*1 Jen- or But administrator all, above whether beneficiary—and kins horn is the no matter which argument expenses the last illness is taken—the paid. Wade an honest funeral should be This makes my just it is I he For man, which believe was. change attempted spite that in actual or beneficiary, using policy pur- he still his for was pose originally purpose “The which it was issued. policies Metropolitan [industrial],” these as stated Ky. 520, Ins. Co. L.R.A. Nelson, 186 S.W. Life 1918B, 182, 1916F Ann. Cas. “is not to create a support fund for the future of the in maintenance family, provide sured’s but to a fund with which the may procure insured care his last sickness respectable burial.” See also Tulane Law Review 114,etc.; 32 Columbia Law Review 1185.
Mr. Justice Knous in this joins dissenting opinion. 15,446.
No. Reilly Labor et et al. Federation al. v. American 145) (155 [2d] P. Rehearing January 8, 1945. 1944. denied Decided December *3 Philip Joseph Hornbein, Mr. Mr. A. Mr. Pad Lee way, Wayne Mr. Charles Mr. C. Wil- Pressman, Mahoney, Mr. Theodore liams, Epstein, Thatcher, Mr. Herbert S. Eugene Mr. Maurice Mr. Mr. Ernest Cotton, Sugar, plaintiffs Harry Mr. for N. Routzohn, Goodman, error. Attorney Mr. General,
Mr. Gail L. H. Law- Ireland, Deputy, George Mr. St. Hinkley, Gordon, rence Special Assist- Assistant, Mr. R. Hickman Walker, Harry ant, defend- counsel, Mr. for Silverstein, S. ants in error.
Mr. Carl Whitehead, Mr. Hays, Arthur Garfield Mr. Osmond K. Mr. Mr. Greene, Frankel, Nathan J. Amer- Mr. Clifford Samuel Silverman, Forster, ican Union, Civil Liberties amicus curiae.
En Banc.
Mr. Justice court. Knous delivered declaratory judg- This action was initiated under the (Rule chapter ment statute, article X, 93, ’35 C.S.A. by. Colo.), group organizations, R.C.P. their of labor plaintiffs officers and in error members,' individual plaintiffs, against here, hereinafter to be called members of the Industrial Commission of Colorado Attorney Colorado, General of refer whom we shall constitutionality as the defendants, to test chapter Labor Peace Act of Colorado, Laws Session (subdivision Supp. chapter of 2a, 97, Cum. C.S.A.). ’35 assigned
This cause was to the writer on November 30, 1944. *4 upon upon
The attack was
the act as a whole and
sev-
separate
specifically
eral of its
sections and subsections,
entirety,
(1)
sections
21
20 and
in their
and sections 6
(c),
(2) (e),
(2) (g),
(2) (1),
(2),
(15)
6
6
7
and
(2).
ruling
In the
district court
that sec-
was
tions 20 and 21 were unconstitutional, but that otherwise
generally,
provisions
neither the act
nor the individual
state Constitu-
federal or
assailed, offended either the
phase
plaintiffs
the latter
tions. Here
of
seek
review
judgment
inter-
have
of
below,
while defendants
adjudication
posed cross-specifications
points
to
of
invalidity
and 21.
of sections 20
by
questions
de-
raised
shall first consider the
We
cross-specifications
points.
of
fendants’
(1)
provides,
“Each
inter alia:
of the act
Section 20
bargaining
com-
union and
unit local labor
collective
hereby required
existing
pany
is
union now
this state
ninety days
passage of
incorporate
within
from
to
hereby
any
organized
group
is
hereafter
act, and
this
required
* *
incorporate
operating
as such
before
(b)
(3) (a)
by
(2)
and
Further, and
subsections
and
(4)
(a)
(f)
20 sets out
inclusive,
section
and
corporations
and
such
shall be formed
manner which
regulations
explicitly imposes specific
function
management
of such bodies.
the internal
and affairs
21 reads as follows:
Section
“(1)
bargaining
labor
or local
unit
No collective
enjoy
privileges
employees
group
shall
union or
recognized by
they incorporate
as herein
unless
this act
incorpo-
by
required
provided.
persons
act to be
this
No
purported
carry
be
the activities
on
rated shall
incorporation
regulated by
hereunder.
act,
without
of
“(2) Any
misde-
shall be a
this section
violation
by
of-
punishable
fine
for each
meanor
$300.00
guilty
any group
of such
each member
fense, and
separately guilty of a misdemeanor
shall be
violation
subject
fine of
to a
$300.00.”
árgu
Summarizing
pleadings,
evidence
opinion,
reported
is
ments in a well considered
Reilly,
length
Labor v.
American Federation
at
court,
reference
61-761, the trial
Cases No.
Labor
expressed:
points
consideration,
alia,
inter
to the
Act,
21 of
Labor Peace
sections 20 and
“As to
argument
plaintiffs
and in their briefs as
in their
raise
major point
that the Colorado statute
virtue
their
*5
incorporation
previous general
of
requiring
its
restraint
operating
Colorado, con-
all labor unions
in the
State
right
free
stitutes an unconditional denial of the
speech,
assembly
press
organizations and
and
to labor
organiza-
deprives
their
labor
members and otherwise
liberty
rights, in
tions
their members
and civil
violation of the Due Process Cluase of
Fourteenth
States,
Amendment of the
United
Constitution of the
conjunction
considered in
the First Amendment of
said Constitution of the United
vio-
States,
likewise
lates, for the same
10 and
reasons,
II,
Article
Section
24 of the
Section
covering
Constitution
Colorado,
of the State of
* *
subject-matter.
the same
*.
support
plaintiffs
cases in
“And
cite numerous
among
Alabama,
contention,
are Thornhill
Laughlin
Corporation,
88;
U.
Jones &
Steel
S.
NLRB vs.
Cruikshank,
542;
92 U. S.
1;
U. S. United States vs.
American
Foundries vs.
Central Trades
Steel
Tri-State
Company
184;
Council, 257 U. S.
International Textbook
Pigg,
City
S., 91,
Griffin,
vs.
217 U.
and Lovell vs.
“It is contended that the Court of the United regularly impose States has frowned on efforts type, appearance, burdens of this however nominal upon rights guaranteed the exercise of the basic in the Rights, citing Jersey, Bill of Schneider vs. New Pennsylvania, 147; U. S. Murdock vs. 870; 73 S. Ct. Grosjean Company, vs. American Press 297 U. S. Virginia and West vs. Barnette, as well as the cases above cited. carefully
“The Court has considered all of these cases judges and the statements of the learned therein, carefully arguments has considered the and citations of authorities and briefs of the defendants, and has come beyond to the conclusion a reasonable doubt that these arguments and authorities have not been met or over- (and come herein, the defendants and that section 20 provisions thereof) all the and sub-sections and section inoperative unenforce- are unconstitutional and pre- require the able do for the reason that the same requisite incorporation under which,' unions for labor *6 complete wording provisions, operate its as a and does general rights previous upon of the restraint the exercise violating, assembly, speech, press of free free thus and opinion of the Court, of the the Due Process Clause con- Fourteenth Amendment the Federal Constitution conjunction Amendment, sidered in the First and the Court so and finds.” declares
Upon
concerning
this rationale,
which we shall com-
briefly,
ment
we are of the
that the conclusions
judgment
of the trial court were sound and that
its
points
as to the
in consideration must be affirmed.
Supreme
The
Court of the
United States is
final arbiter in the field of federal constitutional
law
meaning
scope
and its decisions as to the
of a con
provision
judges.
stitutional
bind state
Fed
American
(2d)
Bain,
183,
eration
Labor v.
165 Ore.
544,
106 P.
reaching
points
97
picket
prohibition
peaceful
rather than an
absolute
ing,
connection,
would not be
In this
unconstitutional.
particularly
Wagon
see
Milk
v. Meadow
Drivers Union
Sup.
moor Dairies,
287,
552,
312 U.
61
85 L. Ed.
S.
Ct.
Employees’
836, 132 A.L.R.
Al
1200; Hotel & Restaurant
Employment
liance v. Wisconsin
Board,
Relations
315
Sup.
U. S. 437, 62
706,
Ct.
American
946;
L. Ed.
Swing,
Federation
Sup.
Labor v.
321,
U.
Ct.
S.
Allen-Bradley
568,
The courts of the United States for
generally
regard
recog
statute,
without
have
right
organize
nized the
of workmen to
labor or trade
purpose
promoting
unions for the
their common wel
fare
lawful means.
American
See,
Steel Foundries v.
*7
Tri-City
Sup.
Central Trades Council,
184,
257 U. S.
42
right
72,
Ct.
to ing meetings the labor disseminating whether information organization other or for of labor unions for the specific purposes meet- purpose.” of such The lawful ings, according Stone, were Justice the of in order organize in various industries “to labor unions bargain- of collective to secure to workers benefits wages, ing respect hours of work of to betterment employment.” An and injunction terms conditions other against city officials was sustained under rights of the unions were Amendment, and the the First protected against infringement the state under the Amendment. Fourteenth contrary
Notwithstanding contention indicate decisions think the defendants, counsel for that the constitutional ple we assembly peo guarantee meeting right to is not the literal restricted to government gether petition a redress “to DeJonge supra; grievances.” Hague See, O., v. C. I. Sup. 278; Oregon, L. Ed. 255, Ct. 81 353, 299 U. S. 57 Sup. Lowry, 732, Ct. 81 242, U. Herndon v. S. Pennsylvania, 105, 319 U. S. 1068; L. Ed. Murdock v. Sup. v. Butter 87 L. Ed. and State Ct. 57. worth, 104 N. J. L. Atl. may unequivocally these not as
While decisions operate place right organize as of workmen to voluntary the area of within labor association guarantees assembly speech the Thorn- free perimeter peaceful picketing hill case locates within support purport us to latter, their seems to that sections 20 and conclusion of the trial court *8 unincorpo constitutionally by denying transgressed to any unions, members rated labor and their individual promotion right as such in the to assemble and function recog by The lawful means. of their common welfare right do, course, in the to so nition of constitutional way precludes state the limits of its inher no within power, regulating police from the ent activities unincorporated, incorporated or conduct of labor unions, portions public in the The interest of welfare. patently reach be-
Colorado act now consideration yond regulation. permissible the limits of such above, section quotation may from
As be recalled privileges enjoy the provides, union shall that no the entire recognized by covers enactment, incorporated and it is unless relations, labor field of incorporated by persons required this act to be that, “No purported carry to be the activities shall on incorporation regulated by hereunder.” act, without prosecuted may provisions be the act of the Violators by imposition punished of fines. and offenders bodily change in the form Thus, a fundamental voluntary of individual workmen association of lawful prerequisite the exercise to into labor is made a unions right picket the areas to assemble within of the foregoing by protection delineated of constitutional Supreme im Court. The of the United States decisions rights position by limiting enjoyment of such corporations The such all others. dis alone denies clearly out in the lan seems to be set tinction we note Oregon, DeJonge supra, guage opinion in v. of the using may rights abused it is said: “These be wherein speech assembly press incite or or in order to to vio legislatures people through The their lence and crime. against may protect that abuse. But the themselves justifi legislative can find constitutional intervention dealing rights only by The them cation abuse. must not be curtailed.” selves police power,
The state, extent to which the under its may operate regulating personal exercise guaranteed by liberties and Fourteenth Amend- First fully opinions ments is discussed our in the cases of (2d) Montrose, Hamilton v. 109 Colo. 124 P. (2d) and McCormick Montrose, 105 Colo. 99 P. 969. years notably
In recent states, several other Minne- *9 100 1941, chapter L. (chapter 469, S. 1939;
sota L. 440, S. Michigan (Pub. 1943); 1939, chapter Acts and 625 L.S. p. 336); (S. 1943); (chapter 104 Gen. Florida L. Texas 1943); 1943); Spec. (chapter L. 76, & S. Laws Idaho (chap- 1943); (chapter South Dakota 86 L. Wisconsin S. 1943), 1939); (chapter L. 57, 191, ter S. Laws of Kansas 1943), (chapter Acts, and Sess. 298, Alabama Gen. passed designed comprehensively cover have laws to employees employers labor relations between Although such the common trend commonwealths. impose regulations, including in some these statutes is to requirement registration, upon unions, instances the representatives, place as well as their and to restrictions upon striking, picketing, boycotting and and limitations enactments, associated labor not one of the activities, incorporation require Colorado, save those of of a prerequisite operation union its such. as as Stat- requiring registration utes in some form have been upheld in Alabama State Federation Labor Mc v. Adory (Ala), (2d) parte 810; Thomas, So. Ex (2d) 591, Tex. Hill rel., S.W. v. State ex (Fla.), (2d) 28, 1944, decided November 19 So. 857. light expressed, In conclusions have it we is unnecessary pass upon objec consider we or other by plaintiffs validity tions advanced to the of section supra. was the trial court also that
We are satisfied incorporation right holding compulsory that since unconstitutional, requirement is in section 20 contained provisions including regulatory section, the entire paragraphs fall, subsections must of its various inseparably inter all the latter are so reason that incorpora predicated upon the invalid twined with In such unable to stand without it. tion feature as to be 19) severability (section does not clause a situation operate collapse interdependent and con to save Morgan, People parts of the structure. nected 1024. Neither do the words in sec- Colo. 246 Pac. anything tion 24: so construed “Nor shall in this act be speech,” unlawfully right freedom of invade *10 pertinent they may application the of such be to regulatory provisions predicated of the act as are not upon prerequisite compulsory incorporation, the sal- vage upon assumption those which were enacted imposed corporate of the form now found to be uncon- stitutional. (2) (e)
We further believe that section 6 and the concluding (2), sentence of section 7 are of the which group challenged by plaintiffs, inseparably are so con- nected in substance with invalidated as to section inoperative upon make them the basis last above dis- judgment cussed and that the must be extended to so following declare. portion This for the The reasons. (2) controversy provides section 7 that: “No strike by shall be majority lawful unless it is authorized vote employees of the by of the union involved taken secret provided ballot such as is (2) (e) in this act.” Section 6 majority “by makes a vote secret ballot to call a strike” precedent a condition to the lawful exercise of certain only concomitants of provision a strike. The in the act taking for the mechanics of by a strike vote, and this corporate presently action, is inoperative contained in (4) (b). section 20 eligibility Likewise, the standard of for members corporate to vote on matters of business, including prescribed strikes, is (1) (a) in section 20 which compulsory fell with the incorporation feature therein contained. Thus, with section 20 out, the act provides taking no method by a strike vote secret ballot or appears otherwise. As from the record, voting qualifications procedure by legis- fixed lature in unconstitutional section 20 are at variance with by those fixed union by-laws. constitutions and provisions legis These make it certain that the deliberately expressly lature so intertwined the procedure contemplated for the strike vote in sections (2) (2) (e) presently and 6 with the ineffective cor-
porate require the processes up as to set in section fill perish To the latter. former the failure of to require rewriting no act, vacuum would properly may do. court
Having
cross-
of defendants’
the soundness
denied
specification
points
of the trial
to the action
directed
unconstitutional,
declaring
20 and 21
sections
court in
objections of
pass
a consideration
we now
made.
plaintiffs
declarations
balance of the
Initially,
court erred
the trial
it
is said
plaintiffs
the act as a whole
rejecting
that
claim
theory
employees
upon
that, as
is unconstitutional
infringes upon the
engaged
it
commerce,
in interstate
Act,
by
Relations
pre-empted
Labor
the National
field
upon
fur
chapter
7, §§151-166,and
A.,
29 U.
C.S.
pre-empted
ground
is not
ther
if such field
*11
con
and fatal
is in direct
act, the
law
federal
Colorado
legislation
be
and so should
the
flict
federal
opinion,
the
as
the
In
was
view
invalid.
our
declared
questions
been answered
these
have
court,
trial
both
by
adversely
plaintiffs
the decision
to the contention
Allen-Bradley
Supreme
Court
of the United States
Employment
Board, 315
Relations
Local v. Wisconsin
affirming
Sup.
the
1154,
Ct.
86 L. Ed.
820,
U. S.
Supreme
reported Court
decision of
Wisconsin
company in
Therein the
matter of labor
is
the National
pervasive
Act,
Labor Relations
was not so
or exclusive
prevent
police
as to
Wisconsin, in the exercise of its
power,
enacting legislation regulating
type
from
employee
activity
challenged
or union
involved in the
upheld.
order, which was
In
words,
other
as we under-
only
stand, the
held,
court
not
National Labor
pre-empt
regulation
Relations Act did not
the field of
disputes,
Congress
labor
“designedly
but also that
had
open
left
an area for state control,” and that conflicts
between federal and
arising
state enactments, or orders
only
therefrom, within
upon
that area should be resolved
specific
“concrete and
issues raised
actual cases.”
authority clearly supports
In this
tion
the'
view
the declara-
subject,
trial court on
which we
affirm.
*12
holding
Other cases so
are, Alabama State Federation McAdory, supra,
(2d)
Labor v.
18 So.
816; Fansteel Cor
poration
Lodge
Amalgamated
66,
Iron, Steel & Tin
(2d)
App.
Workers,
323,
295 Ill.
14
N.E.
and Wis
Rueping
consin Labor Relations Board v. Fred
Leather
Co.,
228
Wis.
279 N.W.
was Ass’n, Board v. International see E. R. Wisconsin (2d) 286, 6 N.W. 339. Wis. trial the This for our consideration leaves (2) (1), (g), ruling (1) (c), (2) on
court’s sections 6 boycotting, (15) (2), picketing, makes which striking existing under cer activities, and other union plain practices. The circumstances, tain unfair labor proposed a constitute tiffs contend that the restrictions organizations the their members denial to labor assembly rights speech, contract, and of free and to rights deprive protected under the otherwise them of Constitution, and Fourteenth to the federal Amendment involuntary attempt impose an servitude constitute that Amendment, in the violation of the Thirteenth appears declaring As them trial court so valid. erred many opinion, recognized “that from its trial court the regard questions passed on of the here the court separable provisions to the various Colorado (in category the last Peace Act which cited subsections may very closely placed) approach must be above advisory anticipatory status, an and the conditions have yet not arisen and do not arise on the face of the statute might purview itself,” and thus not be within Declaratory Judgments our Uniform Act. Notwith standing, performance in the of what is considered its responsibility disposition to further a final issues, proceeded complete adjudication. the court to their follow, for the reasons convinced, are We acting, court, accord with its initial instead of so pronounce quoted, have declined to should view above declaratorily phase on case in discussion. Judgments Declaratory Act, our Uniform
Under results to from enforcement of stat- where occur certainty, utory provision predicted as in can be respect to 21and situation with sections 20 and inter- right subdivisions, or where basic related legislative enter fields said to be the state to domain of *13 questioned, the is done Federal Government is as here relating the the Labor Rela- contention to National properly may respect Act, tions a court declare validity very the to of a in nature of statute, but the things passing the lawmakers in Declar- Uniform atory Judgments Act did not intend that a court should speculative inquiry purpose up- enter into a for the of holding condemning statutory provisions, or the effect yet developed, which, in concrete situations not could perceived. definitely not be expressed tritely
Such is
in our
in Gabriel v.
Regents,
582, 587,
Board
83 Colo.
These considerations pertinence attempt ticular here, no ever has where, as any part been In made enforce the or thereof. to act arguments this circumstance and contentions of parties, brevity, in which, we do not interest necessity premised anticipatory extend, are on situ parties predict ations which from will arise administration of sectors the act discussion. The nature theoretical of these forecasts and the ex tremely divergent possible views of counsel as con applications regulatory provi structions and of these place phase dispute sions, as view, we within speculative category which, under Gabriel supra, declaratory judgment case, no should have been attempted. It is not to be advance, assumed in type of action, a law will be so construed as to bring it into conflict with the an Constitution or act of Congress; nor it is sufficient show that a state act might applied impair be so construed and dilute, Allen-Bradley rights. Local v. Wiscon-
or defeat those *14 contrary. supra. presumptions to the are Board, All sin Ry. League 53 Colo. Co., Colorado & S. Consumers’ v. 1158. The unconsti- 1914A, 577, Ann. Cas. 125 Pac. beyond a tutionality must be established statute of a People 8 Colo. Goddard, ex rel. doubt. reasonable may properly statute hold a we 7 301. Nor 432, Pac. may individually, a or we, court, as invalid because of, therein are violative elements think there are justice, our or in conflict with to, natural or unfair notion of the social guaranteed rights citizens, not expediency of such The wisdom or the Constitution. Certainly, legislative problem. it seems is a measures application or construction us, conflicts as properly may re- arise, if such be subsections, of these only in concrete situations in actual cases. solved therefore, that the trial court erred in ren- We, hold declaratory judgment dering any at all as to sections 6 (2) (g), (2) (1), (15) (2). (c), (1) 8 11 6 and Accordingly, judgment as to shall be modified so (2) (e) inoperative and declare an status for section (2) concluding as sentence of section 7 hereinabove expressed judgment and, modified, of the trial so declaring court 20 and 21 in sections unconstitutional entirety denying invalidity their to the act as alleged infringement whole from with the National par- is in all Act, affirmed, Labor Relations but other naught. ticulars is vacated and held for Mr. Burke, Justice Mr. Justice Jackson Mr. part part. concur in and dissent Justice Alter Mr. Burke. Justice
Following controlling what I conceive be Court, decisions Supreme of the United States I concur in the holding that sections 20 and of the act are uncon- stitutional. portions judgment
As to all other en- of the I hold it tirely questions void for the reason that decided upon wholly improper presentation were issues adjudication declaratory judgment in a action; hence on express opinion. these I no say
I am authorized to that Mr. Justice Jackson con- foregoing. curs in the Justice
Mr. Alter. opinion I concur in as it so far determines that sections 20 Act of Colorado, of the Labor Peace chapter 131, 1943 are Session Laws Colorado uncon- portion stitutional. I also concur reversing declaratory judg- the trial court because of its (1) (c), (2) (g), (2) ment entered as to sections 6 *15 (1), (15), (2). portion
I dissent from that in which it (2) (2) (e) properly is held that sections 7 and 6 are Declaratory Judg- considered and determined under the ments Act.