, 1

TEE A-~~ORNEY GENERAL

OF TEXAS

Honorable Sidney Lathem Secretary of State Austin, Texas

Dear Sir: OpinionNo. O-5196 Re: ConstitutionalityofH.B. 100, 48th. Legislature,Reg. Sess., regulating laborunions.

We acknowledge receipt of your letter of April'6, 1943, requesting an opinion on the validityunder the State and Federal Constitutions of H.B. No. 100 relating to the regulation of laborunions in this State. This bill has recently been enacted into law and we take it that your inquiry is directed primarily to determiningwhat your duties as Secretary of State
are under this law.

The only provisions of the Act which involveyour office or the exercise of duties by you are Sections 1,2,3,5,and 6. Section 1 declares the public policy of the State to be that laborunions "affectthe public interest and are charged with a publicuse." Section 2 contains a definition of terms contained in the Act, including the term "laborunion" which is' defined as "everyassociation,group,union, lodge, local, branch, or subordinateorganizationof any union of working men, incorporatedor unincorporated, organlsed and existing for the purpose of protecting themselves,and improving their working conditions,wages or employmentrelationships in any manner, but shallnot include associat;ons or organizations not commonly regarded as laborunions. Section 3 provides for the filing of reportswith the Secretary of State, containing certain enumerated informationregarding the laborunion and its organization. SectIon 5 requires that union organizers have an organizers'cardwhich is to be issuedby you as Secretary of Stateupon written application filed in compliancewith the Act. Section 6 requires laborunions to file with you all working agreements containinga "checkoff" provision,whereby the employer is authorized to and agrees to deduct union dues and other collections from the workers' check or salary and turn such sums over to the laborunion.

We will now considerSection 1 of the Act and in that connection the constitutionalpower of the Legislature to pass laws regulating laborunions. This is a relativelynew fieldHon. Sidney Latham - page 2 o-5196

of legislation. The firstmajor legislation on the subject in this countrywas the National Labor Relations Act of 1935 (29U,S.C,A. Sec. 151, et seq.) commonly called the Wagner Act, the validity ofwhich was upheld by the Supreme Court of theUnited States InNational Labor Relations Board v. Jones & Laughlin Steel Corp. (1937) 301U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615, 108 A.L.R. 1352.

The Legislature of the State of Wisconsin passed a Wisconsin Labor Relations Act modeled after the Federal Act and the WisconsinAct,has been held constitutional. Wisconsin Labor Relations Board v. Rueplng 'LeatherCo. 228 Wis. 473; 279 N.W. 673. In that case it was poil;tted out that the power of the State to pass such 1egislatFon power" is based upon the police

while the power of the Federal Government 'todeal with the same subject is groundedupon and limitedby the commerce clause." The Wisconsin Supreme Court concludes that the Feaera1 Labor Relations Act does not prohibit State legislation
on the same subject. The Court said:

"The State may, therefore, regulate labor relations in the interest of the peace, health, and order of the State, and the Federal Governmentmay regulate this relationship to the extent that unregulated it tends to obstruct or burden interstate commerce. Obviously,a possibility of conflict between these powers exists only as to the portion of the fieldwith which Congress has competency to deal. In the absence of a Federal statute eitherdealing with or preempting the field, the police power of the State has full operation,providedno undue or dlscrimLnatoryburdens are put upon interstatecommerce." 279 N.W. po 676.

See, also,Allen-Bradley LocalNo. 1111,United Electrical,Radio & MachineWorkers of America et al v. Wisconsin Employment Relations Board et al (1941j237 Wis. 164, 295 N.W. 791,where itwas held that t:he Wisconsin Employment Peace Act, enacted in 1939,was not in conflictwith the National Labor Relation Act.

The right of State regulation consistentwith Federal Law was announcedby the Supreme Court of Illinois in the case of Fansteel Metallurgical Carp, v. Lodge 66 ofAmalga ted Ass'n of Iron, Steel & Tin Workers ofNorth America, et al 1938) 295 Ill.App, 323, 14 N.E. (2d) 991. F

The State ofNew York has a State Labor Relations Act (N-Y.Laws 1937, C 443, amending Labor Law, Consol.Laws, C31) the constitutionalityof which has been upheld by the highest.

Hon. Sidney Latham - page 3 o-5196

court of that State. Davega City Radio v. State Iabor Relations Board (1939) 281 N.Y. 13, 22 N.E. (2d) 145.

The State of Massachusettshas a State Labor Relations Act (Mass.Gen Laws, (Ter.Ed.) C 150 A, amended St. 1938 C. 345,which has the same policy as the National Labor Relations Abt, and which'the Supreme Judicial Court of Massachusetts has held Is a valid exercise of State Legislative power. R.H. White Co. v. I%n?phy, et al (1942) 38 N.E. (2d)685.

The power of the states to regulate employersand employees and their activities insofaras such activities affect the economicand generalwelfare has been sustainedunder the State and Federal Constitutionsas a proper exercise of the police power reserved to each State. InFenske Bros. v. Upholsterers' InternationalUnion (1934) 358 Illinois 239, 193 N.E. 112, 97 A.L.R. 1318, the Anto-injunction Law of The State of Illinoiswas attacked as a violation of the Fourteenth Amendment of the Federal Constitution. Inupholding the validity of that statute the Supreme Court of Illinois said:

I'It iswell settled that the Legislaturemay, In the exercise of the police power of the state, enact those
measureswhich have a tendency to promote the public comfort, health, safety,morals, or welfare of society. Massie v, Cessna, 239 Ill. 352, 88 N.E. 152, 28 L.R.A. (N.S. 1108, 130Am. St. Rep. 234; Condon v. Village of Forest Park, 278 111. 218, 115 N.E. 825, L.R.A. 1917E, 314. The police power Is considered capable of development and modificationwithin certain limits, so that the powers or governmental controlmay be adequate and meet changing social and economic conditions. The power is not circumscribedby precedents arising out of past condltlons,but is elasticand capable of expansion in order to keep pace with human progresse It is not a fixed quantity,but It is the expression of social, economic,and political conditions. People v. John Doe of Rosehill Cemetery, 334 111. 555, 166 N.E. 112; State PublicUtilities (CC?. v. City of Quincy, 290 Ill. 360, 125N.E. 0 In the exercise of this power, the Legislature may enact laws regulating, restraining, or prohibiting anything harmful to the welfare of the people,
even though such regulation, restraint, or prohibition interfereswith the liberty or property of an individual. Neither the Fourteenth Amendment to the Federal Constitutlonnor any provision of the Constitution of this statewas designed to interferewith the police power to enact and enforce laws for the protection of the health,peace,morals, or general welfareHon. Sidney Latham - page 4 o-5196

of the people. Powell v. Pennsylvania, 127 U.S. 678,, 8 S. Ct. 992, 1257, 32 L. ed. 253; People v. Anderson, 355 Ill. 289, 189N.E. 338; Town of Chancy'sGrove v. Van Scouoc, 357 Ill, 52, 191 N.E. 289."

In the recent case of Carpentersand JoinersUnion of America, Local No. 213, et al v. Ritter's Cafe (1942) 315 U.S. 722, 62 St. Ct. 807, 86 L. Ed. 11&3etaafiirming 149 S.W. (2) 1694, errorrefused, the question involved the right of peacefulpicketing of an employer'srestaurantwhen the labor dispute involved the issue of employmentof nonunion labor on a buildingwhich was being constructed for the
same employerat a point a mile and one-half away." The contract for constructing the building gave the contractor the right to-make his own arrangementsregarding the employment of labor, and notthe restaurant owner. In'upholdingan injunction prohibiting the picketing of the restaurant, the Supreme Court of the United State, speaking through Mr. Justice Frankfurter, said:

"Wemust be mindful that "theright of employersand employees to conduct their economic affairs and to competewith others for a share in the products of industry are subject to modification
or qualification in the interests of the society in which they exist. This Is but an instance of the Dower of the State to set the limits of Dermissible hontest open to industrial combatants.'Thornhill v. Alabama, 310u.s, 88, 103, 104, 60 s, ct, 84 L. Ed. logjo 736, 745,

"It is not forus to assess the wisdom of the policy underlying the law of Texas. Cur duty is at an endwhen we find that the Fourteenth Amendment does not deny her the power to enact that policy into law."

The case of Tigner v, Texas, (1940), 310U.S. 141, 149, 60 ST. Ct. 879, 84 L. Ed, 1124, rehearing denied 310U.S. 659, 60 S, Ct. 1092, 84 L. Ed. 1422, affirming 132 S-W. (2) 885, 139 Cr. R. 452, involved the validity of the Texas Anti-trust statute. (Art, 1642,Vernon's Annotated Penal Code). The law was attacked on the ground that it violated 'the equal protectfon of the laws" clause of the FourteenthAmendment in that it did not "applyto agriculturalproducts or livestock in ,the

hands of the producer or raiser. The Supreme Court of the United Statesupheld the validity of the law and concluded that "towrite into law the differencesbetween agriculture and other economicpursuitswas within the power of the Texas Legislature,"Hon. Sidney Latham - page 5 o-5196

This power of regulation and supervisionhas been extended to unincorporated associations or societies. People of the State ofNew York ex rel. GeorgeW. Bryant v. Charles F. Zimmerman, et al (1926)241 N.Y. 405 150 N.E. 497, 43A.L.R. 909, affirmed 278 U.S. 63, 73 L. Rd. 184, 63 Sup. Ct. 84. The State of New York had a statuterequiring "every .existing membership corporation,and every existingunincorporated~ associationhaving a membership of twenty or more persons, which corporation or association requires an oath as a prerequisite or condition of membership, other than a labor union or a benevolent order mentioned in the benevolent orders Law" to file "with the Secretary of State a sworn copy of its constitution,by-laws, rules, regulations and oath of membership, togetherwith a roster of itsmembership and a list of its officers for the current year "andproviding for penalites. A member of the Ku Klux Klan was prosecuted for knowinglybeing a member of an organizationwhich had not complied withthe law. The constitutionalityof the Act was attacked on the ground that it violated the "privilegesand immunities"provision, "thedue process of law" provision and "the equal protection of the law" provision of the Fourteenth Amendment. The Courtdismissed the first contention as not involvinga Federal right, the right of joiningand remaining
a member of an organizationbeing "an incident of State rather thanUnited States citizenship. As to the second contention the court said"

"Therelator's contentionunder the due process clause is that the statutedeprives him of liberty in that itprevents him from exercising his right of membership in the association. But' his liberty in this regard, like most other personal rights, must yield to the rightful exertion of the police power. There can be no doubt thatunder that power the statemay prescribe and apply to associations having an oath-boundmembershipany reasonable regulation calculated to confine their purposes and activitieswithin limitswhich are consistentwith the rights of others and the publicwelfare. The requirement in Sec. 53 that each association shall filewith the secretary of state a sworn copy of the constitution,oath of membership, etcwith a list of members and officers, is such a regulation. It proceeds on the twofold theory that the statewithin whose territoryand under whose protection the association exists is entitledto be informed of itsnature and purpose, of whom it is composed and by whom Its activities are conducted,and that requiring this informationto be supplied for the public files will operate as an effective or substantialdeterrent from the violations of public and private right to which the, -

Hon. Sidney Latham - page 6 o-5196

associationmight be tempted if such a disclosurewere not required. The requirement is not arbitrary, or oppressive,but reasonable and likely to be of real effect

. . .
As to the third contention the Court said:

"Themain contentionmade under the equal protection clause is that the statutediscriminates against the Knights of the Ku Klux Klan and other associations in that it excepts from its requirements severalasso,- ciations having oath bound membership, such as labor unions, the Masonic fraternity, the IndependentOrder of Cdd Fellows,the Grand Army of the Republic and the Knights of Columbus

. . .I'

"We think it plain that the action of the courtsbelow in holding that therewas a real and substantialbasis for the distinction made between the two sets of associations or orderswas right and should not be disturbed.

"Criticismis made of the classification
on the furtherground that the regulation is confined to associations having a membership of twenty or more persons. Classificationsbased on numbers is not necessarilyunreasonable. There are many instances inwhich it has been sustained. We think it not unreasonable in this instance. With good reason the legislaturemay have thought that en association of less than twenty personswould have only a negligible influenceand be without the capacity for harm that would make regulation needful."

As to the broad power of the Texas Legislature to make classificationsfor legislativepurposes, see Miller et al. v. El Peso County (1941) 136 Tex, 370, 150 S.W. (2) 1000.

It is no longer necessary as a basis for State regulation for the business or activity to be "affectedwith a public interest" In the sense that the public as e whole has a direct interest or share in the activity or business. A Nebraska statute (Neb. Comp. St. 1929 Sec. 48-528) fixingmaximum fees to be chargedby private employmentagencies, requiring the issuanceof receipts to applicants end e return of fees in the eventno employmentwas obtainedwas upheld recently by the Supreme Court of theUnited States. Olsonv. Nebraska (1941) 313U.S. 236, 85 L. Ed. 1305, 61 Sup. Ct. 862, 133A.L.R. 1500, In that case the Supreme Court referring to businesses "affectedwith a public interest" said:Hon. Sidney Latbam - page 7 o-5196

"Itwas said to be so affected if it had been devoted to the public use' and if 'aninterest in effect' had been granted 'tothe public in that use.' ;F;i.kC;. McBride, supra (277U.S. 355, 72 L. ed. 915,

. . 545, 56 A.L.R. 1327). That test, lebelledby Mr. JusticeHolmes in his dissent In the Tyson case A27zTU.S. at p. 446, 71 L. ed. 729, 47 S. ct. 426, 58

. 1236) as 'littlemore than a fiction,'was discarded'inNebie v. New York, supra (291U.S. pp. 531- 539, 78 L. Ed. 958, 958, 54 s. Ct. 505, 89 A.L.R. 1469). Itwas there stated that such criteria 'arenot susceptible of definition and form an unsatisfactory test of the constitutionalityof legislationdirected et business practices or prices,' and that the phrase 'affectedwith a public interest'canmean 'nomore than that en industry, for adequate reason, Is subject to control for the public good.' Id. 291 U.S. p. 536, 78 L. ed. 956, 54 S. Ct. 505, 89 A.L.R. 1469. And see the dissenting opinion inRibnik v. McBride, supra (277 U.S. et p. 359, 72 L. ea. 916, 48 S. Ct. 545, 56 A.L.R. 1327."

The Supreme Court of Texas no doubt considered the authority of the Legislature to act in the furtherance of the generalwelfare inupholding the constitutionalityof theUnemployment CompensationAct (Arts. 5221b-1 to 5221b-22,Vernon's Ann. Civil Statutes) althoughbasing the opinion on the State's taxing power. Friedman v. American Surety Co. of New York, et al (1941) 137 Tex, ,149,151 S.W. (2) 570.

In Exparte Frye (1941). 156 S,W. (2) 531 our Court of CriminalAppeals upheld the anti-violence statuterelating to labor disputes (Art. 1621~,Vernon's Ann. Penal Code) against the charge that It violated the constitutionalguarantee of "equalprotection of the law", "freedomof assembly" and other provisions of our State and Federal Constitutions.

We have considered the case of St. Louis Southwester Ry. Co. v. Griffin (1914) 106 Tex, 477, 171 S.W. 703, L.R.A. 1917B, 1108 in which the Supreme Court ofTexas held the "BlacklistingStatute" (GenLaws, 1908, Ch. 89 p. 160unconstitutional,but we do not believe that the decisionwill control any of the questions of constitutionalityunder H.B. No. 100.

In H.B. 100 the Legislature has recited certain facts and stated that "it Is herenow declared to (be) the policy of the State, in the exercise of its sovereign constitutional police power, to regulate the activities and affairs of labor unions, their officers,agents, organizersand other representatives." This declaration of policy on behalf of the StateHon. Sidney Lathem -page 8 o-5196

and the finding of facts authorizing such

### a declaration are 

### matterspeculiarlywithin the province of the Legislature. Harris Count Flood ControlDlst. v. Mann (1940) 135 Tex. 23 140 S.W. (2dy log89 (1914 , Johnson v. Elliott, Tax Collector Tex. Civ..App. 168 S.W. 968, error refused. Black v. Hirsch (1921) 246 U.S. 135, 65 L. ea. 865, 41 Sup. Ct. 458, 16A.L.R. 165.

Upon a consideration of the foregoingauthorities it is our opinion that the Act as a whole is within a fieldwhich is subject to regulation by the Legislatureunder the exercise of the State's police power.

The definition of a laborunion as contained in Sec. 2~(b)of theAct may upon first examinationappear to be uncertain but in our opinion the definition isnot subject to this objection. The first part of the definition specificallyenumerates the various generic terms by which organizationsof this nature may be known and includes such associationswithin the meaning of the term "laborunion" when they are "organized and existing" for definitely specifiedpurposes, towit: of protecting themselves, and improving their working conditions, wages, or employmentrelationships in any manner." This is in substance the meaning of a laborunion as commonlyknown and understood, and with slightvariation in wording is the' definition ordinarilygiven by the courts. See Words & Phrases PermanentEd, Vol 24, 'LaborOrganization"p. 74 and pocket ;;rtl,P~

17. "laborUnion p* 77 and pocket part p. 18;Vol. Trade Union" p. 209. See alsoArticle 5152,R.C.S. 1925 which was first enacted in 1899. The last clause, "but shall not include associations or organizationsnot commonly regarded as laborunions" does not render the definition ambiguous. As pointed out above, those organizations included in the definition are as a matter of fact commonly regarded as labor unions and this clausewas no doubt added by the Legislature through an abundance of precaution.

Section 3 of the Act makes no more stringentrequirements of laborunions than those involved in the New York Statute which applied to otherunincorporated associations and whose validitywas sustained in the case of People of the State of New York ex Rel, George W. Bryant v, Charles F. Zimmermann, et al (1926)241 N-Y. 465 150 N.E, 497, 43A.L.R. 909, affirmed 278 u.s, 63, 73 L. Ed. 184, 63 sup. Ct. 84.

Section 5 of the Act which provides for the issuance of Identificationcards to labor organizers is in our opinion
a reasonable exercise of the police powerby the Legislature. Provisions of somewhat similar nature are found In a number of the regulationsby the State under the police power such asc

.

Hon. Sidney Latham - page 9 o-5196

solicitors or agents for insurance companies,real estate dealers, and dealers end salesmenunder the SecuritiesAct.

Sections 12 et seq. of the Texas SecuritiesAct (Art. 

### 600a,Vernon's Ann. Civ. St.) require the registration of salesmen and dealers in securitiesand make it unlawful for persons not registered as dealers or salesmen to sell or offer for sale securities in this State. Such provisions have been upheld by the Texas Courts.

In affirming a conviction for selling securitieswithout having been registered, the Court of CriminalAppeals in Atwood v. State (1938) 121 S.W. (2) 353 held that such legislation camewithin the police power in the following language:

"Itwas within the police power of the Legislature to constrain the conduct of dealers in securitiesto the end that the public might be protected against the imposition ofunsubstantial schemes and securitiesbased unon them". Hall v. Geiger-Jones Co. 242U.S. 539, 37 S. Ct. 217, 220, 61 L. Ed. 480, L.R.A. 1917F, 514,Ann. Cas. 1917 C, 643."

A similarholdingwas made in Smith v. Fishback (T.C. A. 1938) 123 S.W. (2) 771, at 778-779, and the Texas Supreme Court sustained such exercise of the pol-Jce power in Kedane

v. Clerk (1940) 143 S.W. (2) 1370

The apparent purpose of the Legislature in enacting the provisions of the Act now under considerationwas to protect the public from the impositions,misrepresentationsor fraud of unscrupulous and unauthorized personspurporting to act in the name of and as the duly authorized representstions of legitimate organized labor. This sectionprovides a means of establishingthe identity,affiliations andcredentials of those who hold themselves out as laborunion organizers. Not 

### only is it for the protection of the public but it is designed to afford protection to the union to the end that persons purporting to act for it are in fact its bona fide representatives.

We find no constitutionalobjectlon to Section 6, providing for the filing of working agreementswiththe Secretary of State,but on the contrary such regulationmay be supported
on the basis of the principles enumerated in the cases hereinabove discussed at greater length.

The sectionsmentioned cover all portions of the Act which relate to any duties or responsibilities imposed on the Secretary of State and in our opinion these provisions areHon. Sidney Latham - page 10 

### o-5196

constitutional. Even though some of the other sectionsmay be invalid, it is the well establishedrule in this State that an Act will not be held invalidas a whole if the invalidportion3
are severable from that which remains, 30 that they are complete within themselves and are capable of being executed in accordancewith the apparent legislative Intent,wholly inde; pendent of thatwhich is rejected. 9 Tex. Jur. 

### 472,474,Sets. 

### 55, 56 and cases cited therein. The Act by its own terms provides that "ifany section or part whatsoever

. . . shall be held to be invalid

. . s such invalidity shall not affect the remaining portions thereof *0...flSection 

### 15,H.B. No. 100. Upon considerationof the Act as a whole it Is our opinion that the sectionspertaining to the duties and responsibilities of the Secretary of State are severable from the remainder of the act and are valid and enforceableregardless of the validity of the remaining sections.

There are other sections of this Act, however,which present serious constitutionalobjections and we consider ft proper at this time to express our views thereon.

Section 4 of theAct provides:

"Sets

### 4. Officers. All officers, agents, organizers,and representatives of such labor union shallbe electedby majority vote of the members present and participating;provided, however, that laborunions, if they 30desire, may require more than a majority vote for election of any officer, agent, organizer of representative, and may take any such vote to the entire membershipby mailed ballots. Such election shallbe held at least once eachyear, and the determination takenby secretballot, of which election the membership shallbe given at least
seven 

### (7)days' notice by written or printed notIcemailed to the member's last known address, or by posting notice of such election in a place public to themembership, or by announcement at a regular statedmeeting of the union, which ever ismost convenient to the union. The result of such electionwhen held shallbe ascertained and declared by the presldent and the secretaryat the time in the pre3ence of the members or delegates participating.
"Provided,the requirement for annual elections herelnmade, or the methods of holding same, shall not apply to any laborunion thatHon. Sidney Latham - page 11 o-5196

for four (4)years prior to the effectivedate of the law shall have held its elections for officers,delegate3 and the like representatEve3 less frequentlythan annuallybut which have held such election8 either every three (3) year8 or every four(b) yearsunder their constitution,bylaws, or other organizationrules, and which unions have during the last ten (10) years charged not more than Ten Dollars ($10) initiation fee to members."

The requirements of this section,briefly stated, are that all unions shall:

1. Elect their officers, agents, organizers&-&representativesby majority vote of the members present and, participating.

2. Hold elections for suchpurposes at least once a year.
3. Take the vote of their membersby secretballot.

4. Give at least sevendays written notice of the holding of such election to eachmember.

50 Declare the result of the election in the presence of the members participating.

It has been said that the police power of the State extends to all the great publicneeds, and that the liberty of the individualmust yield to reasonable regulation In the interest of the public health, safety,welfare, and morals. None of the liberties vouchsafedand protectedby the Constitution of the State and of the United States are absolutes. Where a legitimatepublic interest is involved, each of such libertiesmust be subject to reasonable regulation to the extent that the interest of the public may require. Even 80 specifica constitutionalguaranty as that of free speechdoes not grant an absolute immunity from all restraint. Any other doctrinewould transform liberty into license and utterly destroy the effectivenessof any organized civil government.

This does not mean that the liberties of the individual may be impingedupon OP destroyed at will. The interest involved of organized societymust be sufficientto justify, reasonably, curtailing the liberties of the individual in the
manner and to the extent involved. Unreasonable or oppressive regulation i3 not tolerated,under our Constitution.Honorable Sidney Latham, page 12 o-5196

We think it cannot be plausibly contended that the regulation of laborunion8 embodied in Section 4 violates these principles. The purpose of the section is fairly apparent. It is designed to insure that the members of labor organization3 shallbe afforded reasonable opportunity to exert a continuing control over the functioning of.their organization. The means provided for this purpose are fair and reasonable,not arbitrary
or oppressive,and are fairly calculated to achieve an end soughtby the Legislature. Likewise, it cannot be said~that the public has no sufflclent interest to justify such regulation. It ismatter of common knowledge that labor union8 are in position to, and do, exert a tremendous influenceupon matters directly affecting the economicwelfare of the people at large, No less are they in position to exert a considerable control over theirmembers in matters directly affecting their economicwelfare. In view of these considerations,we think it clear that the State ha8 a sufficient interest in their operations to justify its requirements reasonablydesigned and calculated to insure control, continuing in nature, over the affair8 of their organizationby a majority of the union membership.

It follows that Section 4 13 not, in our opinion,unconstitutional on the ground that it is an unwarranted or unreasonable invasion of the liberties of these regulated by its terms. Nevertheless, the entire sectionmust fall, for
reasons which will be statedbelow.

It is to be noted that, in the secondparagraph of the section, the Legislatureundertake8 to relieve from the obligations imposedby the first paragraphupon all laborunions, certain laborunion8 which, for four year8 prior to the effective date of the act, held their elections either every three
or every four year3under their organizationrules, and which during the last ten year8 have chargednot more than $10.00a3 initiation fee to members.

Under the equal protection of the law3 clause of our State and Federal Constitutions,reasonable classification is permissible,but classification,to be valid,must rest upon substantialdifference8germane to the object8 and purposes of the law. The legislature cannot take what may be termeda "naturalcla39," Split that Cla83 in twoupon considerations which, looklng to the object3 and purpose3 of the law, do not fairly serve to distinguish the two minor classes, and apply the law to the one while exempting the other from its provisions, This is arbitrary selection,not permissible classification. 12Am. Jur., ConstitutionalLaw, Sets. 478, 479, 480, 481, 9 Tex, Jur., ConstitutionalLaw, Sets. 119, 120; LOsSi%

v. Hughes, 244 S,W. 556;Davis v. Holland, 168 S.W. 11..

Honorable Sidney Latham, page 

### 13

Do the characteristicsmade the basis for exempting certainunion8 from the operation of Section 4 suggest such material differences as would fairly and reasonably justify their exclusion from the policywhich the legislaturehas
seen fit to apply to all otherunions? We are of the opinion they do not. The fact that certainunions may during the last four year3 have held electionsunder their rules either every three or every four gears and over the last ten years have charged not more than $10.00 as initiation fee to members does not reasonably indicatean absence of those conditionswhich lead the legislature to require of otherunions annual elections,majority vote, secretballot, notice of election,and announcement of its result. The exemption takesno account of the fact that suchunions may not give notlce of their elections or announce their result, or vote by secretballot, or elect their officer3by majority vote. Nor does it take into account the fact that suchunions, under the terms of the

PPOViSO, would continue to be exempt from the application of Section 4, though after the effectivedate of the act they should charge initiation fees in excess of $10.00 and change their time for holding election8 to every ten or fifteen gears. The arbitrary character of the classification is further emphasizedby noting that a union holding its elections every two year3 over the last ten years and during such time chargingnot more than $10.00 initiation fee 18 NOT exempt from SeCtiOn 4, though it3 electionperiod8 approach more nearly the maximum determinedby the legislature to be reasonable to insure effective continuing control of the union by the membership, than those holding their elections every three or every four years, In short, there is nothing in the bases of classification selectedby the Legislature which fairly and reasonably serves to justifythe Legislative failure to apply to the union3 possessing them provision3 of the law designed to insure continuing control over unions by
a majority of their members.

The provision containing the exemption, then, is void. And, since to enforce the provisions of Section 4 against such union8 would be to includewithin it3 scopeunions expressly exemptedby the Legislature, suchprovision is not severable from the remainder of the Section. The result is that the entire sectionmust fall, For, if by striking out a void exception, proviso, or other restrictive clause, the,remainderby rea3on of its generalitywill have a broader scope as to subjectmatter or territory, l's3operationwould not be in accord with the expressed legislative intent, and thewhole Ismade void by the invalidity of the part, Tex. 201, 

### 152S.W. (2d) 1084, Anderson v. Wood, 

### 137

Section 7 of theAct provides:Honorable Sidney Latham, page 14 

### o-5196

“Sec. 7. Fees,Dues, Fines and Assessments. It Shall be unlawful for any laborunion, its officers, agent or any member to make any charge or exaction, or to receive any moneys for initiation fees, dues, fines, assessments,or other pecuniary exactions,which will create a fund in excess of the reasonable requirement3 of suchunion, in carrying out it3 lawful purpose or activities, if such fees, dues, fines, assessments, or other pecuniary exaction3 create, orwill create, an undue hardship on the applicant for initiationto the union, orupon the union members. Nothing in this Section Shallbe deemed or construed to prevent the collectionby a laborunion of dues or asses3- ments for purposes which are beneficial to the members of theunion according to the establishedpractice, and/or to maintain fund8 or make investments of funds for suchbeneficial purposes. Neither shall this Section be Construed to preventdues, collectionsor other a38e38ments for old age benefits, death and burial benefits, hospitalization, unemployment, health and accident, retirement or other forms of mutual insurance, for legislative representation,grievance committee, or for gifts, floral offerings,or other charitablepurposes, or any other legitimatepurposeswhen the union engages in or decide8 to engage in such a field
or practice;provided that the member3 contributing share or can reasonably expect to share in the benefit8 for which they are assessed; neither shall this Sectionbe construed to prevent assessments,dues, or other collections, except initiationfees, to be placed in the funds
or as a part of the funds of theunion for the
use by the union in paying it3member8 while such members are on a strike;provided such fund3 Shall remain under control of the laborunion members. This Section shallbe liberally con3trued,however, to prevent excessive initiation fees."
Summarized, this sectionprohibit8 the collection of charges in excess of those reasonably required to carry on the lawful functions of the union IF (and only if) suchunnecessary charges create or will create an '%nduehardship" on member8
or applicants for membership, For violation3 of this section,

as for violations of other sections of the Act, the legislature ha3 undertaken to impose civil penaltiesupon the union and criminalpenaitiesupon individuals,

Due process of law clause8 in our State and Federal. I

Honorable Sidney Latham, page 15 o-5196

Constitutionshave long been construed to require an element of certainty in the commands of statutes. This requirement is particularly stringent, insofar as statutes imposing civil and criminal penalties are concerned. "Thatthe terms of a penal statute creating a new offensemust be sufficiently explicit to inform those who are subject to it what con-' duct on their part will render them liable to its penalties, is a well recognized requirement, consonantalike with ordinary notions of fair play and the settled rules of law. And
a statutewhich either forbids or requires the doing of an act in terms so vague that men of common intelligencemust necessarilyguess at itsmeaning and differ as to its application violates the first essential of due process of law. InternationalHarvester Co. v. Kentucky, 234 U.S. 216, 221, 58 L. Ed. 1284, 1287, 34 Sup. Ct. Rep. 583; Collins v. Kentucky, 234 U.S. 634, 638, 58L. Ed. 1510, 1511, 34 Sup. Ct. Rep. 924." Connally v. General ConstructionCo., 70 L. Rd. 323 (whereinthe court held that a statutewhich required a contractor,under penalty, to pay his employees "not less than the current rate of per diem wages in the localitywhere the work is performed' is souncertain as to deprive contractors of propertywithout due process of law.)

The cases applying this principle of constitutional law are many. A few exampleswill suffice to illustrate the nature of the holdings.

InUnited States v. Cohan Grocery Co., 255 U.S. 81, 65 L. Ed. 516, 14A.L.R. 1045, the Supreme Court of the United States held that an Act of Congress imposinga penalty on any personwho shouldmake "anyunjust or unreasonable rate or charge in handling or dealing in or with any necessaries"was too indefiniteand uncertain, fixing no ascertainable standard of guilt.

InU.S. v. Capital Traction Co., 34App. D.C. 592, 19 Ann, Cas. 68, a statutemaking it an offense for a street railway company to run an insufficientnumber of cars to accomodatepassengers "withoutcrowding"was held void for want of sufficient certainty.

In Ex parte Slaughter, 92 Grim. Rep. 212, 243 S.W. 478, our Court of CriminalAppeals held void for lack of certainty a statute forbiddingdriving of motor vehicles on any public highway "yherethe territory contiguous thereto & closelybuilt uo at a speed in excess of 18miles per hour.

In Griffin v. State, 86Tex, Grim. R. 498, 218 S.W. 494, the same court held invalid a statutewhich prohibited the operation of motor vehicles at night with headlights. .

Honorable Sidney Latham, page 16 o-5196

which projected forward light glare and briIliancy "a of such briIliancy
as to seriously interferewith the sight of, or temporarily seriously interfere temporarily vehicle approaching blind the vision of, the driver of a vehicle approaching from the oppositedirection."

In Francis v. Allen, (Ariz.)96 P.'(2d) 277, the court held to be too uncertain the provision of an actregulating transportationagencieswhich required that "anagent shall not offer transportationby any carrierwhich is conducting its business in a manner contrary to the public interest."

In Ex parte Peppers, (Cal.) 209 P. 896, a statute prohibiting the shipment of oranges "whenfrosted to the extent of endangering the reputation of the citrus industry"washeld to be too uncertain to form the basis of a criminalprosecution. We quote briefly from the opinion:

$1

. 9

. it does not purport to forbid the shipment of all the frosted oranges. It thus concedes that orangesmay be frosted and may stillbe the proper subject of shipment and consumptionwithout in any way 'endangeringthe reputation of the citrus industry.' What defect then shall render certain of such orangesunfit for shipment as 'endangering the reputation of the citrus industry?' What is the reputation of the citrus industy? Is it for the production and shipment of oranges of a certain standard of color, or of sweetness,
or of juiciness,or of palatability? How is the producerwhose orangeshave been touchedwith frost to know, from the terms of the act, whether
or when he will be violating it in offering his fruit for shipment? D

. e 0

We have pointed out that Section 7 does not prohibit all charges in excess of the reasonable requirements of the union, but only those charges in excess of the reasonable requirements of the union which create or will create an undue hardshi?upon member: or applicants for membership. Just as in the orange case, cited above, the fact alone that oranges were frosted did not prevent their shipment, so in this Act the fact that charges are in excess of the reasonable requirements of the union will not render illegal their collection. The charge must not only be in excess of the reasonable requirements of the union; it must also create, presently, or in the future (I.e. "will create") "unduehardship", on themembers or applicants againstwhom it is assessed.

In our opinion, this provisionwholly fails to provide
a standard sufficient that those subject to its termsmay reason-. .

Honorable Sidney Latham, page 17 o-5196

ably determinewhat conduct on their partwill render them subject to the penalties of theAct. By what standard is bne to determinewhen an excessive charge creates (orwill create) a hardship on the members or applicants? But the fact that the charge creates a hardship is not alone sufficientto condemn it - the hardshipmust be "undue"! What factors are to be taken into consideration in determiningwhether the hardshi,p is "undue"? Not the fact that the charge is excessive in relation to the needs of the organization, for the act impliedly recognizes the right to collect excessive charges if they do not create, eitherpresently OP in the future, an "unduehardship"upon themembers or applicants. The fact of "undue hardship" then, is to be determined,not by the nature of the charge,but by its effectupon the members or applicants. The requirement is similar to that of the statute involved in the Griffin case, cited above,wherein the court observed that the statutewould require the driver of the motor vehicle to judge of the effect of his lightsupon the vision of each approachingdriver, which effectwould necessarilyvarywith the physical peculiarities of such driver and the circumstances of the occasion of meeting.

In our opinion,upon the authorities cited, Section 7 of this Act is so indefiniteand uncertain in itsdefinition of the offense as to violate the due process clause of the State and Federal Constitutions.

Section 4a of the Act makes itunlawful for any all-en "to serve as an officer OP official of a laborunion or as a labor organizerV as defined in the Act, With reference to this provision the analogous cases are in apparent conflict. Some courts have held invalid,restrictionsbased upon restdence or citizenshi Others haveupheld such provisions. See 2 Am. Jur. 468~&2 and cases cited therein. From a constitutional standpointwe belleve the courtswill uphold this provision in H-B, No, 100.

This question may also involve the civil rights of aliensunder existingtreaties between the United States and the country inwhich the artlcular alien is a citizen. Magnani v. Harnett, (19397 14 N,Y.S, (2d) 107 257App.D::: 487, affd. (1940)25 N.E. (2d) 395, certiora& denied, 60 S. Ct. 1089, 301U-S. 642, 84 L, Ed. 1490. For present purposes we havenot undertaken to go into thfs matter.

Section 10a of the Act provides that a member of the armed forces of the United States,who is a member of a union and who is unable to pay back dues and assessments shallbe reinstatedwithout payment. We do not believe that the Legislature has the power to compel the forgivenessof a debtHonorable Sidney Latham, page 18 o-5196

or Interferewith the union's right of contract In this respect. Article I, Section 16, Texas Constitution;Langever
v. Miller (Sup.Ct. 1934) 124Tex. 80, 76 S.W. (2d) 1025, g6A.L.R. 836,

Very truly yours
s/GeraldC. Mann Gerald C. Mann ATTORNEYGENERAL OF TEXAS

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APPROVED APR 12, 1943
ThisOpinion Considered and Approved in Limit&d Conference