In re Berger

23 Ohio C.C. Dec. 289, 15 Ohio C.C. (n.s.) 81, 1912 Ohio Misc. LEXIS 182

• Court: Hamilton Circuit Court
• Decided: June 1, 1912
• Status: Published

Opinions

SMITH, P. J.

Upon January 24, the petitioner was arrested upon an affidavit and warrant charging that on December 2, 1911, he, being an agent and employe of the Roth Shoe Manufacturing Company, did unlawfully coerce and discharge one, Schroeder, from the employment of the. said company,’ because said Schroeder was a member of the United Shoe Workers of America, a lawful labor organization.

To the answer of William H. Jackson, chief of police of the city of Cincinnati, who by virtue of said warrant held the petitioner in custody, a demurrer was filed, setting up therein that Gen. Code 12943, the statute under which the prosecution of the petitioner was had, is unconstitutional as being in contravention of the fifth and fourteenth amendments to the constitution of the United States, and Art. 1, Sec. 1, of the constitution of Ohio.

Gen. 'Code 12943 reads as follows:

“Whoever, being a member of a firm, or agent, officer or employe of a company, corporation or person, prevents employes from forming, joining or belonging to a lawful labor organization, or coerces or attempts to coerce employes by discharging or threatening to discharge them from their employ, or the employ of a firm, company or corporation because of their connection with such labor organization, shall be fined not more than one hundred dollars or imprisoned not more than six months, or both. ’ ’

Sec. 1 of the fourteenth amendment of the constitution of the United States provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Art. I, See. 1, of the constitution of Ohio, declares.-

“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety. ’ ’

It was said by the court in the ease of People v. Marcus, 185 N. Y. 257 [77 N. E. Rep. 1073; 7 L. R. A. (N. S.) 282; 113 Am. St. Rep. 902; 7 Ann. Cas. 118] :

“The free and untrammeled right to contract is a part of the liberty guaranteed’ to every citizen by the federal and state constitutions. Personal liberty is always subject to restraint when its exercise affects the safety, health or moral and general welfare of the public, but subject to such restraint an employer and employe may make and enforce such contract relating to labor as they may agree upon. ’ ’

The offense charged against the petitioner in effect is, that he, being an agent of the shoe company, did unlawfully coerce and discharge one, Schroeder, from its service because of his membership in a labor organization.

We do not think that the legislature can make such an act as is described in Gen. Code 12943 a criminal offense in the face of the constitutional guaranties above cited.

“The right to employ labor and make contracts in relation thereto upon such terms as may be mutually agreed upon is incident- to the right of enjoying liberty and of acquiring, possessing and protecting property guaranteed by the constitution. An essential element of the right to enter into a contract of employment is the right of the parties to fix the terms of the employment, and of either party to terminate the employment at pleasure, when it is not otherwise agreed upon. When the constitution declares that every person has an inalienable right! to liberty and to acquire, possess and protect property, it guarantees to him the right to make and enforce all proper contracts, and to employ in carrying on his business such persons and such lawful means as he may choose, free from all restraints except such as are necessary for the common welfare.” State v. Bateman, 10 Dec. 68 (7 N. P. 487) ; People v. Marcus, supra; Adair v. United States, 208 U. S. 161 [28 Sup. Ct. Rep. 277; 52 L. Ed. 436], and cases cited therein; State v. Julow, 129 Mo. 163 [31 S. W. Rep. 781; 29 L. R. A. 257; 50 Am. St. Rep. 443]; New York, C. & St. L. Ry. v. Schafer, 65 Ohio St. 420 [62 N. E. Rep. 1036; 62 L. R. A. 931; 87 Am. St. Rep. 628].

Upon an examination - of the above authorities, together with numerous others cited by counsel, we can reach but one conclusion: that the great weight of authority is that statutes characteristic of the one in question are unconstitutional and void, and we so hold in this case.

The demurrer to the answer will be sustained and the petitioner discharged.

Swing, J., concurs.