law looks with favour upon membership in such organisations for common industrial betterment, the Legislature of Kansas had the right to forbid attempts to coerce an unwilling employé to agree to forego the exercise of his wholesome legal right of membership, even to the point of refusing him employment or continued employment at all unless he was willing thus to agree not to do what he lawfully and desirably might do, in the exercise of his supposedly assured rights.

The reasoning of the opinion concurred in by Justice Hughes is interesting, as expressive of a broad and modern outlook upon industrial relationships:

That the right of contract is a part of individual freedom within the protection of this (Fourteenth) amendment, and may not be arbitrarily interfered with, is conceded. While this is true, nothing is better settled by the repeated decisions of this court than that the right of contract is not absolute and unyielding, but is subject to limitation and restraint in the interest of the public health, safety and welfare, and such limitations may be declared in legislation of the State. . . . Whether a given exercise of such authority transcends the limits of legislative authority must be determined in each case as it arises. The preservation of the police power of the States, under the authority of which that great mass of legislation has been enacted which has for its purpose the promotion of the health, safety and welfare of

the public, is of the utmost importance.

Of the necessity of such legislation, the local legislature is itself the judge, and its enactments are only to be set aside when they involve such palpable abuse of power and lack of reasonableness to accomplish a lawful end that they may be said to be merely arbitrary and capricious, and hence out of place in a government of laws and not of men, and irreconcilable with the conception of due process of law. . . . By this it is not meant that the legislative power is beyond judicial review. Such enactments as are arbitrary or unreasonable and thus exceed the exercise of legislative authority in good faith, may be declared invalid when brought in review by proper judicial proceedings. This is necessary to the assertion and maintenance of the supremacy of the Constitution. ....

The question now presented is, May an employer, as a condition of present or future employment, require an employé to agree that he will not exercise the privilege of becoming a member of a labour union, should he see fit to do so? In my opinion, the cases are entirely different, and the decision of the questions controlled by different principles. The right to join labour unions is undisputed, and has been the subject of frequent affirmation in judicial opinions. Acting within their legal rights, such associations are as legitimate as any organisation of citizens formed to promote their common interest. They are organised under the laws of many States, by virtue of express statutes passed for that purpose, and, being legal,

and acting within their constitutional rights, the right to join them, as against coercive action to the contrary, may be the legitimate subject of protection in the exercise of the police authority of the States. This statute, passed in the exercise of that particular authority called the police power, the limitations of which no court has yet undertaken precisely to define, has for its avowed purpose the protection of the exercise of a legal right, by preventing an employer from depriving the employé of it as a condition of obtaining employment. I see no reason why a State may not, if it chooses, protect this right, as well as other legal rights. . . . It is urged that a labour organisation—a voluntary association of working-men-has the constitutional right to deny membership to any man who will not agree that during such membership he will not accept or retain employment in company with non-union men. And it is asserted that there cannot be one rule of liberty for the labour organisation and its members and a different and more restrictive rule for employers. . . . An analogous case, viewed from the employer's standpoint, would be: Can the State, in the exercise of its legislative power, reach concerted effort of employés intended to coerce the employer as a condition of hiring labour that he shall engage in writing to give up his privilege of association with other employers in legal organisations, corporate or otherwise, having for their object a united effort to promote by legal means that which employers believe to be for the best interest of their business? .

I entirely agree that there should be the same rule for employers and employed, and the same liberty of action for each. In my judgment, the law may prohibit coercive attempts, such as are here involved, to deprive either of the free right of exercising privileges which are theirs within the law. . . . The penalty imposed is not for the discharge but for the attempt to coerce an unwilling employé to agree to forego the exercise of the legal right involved as a condition of employment. It is the requirement of such agreements which the State declares to be against public policy.

I think that the act now under consideration, and kindred ones, are intended to promote the same liberty of action for the employé as the employer confessedly enjoys. The law should be as zealous to protect the constitutional liberty of the employé as it is to guard that of the employer. A principal object of this statute is to protect the liberty of the citizen to make such lawful affiliations as he may desire with organisations of his choice. It should not be necessary to the protection of the liberty of one citizen that the same right in another citizen be abridged or destroyed.

Out of the atmosphere, and with the advantage of a leisurely examination of both opinions, the minority declaration does not seem a notably cordial acclaim and acceptance of the doctrine or the holding of the Adair case.

CHAPTER VIII

THE RIGHTS AND INDUSTRIAL STATUS OF WOMEN

JUSTICE HUGHES had been on the bench about two weeks when there was presented a vital question as to property rights of married women, at common law and under the enlightened statutes which have in recent years been passed as steps towards emancipating the wife from the common-law concept of the merger of her legal existence in that of her husband. The question was, in substance, whether in the District of Columbia, under the statute passed by Congress in 1901, a married woman was empowered, not only to sue others in her own right for redress for wrongs done to her person or her property, but also to maintain an action against the man to whom she was still joined in marital bond, to recover damages for an assault and battery committed by him against her.

The wife who sought to sue her well-to-do spouse was named Thompson. She charged that she had been brutally beaten on seven different days, separated in point of time. On four of these occasions on which she was the victim of force and violence, she said that she