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Statement of the Case.

Without intimating anything inconsistent with the right of individuals to join labor unions, or questioning the legitimacy of such organizations so long as they conform to the laws of the land as others are required to do, held, that the individual has no inherent right to join a labor union and still remain in the employ of one who is unwilling to employ a union man any more than the same individual has a right to join the union without the consent of that organization. There may not be one rule of liberty for the labor organization or its members and a different and more restrictive rule for employers. The employé's liberty of making contracts does not include a liberty to procure employment from an unwilling employer or without a fair understanding. Nor may the employer be foreclosed by legislation from exercising the same freedom of choice that is accorded to the employé.

To ask a man to agree in advance to refrain from affiliation with the union while retaining a certain position of employment is not to ask him to give up any part of his constitutional freedom. He is free to decline the employment on those terms, just as the employer may decline to offer employment on any other; and, having accepted employment on those terms, the employé is still free to join the union when the period of employment expires, or, if employed at will, then at any time upon simply quitting the employment; and if bound by his own agreement to refrain from joining during a stated period of employment he is in no different situation from that which is necessarily incident to term contracts in general.

Constitutional freedom of contract does not mean that a party is to be as free after making a contract as before; he is not free to break it without accountability.

Freedom of contract, from the very nature of the thing, can be enjoyed only by being exercised; and each particular exercise of it involves making an engagement which if fulfilled prevents for the time any inconsistent course of conduct.

87 Kansas, 752, reversed.

THE facts, which involve the constitutionality under the due process clause of the Fourteenth Amendment of the statute of Kansas of 1909, making it unlawful for employers to coerce, require or influence employés not to join or remain members of labor organizations, are stated in the opinion.

Argument for Defendant in Error.

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Mr. R. R. Vermilion and Mr. W. F. Evans for plaintiff in error:

The statute amounts to deprivation of liberty and property without due process of law, and also to a denial of due process of law.

The statute is not a proper exercise of the police power.

In support of these contentions see, Adair v. United States, 208 U. S. 161; A., T. & S. F. Ry. v. Brown, 80 Kansas, 312; Coffeyville Brick Co. v. Perry, 69 Kansas, 297; Gillespie v. People, 188 Illinois, 176; Goldfield Mines Co. v. Goldfield Miners' Union, 159 Fed. Rep. 514; Lochner v. New York, 198 U. S. 45; People v. Marcus, 185 N. Y. 257; State v. Coppage, 87 Kansas, 752; State v. Daniels, 136 N. W. Rep. 584; State v. Julow, 129 Missouri, 163; State v. Kreutzberg, 114 Wisconsin, 530; Cotting v. Kansas City Stock Yards, 183 U. S. 112; Connolly v. Union Sewer Pipe Co., 184 U. S. 558; G., C. & S. F. Ry. v. Ellis, 165 U. S. 151; State v. Haun, 61 Kansas, 154.

Mr. John S. Dawson, Attorney General of the State of Kansas, and Mr. J. I. Sheppard for defendant in error:

The Kansas statute does not violate the Fourteenth Amendment but seeks further to guarantee and protect the privileges and immunities of citizens of the United States. In harmony with the Fourteenth Amendment, the State of Kansas has said, in effect, that employers must not attempt to abridge the privilege of their employés to affiliate themselves with labor unions or meddle with or deprive them of their liberty to affiliate with such unions. They must not attempt by coercion to deprive them of their property-their financial interest in the insurance provided for their wives and children by such labor union. The State of Kansas will not fold its hands and sit idly by while employers seek to oppress and coerce their employés and reduce them to a state of peonage. Nor will the State withhold from a poor switchman equal protection

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Argument for Defendant in Error.

of its laws. See §§ 5508-10, Rev. Stat., prohibiting conspiracies to oppress any citizen of the United States.

If all men are to be equal within the law, as provided for in the Fourteenth Amendment; if the laboring man is to be the equal of the corporate officer; if the wage earner is to be the equal of his employer; if the poor man is to be the equal of the rich man; if that amendment is not to be distorted into a rod of oppression, then the law under which this prosecution was based is in furtherance of that amendment and not in derogation thereof.

In Arthur v. Oakes, 11 C. C. A. 209, 24 L. R. A. 414, Judge Harlan in his opinion held that as a general rule it is the right of every man to work for whom and when he pleases, and when he is ready to quit the service of his company he may do so. But this right of contract to quit work is not unlimited, but has its recognized exceptions. One of the exceptions to this rule, that the employé may quit the service of his employer when he likes, is, that employés cannot combine and conspire to quit the service of an employer, when the object and manifest intention is to injure the business of the employer.

The law of Arthur v. Oakes is the law of every State today, so it will be seen that this right to dispose of one's labor and capital as one pleases, relied upon by the plaintiff in error, is not without its recognized exceptions.

If the law in Arthur v. Oakes, there applied in favor of the corporation, is to be here applied in favor of the labor organization and its members, then the Kansas statute is constitutional. The only way to declare the law in the present case invalid is to say that in the eyes of the law the corporation is superior to the labor union, the poor man's organization. This is not the equality spoken of in the Fourteenth Amendment. Coffeyville Brick Co. v. Perry, 69 Kansas, 297, is no longer recognized as Kansas law and it can be distinguished.

There are differences between chapter 120 of the Laws

Opinion of the Court.

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of Kansas of 1897, held unconstitutional in the Perry Case, and chapter 222 of the Laws of Kansas of 1903, which is herein questioned, to justify this court in upholding it; while the law of 1897 was rightly held unconstitutional in the Perry Case, the law here under review may be upheld as valid because the two laws are substantially different.

Similar cases, such as Doremus v. Hennessey, 176 Illinois, 608; State v. Julow, 129 Missouri, 163; Gillespie v. People, 188 Illinois, 176; Zillmer v. Kreutzberg, 114 Wisconsin, 530; People v. Marcus, 185 N. Y. 257; Adair v. United States, 208 U. S. 175; Mines Company v. Miners' Union, 159 Fed. Rep. 514, can be distinguished.

MR. JUSTICE PITNEY delivered the opinion of the court.

In a local court in one of the counties of Kansas, plaintiff in error was found guilty and adjudged to pay a fine, with imprisonment as the alternative, upon an information charging him with a violation of an act of the legislature of that State, approved March 13, 1903, being Chap. 222 of the session laws of that year, found also as §§ 4674 and 4675, Gen. Stat. Kansas 1909. The act reads as follows: "AN ACT to provide a penalty for coercing or influencing or making demands upon or requirements of employés, servants, laborers, and persons seeking employment. "Be it Enacted, etc.:

"SECTION 1. That it shall be unlawful for any individual or member of any firm, or any agent, officer or employé of any company or corporation, to coerce, require, demand or influence any person or persons to enter into any agreement, either written or verbal, not to join or become or remain a member of any labor organization or association, as a condition of such person or persons securing employment, or continuing in the employment of such individual, firm, or corporation.

"SEC. 2. Any individual or member of any firm or any

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Opinion of the Court.

agent, officer or employé of any company or corporation violating the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not less than fifty dollars or imprisoned in the county jail not less than thirty days."

The judgment was affirmed by the Supreme Court of the State, two justices dissenting (87 Kansas, 752), and the case is brought here upon the ground that the statute, as construed and applied in this case, is in conflict with that provision of the Fourteenth Amendment of the Constitution of the United States which declares that no State shall deprive any person of liberty or property without due process of law.

The facts, as recited in the opinion of the Supreme Court, are as follows: About July 1, 1911, one Hedges was employed as a switchman by the St. Louis & San Francisco Railway Company, and was a member of a labor organization called the Switchmen's Union of North America. Plaintiff in error was employed by the railway company as superintendent, and as such he requested Hedges to sign an agreement, which he presented to him in writing, at the same time informing him that if he did not sign it he could not remain in the employ of the company. The following is a copy of the paper thus presented: Fort Scott, Kansas,

1911.

Mr. T. B. Coppage, Superintendent Frisco Lines, Fort Scott:

We, the undersigned, have agreed to abide by your request, that is, to withdraw from the Switchmen's Union, while in the service of the Frisco Company.

(Signed)

Hedges refused to sign this, and refused to withdraw from the labor organization. Thereupon plaintiff in error, as such superintendent, discharged him from the service of the company.