114 Wis. 530 | Wis. | 1902
In this case we are confronted with that gravest of sociological questions: How far, consistently with freedom, may the rights and liberties of the individual member of society be subordinated to the will of the government? That question has been at war from the very first existence of any form of government. Eor many centuries, while debated as an ethical and philosophical question, it was resolved
“All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the-pursuit of happiness; to secure these rights, governments are-instituted among men, deriving their just powers from the-consent of the governed.”
At this late day it cannot be doubted that this declaration of the purpose to be accomplished is to be construed as a limitation upon the powers given. By the preamble, preservation of liberty is given precedence over the establishment of government. It would be inconceivable that the people of Wisconsin, in establishing a government to secure the rights-
by the courts. Durkee v. Janesville, 28 Wis. 464, 471; State ex rel. Kellogg v. Currens, 111 Wis. 431, 435, 87 N. W. 561. We say by the courts, for elsewhere in the constitution the judicial power is vested in them; and that the judicial power, and therefore the judicial duty, includes repudiation of an attempted aGt of legislation prohibited by the constitution, was declared by the supreme court of the United States, at the pen of Chief Justice Marshall, in Marburg v. Madison, 1 Cranch, 137, and had, before the adoption of our constitution, become settled by a long line of authority. 1 Kent, Comm. 449; Cooley, Const. Lim. ch. 7; Baily v. Gentry, 1 Mo. 116; Bloodgood v. M. & H. R. Co. 18 Wend. 9; Dartmouth College Case, 4 Wheat. 518, 625.
A question which immediately arises in the consideration of any act of the legislature restraining individuals is the exact meaning of the words, “life, liberty and the pursuit of happiness,” which are to be secured by the government, and must not be destroyed by it. That these words are not to be taken in their absolute sense is, of course, obvious. Individuals may, notwithstanding this prohibition, be deprived of life or liberty as punishment for crime, and they may be deprived of some measure of property or of happiness in deference to and protection of the welfare of the whole community. Indeed, most of the legislative acts which fill our statute books detract in some measure from the absolute freedom of the individual to act. wholly at the dictate of his will, and yet are of either decided or fully recognized constitutionality. On the other hand, these words in the constitution are not to receive an unduly limited construction. It has become settled,
In Allgeyer v. Louisiana, supra, the court said by Mr. Justice Peckiiam: :
“The liberty mentioned in that [fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.”
In Carew v. Rutherford, 106 Mass. 1, 14, it is pointed out that the very existence of the ordinary labor union rests upon
In Allen v. Flood [1898] App. Cas. 1, the complaint was that certain union iron-workers confederated and threatened to quit unless certain non-members were discharged. In the course of the opinion of Hekschell, J., it was said: “A man’s right not to work or not to pursue a particular- trade or calling, or to determine when or where or with whom he will work, is in law a right of precisely the same nature, and entitled to just the same protection, as a man’s right to trade or workand in the same ease, by Lord Watsoh : “It is, in my opinion, the absolute right of every workman to exercise his own option with- regard to the persons in whose society he will agree or continue to work.”
In Doremus v. Hennessy, 176 Ill. 608, 52 N. E. 924, where the employer refused to abide by the prices prescribed by a laundry union, and the members of the union refused to work for her, the court sustained them in so doing, and said: “Every man has a right, under the law, as between himself and others, to full freedom in disposing of his own labor or capital according to his own will.”
In the somewhat famous case of Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310, wherein the circuit court, during the labor troubles of 1894, enjoined certain employees from “so quitting . . . as to cripple the property or prevent or hinder the operation of said railroad,” the court of appeals, speaking by Haklaw, J., held that was erroneous, as invading the natural rights of men. He said: “It would be an in-
Judge Cooley (Torts, p. 278) says: “It is a part of every man’s civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice.”
Mr. Tiedeman (2 Cont. of Pers. & Prop. § 204) says: “Every man has a natural right to hire his services to any one he pleases, or refrain from such hiring; and so, likewise, it is the right of every one to determine whose services he will hire. . . . Governments, therefore, cannot exert any restraint upon the actions of the parties.”
But however well established that the words “liberty” and “pursuit of happiness” include the x'ight of private contract, so that a deprivation of the latter is a deprivation of each of the former, yet the far more difficult question remains whether any given statute constitutes a forbidden deprivation.. As we have already said, the constitutional restriction in this respect is not absolute. The very existence of government renders imperative a power to restrain the individual to some extent. This is called the “police power,” of which definition has been attempted by jurists and text-writers with so little success as to well-nigh discourage further attempts. It may
By the constitution is granted the police power, — the power to restrain the individual of some measure of his liberty of action and of his property; but this goes no further than to authorize the enactment of laws necessary to reasonable protection of the safety and welfare of the general community, and not depriving the individual of liberty in the constitutional sense. By the same instrument, liberty is guaranteed
The conception of civil liberty has been variously phrased thus: “Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty by every other.” Spencer’s Social Statics, 94. “That man is free [under the lawjwho is protected from injury.” 2 Webster’s Works (Boston, 1854), 393. “Liberty consists in doing what we ought to will, and in not being constrained to do what we ought not to will.” Montesquieu. “Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same rights by others.” Field, J., in Crowley v. Christensen, 137 U. S. 86, 89, 11 Sup. Ct. 13. “That government can scarcely be deemed to be free where the rights of property are left solely dependent upon the will of a legislative body, without any restraint.” Stoby, J., in Wilkinson v. Leland, 2 Pet. 627.
Free will in making private contracts, and even in greater degree in refusing to malee them, is one of the most important and sacred of tire individual rights intended to be protected. That the present act curtails it directly, seriously, and preju-dicially, cannot be doubted. The success in life of the employer depends on the efficiency, fidelity, and loyalty of his employees. Without enlarging upon or debating the relative advantages or disadvantages of the labor union, either to its members or to the community at large, it is axiomatic that an employer cannot have undivided fidelity, loyalty, and devotion to his interests from an employee who has given to an association right to control his conduct. He may by its decisions be required to limit the amount of his daily product. He may be rortraired from teaching his art to others. He
As already mentioned, recent times have witnessed much increase in legislative activity in the way of interference with individual conduct, and especially with ■ transactions between employer and employee. The views of the courts as to the constitutionality of many such laws are in serious conflict, as illustrated by the following decisions: Statute and common-law prohibition against conspiracies have generally been held invalid so far as they merely prohibit the employee from quitting individually or in concert with others. Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310; 1 Tiedeman, Cont. of Pers. & Prop. 424, where it is said: “No law could deny him this right, without violating the constitutional principle of liberty of contract, unless he has been engaged to serve for a definite period of time.” An act forbidding deductions from wages because of defective work is held invalid; so far as it interferes with the making of contracts for employment, in Comm. v. Perry, 155 Mass. 117, 28 N. E. 1126. Acts regulating the time of payment of wages in defiance of contract are held valid in Skinner v. G. M. Co. 96 Fed. 735, and in Opinion of Justices, 163 Mass. 589, 40 N. E. 713, but invalid in Leep v. St. L., I. M. & S. R. Co. 58 Ark. 407, 427, 25 S. W. 75, and Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62. Acts in mining regions requiring that payment
The nearest parallel we have found to the act in question .are laws enacted in Missouri and Illinois, nearly identical with our law as it existed before the amendment of 1899, namely, making criminal attempts to coerce employees against membership in. labor unions, by discharge or otherwise. In State v. Julow, 129 Mo. 163, 31 S. W. 781, such law was held
On this subject Mr. Tiedeman (Cont. of Pers. & Prop. 332) declares the opinion that a state statute which made it unlawful for an employer to refuse to employ union men, or to compel an employee to withdraw from a trade union on pain of dismissal, would be dearly unconstitutional. In Georgia a statute requiring an employer to give to a discharged workman a certificate stating the reasons of the discharge is held unconstitutional on the ground that the right of discharge may be exercised without any reason or explanation. Wallace v. G., C. & N. R. Co. 94 Ga. 732, 22 S. E. 579. In Missouri the same principle on which an act prohibiting discharge of men by reason of membership in unions was held unconstitutional in the Jutow Case, supra,, is held to preclude interference with members of a union in soliciting others to refuse to trade with a manufacturer. Marx & H. J. C. Co. v. Watson (Mo. Sup.), 67 S. W. 391. In New York, union men are held not liable for compelling discharge of non-unionists by threats to strike. National Pro. Asso. v. Cumming, 170 N. Y. 315, 63 N. E. 369. Many other illustrations might be given, but the foregoing suffice to show the confusion among different courts, and probably the general tendency on such subjects.
In considering our own statute under which relator is committed, it must first be noted that we are concerned only with that portion added to pre-existing statutes (sec. 4466&, Stats. 1898) by the act of 1899, “No person or corporation shall discharge an employee because he is a member of any labor organization,” for the relator is not charged with breach of any other of the provisions of that act. Confining ourselves, then, to the act so charged and the statutory prohibition in
One menace to public welfare was suggested by counsel for plaintiff in error, based upon the assertion that discharges of employees, especially union men, are likely to be followed by-turbulence, violence, and even bloodshed; hence that it was proper to deprive employers of their rights, presumably because they are ordinarily law-abiding and will not make trouble. We decline to acknowledge as a fact that the laboring men, .as a class, union or nonunion, are more prone to lawbreaking or violence than other classes of the community, or to adopt the theory that the legislature so assumed. But even if that assumption were made, it would constitute no justification for depriving one man of his liberty of contract, that another was likely to commit crimes or breaches of the peace-. As well deny the right of private ownership of chattels be?cause they tempt the thief to steal. Neither the restriction imposed nor the penalty is at all relevant to the public purpose sought, nor to tire wrongful acts threatened. Nevertheless the suggested purpose seems to have had weight with the? supreme court of Tennessee in Harbison v. Knoxville I. Co., supra (103 Tenn. 443, and 53 S. W. 960), as justifying an act compelling mining employers to pay in money orders for coal issued to their workmen. Whether the characteristics of wage earners in Tennessee or the conception of liberty are-such as to warrant the decision must be left to the courts there.. We cannot so view them in Wisconsin. It is the reservation of liberty and pursuit of happiness made by our own constitution, thus limiting the police power conferred upon our legislature, by which we must be controlled. Thereunder we hold that freedom to make, and even more to refuse to make, contracts, whereby no rights of others suffer, cannot be restricted..
As the legislation clearly and beyond doubt invades the natural liberty of the individual, it must be void, unless we can discover both the existence’of a public need, and at least tendency of the statute to provide therefor. In the search for such need and purpose we must and do concede to the legislative branch of the government the fullest exercise of discretion within the realm of reason, and, if a public purpose can be conceived which might rationally be deemed to justify the act, the court cannot further weigh the. adequacy of the need or the wisdom of the method.' When, however, after all diligence and reflection, we are unable to discover any such public need or purpose, we have no alternative conclusion, save that the legislature has, “under the guise of protecting public interests, arbitrarily interfered with private business and imposed unusual and unnecessary restrictions upon lawful occupations,” which it may not do. Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499. It has, then, taken from one his liberty and property, not for a public purpose, but for the benefit of other individuals, which is but robbery under the forms of law. Citizens’ S. & L. Asso. v. Topeka, 20 Wall. 655, 664.
The act of 1899 is further assailed upon the charge that it is class legislation, not affecting alike all persons similarly situated and conditioned, and therefore prohibited by the requirement of art. I, sec. T, of our constitution, — that equal freedom be preserved to all men, — discussed in State ex rel. Kellogg v. Currens, 111 Wis. 431, 87 N. W. 561, and Black v. State, 113 Wis. 205, 89 N. W. 522. This objection was sustained in State v. Julow, 129 Mo. 163, 31 S. W. 781, and
We agree with the trial court that the enactment under consideration exceeded the limitations imposed by the constitution of Wisconsin upon the legislature. It is therefore void, and conferred no power upon the magistrate to make the commitment under which petitioner was held in custody. His discharge therefrom was not error.
By the Court. — The order of the superior court of Milwaukee county is affirmed.