Potts v. Hay
| Decision Date | 22 December 1958 |
| Docket Number | No. 5-1551,5-1551 |
| Citation | 229 Ark. 830,318 S.W.2d 826 |
| Parties | , 43 L.R.R.M. (BNA) 2327, 36 Lab.Cas. P 65,129 Marvin H. POTTS et al., Appellants, v. Abner HAY et al., Appellees. |
| Court | Arkansas Supreme Court |
Joseph C. Kemp, and Gardner A. A. Deane, Jr., Little Rock, for appellants.
McMath, Leatherman & Woods, Little Rock, for appellee.
Eichenbaum, Scott & Miller, Little Rock, for intervener.
This is a representative suit brought by the three appellees, as officers of the Little Rock policemen's union, to enjoin the city officials from enforcing Act 30 of 1957, it being asserted that the act is contrary to Amendment 34 to the Arkansas Constitution. William W. Leigh, as a citizen and taxpayer, filed an intervention and offered proof in defense of the statute. The chancellor held the act to be unconstitutional and issued a permanent injunction against its enforcement.
The evidence need not be recited in detail. The city and the intervenor adduced proof to show that the declared policies of the labor union contemplate that its members will support authorized strikes, refuse to cross picket lines, and in other respects adhere to a course of action contrary to the attitude of impartiality that the city expects on the part of its policemen. There was also testimony that 35 of the 162 members of the police force belong to the union and that the department as a whole suffered a loss of public esteem as a result of the union's having made a $500 contribution in support of a busmen's strike against their employer.
Amendment 34 reads in part: 'No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union; nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union.' Section 1 of Act 30 declares that union membership by police officers is inconsistent with the discipline which their employment requires. Section 2 of the act provides that no person who is a member of a policemen's union shall be eligible to serve on any municipal police force and that union members currently serving shall be dismissed unless they sever their relationship with the union within thirty days.
If the constitutional amendment applies to public employees it cannot be doubted that the act is unconstitutional. The amendment requires that no person be denied employment because of membership in a labor union. The act requires that persons be denied employment as policemen because of membership in a labor union. The conflict is irreconcilable; the act must fall unless it can be said that public employment is not within the purview of the amendment.
In insisting that an implied exception should be read into the amendment the appellants rely upon a rule of statutory construction, that in certain kinds of statutes general words do not include the state or its subdivisions unless that intention is stated expressly or by necessary implication. Cole v. White County, 32 Ark. 45; Linwood & Auburn Levee Dist. v. State, 121 Ark. 489, 181 S.W. 892. Although the rule is followed primarily in the interpretation of statutes, we recognized its applicability to a constitutional question in State v. Williford, 36 Ark. 155, 38 Am.Rep. 34. There the two appellees asserted the constitutional exemption of personal property to defeat a writ of execution upon a judgment in favor of the state. We concluded that no harm could come to the state if the debtors were permitted to claim their exemptions and accordingly held that the exemption clause in the constitution included the state by implication.
We perceive no compelling reason to believe that the people intended to exclude public employment from the positive, unequivocal command of Amendment 34: 'No person shall be denied employment because of membership in * * * a labor union.' The suggestion made by the appellants, that the public interest will suffer if policemen are allowed to exert 'union pressure' upon the city, fails to take into account the relatively slight extent to which Amendment 34 restricts the power of the legislature.
The pertinent clause of the amendment deals only with the denial of employment on the basis of union membership. Nothing is said one way or the other on the subject of union pressure. Left untouched, for example, is the matter of striking against the government. As the Connecticut court pointed out, after a thorough review of the cases, every judicial decision on the subject holds that there is no right to strike against the government. Norwalk Teachers' Ass'n v. Board of Education, 138 Conn. 269, 83 A.2d 482, 485, 31 A.L.R.2d 1133. Yet in the same case the court was able to say, with complete consistency: 'In the absence of prohibitory statute or regulation, no good reason appears why public employees should not organize as a labor union.' In like manner a Texas statute, Vernon's Ann.Civ.St. art. 5154c, § 4, has been upheld which provides, on the one hand, that no person shall be denied public employment by reason of membership in a labor union, and, on the other, that collective bargaining contracts with public employees are void and that any public employee who participates in a strike forfeits his employment. Beverly v. City of Dallas, Tex.Civ.App., 292 S.W.2d 172.
We are not convinced that the bare fact of union membership on the part of police officers presents such a threat to the public welfare that an implied exception must be written into the unqualified language of Amendment 34. Quite the contrary, when the full implications of the appellants' argument are carefully examined, it seems clear that the suggested exception was not intended. One result of the amendment, perhaps the principal one, was to outlaw the closed shop. Self v. Taylor, 217 Ark. 953, 235 S.W.2d 45. If the state and its subdivisions were meant to be exempted from the mandate of the amendment, there would be nothing in the constitution to prevent the legislature from permitting policemen to maintain a closed shop, even through that type of organization is forbidden in private employment. Inconsistencies such as this can be avoided only by giving the amendment the effect that its plain words demand.
Affirmed.
Less than 60 days ago, I was designated to write the majority opinion in this case. I prepared such an opinion; but the majority did not approve my draft. So I now use as a concurring opinion the draft that I prepared. It uses the plural as 'we hold' instead of the singular as 'I submit', but it must be understood that it was prepared for a majority opinion. Here it is:
We have, here, a case in which a Labor Union is relying on the Right-to-Work Constitutional Amendment. The question presented is whether Act No. 30 of the 1957 Arkansas Legislature is void as being in violation of Arkansas Constitutional Amendment No. 34. The Act No. 30 of 1957 (hereinafter called 'the Act') is captioned: 1 'An Act to Prohibit Persons Employed on Municipal Police Forces of the Various Municipalities of this State from Holding Membership in or Being Affiliated with any Policemen's Union; to State the Policy of this State in Regard to the Membership or Affiliation of Municipal Law Enforcement Officers in Policemen's Unions; and for Other Purposes.' Section 1 of Amendment No. 34 (hereinafter called the 'Constitutional Amendment') reads in part:
'No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union; nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union, * * *.'
The appellees (plaintiffs below) are individuals and members of Local Union No. 1377 of County and Municipal Employees and are members of the Little Rock Police Department. They brought this action for and on behalf of themselves and as a class suit for the benefit of the other members of the local Union who are employees of the City of Little Rock Police Department. The appellants (defendants below) are the Chief of Police of Little Rock, the City Officials, and Members of the Civil Service Commission of Little Rock. The appellees sued to enjoin appellants from enforcing the Act No. 30, claiming that the appellants will dismiss appellees from employment as policemen of Little Rock because of Union membership. The prayer was that the Act No. 30 be declared void-- as being in conflict with the Constitutional Amendment--and that appellants be enjoined from discharging appellees because of Union membership.
W. W. Leigh intervened for himself and as a representative of taxpayers and employers. Evidence was heard. It was shown that the Policemen's Union was affiliated with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), some of whose aims and objectives are: (1) to refuse to cross or interfere with a picket line established by an affiliated union; (2) to assist in promoting the effectiveness of any strike called by an affiliated union; and (3) in cases of strikes, to aggressively resist resumption of work or production by an employer through the use of non-union labor. It was furthermore testified that in a recent strike in Little Rock involving the transportation system and in which strike there was some violence, the Policemen's Union had contributed to the fund of the strikers; and that many people in Little Rock were of the opinion that the Policemen's Union did not maintain neutrality in the said strike. It was also shown that the official manual for the Little Rock policemen required to each member, inter alia:
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