The Montgomery advertiser., 1906-09-05
TEXT OF ELDlORE DE'CLSIONLN
 PASSING ON THE ELNORE ACT

SOh&IGnm, CUuTIb buOulQ bS CdfGAui l their construction against its validity. and not declare an Act void unless | there clearly appears an invasion of some constitutional guarantee. I have . therefore been slow to make up my mind upon this question, but after an examination of the authorities, I find that nowhere Is the right to make contracts prohibited or abridged un- less it be against public policy, or against the general welfare. etc. It has been held that the word liberty as used in the Constitution was not to be confined to the mere liberty of person. but included among others a right to enter into all classes of con- tracts. for the purpose of enabling cit izens to carry on business. Allgeycr vs. Louisiana, 165 U. g. 57s; U. s. vs. Joint Tariff Assn. III U. 8. 5O5 72
 It Is further contended that Congress invaded the rights under the fifth amendment to the Constitution when 1t prohibits an employer from entering into contract with an employee not to join a labor organization, associa- ton, etc. It seems that an individual has right to employ whomsoever he desires. or to refuse to employ one whom he does not desire, and should not be compelled to give any reason for so doing. The law looks upon the acts Of corporations as it does those
 of an individual. and, in that connec- ton a person seeking employment may have interests antagonistic to his em- ployer, 1t certainly would seem a
 hardship that Congress could pass a law compelling an employer to give employment to one so situated If
 that were so Congress could also com pei an employee to labor against his will for an employer against whom he had a grievance. It Is contended however that since Congress has the power Ito regulate commerce between
 the States" that it has the power to
 make rules governing the details of such regulation. I do not think that the Constitution intended to give Con-
 gress this power, for if 1t did 1t could
 say what certain kinds of telegraphic
 instruments should be used by a com
 mon carrier-it could say that com
 mon carriers should employ negro la-
 bor exclusively or Chinese labor ex- clusiveiy, or labor who believed only in certain religious doctrines. A right
 to insist that employees shall with draw from or refrain from, joining any trade union as a condition of employ
 ment, or continuation of employment, Is within the constitutional rights of an employer, and protected by Consti-
 tuttonal guarantee of due process of law against a statute which makes 1t an offense for an employer to impose such conditions. Missouri vs. Julow. 12s Mo. 16s: 29 L. R. A. 257.
 Mir. Justice Harlan in delivering the opinion in Arthur ct al vs Oakes ct al. II c. c. A. D. 2Os, 6S Fed. Rep, BIO, says: Tt would be an invasion of ones natural liberty to compel him to work for. or to remain In the personal ser vices of another. One who is placed under such restraint is in a condition of involuntary servitude. a condition which the supreme law of the land de- clares shall not exist within the Unit ed States or any place subject to their jurisdiction." The converse being true, 1t is just, that the employer should not be compelled to have in his employ one whom he does not desire, no matter for what reason.
 In the opinion rendered by Chief Justice Marshall in Mccullough vs. Maryland, 1 Wheaton p. 315-480. 1t is said we admit as all must admit, that the powers of the government are linn tied, and that its limits are not to be transcended, but we think the sound construction of the Constitution must allow to the National Legislature that discretion, with respect to the means by which the powers 1t confers are to be carried into execution, which will enable that body to perform the high duties assigned to 1t. in the manner most beneficial to the people. Let the end be legitimate. let 1t be within the scope of the Constitution and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional"
 follow this doctrine, but as 1t seems clear to me that Congress has invaded the rights guaranteed by the constitu- ton in passing this law. I am therefore constrained to declare the samc in- valid.
 The authorities as cited by the Unit ed States Attorney do not bear directly upon the case at bar.
 The demurrer to Sec. 10 of said Act is hereby sustained. and the defendant discharged.