.

The legislative intent in the use of the words ‘coerce or compel’ in said section of the Penal Code, is apparent on reading the section. They were not intended to refer to physical violence or interference with the person of the employé. In Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, the court in construing the words of section 110 of the Labor Law (Chapter 415, p. 485, Laws of New York, 1897), as follows: ‘No employé shall be required or permitted to work in a biscuit, bread or cake bakery * * * more than sixty hours in any one week or more than ten hours in any one day,’ say: ‘The...