Newark leader. ([Newark, Ohio]) 1917-1946, 1918-05-31
Case Involved Constitutional Right
of an Employe to be Member of
Labor Union, Free From CO.
erciOn by Employer
WILLIAM H. JACKSON,
Chief of Police of Cincinnati, o., ct al.
Plaintiff in Error
VS..
SAUL BERGER,
Defendant in Error.

The sole question involved in this
case is the constitutionality of section
12943, General Code, which reads as
follows:
"Whoever, being a member of a
firm, or agent, officer or employe
of a company, corporation or per-
son, prevents employees from form
ing, joining or belonging to law
full labor organization, or coerces
or attempts to coerce employees by
discharging or threatening to dis
charge them from their employ, or
the employ of firm, company or
corporation because of their con-
nection with such labor organiza-
ton, shall be fined not more than
one hundred dollars or imprison-
ment not more than six months, or
BOTH"
In a very recent case decided by the
Supreme Court of the United States,
January 25, 1915, entitled Coppage
VS.. The State of Kansas, a similar
statute was before said court for re-
view.
Section / of the Kansas statute
reads as follows:
lHdL II Shall Uc unlawful 4OI
any individual or member of any
firm, or an agent, officer, or en-
ployee, of any company or corpora
tion, to coerce, require, demand, or
influence any person or persons to
enter into any agreement, either
written or verbal, not to join or be-
come or remain member of any
labor organization or association,
as a condition of such person or
persons securing employment, or
continuing in the employment of
such individual, firm, or corpora
tion."
1t will be observed that in all es-
sentials, the acts prohibited by the
Kansas statute are identical with the
acts prohibited by the Ohio statute.
Judge Pitney, five of the Supreme,
Judges concurring with him, held that
the Kansas statute was uncOnstitu-
tional in that it Violated the liberty
of contract guaranteed by the 18th
Amendment of the Federal Constitu-
ton, which Amendment reads as
follows:
"All persons born or naturalized
in the United States, and subject
to the jurisdiction thereof, are citi-
zens of the United States and of
the State wherein they reside. No
State shall make or enforce any
law which shall abridge the privi-
leges or immunities of citizens of
the United States; NOR SHALL
ANY STATE DEPRIVE ANY
PERSON OF LIFE, LIBERTY, OR
PROPERTY, WIT HOUT DUE
PROCESS OF LAW; nor deny to
any person within it's jurisdiction
the equal protection of the law
Justices Day, Holmes and Hughes
dissented from this judgment.
The majority of this court are con-
tent to follow the decision of the su-
preme court of the United States as
controlling in the case at bar, and it
must be frankly admitted that if the
decision is right in the Kansas case
it must be the law in the case at
bar.
With all due respect deny the
soundness of that decision, because
believe it to be unsupported by rea-
son, contrary to logic, against the
"equal protection of the law" out
of joint with the spirit of our Amer1-
can institutions, and especially be-
cause 4 believe the Kansas statute in
question is in perfect harmony with
the fourteenth amendment of the
federal constitution.
Owing to this very radical differ
ence, it is becoming to set forth the
grounds upon which this dissent is
based.
A New Constitutional Test.
This is a criminal statute prohibit
ing certain acts and penalizing the
commission of those acts.
Such statute, to be void because
of unconstitutionality, must prohibit
something which the constitution per-
mits or protects. If the thing pro-
hibited by the statute is not permitted
or protected by the constitution, either
in express terms or by clear implica-
tion, then the statute is not void be-
cause of unconstitutionality.
In brief, statute cannot prohibit
what the constitution protects or per-
mits. Neither can statute permit or
protect what the constitution prohi-
bits. Such a conflict is so obvious
and clear that all must be agreed that
the statutory provision must fall in