State v. Howat

• Citation: 116 Kan. 412,227 P. 752
• Decision Date: 05 July 1924
• Docket Number: 24,174
• Parties: THE STATE OF KANSAS, Appellee, v. ALEXANDER HOWAT et al. (AUGUST DORCHY, Appellant)
• Court: United States State Supreme Court of Kansas

227 P. 752

116 Kan. 412

THE STATE OF KANSAS, Appellee, v. ALEXANDER HOWAT et al. (AUGUST DORCHY, Appellant)

No. 24,174

Supreme Court of Kansas

July 5, 1924

Decided January, 1924

Appeal from Cherokee district court; FRANK W. BOSS, judge.

Judgment reaffirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL LAW--Statutes--Section 19 of the Court of Industrial Relations Act Regarded as an Independent Statute, for the Violation of Which Punishment May Be Inflicted--Other Sections of the Act Being Held Invalid Does Not Affect the Validity of Section 19. By virtue of interpretative section 28 of the act creating the court of industrial relations (R S. 44-628), section 19 (R. S. 44-619) is so far severable from the scheme of the legislation that it may stand alone, dissociated from the provisions relating to fixing wages, and is to be regarded as having the legal effect of an independent statute, making it a punishable offense for an officer of a labor union, acting in his official capacity, to call a strike of coal miners, whereby operation of a coal mine, in the production of coal, is suspended.

Phil H. Callery, James E. Callery, both of Pittsburg, and Redmond S. Brennan, of Kansas City, Mo., for the appellant.

Charles B. Griffith, attorney-general, John G. Egan, assistant attorney-general, Chester I. Long, Austin M. Cowan, and William E. Stanley, all of Wichita, for the appellee.

OPINION

BURCH, J.:

Defendant was convicted of violating section 19 of the act creating the court of industrial relations (Laws 1920, ch. 29, R. S. 44-619). The section reads as follows:

"Any officer of any corporation engaged in any of the industries, employments, utilities or common carriers herein named and specified, or any officer of any labor union or association of persons engaged as workers in any such industry, employment, utility or common carrier, or any employer of labor, coming within the provisions of this act, who shall willfully use the power, authority or influence incident to his official position, or to his position as an employer of others, and by such means shall intentionally influence, impel or compel any other person to violate any of the provisions of this act, or any valid order of said court of industrial relations, shall be deemed guilty of a felony, and upon conviction thereof in any court of competent jurisdiction shall be punished by a fine not to exceed $ 5,000, or by imprisonment in the state penitentiary at hard labor for a term not to exceed two years, or by both such fine and imprisonment."

The industry described in the information was coal mining. The labor union was district No. 14, United Mine Workers of America. Alexander Howat was president and August Dorchy was vice president of the union. The charge was that Howat and Dorchy used their official positions to induce miners in the coal mine known as Mine H, operated by the George K. Mackie Fuel Company, to cease work, for the purpose and with the effect of suspending continuous operation of the mine for production of coal for use in Kansas. Reduced to plain terms, Howat and Dorchy, as officers of the union, called a strike of union miners of the fuel company's mine, an unlawful act within contemplation of section 19.

The verdict of the jury in Dorchy's case reads as follows:

"We, the jury, duly empaneled and sworn to try the issues joined in the above-entitled cause, do on our oaths find the defendant, August Dorchy, guilty of a misdemeanor, in that said defendant did willfully hinder, delay, limit and suspend the operation of coal mine H of the George K. Mackie Fuel Company, in violation of chapter 29 of the Laws of Kansas of the Special Session 1920; committed all in manner and form as charged in the information in this case."

Judgment was entered on the verdict, that defendant should pay a fine of $ 500, serve six months' imprisonment in the county jail, and pay costs of the prosecution. Defendant appealed to this court, and the judgment was affirmed. (The State v. Dorchy, 112 Kan. 235, 210 P. 352.) The case was taken by writ of error to the supreme court of the United States, which reversed the judgment of this court, in order that this court may determine whether section 19 of the act is so far severable from the general scheme of the legislation that it may stand alone, dissociated from the provisions held unconstitutional in Wolff Co. v. Industrial Court, 262 U.S. 522. (Dorchy v. Kansas, 264 U.S. 286.)

Section 28 of the act reads as follows:

"If any section or provision of this act shall be found invalid by any court, it shall be conclusively presumed that this act would have been passed by the legislature without such invalid section or provision, and the act as a whole shall not be declared invalid by reason of the fact that one or more sections or provisions may be found to be invalid by any court." (R. S. 44-628.)

In the case of The State, ex rel., v. Howat, 109 Kan. 376, 198 P. 686, the court said:

"Understanding the pioneer character of its work, the legislature framed the statute so that any invalid provision--not section [only], but provision (section 28)--may be eliminated without affecting others. This rule of interpretation extends to application of the same provision to different subjects." (p. 416.)

This rule was applied expressly in the case of The State, ex rel., v. Howat, 107 Kan. 423, 191 P. 585, and was tacitly applied in the case of Court of Industrial Relations v. Packing Co., 114 Kan. 487, 219 P. 259. A writ of error to reverse the judgment in Howat's case was dismissed by the supreme court of the United States in Howat v. Kansas, 258 U.S. 181.

In the case of The State, ex rel., v. Howat, 109 Kan. 376, 198 P. 686, the court said:

"In dealing with the subject of the constitutionality of the legislation of 1920, the court can render no service by veiling the harshness of reality. The court of industrial relations is justified by facts, or is not justified at all, and it will be necessary to present a few disagreeable facts which lie naked to astonished gaze in our industrial history." (p. 395.)

Then followed exemplification of an appalling strike record in this state and elsewhere in the United States, including an account of the calling of the strike for which Dorchy was convicted in the case under consideration. When that strike was called, Howat and Dorchy were not employees of the George K. Mackie Fuel Company; the boy Mishmash, for whose benefit the strike was called, had not been employed by the fuel company for a year and a half; and no employee of the fuel company had any grievance whatever against his employer. The strike was called because Howat did not recognize courts. The exemplification referred to concluded as follows:

"Under these circumstances, on January 5, 1920, the legislature met in special session at the call of Governor Allen, to consider what it might do to protect the people of the state of Kansas from dislocations in production and distribution of the necessaries of life. The result of its deliberations was the act creating the court of industrial relations." (p. 402.)

In the proclamation calling the special session the governor said:

"An extraordinary occasion has arisen in the history of our state. A nationwide strike of coal miners in the bituminous coal fields began on November 1, 1919, and has constantly continued. We were at the mercy of a fuel famine. The emergency in Kansas was so poignant that it became necessary for the state to take over the mines and call for volunteer workers to produce coal for the needs of the people.

. . . .

"It would be the most ironical episode in the history of the world if the freest government on earth should allow itself to be trapped into a condition where all of its functions waited upon the quarrel between the owners of some essential industry and its employees, while the people froze, starved, or went naked because the natural avenues of production were stopped by a ruthless quarrel, in the making of which the people had no part." (Senate Journal, Special Session 1920, pp. 1, 2.)

In his message to the special session of the legislature the governor said:

"An extraordinary need for additional legislation was revealed during the last two months, by a most daring attempt to override government and make the public the helpless victim of a fuel famine. With a heartlessness that has no parallel in the history of the industrial quarrel, the public was told that while the controversy over a wage scale was going on between capital and labor, it could freeze. . . .

"Both parties to the quarrel had supplied themselves with sufficient coal to keep themselves from freezing, and the attitude to the public was of that callous indifference which has become familiar to the public. . . .

"There is no reason why government should not have the same power to protect society against the ruthless offenses of industrial strife as it has always had to protect it against recognized crime. . . ." (Senate Journal, Special Session 1920, pp. 5, 6, 7.)

The court of industrial relations act undertook to provide a method of settling industrial disputes in essential industries, by a scheme which the supreme court of the United States miscalls compulsory arbitration. Justice was to be done between employer and employee, but protection of the public interest was to be paramount, and the public interest is not a subject of arbitration. Besides that, the constitution and functions of the tribunal forbade its classification as an arbitral body.

It is doubtful if the legislature seriously believed its declaration that the clothing industry was affected with a public interest would stand, or that, under any foreseeable circumstances, that industry could...