, 1 

TEE A-~~ORNEY GENERAL 

OF TEXAS 

Honorable Sidney Lathem 

Secretary of State 

Austin, Texas 

Dear Sir: Opinion No. O-5196 

Re: Constitutionality of H.B. 100, 

48th. Legislature, Reg. Sess., 

regulating labor unions. 

We acknowledge receipt of your letter of April'6, 1943, 

requesting an opinion on the validity under the State and Federal Constitutions of H.B. No. 100 relating to the regulation 

of labor unions in this State. This bill has recently been enacted into law and we take it that your inquiry is directed 

primarily to determining what your duties as Secretary of State 

are under this law. 

The only provisions of the Act which involve your 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 labor unions "affect the public interest and are charged 

with a public use." Section 2 contains a definition of terms 

contained in the Act, including the term "labor union" which 

is' defined as "every association, group, union, lodge, local, 

branch, or subordinate organization of any union of working 

men, incorporated or unincorporated, organlsed and existing 

for the purpose of protecting themselves, and improving their 

working conditions, wages or employment relationships in any 

manner, but shall not include associat;ons or organizations 

not commonly regarded as labor unions. Section 3 provides 

for the filing of reports with the Secretary of State, containing certain enumerated information regarding the labor union 

and its organization. SectIon 5 requires that union organizers have an organizers' card which is to be issued by you 

as Secretary of State upon written application filed in compliance with the Act. Section 6 requires labor unions to file 

with you all working agreements containing a "check off" 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 labor union. 

We will now consider Section 1 of the Act and in that 

connection the constitutional power of the Legislature to pass 

laws regulating labor unions. This is a relatively new field 
Hon. Sidney Latham - page 2 o-5196 

of legislation. The first major legislation on the subject 

in this country was the National Labor Relations Act of 1935 

(29 U,S.C,A. Sec. 151, et seq.) commonly called the Wagner 

Act, the validity of which was upheld by the Supreme Court 

of the United States In National Labor Relations Board v. 

Jones & Laughlin Steel Corp. (1937) 301 U.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 Wisconsin Act, has been held constitutional. Wisconsin 

Labor Relations Board v. Rueplng 'Leather Co. 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 'to deal with 

the same subject is grounded upon and limited by 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 Government may 

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 

field with which Congress has competency to deal. 

In the absence of a Federal statute either dealing 

with or preempting the field, the police power of the 

State has full operation, provided no undue or dlscrimLnatory burdens are put upon interstate commerce." 

279 N.W. po 676. 

See, also, Allen-Bradley Local No. 1111, United Electrical, Radio & Machine Workers of America et al v. Wisconsin Employment Relations Board et al (1941j 237 Wis. 164, 295 

N.W. 791, where it was held that t:he Wisconsin Employment Peace 

Act, enacted in 1939, was not in conflict with the National 

Labor Relation Act. 

The right of State regulation consistent with Federal 

Law was announced by the Supreme Court of Illinois in the case 

of Fansteel Metallurgical Carp, v. Lodge 66 of Amalga ted Ass'n 

of Iron, Steel & Tin Workers of North America, et al 1938) 

295 Ill. App, 323, 14 N.E. (2d) 991. 

F 

The State of New York has a State Labor Relations Act 

(N-Y. Laws 1937, C 443, amending Labor Law, Consol. Laws, C31) 

the constitutionality of 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 Massachusetts has 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 employers and employees and their activities insofar as such activities affect 

the economic and general welfare has been sustained under the 

State and Federal Constitutions as a proper exercise of the 

police power reserved to each State. In Fenske Bros. v. 

Upholsterers' International Union (1934) 358 Illinois 239, 

193 N.E. 112, 97 A.L.R. 1318, the Anto-injunction Law of The 

State of Illinois was attacked as a violation of the Fourteenth 

Amendment of the Federal Constitution. In upholding the validity 

of that statute the Supreme Court of Illinois said: 

I'It is well settled that the Legislature may, In the 

exercise of the police power of the state, enact those 

measures which 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, 130 Am. 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 modification within certain limits, so that the 

powers or governmental control may be adequate and 

meet changing social and economic conditions. The 

power is not circumscribed by precedents arising 

out of past condltlons, but is elastic and capable 

of expansion in order to keep pace with human progress e 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 Public Utilities 

(CC?. v. City of Quincy, 290 Ill. 360, 125 N.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 

interferes with the liberty or property of an individual. Neither the Fourteenth Amendment to the Federal Constitutlon nor any provision of the Constitution of this state was designed to interfere with the 

police power to enact and enforce laws for the protection of the health, peace, morals, or general welfare 
Hon. 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, 189 N.E. 338; Town of Chancy's Grove v. 

Van Scouoc, 357 Ill, 52, 191 N.E. 289." 

In the recent case of Carpenters and Joiners Union 

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, error refused, the question involved the 

right of peaceful picketing of an employer's restaurant when 

the labor dispute involved the issue of employment of nonunion labor on a building which was being constructed for the 

same employer at a point a mile and one-half away." The contract for constructing the building gave the contractor the 

right to-make his own arrangements regarding the employment 

of labor, and notthe restaurant owner. In'upholding an injunction prohibiting the picketing of the restaurant, the Supreme 

Court of the United State, speaking through Mr. Justice 

Frankfurter, said: 

"We must be mindful that "the right of 

employers and employees to conduct their economic 

affairs and to compete with 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, 310 u.s, 88, 103, 104, 60 s, ct, 

84 L. Ed. logjo 

736, 745, 

"It is not for us to assess the wisdom of 

the policy underlying the law of Texas. Cur duty 

is at an end when 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), 310 U.S. 141, 149, 

60 ST. Ct. 879, 84 L. Ed, 1124, rehearing denied 310 U.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 Fourteenth Amendment in 

that it did not "apply to agricultural products or livestock 

in ,the hands of the producer or raiser. The Supreme Court of 

the United States upheld the validity of the law and concluded 

that "to write into law the differences between agriculture 

and other economic pursuits was within the power of the Texas 

Legislature," 
Hon. Sidney Latham - page 5 o-5196 

This power of regulation and supervision has been extended to unincorporated associations or societies. People 

of the State of New York ex rel. George W. Bryant v. Charles 

F. Zimmerman, et al (1926) 241 N.Y. 405 150 N.E. 497, 43 A.L.R. 

909, affirmed 278 U.S. 63, 73 L. Rd. 184, 63 Sup. Ct. 84. 

The State of New York had a statute requiring "every .existing 

membership corporation, and every existing unincorporated~ 

association having 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, together with a roster of its membership and a 

list of its officers for the current year "and providing for 

penalites. A member of the Ku Klux Klan was prosecuted for 

knowingly being a member of an organization which had not complied withthe law. The constitutionality of the Act was attacked on the ground that it violated the "privileges and immunities" provision, "the due process of law" provision and 

"the equal protection of the law" provision of the Fourteenth 

Amendment. The Court dismissed the first contention as not 

involving a Federal right, the right of joining and remaining 

a member of an organization being "an incident of State rather 

than United States citizenship. As to the second contention 

the court said" 

"The relator's contention under the due 

process clause is that the statute deprives him of 

liberty in that it prevents 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 that under that 

power the state may prescribe and apply to associations having an oath-bound membership any reasonable regulation calculated to confine their purposes and 

activities within limits which are consistent with the 

rights of others and the public welfare. The requirement 

in Sec. 53 that each association shall file with the 

secretary of state a sworn copy of the constitution, oath 

of membership, etc with a list of members and officers, 

is such a regulation. It proceeds on the twofold theory 

that the state within whose territory and under whose 

protection the association exists is entitled to be informed of its nature and purpose, of whom it is composed 

and by whom Its activities are conducted, and that requiring 

this information to be supplied for the public files will 

operate as an effective or substantial deterrent from the 

violations of public and private right to which the 
, - 

Hon. Sidney Latham - page 6 o -5196 

association might be tempted if such a disclosure were 

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: 

"The main contention made under the equal protection clause is that the statute discriminates against 

the Knights of the Ku Klux Klan and other associations 

in that it excepts from its requirements several asso,- 

ciations having oath bound membership, such as labor 

unions, the Masonic fraternity, the Independent Order 

of Cdd Fellows,the Grand Army of the Republic and the 

Knights of Columbus . . .I' 

"We think it plain that the action of the 

courts below in holding that there was a real and substantial basis for the distinction made between the two 

sets of associations or orders was right and should 

not be disturbed. 

"Criticism is made of the classification 

on the further ground that the regulation is confined 

to associations having a membership of twenty or 

more persons. Classifications based on numbers is not 

necessarily unreasonable. There are many instances 

in which it has been sustained. We think it not unreasonable in this instance. With good reason the 

legislature may have thought that en association of 

less than twenty persons would have only a negligible 

influence and be without the capacity for harm that 

would make regulation needful." 

As to the broad power of the Texas Legislature to make 

classifications for legislative purposes, 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 "affected with 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) fixing maximum fees to be charged by private employment agencies, requiring the issuance of receipts to applicants end e return 

of fees in the event no employment was obtained was upheld 

recently by the Supreme Court of the United States. Olson v. 

Nebraska (1941) 313 U.S. 236, 85 L. Ed. 1305, 61 Sup. Ct. 862, 

133 A.L.R. 1500, In that case the Supreme Court referring to 

businesses "affected with a public interest" said: 
Hon. Sidney Latbam - page 7 o-5196 

"It was said to be so affected if it had 

been devoted to the public use' and if 'an interest 

in effect' had been granted 'to the public in that use.' 

;F;i.kC;. McBride, supra (277 U.S. 355, 72 L. ed. 915, 

. . 545, 56 A.L.R. 1327). That test, lebelled by 

Mr. Justice Holmes in his dissent In the Tyson case 

A27zTU.S. at p. 446, 71 L. ed. 729, 47 S. ct. 426, 58 

. 1236) as 'little more than a fiction,' was discarded'in Nebie v. New York, supra (291 U.S. pp. 531- 

539, 78 L. Ed. 958, 958, 54 s. Ct. 505, 89 A.L.R. 1469). 

It was there stated that such criteria 'are not susceptible of definition and form an unsatisfactory 

test of the constitutionality of legislation directed 

et business practices or prices,' and that the phrase 

'affected with a public interest' can mean 'no more 

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 in Ribnik 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 

general welfare in upholding the constitutionality of the Unemployment Compensation Act (Arts. 5221b-1 to 5221b-22, Vernon's Ann. Civil Statutes) although basing 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 

Criminal Appeals upheld the anti-violence statute relating to 

labor disputes (Art. 1621~, Vernon's Ann. Penal Code) against 

the charge that It violated the constitutional guarantee of 

"equal protection of the law", "freedom of 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 of Texas held the "Blacklisting Statute" (Gen Laws, 1908, Ch. 89 p. 160 unconstitutional, but we do not believe that the decision will control 

any of the questions of constitutionality under H.B. No. 100. 

In H.B. 100 the Legislature has recited certain facts 

and stated that "it Is here now 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, organizers and other representatives." This declaration of policy on behalf of the State 
Hon. Sidney Lathem - page 8 o-5196 

and the finding of facts authorizing such a declaration are 

matters peculiarly within the province of the Legislature. 

Harris Count Flood Control Dlst. 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, 16 A.L.R. 

165. 

Upon a consideration of the foregoing authorities it 

is our opinion that the Act as a whole is within a field which 

is subject to regulation by the Legislature under the exercise 

of the State's police power. 

The definition of a labor union as contained in Sec. 

2~(b) of the Act may upon first examination appear to be uncertain but in our opinion the definition is not subject to this 

objection. The first part of the definition specifically enumerates the various generic terms by which organizations of 

this nature may be known and includes such associations within 

the meaning of the term "labor union" when they are "organized 

and existing" for definitely specified purposes, towit: of 

protecting themselves, and improving their working conditions, 

wages, or employment relationships in any manner." This is 

in substance the meaning of a labor union as commonly known 

and understood, and with slight variation in wording is the' 

definition ordinarily given by the courts. See Words & Phrases 

Permanent Ed, Vol 24, 'Labor Organization" p. 74 and pocket 

;;rtl,P~ 17. "labor Union p* 77 and pocket part p. 18; Vol. 

Trade Union" p. 209. See also Article 5152, R.C.S. 1925 

which was first enacted in 1899. The last clause, "but shall 

not include associations or organizations not commonly regarded as labor unions" 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 clause was no doubt added by the Legislature 

through an abundance of precaution. 

Section 3 of the Act makes no more stringent requirements of labor unions than those involved in the New York 

Statute which applied to other unincorporated associations and 

whose validity was 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, 43 A.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 Identification cards to labor organizers is in our opinion 

a reasonable exercise of the police power by the Legislature. 

Provisions of somewhat similar nature are found In a number of 

the regulations by the State under the police power such as 
c . 

Hon. Sidney Latham - page 9 o-5196 

solicitors or agents for insurance companies, real estate 

dealers, and dealers end salesmen under the Securities Act. 

Sections 12 et seq. of the Texas Securities Act (Art. 

600a, Vernon's Ann. Civ. St.) require the registration of salesmen and dealers in securities and 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 securities without having been registered, the Court of Criminal Appeals in 

Atwood v. State (1938) 121 S.W. (2) 353 held that such legislation came within the police power in the following language: 

"It was within the police power of the 

Legislature to constrain the conduct of dealers 

in securities to the end that the public might 

be protected against the imposition of unsubstantial schemes and securities based unon them". 

Hall v. Geiger-Jones Co. 242 U.S. 539, 37 S. Ct. 

217, 220, 61 L. Ed. 480, L.R.A. 1917F, 514, Ann. 

Cas. 1917 C, 643." 

A similar holding was 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 consideration was to protect the public from the impositions, misrepresentations or 

fraud of unscrupulous and unauthorized persons purporting 

to act in the name of and as the duly authorized representstions of legitimate organized labor. This section provides a 

means of establishing the identity, affiliations andcredentials 

of those who hold themselves out as labor union 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 constitutional objectlon to Section 6, providing for the filing of working agreements withthe Secretary 

of State, but on the contrary such regulation may be supported 

on the basis of the principles enumerated in the cases hereinabove discussed at greater length. 

The sections mentioned 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 are 
Hon. Sidney Latham - page 10 o-5196 

constitutional. Even though some of the other sections may be 

invalid, it is the well established rule in this State that an 

Act will not be held invalid as a whole if the invalid portion3 

are severable from that which remains, 30 that they are complete within themselves and are capable of being executed in 

accordance with the apparent legislative Intent, wholly inde; 

pendent of that which is rejected. 9 Tex. Jur. 472, 474, Sets. 

55, 56 and cases cited therein. The Act by its own terms provides that "if any section or part whatsoever . . . shall be 

held to be invalid . . s such invalidity shall not affect the 

remaining portions thereof *0...fl Section 15, H.B. No. 100. 

Upon consideration of the Act as a whole it Is our opinion 

that the sections pertaining to the duties and responsibilities 

of the Secretary of State are severable from the remainder of 

the act and are valid and enforceable regardless of the validity of the remaining sections. 

There are other sections of this Act, however, which 

present serious constitutional objections and we consider ft 

proper at this time to express our views thereon. 

Section 4 of the Act provides: 

"Sets 4. Officers. All officers, agents, 

organizers, and representatives of such labor 

union shall be elected by majority vote of the 

members present and participating; provided, however, that labor unions, if they 30 desire, 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 

membership by mailed ballots. Such election 

shall be held at least once each year, and the 

determination taken by secret ballot, of which 

election the membership shall be given at least 

seven (7) days' notice by written or printed 

notIce mailed to the member's last known address, or by posting notice of such election 

in a place public to the membership, or by announcement at a regular stated meeting of the 

union, which ever is most convenient to the 

union. The result of such election when held 

shall be ascertained and declared by the presldent and the secretary at the time in the pre3ence of the members or delegates participating. 

"Provided, the requirement for annual elections hereln made, or the methods of holding 

same, shall not apply to any labor union that 
Hon. Sidney Latham - page 11 o-5196 

for four (4) years prior to the effective date 

of the law shall have held its elections for 

officers, delegate3 and the like representatEve3 less frequently than annually but which 

have held such election8 either every three (3) 

year8 or every four(b) years under their constitution, bylaws, or other organization rules, 

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 &-&representatives by majority vote of the members present and, 

participating. 

2. Hold elections for such purposes at least once a 

year. 

3. Take the vote of their members by secret ballot. 

4. Give at least seven days written notice of the 

holding of such election to each member. 

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 public needs, and that the liberty 

of the individual must yield to reasonable regulation In the 

interest of the public health, safety, welfare, and morals. 

None of the liberties vouchsafed and protected by the Constitution of the State and of the United States are absolutes. 

Where a legitimate public interest is involved, each of such 

liberties must be subject to reasonable regulation to the extent that the interest of the public may require. Even 80 

specific a constitutional guaranty as that of free speech does 

not grant an absolute immunity from all restraint. Any other 

doctrine would transform liberty into license and utterly destroy the effectiveness of any organized civil government. 

This does not mean that the liberties of the individual 

may be impinged upon OP destroyed at will. The interest involved of organized society must be sufficient to 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 labor union8 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 

shall be 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 

sought by the Legislature. Likewise, it cannot be said~that 

the public has no sufflclent interest to justify such regulation. It is matter of common knowledge that labor union8 are 

in position to, and do, exert a tremendous influence upon matters directly affecting the economic welfare of the people at 

large, No less are they in position to exert a considerable 

control over their members in matters directly affecting their 

economic welfare. In view of these considerations, we think 

it clear that the State ha8 a sufficient interest in their 

operations to justify its requirements reasonably designed and 

calculated to insure control, continuing in nature, over the 

affair8 of their organization by 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 section must fall, for 

reasons which will be stated below. 

It is to be noted that, in the second paragraph of the 

section, the Legislature undertake8 to relieve from the obligations imposed by the first paragraph upon all labor unions, 

certain labor union8 which, for four year8 prior to the effective date of the act, held their elections either every three 

or every four year3 under their organization rules, and which 

during the last ten year8 have charged not more than $10.00 a3 

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 

substantial difference8 germane to the object8 and purposes 

of the law. The legislature cannot take what may be termed a 

"natural cla39," Split that Cla83 in two upon 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. 12 Am. Jur., Constitutional Law, Sets. 478, 479, 480, 

481, 9 Tex, Jur., Constitutional Law, Sets. 119, 120; LOsSi% 

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

Honorable Sidney Latham, page 13 

Do the characteristics made the basis for exempting 

certain union8 from the operation of Section 4 suggest such 

material differences as would fairly and reasonably justify 

their exclusion from the policy which the legislature has 

seen fit to apply to all other unions? We are of the opinion 

they do not. The fact that certain unions may during the 

last four year3 have held elections under 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 indicate an absence of those conditions which lead the legislature to require of other unions 

annual elections, majority vote, secret ballot, notice of 

election, and announcement of its result. The exemption 

takes no account of the fact that such unions may not give 

notlce of their elections or announce their result, or vote 

by secret ballot, or elect their officer3 by majority vote. 

Nor does it take into account the fact that such unions, under 

the terms of the PPOViSO, would continue to be exempt from 

the application of Section 4, though after the effective date 

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 emphasized by noting that a union holding 

its elections every two year3 over the last ten years and 

during such time charging not more than $10.00 initiation fee 

18 NOT exempt from SeCtiOn 4, though it3 election period8 

approach more nearly the maximum determined by 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 selected by the Legislature 

which fairly and reasonably serves to justify the 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 include within it3 scope unions expressly 

exempted by the Legislature, such provision is not severable 

from the remainder of the Section. The result is that the entire section must fall, For, if by striking out a void exception, proviso, or other restrictive clause, the,remainder by 

rea3on of its generality will have a broader scope as to subject matter or territory, l's3 operation would not be in accord 

with the expressed legislative intent, and the whole Is made 

void by the invalidity of the part, 

Tex. 201, 152 S.W. (2d) 1084, 

Anderson v. Wood, 137 

Section 7 of the Act provides: 
Honorable Sidney Latham, page 14 o-5196 

“Sec. 7. Fees, Dues, Fines and Assessments. 

It Shall be unlawful for any labor union, 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 such union, in 

carrying out it3 lawful purpose or activities, if 

such fees, dues, fines, assessments, or other pecuniary exaction3 create, or will create, an undue 

hardship on the applicant for initiation to the 

union, or upon the union members. Nothing in this 

Section Shall be deemed or construed to prevent 

the collection by a labor union of dues or asses3- 

ments for purposes which are beneficial to the members of the union according to the established practice, and/or to maintain fund8 or make investments 

of funds for such beneficial purposes. Neither 

shall this Section be Construed to prevent dues, 

collections or 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 charitable purposes, or 

any other legitimate purposes when 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 Section be construed to prevent assessments, dues, or other collections, 

except initiation fees, to be placed in the funds 

or as a part of the funds of the union for the 

use by the union in paying it3 member8 while such 

members are on a strike; provided such fund3 Shall 

remain under control of the labor union members. 

This Section shall be liberally con3trued, however, 

to prevent excessive initiation fees." 

Summarized, this section prohibit8 the collection of 

charges in excess of those reasonably required to carry on the 

lawful functions of the union IF (and only if) such unnecessary 

charges create or will create an '%ndue hardship" 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 penalties upon the union and 

criminal penaities upon individuals, 

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

Honorable Sidney Latham, page 15 o-5196 

Constitutions have 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. "That the terms 

of a penal statute creating a new offense must 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, consonant alike with ordinary notions of fair play and the settled rules of law. And 

a statute which either forbids or requires the doing of an 

act in terms so vague that men of common intelligence must 

necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. 

International Harvester 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, 58 L. Ed. 1510, 1511, 34 Sup. Ct. 

Rep. 924." Connally v. General Construction Co., 70 L. Rd. 

323 (wherein the court held that a statute which required a 

contractor, under penalty, to pay his employees "not less 

than the current rate of per diem wages in the locality where 

the work is performed' is so uncertain as to deprive contractors of property without due process of law.) 

The cases applying this principle of constitutional 

law are many. A few examples will suffice to illustrate the 

nature of the holdings. 

In United States v. Cohan Grocery Co., 255 U.S. 81, 

65 L. Ed. 516, 14 A.L.R. 1045, the Supreme Court of the United 

States held that an Act of Congress imposing a penalty on any 

person who should make "any unjust or unreasonable rate or 

charge in handling or dealing in or with any necessaries" was 

too indefinite and uncertain, fixing no ascertainable standard 

of guilt. 

In U.S. v. Capital Traction Co., 34 App. D.C. 592, 

19 Ann, Cas. 68, a statute making it an offense for a street 

railway company to run an insufficient number of cars to accomodate passengers "without crowding" was held void for want 

of sufficient certainty. 

In Ex parte Slaughter, 92 Grim. Rep. 212, 243 S.W. 

478, our Court of Criminal Appeals held void for lack of certainty a statute forbidding driving of motor vehicles on any 

public highway "yhere the territory contiguous thereto & 

closely built uo at a speed in excess of 18 miles per hour. 

In Griffin v. State, 86 Tex, Grim. R. 498, 218 S.W. 

494, the same court held invalid a statute which prohibited 

the operation of motor vehicles at night with headlights 
. . 

Honorable Sidney Latham, page 16 o-5196 

which projected forward "a light of such glare and briIliancy briIliancy 

as to seriously seriously interfere interfere with the sight of, or temporarily temporarily 

blind the vision of, the driver of a vehicle vehicle approaching approaching from 

the opposite direction." 

In Francis v. Allen, (Ariz.) 96 P.' (2d) 277, the court 

held to be too uncertain the provision of an actregulating 

transportation agencies which required that "an agent shall 

not offer transportation by any carrier which 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 "when frosted to the extent 

of endangering the reputation of the citrus industry" washeld 

to be too uncertain to form the basis of a criminal prosecution. 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 oranges may be frosted and may still be the 

proper subject of shipment and consumption without 

in any way 'endangering the reputation of the 

citrus industry.' What defect then shall render 

certain of such oranges unfit 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 

producer whose oranges have been touched with 

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") "undue hardship", on the members or applicants against whom it is assessed. 

In our opinion, this provision wholly fails to provide 

a standard sufficient that those subject to its terms may reason- 
. . 

Honorable Sidney Latham, page 17 o-5196 

ably determine what conduct on their part will render them subject to the penalties of the Act. By what standard is bne to 

determine when an excessive charge creates (or will create) a 

hardship on the members or applicants? But the fact that the 

charge creates a hardship is not alone sufficient to condemn 

it - the hardship must be "undue"! What factors are to be 

taken into consideration in determining whether 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, either presently OP in the future, an "undue hardship" upon the members or applicants. The fact of "undue 

hardship" then, is to be determined, not by the nature of the 

charge, but by its effect upon 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 statute would require the driver of the motor vehicle 

to judge of the effect of his lights upon the vision of each 

approaching driver, which effect would necessarily vary with 

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 indefinite and uncertain in its definition 

of the offense as to violate the due process clause of the 

State and Federal Constitutions. 

Section 4a of the Act makes it unlawful for any all-en 

"to serve as an officer OP official of a labor union 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, restrictions based upon restdence or citizenshi Others have upheld such provisions. 

See 2 Am. Jur. 468~&2 and cases cited therein. From a constitutional standpoint we belleve the courts will uphold this 

provision in H-B, No, 100. 

This question may also involve the civil rights of 

aliens under existing treaties between the United States and 

the country in which the artlcular alien is a citizen. 

Magnani v. Harnett, (19397 14 N,Y.S, (2d) 107 257 App. D::: 

487, affd. (1940) 25 N.E. (2d) 395, certiora& denied, 60 

S. Ct. 1089, 301 U-S. 642, 84 L, Ed. 1490. For present purposes we have not 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 shall be 

reinstated without payment. We do not believe that the 

Legislature has the power to compel the forgiveness of a debt 
Honorable Sidney Latham, page 18 o-5196 

or Interfere with the union's right of contract In this 

respect. Article I, Section 16, Texas Constitution; Langever 

v. Miller (Sup. Ct. 1934) 124 Tex. 80, 76 S.W. (2d) 1025, 

g6 A.L.R. 836, 

Very truly yours 

s/Gerald C. Mann 

Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

GCM:db:wc 

APPROVED APR 12, 1943 

ThisOpinion Considered and Approved in Limit&d Conference