1 of wages paid in employment? Is there not a precedent in the Ohio case 1 in which this Court held constitutional the fifty-four hour for women in industry," and also, it may be added, in the California case,2 in which, in the very month following this colloquy, Mr. Justice Hughes held constitutional a limitation of women's work-day to eight hours and their work-week to forty-eight hours? Hawley vs. Walker (232 U. S. Reports, page 718). CHAPTER VII COMPELLING CHOICE BETWEEN WITHDRAWAL FROM TRADES-UNION MEMBERSHIP AND DISCHARGE FROM EMPLOYMENT SEVERAL years before Governor Hughes became Justice Hughes, the Supreme Court had held that, even as it was the constitutional right of an employé to join or refrain from joining a trades-union and the constitutional right of the employer to hire or refrain from hiring union or non-union workmen, so it was the constitutional right of a union employé to quit the service of an employer who hired non-union men and the right of the employer to discharge an employé because of the latter's membership or non-membership in a trades-union. In the Adair case,1 it was ruled that the constitutional guaranties of freedom of contract render invalid a Congressional statute by which it was sought to make it a crime against the United States for an interstate carrier to discharge an employé because of his membership in a labour organisation. In 1914, the question arose as to the validity 1 Adair vs. U. S. (208 U. S. Reports, page 161). of a Kansas statute, of a kind already held invalid by the New York Court of Appeals,1 whereby it was made a misdemeanour for any employer "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 labour organisation or association, as a condition of such person or persons securing employment or continuing in the employment of" such employer. The majority of the Supreme Court thought that this statute was unconstitutional.2 They urged that the invalidity of this enactment was an inevitable corollary of the decision in the Adair case. As they saw it: Under constitutional freedom of contract, whatever either party has the right to treat as sufficient ground for terminating the employment, where there is no stipulation on the subject, he has the right to provide against by insisting that a stipulation respecting it shall be a sine qua non of the inception of the employment, or of its continuance if it be terminable at will. As in the Adair case, the majority looked upon the right to labour, and the right to make contracts respecting employment, as property rights. Labour was viewed essentially as a "commodity," just as any of its products in 'People vs. Marcus (185 N. Y. Reports, page 257). 'Coppage vs. Kansas (236 U. S. Reports, page 1). the market, and the right to work and gain a livelihood therein was looked upon as a property right, standing in an economic and legal relation not distinguishable from that of ordinary articles of commerce. The majority said: Included in the right of personal liberty and the right of private property-partaking of the nature of each-is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labour and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established Constitutional sense. The prevailing opinion denied that it was within the power of the State to declare that "Coppage, the plaintiff in error, is a criminal punishable with fine or imprisonment under this statute simply and merely because, while acting as the representative of the Railroad Company and dealing with Hedges, an employé at will and a man of full age and understanding, subject to no restraint or disability, Coppage insisted that Hedges should freely choose whether he would leave the employ of the Company or would agree to refrain from association with the union while so employed.' What Justice Hughes thought of the Adair case and what he would have done and said had he been a member of the Court at the time it was decided, has never been disclosed; but he at least did not think well of a probably logical extension of its doctrine to the Coppage case, and was unable to give assent to the proposition that the legislature of a State might not, in its discretion, forbid an employer to require an employé to agree affirmatively not to join or become or remain a member of a tradesunion during the period of his employment, as a condition of such person being permitted to become or remain an employé of the employer insisting upon such a condition precedent of employment. Justice Holmes dissented from the majority ruling, in a compact memorandum which reiterated the views many times expressed by him, in the Supreme Court and in the Massachusetts court. Justice Day and Justice Hughes likewise dissented, and the former prepared a memorandum1 which expressed the views in which the latter concurred. Justice Day and Justice Hughes were unable to indorse the majority conclusion that a right to require any such agreement from trades-union employés, even on penalty of discharge or refusal to hire, was essential to the assured mutual freedom of contract on the part of both employer and employed. They contended that inasmuch as men had the right to choose freely whether they would join trades-unions and inasmuch as the 1Coppage vs. Kansas (236 U. S., page 27). |