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American Federation of Labor v. American Sash & Door Co.

Supreme Court of Arizona

February 4, 1948


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[Copyrighted Material Omitted]

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Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Proceeding by American Federation of Labor, Arizona State Federation of Labor, Phoenix Building & Construction Trades Council, United Brotherhood of Carpenters and Joiners of America, Millmen, Cabinet Makers and Lumber Handlers Union No. 2093, Forest L. Stiers individually and as president of Local Union No. 2093, and Ralph Henley, doing business as Ralph Henley Millwork, against American Sash & Door Company, a corporation, D. A. Brewer, W. B. Stevens, Edward L. Beard, James R. Miller, and John L. Sullivan, individually and as Attorney General of the State of Arizona (succeeded by Evo De Concini as Attorney General, who has been substituted as a party defendant), for a declaratory judgment as to the constitutionality of the "right to work" amendment to the Arizona Constitution. From the judgment, plaintiffs appeal.


J. H. Morgan and H. S. McCluskey, both of Phoenix, and Herbert S. Thatcher, of Washington, D. C. (Minne & Sorenson and George Wilson, both of Phoenix, of counsel), for appellants.

John L. Sullivan, Atty. Gen., John W. Rood, Chief Asst. Atty. Gen., and Moeur & Moeur, Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., Henry S. Stevens, and Burr Sutter, all of Phoenix, for appellees.

Udall, Justice. La Prade, J., concurs. Stanford, Chief Justice (dissenting in part).


Udall, Justice.

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[67 Ariz. 24] This appeal involves a determination of the constitutionality of what has been commonly styled the "Right to Work" Amendment to the Arizona Constitution. For reasons which will be later developed, we have neither the duty nor the right to consider or judge the wisdom of this legislation or its practicability. Our function is limited to finding whether it offends the Constitution of the United States. The people of the State of Arizona at the general election held in 1946 adopted an Amendment to the Constitution of the State of Arizona, reading as follows:

"No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the state or any subdivision thereof, or any corporation, individual [67 Ariz. 25] or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization." Petition and Governor's Proclamation validating it appear in 1947 Session Laws of Arizona at page 399.

The Amendment (and as such it will hereafter be designated) became effective upon proclamation by the Governor dated November 25, 1946. On February 12, 1947, the appellants (plaintiffs below), as representatives of one segment of labor, filed this civil action to procure a declaratory judgment, under Article 7, Chapter 27, A.C.A.1939, in respect to its validity, interpretation and effect, and for injunctive relief against its enforcement.

The trial court, while denying motions of appellees (defendants below) to strike portions or all of the forty-page complaint, commented that "far more than half of the complaint is wholly immaterial and irrelevant" but it granted their motion to dismiss the complaint. Appellants having elected to stand thereon, judgment was entered dismissing the action, and from the order and judgment of dismissal this appeal was taken.

No testimony was taken in the court below, and we have properly before us no conclusions of law, but only the facts well pleaded in the complaint (and, therefore, impliedly admitted by appellees by their motion to dismiss), together with such other matters of which we may take judicial notice.

Parties to Suit

The appellants are various national and local labor organizations affiliated with the American Federation of Labor and an employer and an employee, all of whom have entered into or desire to enter into union-security agreements in Arizona. The appellees are: (1) The Attorney General of Arizona (the present incumbent Evo De Concini having been substituted for, and having adopted the same position as, his predecessor) who, as the chief law enforcement officer, it is alleged, had threatened to institute civil and criminal proceedings against all persons violating said Amendment; (2) various employers who are parties to union-security agreements; and (3) individual employees whose employment status would be affected by reason of such agreements.


By appropriate assignments of error and propositions of law, appellants challenge the Amendment as being either invalid and unconstitutional, or at least inoperative as to certain contracts, for the following reasons: (1) The Amendment arbitrarily and unreasonably impairs the obligations of existing contracts and deprives both unions and employers of freedom of contract, all in violation of Article 1, Section 10, of the United States Constitution and the due

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process clause of the Fourteenth Amendment. [67 Ariz. 26] (2) The Amendment constitutes class legislation and is highly discriminatory, denying unions and union members the equal protection of the laws contrary to the Fourteenth Amendment. (3) The Amendment impairs and previously restrains the exercise of the civil rights of assembly and speech guaranteed under the First Amendment. (4) In the event the Amendment be held valid by this court, appellants contend that it does not apply to contracts now existing which were entered into previous to the effective date of its adoption.

In the court below appellants urged that the Amendment was invalid because it was in conflict with the Wagner Act. 29 U.S.C.A. § 151 et seq. However, since passage by Congress of the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., they have, for obvious reasons, abandoned this ground in presenting the instant appeal.

Neither need we here determine whether said Amendment is self-executing as this was not advanced either in the assignments of error or in the arguments contained in the briefs. It is evident, at least, that the Eighteenth Legislature considered additional sanctions necessary because that body, in regular session assembled, enacted four measures, Senate Bills numbered 3, 65, 66, & 67, to implement it. Senate Bill No. 65 became a law, Chapter 81, Session Laws of Arizona 1947, at page 173, with the Governor's approval on March 20, 1947. That law provides for injunctive relief and suits for damages for violations of the Amendment and also declares contracts prohibited by it to be illegal and void. No criminal penalties are prescribed. The other three measures (providing for conciliation of labor disputes, the enforcement by suits at law of collective bargaining agreements, and prohibiting secondary boycotts) never became law by reason of being vetoed by the Governor after adjournment of the legislature. These measures appear with other vetoed bills on pages 414 to 423 inclusive of the 1947 Session Laws.

The authority of the people of Arizona to amend their Constitution is unlimited except where prohibited by the Federal Constitution or in conflict with federal law enacted pursuant to constitutionally granted authority. However, an amendment has no greater validity and stands on no higher plane than legislative enactment insofar as being subject to attack for failure to square with the Federal Constitution. Ohio & M. R. R. Co. v. McClure, 10 Wall. 511, 19 L.Ed. 997; Denver v. New York Trust Co., 8 Cir., 187 F. 890; Id., 225 U.S. 707, 32 S.Ct. 839, 56 L.Ed. 1266; New Orleans Water-Works Co. v. Louisiana Sugar Refining Co., 125 U.S. 18, 8 S.Ct. 741, 31 L.Ed. 607. Police Power

Counsel for appellees concede that justification for the Amendment in question must be found under what has been judicially termed the "police power" of the state. There is, in the strict sense, [67 Ariz. 27] no federal police power, A. F. of L. v. Watson, D.C., 60 F.Supp. 1010, because that is one of the powers impliedly reserved to the states by the Tenth Amendment. Justice Taney in License Cases, 5 How. 504, 583, 12 L.Ed. 256, 257, defined the police powers of a state as being "nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions." This undefined power of government covering the health, safety, or welfare of the people bears the same relation to the state that the principle of self-defense bears to the individual.

The Question

Recognizing, then, that the liberty to, and right of, contract are not absolute and unyielding but are subject to being limited, restrained, and circumscribed in the interest of the state and the welfare of its people, the question here is: Was the police power of the state (by the people's adoption of the Constitutional Amendment here under review) so unreasonably, arbitrarily, or capriciously exercised as to be unconstitutional and therefore void?

Freedom to Contract -- Due Process

Appellants' first assignment of error and proposition of law state, in effect, that the Amendment under consideration is unconstitutional: first, in that it violates that part of Article 1, Section 10 of the United

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States Constitution which says "No State shall * * * pass any * * * Law impairing the Obligation of Contracts * * *"; and, second, in that it is also violative of that part of the Fourteenth Amendment which sets forth the proposition that "No State shall make or enforce any law which shall * * * deprive any person of life, liberty, or property, without due process of law; * * *."

It is well settled that for certain proper purposes the state may limit the constitutionally guaranteed freedom to, and sanctity of, contract. Appropriate exercise of the state's police power, e. g., legislation in the interest of the public health, safety, and welfare, has been held to be such a purpose. And relations between employer and employee have been recognized by the United States Supreme Court to be proper subjects for legislative regulation under the state's police power to legislate for the general welfare. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carpenters and Joiners Union v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed 703, 108 A.L.R. 1330; 11 Am.Jur., Constitutional Law, section 345, and cases therein cited. It would serve no useful purpose to multiply authorities or extend this opinion with examples of such use of the police power.

There is no disagreement between the litigants that the Amendment under consideration is an attempted use of the police power; and as such it must stand or fall. The first task, then, is to determine by what [67 Ariz. 28] standards a court should judge whether such power has been properly used. Both appellants and appellees direct our attention to, and rely for the most part upon, the standards for judgment set forth in three landmark decisions of the United States Supreme Court and one decision from this court. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; West Coast Hotel Co. v. Parrish, supra; Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481; State v. Childs, 32 Ariz. 222, 257 P. 366, 54 A.L.R. 736.

In the Nebbia case the question for decision was whether the New York statute fixing the minimum selling price for milk violated the due process and equal protection clauses of the Fourteenth Amendment of the Federal Constitution. The United States Supreme Court sustained the ...

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