Ross v. Ebert, 8
Decision Date | 09 April 1957 |
Docket Number | No. 8,8 |
Citation | 275 Wis. 523,82 N.W.2d 315 |
Parties | , 39 L.R.R.M. (BNA) 2735, 1 Empl. Prac. Dec. P 9655, 32 Lab.Cas. P 70,627 Randolph ROSS et al., Appellants, v. Charles EBERT, as Business Agent of the Bricklayers, Masons, Marble Masons Protective International Unionetc., et al., Respondents. |
Court | Wisconsin Supreme Court |
James W. Dorsey, Milwaukee, for appellants.
Padway, Goldberg & Previant, Milwaukee, Saul Cooper, David Leo Uelman and Hugh Hafer, Milwaukee, of counsel, for respondents.
Appellants' first contention is that the circuit court had jurisdiction to order the bricklayers union to admit appellants to membership. For support of this contention they rely principally on sec. 9, art. I, Wis. Const., reading as follows:
'Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.'
This constitutional provision has frequently been construed to declare that the wrongs contemplated by this language are those resulting from an invasion of a party's legal right. Not long ago this court so stated in Scholberg v. Itnyre, 1953, 264 Wis. 211, 58 N.W.2d 698. Unions in the past and at present in this state (unless we now decide differently) are voluntary associations to which members may be admitted by mutual consent but into which applicants either by their own efforts or by the aid of the courts cannot force themselves against the will of those already members.
31 Am.Jur., Labor, Sec. 58, p. 861.
4 Am.Jur., Associations and Clubs, Sec. 11, p. 462.
It may be disadvantageous to an individual not to be chosen for membership in a voluntary association but the courts hitherto have been powerless to compel the association to receive him. His exclusion has not been a wrong of which the courts have cognizance by virtue of sec. 9, art. I, Wis. Const.
Appellants, however, have some reason to say that the Fair Employment Code, Secs. 111.31-111.36, Stats., first enacted in 1945, has altered matters and that exclusion from a labor union because of the applicant's color deals him an injury which the state recognizes as a legal wrong for which there must be legal redress. The language of the statute from which appellants strive to draw such a conclusion is found in sec. 111.31(1), Stats., thus:
(Our emphasis.)
If ch. 111 stopped there perhaps appellants might have something. But it does not; in sec. 111.31(3), Stats., it continues
Racial discrimination in employment, so far, is not declared to be illegal. It is pronounced undesirable and the announced public policy of the state is to encourage and foster employment without such discrimination to the fullest extent practicable. 'Encourage and foster': no slightest reference to 'require' or 'compel'. In the matter of racial discrimination in public accommodations the discrimination is declared to be illegal and penalties are provided for the innkeeper, barber or public carrier, for instance, who discriminates. Sec. 340.75, Stats. 1 Nothing of the sort is found in secs. 111.31-111.36, Stats. Reading secs. 111.31 to 111.36 in their entirety we are unable to find that the legislature created a new right,--one giving to a colored applicant an enforceable right to union membership over the objection, on racial grounds, of the members already there. But if such right was created we must look to the statute to see if the remedy or penalty for a violation is provided. If it is, that remedy is exclusive. State ex rel. Russell v. Board of Appeals, 1947, 250 Wis. 394, 397, 27 N.W.2d 378; LeFevre v. Goodland, 1943, 247 Wis. 512, 516-517, 19 N.W.2d 884, 161 A.L.R. 342. Where the law gives a new remedy to meet a new situation, the remedy provided by the law is exclusive. In re Jeness, 1935, 218 Wis. 447, 450, 261 N.W. 415.
So looking, we discover that one believing that he is the victim of racial discrimination in matters affecting his employment may apply to the Industrial Commission which may then investigate the complaint and give publicity to its findings. The commission may also make recommendations to the interested parties. Secs. 111.35, 111.36, Stats. The complaint alleges that the commission held hearings in this matter, found that the union, or its responsible officers, the respondents, had discriminated against appellants because of their color, and the commission had given publicity thereto and had recommended to the union that it accept the two appellants as members. Investigation, publicity and a commission recommendation are what the statute provides in consequence of racial discrimination practiced by an employer or a union. We grant it is cold comfort to appellants but it is all the legislature saw fit to provide. Evidently it was the opinion of that body that the public policy declared by sec. 111.31(1) and (3), Stats., is better served by peaceful persuasion and moral pressure than by force for the statute did not in this Code even give the Industrial Commission the power to make orders directing compliance with the declared public policy. The commission may only recommend. We must conclude, then, that moral force, aroused by the findings, publicity and recommendations of the commission is consistent with the intent of the legislature in this enactment and compulsion of a union (or of an employer if he is the discriminator) under a decree of a court, is not.
We are confirmed in this conclusion when we note that the first enactment of sec. 111.31 to sec. 111.36, Stats., was by the legislature in 1945. The bill as introduced, Senate Bill No. 131, gave power to the Industrial Commission to order violators to cease and desist and gave the courts power to review and to enforce such orders. That is what appellants ask the court to do now. Before passage the bill was amended and the powers to order and to enforce were removed. As so amended the bill was enacted into law. By Assembly Bill 357 A in 1951 and Assembly Bill No. 390 A in 1955 amendments restoring the compulsory features were introduced in the legislature but both failed of passage. In the recent 'right of privacy case', Yoeckel v. Samonig, 1956, 272 Wis. 430, 75 N.W.2d 925, 927, we said:
'* * * particularly because of the refusal of the legislature at two sessions to recognize even a limited right to protection against invasion of the right of privacy, we are compelled to hold again that the right does not exist in this state.'
We are convinced that the legislature purposely denied enforcement provisions in the Fair Employment Code and for us to restore what the legislature struck out would be legislation. not interpretation or construction of the statute. And here there could be no pretense that the court is reading into the statute something consonant with the intent of the legislature but left out through inadvertence or lack of foresight. The statute's history up to the last legislative session emphasizes that there is more to contend with here than an inadvertent omission. The principle of compelling compliance with the purpose of the legislation has been three times intentionally rejected. A clearer declaration of a non-compulsory public policy is hard to imagine. For the court to read into the statute that which the legislature has thrice refused to include would be not only a reversal of the legislative intent but a gross invaion of the legislative field in order to do so.
So far we have considered the issue from the standpoint of the state constitution and statutes. In addition to alleging that they have been violated, the complaint alleges that this discrimination against appellants by the union is a violation of sec....
To continue reading
Request your trial-
American Motors Corp. v. Department of Industry, Labor and Human Relations, 77-703
...considered and rejected such an amendment, thus evincing an intent that no accommodation should be required. See Ross v. Ebert, 275 Wis. 523, 82 N.W.2d 315 (1957). Further, the Wisconsin Supreme Court has stressed in other discrimination cases the express legislative intent set forth in sec......
-
Thomas v. Mallett
...there exists a remedy against another wrongdoer. Id. s 122. We agree with Judge Brown's reading and sentiment. See Ross v. Ebert, 275 Wis. 523, 526, 82 N.W.2d 315 (1957) (the wrongs contemplated by this provision are those resulting from a party's legal right). See also Scholberg v. Itnyre,......
-
Yanta v. Montgomery Ward & Co., Inc.
...had already determined, as in the instant case, that the plaintiffs had been discriminated against. Thus the issue presented to the court in Ross was precisely the same issue presented here--whether plaintiff could receive relief through a civil action unavailable from the administrative It......
-
Brockmeyer v. Dun & Bradstreet
...Where the legislature has created a statutory remedy for a wrongful discharge, that remedy is exclusive. See Ross v. Ebert, 275 Wis. 523, 528, 82 N.W.2d 315 (1957).18 Sec. 134.01, Stats., provides:"134.01 Injury to business; restraint of will. Any 2 or more persons who shall combine, associ......