Port Pub. Co., In re, 594

• Decision Date: 03 February 1950
• Docket Number: No. 594,594
• Citation: 231 N.C. 395,57 S.E.2d 366,14 A.L.R.2d 842
• Court: North Carolina Supreme Court
• Parties: , 14 A.L.R.2d 842, 17 Lab.Cas. P 65,598 In re PORT PUB. CO.

Page 366

57 S.E.2d 366

231 N.C. 395, 14 A.L.R.2d 842, 17

Lab.Cas. P 65,598

In re PORT PUB. CO.

No. 594

Supreme Court of North Carolina.

Feb. 3, 1950

Clayton C. Holmes, Wilmington, for Typographical Union No. 556.

Elbert A. Brown, Wilmington, for Wilmington Printing Pressman and Assistant's Union, No. 186.

E. H. Bellamy, C. D. Hogue, Sr., Wallace C. Murchison and R. E. Calder, Wilmington, for Port Pub. Co.

DENNY, Justice.

An agreement entered into by and between an employer and its employees, in which it is agreed that the employer will only employ members of a union, or that it will only employ non-union members, is void in this jurisdiction, insofar as it makes union membership or non-union membership a prerequisite to employment. Chapter 328, 1947 Session Laws of North Carolina, G.S. §§ 95-78 to 95-84; State v. Whitaker, 228 N.C. 352, 45 S.E.2d 860, which decision was affirmed by the Supreme Court of the United States, and reported in 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. ----.

A provision in a contract which is against public policy will not be enforced. Glover v. Rowan Mut. Fire Ins. Co., 228 N.C. 195, 45 S.E.2d 45; Cauble v. Trexler, 227 N.C. 307, 42 S.E.2d 77; Waggoner v. Western Carolina Publishing Co., 190 N.C. 829, 130 S.E. 609; Seminole Phosphate Co. v. Johnson, 188 N.C. 419, 124 S.E. 859; Burbage v. Windley, 108 N.C. 357, 12 S.E. 829, 12 L.R.A. 409. Even so, when such agreement contains provisions which are severable from an illegal provision and are in no way dependent upon the enforcement of the illegal provision for their validity, such provisions may be enforced. Glover v. Rowan Mut. Fire Ins. Co., supra; Security Life & Annuity Co. v. Costner, 149 N.C. 293, 63 S.E. 304, 17 C.J.S., Contracts, § 289, p. 674 et seq., and 12 Am.Jur. Sec. 220, p. 738 et seq., where the general rule governing such contracts is stated in the following language: 'It is well established that the fact that a stipulation is unenforceable because of illegality does not affect the validity and enforceability of other stipulations in the agreement, provided they are severable from the invalid portion and capable of being construed divisibly. Moreover, it makes no difference whether there are two distinct promises, whether there is one promise that is divisible, or whether the consideration for the two promises is entire or apportionable. At least this is true where the illegal provision is clearly separable and severable from the other parts which are relied upon and does not constitute the main or essential feature or purpose of the agreement. If, however, any part of a nonseparable agreement is void for illegality or reasons of public policy, the taint extends to every part of it and neither party can enforce any of its provisions against the other.'

In the instant case, the 'closed shop' agreement between the Port Publishing Company and the Wilmington Typographical Union was legal and valid until the contract was extended on 1 December, 1947, at which time it became eo instante null and void, being in contravention of the provisions contained in G.S. §§ 95-78 to 95-84. Likewise, the agreement which was entered into between the Port Publishing Company and the Wilmington Typographical Union, on 1 October, 1947, containing a 'closed shop' agreement, was void insofar as it provided for a 'closed shop'. Therefore, the provision in these respective contracts providing for a 'closed shop', being in violation of the above statutes, and contrary to public policy, such provision could constitute no part of the consideration for the execution or extension of the agreements. And likewise, any right under the terms of the respective contracts which must be bottomed on the validity of the 'closed shop' agreement cannot be enforced.

However, it is only when the illegal element in a contract permeates the entire agreement that such contract is void in its entirety. Florsheim Shoe Co. v. Leader Department Store, 212 N.C. 75, 193 S.E. 9; Marshall v. Dicks, 175 N.C. 38, 94 S.E. 514; Standard Fashion Co. v. Grant, 165 N.C. 453, 81 S.E. 606; Culp v. Love, 127 N.C. 457, 461, 37 S.E. 476. In each of these cases, the relief sought was bottomed on an illegal contract, one prohibited by law or contrary to public policy, consequently the relief sought was denied.

It is the declared public policy of North Carolina 'that the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization or association. ' But there is nothing in this policy to...