*1 v. PACKARD. STATE 561.) (250 P. 1952. 2d November 7773. Decided No. *2 Servant, S., sec. 14. Reasonableness of J. Master and See C. Jur., constitutionality Am. of statute. classification as test of Statutes, sec. 52. Roberts, Brigham Banks, Beck, Clarence M. E. Elmer J. Vernon, Gen., City, Atty. Salt Lake D. for appellant. Clinton Callister, City, Louis H. Lake Salt respondent. CROCKETT, Justice.
Russell Packard was convicted of an offense described register as: “Failure to with the Industrial Commission commencing having before he employment”, started *3 work for the Utah Wholesale Grocers at a time Company when its were out on employees strike. The conviction was court, to the district which appealed dismissed the proceed- ing ground regis- requiring that the upon statutes ruling tration are unconstitutional. That is for before us review.
The sections under attack 49-1-29 to U. C. A. 1943; chiefly being the one with which we are concerned Sec. which provides follows: duty every person “It commencing is the employment before with any person, corporation employees firm or whose are out on labor by recognized strike register called a national union to with the in- (Emphasis added.) dustrial commission of Utah.” registrant Other give sections provide that shall his name, residence, time, and the place, nature of the work and for whom it is to be performed, record must be for open public inspection. contends, alia,
Defendant inter the statute above quoted is invalid because: vague
1. It is uncertain; and and discriminatory. unreasonably 2. It is sugges vagueness as to is The first reason advanced “commencing may be employment” words tion only new but to also employees to interpreted apply merely who went to but employed persons previously thus, work back to or continued employment, “commencing” sense, after has to work a strike a called. to import been This seems strained attempt vagueness into a context which clear and understandable. The word commence means the first “begin” “perform — start”, act of”—“take the first “to 7 Words and step” —or Phrases, 726. In the context of the the term p. “commencing” vague ambiguous. neither nor It has seems meaning commonly a fixed. which is It understood. would only commencing anew, apply persons employment is, time, while the strike is in progress first merely would not former who returned apply employees continued, to work and thus in employment. recognized by union”,
As to “called phrase national vagueness considerably problem respect dif- just quoted, ferent. Without the words this law would have required register commencing all before employ- any ment at whose plant were out employees on strike. form, In this passed Senate but was amended from the floor of the House quoted the insertion of the phrase, which amendment was later concurred in the Senate. Restricting the of the statute application to strikes “called a national union” which would exclude strikes *4 by “other substantially unions” effected a different mean- ing original than the one. amended,
As so unique this state, statute is in this insofar find, we have been able to and therefore there appears judicial to be no precedent analysis assist in an thereof that of our except own district courts. It was first enacted 1937, 1937, S. L. U. Ch. 53. In connection with a prose- brought it, cution under Tanner, State v. District Court
373 Schiller, #10,694, M. then Honorable Herbert Case Crim. judge, unconstitutional. in 1938 declared the statute district decision, which was included as part In a written case, record in this he made an able and somewhat compre- statute, analysis of the for which we are indebted hensive aught to him. From that this statute was there- appears, regarded void, after as unconstitutional no further being use made of it until the initiation of this prosecution again question in March of 1951. submission of the Upon court, to the district Honorable in ac- G. Joseph Jeppson, judge Schiller, cordance with the action of ruled also prior suggested it unconstitutional. It not that is the aforemen- rulings binding court, tioned reference this but upon uniformity is made to the correctness and of their decisions question, upon and with which we are in accord.
It is
statutes should
be declared un
any
if there
constitutional
reasonable basis
upon
falling
they may be sustained as
within the constitutional
Ogden City, etc.,
framework. Newcomb v.
121 Utah
503,
941;
243 P. 2d
State Board
Education v.
Finance,
435,
164,
Commission
122
P.
Utah
247
2d
and that a
uncertainty
statute will not be held void for
if
sensible,
given
may
sort of
effect
practical
it.
Comm.,
170,
Norville v.
937,
State Tax
98 Utah
97 P. 2d
A.
1318;
L. R.
500,
State v. Packer
77 Utah
Corp.,
1013;
P.
see
177,
also
v. Packer
State
2 P.
Corp.,
Utah
State,
2d
Packer
Corp.
U. S.
52 S. Ct.
The statute under consideration would curtail one of the basic freedoms vouched safe our state constitution. The commonwealth, realizing of our founders our com- society, it for plex each man impossible to establish and earning his own operate livelihood, enterprise so *5 374 others, necessity work majority provided must of
the XII, Constitution: 19 of the Utah State Article Sec. employment person free to obtain “Every in this shall be State * * *” possible, whenever interference therewith to be malicious and declared and makes to work complements This freedom prohibited. guaranteed meaningful rights other of our part more right Admittedly, is not abso- liberties. constitutional regulations may correlated It be limited reasonable lute. general qualifications welfare. For example, with engaging in the trades and prerequisite professions, regulation hours, wages, safety many occupations; good. necessary But and other for the common controls great even for such caution must be ob- proper purpose, rights, served in encroachments as- upon basic permitting constitution, sured and such restriction can be only effected accordance constitutional prerogatives clearly and where expressed standards set up. This court a number of times has applied prin Connolly which is well stated the case of v. ciple Co., 385, General Construction 269 U. 46 S. S. Ct. 126, 127, 322, 70 L. Ed. “* * * requires doing a statute which either forbids or vague intelligence an act in terms so that men of common must nec- essarily guess meaning application at its and differ as to its violates * *” * process
the first essential of due of law. City Jaynes, 89, 606, In the Price v. 191 Utah P. 2d 607, city ordinance which provided * * * right “the persons, houses, papers to be secure in their against and effects unreasonable searches and seizures shall not be violated” vague was held so and uncertain that it did not define a crime; Musser, 537, v. 193, 194; State 118 Utah 223 P. 2d State, Musser 333 U. S. S. Ct. L. Ed. *6 * * * injurious “to commit act that the phrase 1943, 103-11-1(5), U. A. was morals” C. unconstitu- public vagueness. tional for to our In
Appropriate case of re problem Peppers, 682, 896, 897, 189 Cal. 209 P. wherein an act providing “oranges shipment shall be considered unfit when frosted to endangering reputation industry” extent of of the citrus 1921, 1234, 10, St. was struck down as uncertain p. be- § cause no standard which the could provided upon shipper violating Analogous determine whether he was the act. also State, 278, 489, is the case of v. 26 Ind. 59 N. E. Cook App. statute, 1897, 6600, Rev. St. prohibiting § hauling thawing over wet or roads of a load of more than 2,000 wagon” on a “narrow-tired or more pounds than 2,500 wagon” on a “broad-tired was held void for pounds uncertainty because there was no standard which one could determine what the statute meant the comparative terms “broad” and “narrow”. language
The limitations of neither abso lute exactitude of nor expression of complete precision meaning are to be and such expected, standard cannot be required. disagree On the other hand there no among ment the courts that where a rule is set up, subjects the violation of which one to criminal pun ishment, the restrictions upon conduct should be described certainty, with sufficient ordinary so that of in telligence, desiring obey law, may govern know how to conformity it, themselves and that no one should life, compelled at the liberty of peril or property, meaning speculate as of statutes. Price penal Jaynes, Musser, State v. supra; U. S. v. L. supra; Cohen Grocery Co., 81, 298, U. S. S. 516; Ct. 65 L. Ed. Stromberg v. Cal., People 359, State 283 U. S. 51 S. of Ct. 75 L. 1117; Connolly Ed. v. General Construction Co., Lanzetta supra; Jersey, v. New 306 U. S. 59 S. connec- annotations 888; Law Ed. L. Ed. see
Ct. cases. with latter two tion vagueness of uncertainty or
Concerning question of test in accord that statutes, to be seem the authorities sufficiently It must be valid is: meet to be a statute must ordinary intelli (a) inform persons definite abiding, conduct what their gence, law who would be (b) requirements; to ad to its be to conform must violating just consti what accused vise a defendant (c) charged, to be he is offense with which tutes the and application uniform interpretation susceptible enforcing charged of applying those with responsibility it. *7 requirements? question fit these
How does the statute go a strike was to work a where plant If one desired to at he first whether must how would he determine in progress, register Because of the Industrial Commission? with the of this law to the application amendment which restricted recognized union”, nationally would by it called “a strikes necessary of union meant to ascertain what character be say, by the does not that Observe that phrase. by a union” which is the that counsel “called national phrase wording us, for the to define but interpret attempts is, recognized national union”. From the context “a legislative record, word statute and the it that the appears “national^/”; is, “national” should have been that it should “recognized” modifying have been an adverb the verb adjective modifying rather an the noun “union”. How- than ever, meant, way whichever was uncertainties would which exist make statute void. something recognition” quite
“National different implies existence”; is, sense, than “national that in one union a union, could a exist as national but still leave unanswered questions recognized as to whether it ais national union. recognition Does the statute there to be imply has by duly authority the union some constituted national or recognized ask, by necessary to organization? It would be organizations? by by generally? labor whom? public average B.? If the N. L. R. by the leaders? industrial union, does (whoever may be) heard he has citizen course, recognition? is, no give There it national us, to known or legal the statute referred standard recog- “nationally a may be determined what which union is. nized” questions. answer offers no specific
The State argument sufficiently definite the statute is Their understandable, as in their brief is: stated be union,’ phrase there- 'called “The [sic] nationalZ?/ merely application where the those situations the act’s fore limits larger organize in unions —those called whole strike industries extending geographical scale, over on nationwide or areas crossing state lines.” suggested determining Let us examine these tests what such a union is: larger larger
“The It would be than what? unions”: big a to be in difficult to tell how union would have as “larger qualify as a union” it would to tell order wagon” width or much of a “narrow tired how frost orange “endanger in an would of the citrus reputation industry”. Certainly term furnishes no this comparative determining definite standard for which unions are referred *8 by the statute. organize Obviously, “Which in whole industries”: unions organize stroke; cannot whole at one does the industries during statute mean that no be would afforded protection organization, of process and but the development pro- tective only cloak statute would enshroud after the of organized? industry whole would it be con- were Again, tended a that well union would not classified known be recognized “nationally a union” if it were shown that sub- organized given industry yet a were not stantial of portions by it? extending or over geographical a nation wide scale
“On questions crossing same recur. Does lines”: The areas state having union, any any every in or state that mean state ? industry to which the union operates of part respect in, ? many or 48 How the union have to be states would thought to the leads conclusion that this Exploration difficult, if on the would be tell basis impossible, distribution, whether a would be union geographical recognized nationally union”, whatever classified as “a thought may to mean. phrase be large questions Other themselves: Would a present union, wholly local in charac- powerful independent plant any union, ter and not affiliated with other be within the by classification? If a strike were called progress union, registration required? a would a strike Suppose very large widely were called a small unit local of a as, distributed union such for the United Mine example, Workers, gave authority but the union no parent sanction to the strike called unit. local such a Would strike recognized nationally be “called union” and would register? new worker have to It Union, is not to be doubted that the Teamsters involved case, in the strike the instant is a union would being meet “nationally reasonable test classified aas thing union” if such a there be. Defendant also However, concedes this. constitutionality test of the statute is not whether one or more unions can conven- being iently be statute, identified as within the but whether sufficiently the statute is ordinary clear so intelligence could tell which unions the statute would apply not, to and which it would and thus be able to know how with the law. comply Here the uncertainties are such might that one well be perplexed know whether he had register going before to work. Therefore,
379 unconstitutional, as it is uncertain that indefinite and so by court. ruled the lower have we phrase
Even if it should be assumed
just
would
adequately
unions
just
specifies
discussed
excluded,
would be
so
be covered and which
meaning
subject
inform
sufficiently
in
persons
definite
register,
they
would be vulnerable to
must
to it when
is,
affording
protection
other attack:
defendant’s
excluding others,
to some
and businesses
unions
unreasonably discriminatory.
would be
differently,
if
may deal with
classes
Statutes
different
long
uniformly,
are treated
and so
all within the same class
for differentiation
as there is some reasonable basis
between
to the
of the
State
classes related
statute.
purpose
920,
Mason,
501,
A. L.
78 P. 2d
R.
Utah
v.
Walker, Inc.,
330;
v. B. R. E.
100 Utah
State
J.
&
Conversely,
The there valid reason arises: Would making “nationally a distinction between and “other unions” unions” in relation to the purposes sought to be this statute? accomplished legislation
The purpose was apparently promote industrial and eliminate violence or strife peace possible is, registration strikes; requiring in connection with going during likely to work strikes would dis- courage taking least, from them such or at employment, making readily them more identifiable to law enforce- authorities, engage ment would make them be less apt violence or other unlawful activities connection labor disputes; particularly, it is said the statute *10 “goon purposed prevent the use of
was to counteract in- squads” has been or breakers”. This practice “strike bringing dulged country by in in of the some parts of or for the express pur- irresponsible persons transient breaking in violence. Such of strikes and has resulted pose of with the activities difficulties would occur connection in the or businesses smaller unions smaller plants way consequences in the same and with same bad larger larger any In fact if there be unions and plants. difference, the and smaller would smaller unions businesses be more vulnerable to the attendant upon ills probably or of and would therefore need violence strife be more in larger protection than the and presumably powerful more highly ones. It com- well unions are at times known that is among advantage themselves; petitive to confer an upon unions, it, one union or others of would group depriving be an unfair discrimination for which no reason consistent assigned. fact, of the statute In purposes be could to deprive smaller unions or smaller either the businesses any unjustly their protection afforded would competitors be discriminatory. originally introduced, As the act proposed give equal amended, them protection; as purports cover some and exclude others. There no appears valid way reason for any such differentiation which inis statute, correlated to the nor in fact purposes why they reason are not all to whatever entitled benefits might have been conferred this law.
Accordingly, we hold that it is unconstitutional and void.
Judgment affirmed.
McDonough, j., concurs.
WADE, Justice.
I concur with the prevailing opinion this statute is unconstitutional because unreasonably it is discrimina- case, necessary toiy. disposes Since under lacks due to decide whether a conviction this statute I of law because the statute is too uncertain. there- process question. fore no on that express opinion HENRIOD, Justice. language
I concur for the reason the act is agents, so loose as to make it for union impossible public taking those or prosecutors, at struck employment plant, anyone else, might might definitely to determine who question not be violator or victim in instances where the *11 strikebreaking analysis, careful arises. the Upon conceivably could an instrument be of embarrassment and alike, to union member and oppression strikebreaker if wording either made an erroneous of the interpretation the statute.
WOLFE, Chief Justice.
I dissent. Addressing myself first to the contention that the stat- question vague ute in is so and indefinite as to render it unconstitutional, enough I think the statute is definite during enable person about commence work a strike register. to determine whether he should Approaching problem clear practically, is that “national nothing union” means more nor less than a “national known union”. The “recognized”. troublesome evidently word I think by this word was used synonomous the drafters as with Strictly “recognized” “known”. speaking, contains acknowledgment; yet, doing element of homage without meaning, to the niceties of its synonymously is used nationally “known”. A recog- known product nationally —a nized can, At product. least we as has been done countless times, so the law interpret to eliminate the problem of semantics. It necessary is not to hold the word under the “recognized and microscope ask gen- whom? the public organization? by erally? by labor industrial leaders? average the N. L. R. B. ? citizen ? We on bench this knowledge have a know what national unions. We large (to get they away are the from the com- unions degree give which Mr. parative seems Justice Crockett organized trouble) industry considerable which are over an regard lines, many without to state and in cases Canada regard anything without I that border. do not see gained by analyzing language Attorney of the Gen- language argument eral if convey used meaning practical reasonable were itself under surveill- ance Certainly as is the statute. national unions to be organized do not need to every or operating state of borrowing union. It seems to me arewe difficulties born of a desire to hold the statute unconstitutional rather than to “recognized” hold it constitutional. This word does not introduce the punzzlement comes from words like “wide”, “narrow” “cold”, “tall”, “hot” or “short” or great etc. arising nor the uncertainty out of a complex vague “oranges description frosted to the extent of endangering the industry”. reputation citrus There slight is a distinction between “national known” and “na- tionally adjective known” in that one limiting is an noun “union” adjective and the other an modify- adverbial ing adjective “known”, but I do not think the distinc- *12 of tion sufficient import merit further attention because brushing they aside thing. niceties come to the same The very given by illustrations give Mr. Justice Crockett an excellent clue to where the line legally between differen- tiable and non-differentiable Likewise, distinctions come. vagueness his illustrations of beyond give the allowable line a clue to what vague is and so as to not of permit reasonable application of the question. statute in
Turning now to a consideration of the contention that the unreasonably discriminatory, it must be in kept mind that neither the constitutionality nor the interpreta- tion of a statute can be determined in a vacuum. The de-
383 reference. made in a frame of proper termination must be management-labor dealing relations In with statutes usually must include an frame of reference examination of and extant at the socio-economic conditions problems act, of the and the industrial time mores passage gives Clearly, of the time. us an approach understand- ing question in the evils toward whcih the statute was and the which directed evils were deemed need of reme- dying. 8, 1937, evidently February question
On before the Act in (effective 16, 1937) became February effective date of Act making the Senate the United was in the States course investigation Congress its to S. Res. pursuant through the LaFollette Sub-Committee of the Committee of Education and Labor as to the resistance encountered unionizing industry labor an and the means employed breaking rendering unions and abortive their up efforts organize grow. and The Sub-Committee’s interim report breaking was with replete instances of strike specific laboring intimidation of men which followed the era in Act, Norris-LaGuardia 29 U. A. S. C. et § seq., injunction prevented resort to court on the side of management in a contest between owners and workers for advancement of the interests of the latter. See S. Report Congress, Congressional 1st Sess. Vol. I Part Record, to 956. Those pp. were still part or close on the heels of the era fight when labor was compelled to every advancement; of its when step strikes were out- by injunction theory, lawed on the as Justice Oliver Wendell said, right carry Holmes that the on business was viewed by the courts as struggle like real property estate. The went on in several fields —on the industrial front in shop factory; legislatures; in the and in the courts. And struggle this long industrial-labor was over a period of time bitter and no implacable, one can doubt who has reading Haymarket acquaintanceship riots in Chi- cago, the Pullman strike where men on a free labor market *13 wages aof dollar through want,
were, to accept compelled legislatures to restrict the day had to Resort was or less. advantage by ownership possessed the preponderating struggle, system thus hoping in this under the laissez-faire bar- success collective increase the potential to system. gaining under that of this concerned with the wisdom are not
As a court we legislation; pendulum to determine whether the we are not swung far; has now become the pre- whether labor too has belonging questions These party. ponderating domain. political it of reference as above seems supplied,
With the frame im- very at prevent that the evil aimed was probable into of men who were type this state portation workers, ordihary break- industrial but strike professional gangster thugs, “goons”, ers, from ofttimes recruited vigilante legisla- men, and even The ex-convicts. types thought into ture that the practice importing apparently community of men to upon it could be types prey discouraged register. requirement Perhaps day community this for the protection has when passed right strike, unquestioned, needed; now for the but question enacted, years the time the at was legislature ago, the deemed the practice which apparently at law was aimed called for the of that implementation registration law the concrete means of with Indus- longer needed, trial If Commission. the law is no it should But it should not repealed. be erased from books theory on the is unconstitutional if it can in reason be held constitutional. Legislature arbitrary
The did not set an up unreason- required able classification when “commencing employment person, corporation firm or whose employees are out on labor strike called a national register union Utah”, with the industrial commission of
385 requirement strike is called- when a but no such imposed recognized”. Presum- not “national unions which are legislation did ably was aimed not evil which the the at by smaller or local unions occur strikes were called when unions, or the evil existed in which are ofttimes company degree. argue, To the main opinion, lesser as does probably “smaller unions and smaller businesses would be more vul- upon the nerable to ills attendant violence or strike and would there- protection larger presumably fore more in of the be need than and powerful more ones” Legislature is beside the It is for the and not for point. the courts to how determine far beneficent protection legislation 12 should extend. In Am. Jur. 484 it is § stated: requirement regulation “There no constitutional must reach every might applied legislature class to it which be must —that
regulate merely all It or none. is not unconstitutional because it is all-embracing, not and does not all the include evils within its reach. relating “In the field of constitutional law extent to which legislation objects may pick corrective addressed, out the to which it is the rule is may against fundamental state direct its law what actually covering it deems the evil as exists without * * * possible dealing whole field of practical abuses. In exigencies, the'legislature may guided by experience. If the law presumably felt, hits the evil where it is most it is not to be over- thrown because might there are other instances to have been applied.” Illustrative of the above principles is the case Radice York, New U. S. Ct. S. 68 L. Ed. 690, in which the court considered a statute of New York prohibiting the employment women in restaurants in cities of the first and second class between the hours of night 10 o’clock at morning. and in o’clock It was there contended that equal statute contravened the protection clause the Fourteenth Amendment to the Con n stitution of (1) the United discriminating States be tween cities of the first and second and class other cities excluding (2) operation from its in and communities singers and performers, restaurants as in employed
women
as well as
and parlors,
cloak rooms
ladies’
in
attendants
dining
hotels and
and kitchens of
rooms
employed
those
solely
by employers
conducted
or restaurants
lunch rooms
holding
Said the court
employees.
of their
the benefit
constitutional:
classification
legislative prohibition
the first
to cities of
“The limitation
bring
arbitrary-
an unreasonable and
second
does
about
class
*15
140,
257,
Banton, 264 U. S.
44 Ct.
68 L.
S.
classification. Packard
v.
Hayes
February
1924;
Missouri,
[596],
18,
120 U.
S.
Ed.
decided
v.
68,
350,
there
in the conten
Ct.
L. Ed 578. Nor is
substance
7 S.
30
employees
special kind,
the
of a
tion that
exclusion
restaurant
lunchrooms,
employees’
renders
statute obnox
and of hotels and
the
present
The
not
case where
ious to
Constitution.
statute does
special restraint,
some
a class are selected for
from which
(Connolly
Pipe
class are left free
others
same
Unior Sewer
v.
Co.,
540, 564,
431,
679);
S.
22 Ct.
L.
184 U.
S.
46 Ed.
but a case where
in the
class of work are included in the
all
same
restraint.”
The court cited numerous
of classifications which
examples
decisions,
quoted
it has
and
upheld
prior
approval
language
following
373,
Wilson,
from Miller v.
236 U. S.
342, 344,
35 S. Ct.
387 manufacturing to for the any other kind issue steel order unless same purported of labor payment money of the its face value in lawful be redeemable for States, Said created an unreasonable discrimination. United court: «* * * y- js repeated established decisions that presumably evil, hitting where aimed at what is deemed an and it experience upset by thinking felt, up it be shows to most is not be enumerating might applied and other have been instances well, legislature equally so the court can see. That is for the fwr judge very Lindsley unless case is clear. v. Natural Carbonic Co., 81, 378; 61, 337, 369, Gas 220 U. Ed. S. 31 S. Ct. 55 L. Central Dakota, 160, 66, 157, Lumber Co. v. South U. S. S. Ct. 57 L. 164, 169; Pennsylvania, Ed. Patsone S. Ct. U. S. suggestion mining 58 L. Ed. The that other besides [539]. manufacturing companies may keep pay shops their workmen enough with orders on themselves for merchandise to over presumed throw legislature a law that must be deemed practical (Italics added.) co-extensive with the need.” Viewing the classification contained the statute in light question in of the above pronouncements from the States, Supreme Court of the United clear that *16 Legislature requiring registration in only of new employees recognized in cases where a “national union” was on strike deny equal did not of protection to other laws unions. having The statute years ago been enacted fifteen when management-labor very were problems different from those existing today, we will presume, in accordance with the discussed, authorities above against that the need to protect the importation of undesirable into persons this state to break only up strikes existed in cases in which “national recognized strike, union were [s]” on at or least that greater. need therefor was much It is not for the members say Legislature this court to that should have im- requirement the same posed when unions which are not “national union on [s]” strike.
It should be borne in strong mind that there is a pre- legislative sumption in favor of a classification and of legislature grounds on which of distinction legitimate acted. question, if is called in “Hence, in a law classification when the it, reasonably that would sustain can be conceived any state of facts enacted the law was of facts at time that state existence of 521. § 12 Am. Jur.
must be assumed.”
carry
must
in a statute
The
classification
assailant
showing
not
on
reason
that
it does
rest
the burden of
essentially arbitrary.
discrimina
basis,
Invalid
able
but
admitted;
Courts
it is not
proved
presumed.
tion must be
grounds
ingenious
searching
of distinc
for
need not be
Middleton v.
Power
Texas
to sustain a classification.
tion
227,