State v. Menderson
| Decision Date | 22 March 1941 |
| Docket Number | Criminal 898 |
| Citation | 111 P.2d 622,57 Ariz. 103 |
| Parties | THE STATE OF ARIZONA, Appellant, v. C. M. MENDERSON, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General; Mr. Richard F. Harless, County Attorney and Mr. Anthony T. Deddens, Deputy County Attorney, for Appellant; and Mr. Joseph A. Padway, of Washington, D.C., of Counsel.
Mr Lynn M. Laney and Mr. Grant Laney, for Appellee.
This case involves the constitutionality, as well as the construction, of an initiated measure passed by the vote of the electors of the state in 1915 and is found in the Arizona Code of 1939 as sections 43-1606 and 43-1607. The first section defines a black-list as a medium of information communicated by one employer of labor to other employers of labor to discharge or not to employ certain identified persons "whereby the laborer is prevented or prohibited from engaging in a useful occupation." The next section and the one immediately for consideration, as far as material, reads as follows:
C. M. Menderson, the appellee, was charged by information with discharging from his employment one Simon M. Mead on account of his being a member of a labor union. His demurrer to the information challenged the statute on several grounds. The first is that it conflicts with the due process clauses of the State and Federal Constitutions, in that it interferes with the liberty of contract and is an unwarranted restraint upon the right of contract. Sec. 4, art. II, state Const.; 14th Amendment to Constitution of the United States.
Another is that it is class and special legislation violative of section 13, article II, and section 19, part 2 of article IV of the State Constitution.
It was also urged that the statute defining the crime charged in the information is so indefinite and vague as to deny due process. 14th Amend. U.S. Const. and sec. 4, art. II, state Const., supra.
The demurrer was sustained, and the state has appealed.
We have come to the conclusion that the last point is well taken and, that being so, it will not be necessary to consider the other two.
It will be observed that the applicable provision of the statute (sec. 43-1607) reads:
"Any employer... who shall discharge any person or persons on account of his or her affiliation with or membership in any corporation, organization or society... shall be guilty of a felony...."
Discharge for membership in or affiliation with a labor union is not mentioned and therefore not specifically condemned. Such unions are recognized as organizations and societies and are sometimes corporations. The words "corporation, organization or society" do, and doubtless were intended by the lawmakers to cover and include labor unions. So the act charged in the informations falls within the language of the statute, as do also many other acts. For instance, while the employer is forbidden the right to discharge an employee on account of his membership in or affiliation with a lawful labor union, he is also forbidden, at the risk of committing a felony, to discharge from his employment a known Communist, KuKluxer, or a member of any other subversive organization or society. The offense is in discharging a member of a corporation, organization or society because of his membership. That may not be done, however provocative or urgent the necessity. An employer, as suggested by appellee, could not discharge an employee-member of a corporation, organization or society operating in direct competition with him without violating the language of the statute and laying himself liable to a prosecution as a felon.
Objections also are made to that provision of the statute that makes it a felony for an employer to command or persuade an applicant for employment "to make any verbal statements... as to whom his... former employer was." This provision, we think, limits the right of free speech, which is protected by both the Federal and State Constitutions. 14th Amend. supra; sec. 6, art. II, state Const. It does more; it prohibits an employer from using the most natural means to find out what kind and how much experience, if any, the applicant possesses, and from following up the latter's statements by supplemental investigation.
The state contends that the statute was passed to frustrate the efforts of employers to defeat effective organization by employees of the state, and that it should be construed in that light. It says one of the evils aimed at was the act of employers discharging employees for membership in or affiliation with labor unions, and that the law should be construed as impliedly confined to that act. The question is, Can the court exclude from the language of the statute acts included therein as criminal. Can the court say the Legislature, when it made it a crime to discharge an employee for membership in an organization of Communists, for instance, did not mean it? Of course the statute does not expressly say that any more than it says it is a felony to discharge an employee on account of his membership in a labor union. However, if the statute covers one of these acts, it covers the other and the court cannot construe the effect away by saying one was within the evil and the other was not.
Granting that some of the things forbidden by the statute are within the legislative power, it is clear that some are not. No one, we apprehend, would contend for a moment that the Legislature could make it a felony for an employer to ask of an applicant for employment who his former employer was, or to discharge an employee affiliated with a competitor in business, or on account of his membership in an organization whose members are enemy spies or saboteurs. That is what the literal language of the statute does.
The members of society at whose acts the law is directed must, in such circumstances, themselves determine in...
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State v. Evans
...generally accepted construction. Some of the cases cited deal with such statutes and are therefore not controlling here. State v. Menderson, 57 Ariz. 103, 111 P.2d 622; Nash v. U. S., 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232; Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L......
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...in the creation of new crimes, therefore, should be very definite and easily understood by the common man. State v. Menderson, 57 Ariz. 103, 111 P.2d 622 (1941); State v. Cota, The subject statute proscribes 'fraudulently failing to return, a leased motor vehicle' within a specified period ......
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...State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. Other authorities supporting this principle are assembled in State v. Menderson, 57 Ariz. 103, 111 P.2d 622. Plaintiff also urges that in the exercise of police power the legislature has authority to define embezzlement and declare......
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State v. Jacobson, 1
...243, 46 L.Ed.2d 185 (1975). Laws creating new crimes should be very definite and easily understood by common men. State v. Menderson, 57 Ariz. 103, 111 P.2d 622 (1941). Laws need not be drafted with mathematical certainty, however. State v. Sanner Contracting Co., supra. Uncertainties lurk ......