International Association of Machinists v. Street/Dissent Black

by Hugo Black

United States Supreme Court

367 U.S. 740

International Association of Machinists  v.  Street

 Argued: Jan. 17, 18, 1961. --- Decided: June 19, 1961

Mr. Justice BLACK, dissenting.

This action was brought in a Georgia state court by six railroad employees ^[1] in behalf of themselves 'and others similarly situated' against railroads making up the Southern Railway System, labor organizations representing employees of that system in collective bargaining, and a number of individuals, to enjoin anforcement and application to them of a union-shop agreement entered into between the railroads and the labor organizations as authorized by § 2, Eleventh of the Railway Labor Act. ^[2] The agreement's terms required all employees, in order to keep their railroad jobs, to join the union and remain members, at least to the extent of tendering periodic dues, initiation fees and assessments, not including fines and penalties. ^[3] The complaint, as amended, charged that the agreement was void because it conflicted with the laws and Constitution of Georgia and the First, Fifth, Ninth and Fourteenth Amendments to the Federal Constitution. Section 2, Eleventh provides that such union shops are valid '(n)otwithstanding any other * * * statute or law of the United States * * * or of any State.' Relying on our decision in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, which upheld contracts made pursuant to that section, the Georgia trial court dismissed the complaint as amended. The State Supreme Court reversed and remanded the case for trial, distinguishing our Hanson decision as follows:

'It is alleged that the union dues and other payments they will be required to make to the union will be used to § upport ideological and political doctrines and candidates' which they are unwilling to support and in which they do not believe, and that this will violate the First, Fifth and Ninth Amendments of the Constitution. While Railway Emp. Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, supra, upheld the validity of a closed shop contract executed under § 2, Eleventh, that opinion clearly indicates that that court would not approve a requirement that one join the union if his contributions thereto were used as this petition alleges. It is there said (headnote 3c), 'Judgment is reserved (italics in Georgia Supreme Court opinion) as to the validity or enforceability of a union or closed shop agreement if other conditions of union membership are imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First or the Fifth Amendment.' We must render judgment now upon this precise question. We do not believe one can constitutionally be compelled to contribute money to support ideas, politics and candidates which he opposes. * * *' ^[4]

On remand, testimony, admissions and stipulations showed without dispute that union funds collected from dues, fees and assessments were regularly used to support and oppose various political and economic programs, candidates, parties and ideological causes, and that the complaining employees were opposed to many of the positions the unions took in these matters. The trial court made lengthy findings, one crucial here being:

'Those funds have been and are being used in substantial amounts to propagate political and economic doctrines, concepts and ideologies and to promote legislative programs opposed by plaintiffs and the class they represent.' (108 S.E.2d 805.)

The trial court then found and declared § 2, Eleventh 'unconstitutional to the extent that it permits, or is applied to permit, the exaction of funds from plaintiffs and the class they represent for the complained of purposes and activities set forth above.' Compulsory membership under these circumstances was held to abridge First Amendment freedoms of association, thought, speech, press and political expression. ^[5] On the basis of this holding the trial court enjoined all the defendants 'from enforcing the said union shop agreements * * * and from discharging petitioners, or any member of the class they represent, for refusing to become or remain members of, or pay periodic dues, fees, or assessments to, any of the labor union defendants, provided, however, that said defendants may at any time petition the court to dissolve said injunction upon a showing that they no longer are engaging in the improper and unlawful activities described above.' Again, the activities referred to were the use of union funds collected from fees, dues and assessments to support candidates, parties, or ideological, economic or political views contrary to the wishes of the complaining employees. The trial court also decreed that the three employees who had been compelled under protest to pay dues, fees and assessments because of the union-shop agreement were entitled to have those payments returned.

The Supreme Court of Georgia affirmed, holding that '(o)ne who is compelled to contribute the fruits of his labor to support or promote political or economic programs or support candidates for public office is just as much deprived of his freedom of speech as if he were compelled to give his vocal support to doctrines he opposes.' ^[6] I fully agree with this holding of the Georgia Supreme Court and would affirm its judgment with certain modifications of the relief grat ed.

Section 2, Eleventh of the Railway Labor Act authorizes unions and railroads to make union-shop agreements notwithstanding any other provision of state or federal law. Such a contract simply means that no person can keep a job with the contracting railroad unless he becomes a member of and pays dues to the contracting union. Neither § 2, Eleventh nor any other part of the Act contains any implication or even a hint that Congress wanted to limit the purposes for which a contracting union's dues should or could be spent. All the parties to this litigation have agreed from its beginning, and still agree, that there is no such limitation in the Act. The Court nevertheless, in order to avoid constitutional questions, interprets the Act itself as barring use of dues for political purposes. In doing this I think the Court is once more 'carrying the doctrine of avoiding constitutional questions to a wholly unjustifiable extreme.' ^[7] In fact, I think the Court is actually rewriting § 2, Eleventh to make it mean exactly what Congress refused to make it mean. The very legislative history relied on by the Court appears to me to prove that its interpretation of § 2, Eleventh is without justification. For that history shows that Congress with its eyes wide open passed that section, knowing that its broad language would permit the use of union dues to advocate causes, doctrines, laws, candidates and parties, whether individual members objected or not. ^[8] Under such circumstances I think Congress has a right to a determination of the constitutionality of the statute it passed, rather than to have the Court rewrite the statute in the name of avoiding decision of constitutional questions.

The end result of what the Court is doing is to distort this statute so as to deprive unions of rights I think Congress tried to give them and at the same time, in the companion case of Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191, leave itself free later to hold that integrated bar associations can constitutionally exercise the powers now denied to labor unions for fear of unconstitutionality. The constitutional question raised alike in this case and in Lathrop is bound to come back here soon with a record so meticulously perfect that the Court cannot escape deciding it. Should the Court then hold that lawyers and workers can constitutionally be compelled to pay for the support of views they are against, the result would be that the labor unions would have lost their case this year on a statutory-constitutional basis while the integrated bar would win its case next year or the year after on the ground that the constitutional part of the basis for the holding against the unions today was groundless. Yet no one has suggested that the Court's statutory construction of § 2, Eleventh could possibly be supported without the crutch of its fear of unconstitutionality. This is why I think the Court's avoidance of the constitutional issue in both cases today is wholly unfair to the unions as well as to Congress. I must consider this case on the basis of my belief as to the constitutionality of § 2, Eleventh, interpreted so as to authorize compulsion of workers to pay dues to a union for use in advocating causes and political candidates that the protesting workers are against.

It is contended by the unions that precisely the same First Amendment question presented here was considered and decided in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714. I agree that it clearly was not. Section 2, Eleventh was challenged there before it became effective and the main grounds of attack, as our opinion noted, were that the union-shop agreement would deprive employees of their freedom of association under the First Amendment and of their property rights under the Fifth. There were not in the Hanson case, as there are here, allegations, proof and findings that union funds regularly were being used to support political parties, candidates and economic and ideological causes to which the complaining employees were hostile. Our opinion in Hanson carefully pointed to the fact that only general '(w)ideranged problems' were tendered under the First Amendment and that imposition of "assessments' * * * not germane to collective bargaining' would present 'a different problem.' The Court went on further to emphasize that if at another time 'the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case. * * * We only hold that the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work is within the power of Congress under the Commerce Clause and does not violate either the First or the Fifth Amendments.' ^[9]

Thus the Hanson case held only that workers could be required to pay their part of the cost of actual bargaining carried on by a union selected as bargaining agent under authority of Congress, just as Congress doubtless could have required workers to pay the cost of such bargaining had it chosen to have the bargaining carried on by the Secretary of Labor or any other appropriately selected bargaining agent. The Hanson case did not hold that railroad workers could be compelled by law to forego their constitutionally protected freedom of association by participating as union 'members' against their will. That case cannot, therefore, properly be read to rest on a principle which would permit government-in furtherance of some public interest, be that interest actual or imaginary-to compel membership in Rotary Clubs, fraternal organizations, religious groups, chambers of commerce, bar associations, labor unions, or any other private organizations Government may decide it wants to subsidize, support or control. In a word, the Hanson case did not hold that the existence of union-shop contracts could be used as an excuse to force workers to associate with people they do not want to associate with, or to pay their money to support causes they detest.

'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

Probably no one would suggest that Congress could, without violating this Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes. Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.

There is, of course, no constitutional reason why a union or other private group may not spend its funds for political or ideological causes if its members voluntarily join it and can voluntarily get out of it. ^[10] Labor unions made up of voluntary members free to get in or out of the unions when they please have played important and luseful roles in politics and economic affairs. ^[11] How to spend its money is a question for each voluntary group to decide for itself in the absence of some valid law forbidding activities for which the money is spent. ^[12] But a different situation arises when a federal law steps in and authorizes such a group to carry on activities at the expense of persons who do not choose to be members of the group as well as those who do. Such a law, even though validly passed by Congress, cannot be used in a way that abridges the specifically defined freedoms of the First Amendment. And whether there is such abridgment depends not only on how the law is written but also on how it works. ^[13]

There can be no doubt that the federally sanctioned union-shop contract here, as it actually works, takes a part of the earnings of some men and turns it over to others, who spend a substantial part of the funds so received in efforts to thwart the political, economic and ideological hopes of those whose money has been forced from them under authority of law. This injects federal compulsion into the political and ideological processes, a result which I have supposed everyone would agree the First Amendment was particularly intended to prevent. And it makes no difference if, as is urged, political and legislative activities are helpful adjuncts of collective bargaining. Doubtless employers could make the same arguments in favor of compulsory contributions to an association of employers for use in political and economic programs calculated to help collective bargaining on their side. But the argument is equally unappealing whoever makes it. The stark fact is that this Act of Congress is being used as a means to exact money from these employees to help get votes to win elections for parties and candidates and to support doctrines they are against. If this § constitutional the First Amendment is not the charter of political and religious liberty its sponsors believed it to be. James Madison, who wrote the Amendment, said in arguing for religious liberty that 'the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.' ^[14] And Thomas Jefferson said that 'to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.' ^[15] These views of Madison and Jefferson authentically represent the philosophy embodied in the safeguards of the First Amendment. That Amendment leaves the Federal Government no power whatever to compel one man to expend his energy, his time or his money to advance the fortunes of candidates he would like to see defeated or to urge ideologies and causes he believes would be hurtful to the country.

The Court holds that § 2, Eleventh denies 'unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes.' While I do not so construe § 2, Eleventh, I want to make clear that I believe the First Amendment bars use of dues extorted from an employee by law for the promotion of causes, doctrines and laws that unions generally favor to help the unions, as well as any other political purposes. I think workers have as much right to their own views about matters affecting unions as they have to views about other matters in the fields of politics and economics. Indeed, some of their most strongly held views are apt to be precisely on the subject of unions, just as questions of law reform, court procedure, selection of judges and other aspects of the 'administration of justice' give rise to some of the deepest and most irreconcilable differences among lawyers. In my view, § 2, Eleventh can constitutionally authorize no more than to make a worker pay dues to a union for the sole purpose of defraying the cost of acting as his bargaining agent. Our Government has no more power to compel individuals to support union programs or union publications than it has to compel the support of political programs, employer programs or church programs. And the First Amendment, fairly construed, deprives the Government of all power to make any person pay out one single penny against his will to be used in any way to advocate doctrines or views he is against, whether economic, scientific, political, religious or any other. ^[16]

I would therefore hold that § 2, Eleventh of the Railway Labor Act, in authorizing application of the union-shop contract to the named protesting employees who are appellees here, violates the freedom of speech guarantee of the First Amendment.

The Georgia court enjoined the unions and the railroads from certain future activities under the contract and also required repayment of dues paid by three employees who had protested use of union funds to support candidates or advocate views the protesting employees were against.

I am not so sure as the Court that the injunction bars 'the collection of all funds from anyone who can show that he is opposed to the expenditure of any of his money for political purposes which he disapproves.' So construed the injunction would take away the First Amendment right of employees to contribute their money voluntarily to a collective fund to be used to support and oppose candidates and causes even though individual contributors might disagree with particular choices of the group. So far as it may be ambiguous in this respect, I think the injunction should be modified to make sure that it does not interfere with the valuable rights of citizens to mae their individual voices heard through voluntary collective action.

For much the same basic reasons I think the injunction is too broad in that it runs not only in favor of the six protesting employees but also in favor of the 'class they represent.' No one of that 'class' is shown to have protested at all. The State Supreme Court nevertheless rejected the unions' contention that the so-called class was so indefinite, and its members so lacking in common, identifiable interests and mental attitudes, that a decree purporting to bind all of them, the railroads, the individual defendants and the unions, would not comport with the due process requirements of the Fifth and Fourteenth Amendments. For reasons to be stated, I agree with this contention of the unions and consequently would hold that the judgment here cannot stand insofar as it purports finally to adjudicate rights as between the party defendants and railroad employees who were neither named party plaintiffs nor intervenors in the suit.

The trial court defined the 'class' as composed of 'all non-operating employees of the railroad defendants affected by, and opposed to, the * * * union shop agreements, who also are opposed to the collection and use of periodic dues, fees and assessments for support of ideological and political doctrines and candidates and legislative programs * * *.' ^[17] (108 S.E.2d 802.) As applied to the facts here, this class, as defined, could include employees not only from Georgia, but also from Florida, Alabama, North Carolina, South Carolina, Tennessee, Louisiana, Illinois, Virginia, Ohio, Indiana, Missouri, Mississippi, Kentucky and the District of Columbia. Genuine class actions result in binding judgments either for or against each member of the class. ^[18] Obviously, to make a judgment binding, the parties for or against whom it is to operate must be identifiable when the judgment is rendered. That would not be possible here since the only employees included in the class would be those who personally oppose the views they allege the union is using their dues to promote. This would make the 'class' depend on the views entertained by each member, views which may change from day to day or year to year. Under these circumstances, when this decree was rendered neither the court nor the adverse parties nor anyone else could know, with certainty, to what individuals the unions owed a duty under the decree. In Hansberry v. Lee, 311 U.S. 32, 44, 61 S.Ct. 115, 119, 85 L.Ed. 22, this Court pointed out the insuperable obstacles in attempting to treat as members of the same class parties to a contract such as the one here, some of whom might prefer to have the contract enforced and some of whom might not. Notice to persons whose rights are to be adjudicated is too important an element of our system of justice to permit a holding that this Georgia action has finally determined the issues for all the unidentifiable members of this 'class' of plaintiffs spread territorially all the way from Florida to Illinois and from the District of Columbia to Missouri. After all the class suit doctrine is only a narrow judicially created exception to the rule that a case or controversy involves litigants who have been duly notified and given an opportunity to be present in court either in person or by counsel. ^[19] I would hold that there was no known common interest among the members of the described class here which justified this class action. From the very nature of the rights asserted, which depended on the unknown, perhaps fluctuating mental attitudes of employees, the rights of each employee were the basis for separable claims, in which the relief for each might vary as it did here as to the amount of damages awarded. Under these circumstances the class judgment should not stand.

The decree, modified to eliminate its class aspect, does not unconditionally forbid the application of the contract to all people under all circumstances, as did the one we struck down in the Hanson case. The decree so modified would simply forbid the use of the union-shop contract to bar employment of the six protesting employees so long as the unions do not discontinue the practice of spending union funds to support any causes or doctrines, political economic or other, over the expressed objection of the six particular employees. Other employees who have not protested are of course in the entirely different position of voluntary or acquiescing dues payers, which they have every right to be, and since they have asked for no relief the decree in this case should not affect them. Thus modified I think the relief afforded by the decree is justified.

The decree requires the union to refund dues, fees and assessments paid under protest by three of the complaining employees and exempts the six complaining employees from the payment of any union dues, fees or assessments so long as funds so received are used by the union to promote causes they are against. The state court found that these payments had been and would be made by these employees only because they had been compelled to join the union to save their jobs, despite their objections to paying the union so long as it used its funds for candidates, parties and ideologies contrary to these employees' wishes. The Court does not challenge this finding but nevertheless holds that relieving protesting workers of all payment of dues would somehow interfere with the union's statutory duty to act as a bargaining agent. In the first place, this would interfere with the union's activities only to the extent that it bars compulsion of dues payments from protesting workers to be used in some unknown part for unconstitutional purposes, and I think it perfectly proper to hold that such payments cannot be compelled. Furthermore, I think the remedy suggested by the Court will work a far greater interference with the union's bargaining activities because it will impose much greater trial and accounting burdens on both unions and workers. The Court's remedy is to give the wronged employees a right to a refund limited either to 'the proportion of the union's total expenditures made for such political activities' or to the 'proportion * * * (of) expenditures for political purposes which he had advised the union he disapproved.' It may be that courts and lawyers with sufficient skill in accounting, algebra, geometry, trigonometry and calculus will be able to extract the proper microscopic answer from the voluminous and complex accounting records of the local, national and international unions involved. It seems to me, however, that while the Court's remedy may prove very lucrative to special masters, accountants and lawyers, this formula, with its attendant trial burdens, promises little hope for financial recompense to the individual workers whose First Amendment freedoms have been flagrantly violated. Undoubtedly, at the conclusion of this long exploration of accounting intricacies, many courts could with plausibility dismiss the o rkers' claims as de minimis when measured only in dollars and cents.

I cannot agree to treat so lightly the value of a man's constitutional right to be wholly free from any sort of governmental compulsion in the expression of opinions. It should not be forgotten that many men have left their native lands, languished in prison, and even lost their lives, rather than give support to ideas they were conscientiously against. The three workers who paid under protest here were forced under authority of a federal statute to pay all current dues or lose their jobs. They should get back all they paid with interest.

Unions composed of a voluntary membership, like all other voluntary groups, should be free in this country to fight in the public forum to advance their own causes, to promote their choice of candidates and parties and to work for the doctrines or the laws they favor. But to the extent that Government steps in to force people to help espouse the particular causes of a group, that group-whether composed of railroad workers or lawyers-loses its status as a voluntary group. The reason our Constitution endowed individuals with freedom to think and speak and advocate was to free people from the blighting effect of either a partial or a complete governmental monopoly of ideas. Labor unions have been peculiar beneficiaries of that salutary constitutional principle, and lawyers, I think, are charged with a peculiar responsibility to preserve and protect this principle of constitutional freedom, even for themselves. A violation of it, however small, is in my judgment, prohibited by the First Amendment and should be stopped dead in its tracks on its first appearance. With so vital a principle at stake, I cannot agree to the imposition of parsimonious limitations on the kind of decree the courts below can fashion in their efforts to afford effective protection to these priceless constitutional rights.

I would affirm the judgment of the Georgia Supreme Court, with the modifications I have suggested.

Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.

Appellant unions were the collective bargaining representatives of the 'nonoperating' employees of the Southern Railway. Appellees, six individual railway employees, commenced this action in the Superior Court of Bibb County, Georgia, seeking a declaration of invalidity and an injunction to prevent enforcement of a union-shop agreement, made under the authority of § 2, Eleventh of the Railway Labor Act, as amended in 1951, on the ground that the contract was in violation of Georgia law and rights secured by the First, Fifth, Ninth, and Tenth Amendments of the United States Constitution. The suit was brought as a class action on behalf of 'all those employees or former employees of the railroad defendants affected by and opposed to the union-shop agreement who are also opposed to the use of the periodic dues, fees and assessments which they have been, are and will be required to pay to support ideological and political doctrines and candidates and legislative programs. * * *' The monthly dues ranged from $2.25 to $3. The petition alleged that the plaintiffs opposed and were unwilling voluntarily to support the 'ideological and political doctrines and candidates' for which union dues and assessments were collected under the union-shop agreement and would be used 'in substantial part * * * to support.'

The Georgia trial court's decision dismissing the complaint for failure to state a cause of action was reversed by the Supreme Court of Georgia. Looper v. Georgia, Southern & Florida R. Co., 213 Ga. 279, 99 L.Ed. 101. Upon remand, the parties stipulated the above allegations and the plaintiffs offered proof of the amount of union funds which went to the legislative, political and educational departments of the unions and the controlling organs of the AFL-CIO. The trial court made, inter alia, the following findings: the unions' funds had been expended in 'substantial amounts' to promoe political doctrines and legislative programs which the plaintiffs opposed; these funds had been used in 'substantial amounts to impose upon plaintiffs * * * conformity to those doctrines' (108 S.E.2d 802); such use of funds was 'not reasonably necessary to collective bargaining or to maintaining the existence and position of said union defendants as effective bargaining agents.' The need of unions to engage in what are loosely described as political activities as means of promoting-if not to achieving-the purposes of their existence, the extent to which this practice has become an essential part of the American labor movement and more particularly of railroad labor unions, the relation of these means to the ends of collective bargaining, were matters not canvassed at trial nor judicially noticed. Nor was it claimed that the slightest barrier had been interposed against the fullest exercise by the plaintiffs of their freedom of speech in any form or in any forum. Since these matters were not canvassed, no findings upon them were made.

The trial court permanently enjoined enforcement of the agreement so long as the unions continued to engage 'in the improper and unlawful activities described.' It declared § 2, Eleventh of the Railway Labor Act unconstitutional insofar as it permitted the exaction of dues utilized in promoting so-called political activities from union members disapproving such expenditures. The unions were also ordered to repay the dues and assessments previously paid by the individual plaintiffs. The Georgia Supreme Court affirmed this judgment, 215 Ga. 27, 108 S.E.2d 796, and on appeal to this Court, under 28 U.S.C. § 1257(1), 28 U.S.C.A. § 1257(1), probable jurisdiction was noted. 361 U.S. 807, 80 S.Ct. 84, 4 L.Ed.2d 54.

I completely defer to the guiding principle that this Court will abstain from entertaining a serious constitutional question when a statute may fairly be construed so as to avoid the issue, but am unable to accept the restrictive interpretation that the Court gives to § 2, Eleventh of the Railway Labor Act. After quoting the relevant canon for constitutional adjudication from United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061. ^[20] Mr. Justice Cardozo for the whole court enunciated the complementary principle:

'But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered.' Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265.

The Court-devised precept against avoidable conflict with Congress through unnecessary constitutional adjudication is not a requirement to distort an enactment in order to escape such adjudication. Respect for the doctrine demands and only permits that we extract an interpretation which shies off constitutional controversy, provided such interpretation is consonant with a fair reading of a statute.

And so the question before us is whether § 2, Eleventh of the Railway Labor Act can untorturingly be read to bar activities of railway unions, which have bargained in accordance with federal law for a union shop, whereby they are forbidden to spend union dues for purposes that have uniformly and extensively been so long pursued as to have become commonplace, settled, conventional tradeunion practices. No consideration relevant to construction sustains such a restrictive reading.

The statutory provision cannot be meaningfully construed except against the background and presupposition of what is loosely called political activity of American trade unions in general and railroad unions in particular-activity indissolubly relating to the immediate economic and social concernst hat are the raison d'e tre of unions. It would be pedantic heavily to document this familiar truth of industrial history and commonplace of trade-union life. To write the history of the Brotherhoods, the United Mine Workers, the Steel Workers, the Amalgamated Clothing Workers, the International Ladies Garment Workers, the United Auto Workers, and leave out their so-called political activities and expenditures for them, would be sheer mutilation. Suffice it to recall a few illustrative manifestations. The AFL, surely the conservative labor group, sponsored as early as 1893 an extensive program of political demands calling for compulsory education, an eight-hour day, employer tort liability, and other social reforms. ^[21] The fiercely contested Adamson Act of 1916, 39 Stat. 721, see Wilson v. New, 243 U.S. 332, 37 S.Ct. 298, 61 L.Ed. 755, was a direct result of railway union pressures exerted upon both the Congress and the President. ^[22] More specifically, the weekly publication 'Labor'-an expenditure under attack in this case-has since 1919 been the organ of the railroad brotherhoods which finance it. Its files through the years show its preoccupation with legislative measures that touch the vitals of labor's interests and with the men and parties who effectuate them. This aspect-call it the political side-is as organic, as inured a part of the philosophy and practice of railway unions as their immediate bread-and-butter concerns.

Viewed in this light, there is a total absence in the text, the context, the history and the purpose of the legislation under review of any indication that Congress, in authorizing union-shop agreements, attributed to unions and restricted them to an artificial, non-prevalent scope of activities in the expenditure of their funds. An inference that Congress legislated regarding expenditure control in contradiction to prevailing practices ought to be better founded than on complete silence. The aim of the 1951 legislation, clearly stated in the congressional reports, was to eliminate 'free riders' in the industry ^[23]-to make possible 'the sharing of the burden of maintenance by all of the beneficiaries of union activity.' ^[24] To suggest that this language covertly meant to encompass any less than the maintenance of those activities normally engaged in by unions is to withdraw life from law and to say that Congress dealt with artificialities and not with railway unions as they were and as they functioned.

The hearings and debates lend not the slightest support to a construction of the amendment which would restrict the uses to which union funds had, at the time of the union-shop amendment, been conventionally put. To be sure, the legislative record does not spell out the obvious. The absence of any showing of concern about unions' expenditures in 'political' areas-especially when the issue was briefly raised ^[25]-only buttresses the conclusion that Congress intended to leave unions free to do that which unions had been and were doing. It is surely fanciful to conclude that this verbal vacuity implies that Congress meant its amendment to be read as providing that members of the union may restrict their dues solely for financing the technical process of collective bargaining.

There were specific safeguards protective of minority rights. These safeguards were directed solely toward the protection of those who might otherwise find themselves barred from union membership-viz., Negroes and those who had been long-time opponents of the unions. The only e ference to free speech in the record of the enactment was made by the President of the Norfolk & Western Railroad Company during the hearings before the House Subcommittee. His remarks were related to restrictive provisions in some union constitutions which suppressed the right of a dissatisfied member to voice his criticism upon pain of expulsion. ^[26] No such claim is remotely before us. ^[27] The sole reason for clarifying the proviso to the amendment so that payment of dues was explicitly declared to be the only legitimate condition of union membership was the continuing fear of lack of protection for unpopular minorities. There is no mention of political expenditures in any of the references. From this wasteland of material it is strange to find not only that 'A congressional concern over possible impingements on the interests of individual dissenters from union policies is therefore discernible,' but so discernible that a construction must be placed upon he statute that neither its terms nor the accustomed habits of union life remotely justify.

None of the parties in interest at any time suggested the possibility that the statute be construed in the manner now suggested. Neither the United States, the individual dissident members, the railroad unions, the railroads, the AFL-CIO, the Railway Labor Executives' Association, nor any other amicus curiae suggested that the statute could be emasculated in the manner now proposed. Of course we are not confined by the absence of such a claim, but it is significant that a construction now found to be reasonable never occurred to the litigants in the two arguments here.

I cannot attribute to Congress that sub silentio it meant to bar railway unions under a union-shop agreement from expending their funds in their traditional manner. How easy it would have been to give at least a hint that such was its purpose. The claim that these expenditures infringe the appellees' constitutional rights under the First Amendment must therefore be faced.

In Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 719, this Court had to pass on the validity of § 2, Eleventh of the Railway Labor Act, which provided that union-shop agreements entered into between a carrier and a duly designated labor organization shall be valid notwithstanding any other 'statute or law of the United States, or Territory thereof, or of any State.' ^[28] We held that in its exercise of the power to regulate commerce, 'the choice by the Congress of the union shop as a stabilizing force (in industrial disputes) seems to us to be an allowable one,' and that the plaintiffs' claims under the First and Fifth Amendments were without merit.

The record before the Court in Hanson clearly indicated that dues would be used to further what are normally described as political and legislative ends. And it surely can be said that the Court was not ignorant of a fact that everyone else knew. Union constitutions were in evidence which authorized the use of union funds for political magazines, for support of lobbying groups, and for urging union members to vote for union-approved candidates. ^[29] The contention now raised by plaintiffs was succinctly stated by the Hanson plaintiffs in their brief. ^[30] We indicated that we were deciding the merits of the complaint on all the allegations and proof before us. 'On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar.' 351 U.S., at page 238, 76 S.Ct. at page 721.

One would suppose that Hanson's reasoning disposed of the present suit. The Georgia Supreme Court, however, in reversing the initial dismissal of the action by the lower court, relied upon the following reservation in our opinion: 'if the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case.' 351 U.S. at page 238, 76 S.Ct. at page 721. The use of union dues to promote relevant and effective means of realizing the purposes for which unions exist does not constitute a utilization of dues 'as a cover for forcing ideological conformity' in any fair reading of those words. It will come as startling and fanciful news to the railroad unions and the whole labor movement that in using union funds for promoting and opposing legislative measures of concern to their members they were engaged in under-cover operations. 'Cover' implies a disguise, some sham; 'forcing * * * conformity' means coercing avowal of a belief not entertained. Plaintiffs here are in no way subjected to such suppression of their true beliefs or sponsorship of views they do not hold. Nor are they forced to join a sham organization which does not participate in collective bargaining functions, but only serves as a conduit of funds for ideological propaganda. A totally different problem than the one before the Court would be presented by provisions of union constitutions which in fact prohibited members from sponsoring views which the union opposed, ^[31] or which enabled officers to sponsor views not representative of the union.

Nevertheless, we unanimously held that the plaintiffs in Hanson had not been denied any right protected by the First Amendment. Despite our holding, the gist of the complaint here is that the expenditure of a portion of mandatory funds for political objectives denies free speech-the right to speak or to remain silent-to members who oppose, against the constituted authority of union desires, this use of their union dues. No one's desire or power to speak his mind is checked or curbed. The individual member may express his views in any public or private forum asf reely as he could before the union collected his dues. Federal taxes also may diminish the vigor with which a citizen can give partisan support to a political belief, but as yet no one would place such an impediment to making one's views effective within the reach of constitutionally protected 'free speech.'

This is too fine-spun a claim for constitutional recognition. The framers of the Bill of Rights lived in an era when overhanging threats to conduct deemed 'seditious' and lettres de cachet were current issues. Their concern was in protecting the right of the individual freely to express himself-especially his political beliefs-in a public forum, untrammeled by fear of punishment or of governmental censure.

But were we to assume, arguendo, that the plaintiffs have alleged a valid constitutional objection if Congress had specifically ordered the result, we must consider the difference between such compulsion and the absence of compulsion when Congress acts as platonically as it did, in a wholly non-coercive way. Congress has not commanded that the railroads shall employ only those workers who are members of authorized unions. Congress has only given leave to a bargaining representative, democratically elected by a majority of workers, to enter into a particular contractual provision arrived at under the give-and-take of duly safeguarded bargaining procedures. (The statute forbids distortion of these procedures as, for instance, through racial discrimination. Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173.) Congress itself emphasized this vital distinction between authorization and compulsion. S.Rep. No. 2262, 81st Cong., 2d Sess. 2. And this Court in Hanson noted that 'The union shop provision of the Railway Labor Act is only permissive. Congress has not * * * required carriers and employees to enter into union shop agreements.' 351 U.S. at page 231, 76 S.Ct. at page 718. When we speak of the Government 'acting' in permitting the union shop, the scope and force of what Congress has done must be heeded. There is not a trace of compulsion involved-no exercise of restriction by Congress on the freedom of the carriers and the unions. On the contrary, Congress expanded their freedom of action. Congress lifted limitations upon free action by parties bargaining at arm's length. ^[32]

The plaintiffs have not been deprived of the right to participate in determining union policies or to assert their respective weight in defining the purposes for which union dues may be expended. Responsive to the actualities of our industrial society, in which unions as such play the role that they do, the law regards a union as a self-contained, legal personality exercising rights and subject to responsibilities wholly distinct from its individual members. See United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975. It is a commonplace of all organizations that a minority of a legally recognized group may at times see an organization' funds used for promotion of ideas opposed by the minority. The analogies are numerous. On the largest scale, the Federal Government expends revenue collected from individual taxpayers to propagandize ideas which many taxpayers oppose. Or, as this Court noted in Hanson, many state laws compel membership in the integrated bar as a prerequisite to practicing law, ^[33] and the barassociation uses its funds to urge legislation of which individual members often disapprove. The present case is, as the Court in Hanson asserted, indistinguishable from the issues raised by those who find constitutional difficulties with the integrated bar. ^[34] If our statement in Hanson carried any meaning, it was an unqualified recognition that legislation providing for an integrated bar, exercising familiar functions, is subject to no infirmity derived from the First Amendment. Again, under the Securities Exchange Act of 1934, Congress specifically authorized the formation of 'national securities associations,' membership in which is of practical necessity to many brokers and dealers. ^[35] The Association has urged the passage of several legislative reforms ^[36] which one can confidently assume did not represent the convictions of all members. To come closer to the heart of the immediate matter, is the union's choice of when to picket or to go out on strike unconstitutional? Picketing is still deemed also a form of speech, ^[37] but surely the union's decision to strike under its statutory aegis as a bargaining unit is not an unconstitutional compulsion forced upon members who strongly oppose a strike, as minorities not infrequently do. Indeed, legislative reform intended to insure the fair representation of the minority workers in internal union politics ^[38] would be redundant if, despite all precautions, the union were constitutionally forbidden because of minority opposition to spend money in accordance with the majority's desires.

How unrealistic the views of plaintiffs are becomes manifest in light of the purpose of the legislative scheme in authorizing the union shop and the practical necessity for unions to participate in what as a matter of analytical fragmentation may be called political activities. The 1951 Amendment of the Railway Labor Act, which enacted § 2, Eleventh, was passed in an effort to make more equitable the sharing of costs of collective bargaining among all the workers whom the bargaining agent represented. H.R.Rep. No. 2811, 81st Cong., 2d Sess. 4; Hearings, House Committee on Interstate and Foreign Commerce on H.R. 7789, 81st Cong., 2d Sess. 10, 11, 29, 49-50; Hearings, Subcommittee of the Senate Committee on Labor and Public Welfare on S. 3295, 81st Cong., 2d Sess. 15-16. 130, 154, 170. Prior to the passage of this Amendment, there was no way in which the union could compel non-union members in the bargaining unit to contribute to the expenses incurred in seeking contractual provisions from the carrier that would redound to the advantage of all its employees. The main reason why prior law had forbidden union shops in the railroad industry is stated in the Senate Report to the 1951 Amendment:

'The present prohibitions against all forms of union security agreements and the check-off were made part of the Railway Labor Act in 1934. They were enacted into law against the background of employer use of these agreements as devices for establishing and maintaining company unions, thus effectively depriving a substantial number of employees of their right to bargain collectively. It is estimated that in 1934 there were over 700 agreements between the carriers and unions alleged to be company unions. These agreements represented over 20 percent of the total number of agreements in the industry.

'It was because of this situation that labor organizations agreed to the present statutory prohibitions against union security agreements. An effort was made to limit the prohibition to company unions. This, however, proved unsuccessful; and in order to reach the problem of company control over unions, labor organizations accepted the more general prohibitions which also deprived the national organizations of seeking union security agreements and check-off provisions. * * *

'Since the enactment of the 1934 amendments, company unions have practically disappeared.' S.Rep.No. 2262, 81st Cong., 2d Sess. 2-3. See also H.R.Rep. No. 2811, 81st Cong., 2d Sess. 3.

Nothing was further from congressional purpose than to be concerned with restrictions upon the right to speak. Its purpose was to eliminate 'free riders' in the bargaining unit. Inroads on free speech were not remotely involved in the legislative process. They were in nobody's mind. Congress legislated to correct what it found to be abuses in the domain of promoting industrial peace. This Court would stray beyond its powers were it to erect a far-fetched claim, derived from some ultimate relation between an obviously valid aim of legislation and an abstract conception of freedom, into a constitutional right.

For us to hold that these defendant unions may not expend their moneys for political and legislative purposes would be completely to ignore the long history of union conduct and its pervasive acceptance in our political life. American labor's initial role in shaping legislation dates back 130 years. ^[39] With the coming of the AFL in 1886, labor on a national scale was committed not to act as a class party but to maintain a program of political action in furtherance of its industrial standards. ^[40] British trade unions were supporting members of the House of Commons as early as 1867. ^[41] The Canadian Trades Congress in 1894 debated whether political action should be the main objective of the labor force. ^[42] And in a recent Australian case, the High Court upheld the right of a union to expel a member who refused to pay a political levy. ^[43] That Britain, Canada and Australia have no explicit First Amendment is beside the point. For one thing, the freedoms safeguarded in terms in the First Amendment are deeply rooted and respected in the British tradition, and are part of legal presuppositions in Canada and Australia. And in relation to our immediate concern, the British Commonwealth experience establishes the pertinence of political means for realizing basic trade-union interests.

The expenditures revealed by the AFL-CIO Executive Council Reports emphasize that labor's participation in urging legislation and candidacies is a major one. In the last three fiscal years, the Committee on Political Education (COPE) expended a total of $1,681,990.42; the AFL-CIO News cost $756,591.99; the Legislative Department reported total expenses of $741,918.24. ^[44] Yet the Georgia trial court has found that these funds were not reasonably related to the unions' role as collective bargaining agents. One could scarcely call this a finding of fact by which this Court is bound, or even one of law. It is a baseless dogmatic assertion that flies in the face of fact. It rests on a mere listing of unions' expenditures and an exhibit of labor publications. The passage of the Adamson Act ^[45] in 1916, establishing the eight-hour day for the railroad industry, affords positive proof that labor may achieve its desired result through legislation after bargaining techniques fail. See Wilson v. New, supra, 243 U.. at pages 340-343, 37 S.Ct. at pages 298 299. If higher wages and shorter hours are prime ends of a union in bargaining collectively, these goals may often be more effectively achieved by lobbying and the support of sympathetic candidates. In 1960 there were at least eighteen railway labor organizations registered as congressional lobby groups. ^[46]

When one runs down the detailed list of national and international problems on which the AFL-CIO speaks, it seems rather naive for a court to conclude-as did the trial court-that the union expenditures were 'not reasonably necessary to collective bargaining or to maintaining the existence and position of said union defendants as effective bargaining agents.' The notion that economic and political concerns are separable is pre-Victorian. Presidents of the United States and Committees of Congress invite views of labor on matters not immediately concerned with wages, hours, and conditions of employment. ^[47] And this Court accepts briefs as amici from the AFL-CIO on issues that cannot be called industrial, in any circumscribed sense. It is not true in life that political protection is irrelevant to, and insulated from, economic interests. It is not true for industry of finance. ^[48] Neither is it true for labor. It disrespects the wise, hardheaded men who were the authors of our Constitution and our Bill of Rights to conclude that their scheme of government requires what the facts of life reject. As Mr. Justice Rutledge stated: 'To say that labor unions as such have nothing of value to contribute to that process (the electoral process) and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing inter-relationship in modern society.' United States v. C.I.O., 335 U.S. 106, 129, 144, 68 S.Ct. 1349, 1368, 92 L.Ed. 1849 (concurring opinion joined in by Black, Douglas, and Murphy, JJ.). Fifty years ago this Court held that there was no connection between outlawry of 'yellow dog contracts' on interstate railroads and interstate commerce, and therefore found unconstitutional legislation directed against the evils of these agreements. Is it any more consonant with the facts of life today, than was this holding in Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436, to say that the tax policies of the National Government the scheme of rates and exemptions-have no close relation to the wages of workers; that legislative developments like the Tennessee Valley Authority do not intimately touch the lives of workers within their respective regions; that national measures furthering health and education do not directly bear on the lives of industrial workers; that candidates who support these movements do not stand in different relation to labor's narrowest economic interests than avowed opponents of these measures? Is it respectful of the modes of thought of Madison and Jefferson projected into our day to attribute to them the view that the First Amendment must be construed to bar unions from concluding, by due procedural steps, that civilrights legislation conduces to their interest, thereby prohibiting union funds to be expended to promote passage of such measures? ^[49]

Congress was not unaware that railroad unions might use these mandatory contributions for furthering their economic interests through political channels. See 96 Cong.Rec. 17049-17050. That such consequences from authorizing compulsory union membership were to be foreseen had been indicated to committees of Congress less than four years earlier when the union-shop provisions of the Taft-Hartley Act were being debated. Hearings, Senate Committee on Labor and Public Welfare on S. 55, 80th Cong., 1st Sess., pp. 726, 1452, 1455-1456, 1687. 2065, 2146, 2150; Hearings, House Committee on Education and Labor on H.R. 8, 80th Cong., 1st Sess., pp. 350, 2260. The failure of the Railway Labor Act amendments to exempt the member who did not choose to have his contributions put to such uses may have reflected difficulties in drafting an exempting clause. See Hearings, Subcommittee of the Senate Committee on Labor and Public Welfare on S. 3295, 81st Cong., 2d Sess., pp. 173 174. But in 1958, the Senate voted down a proposal to enable an individual union member to recover any portion of his dues not expended for 'collective bargaining purposes.' 104 Cong.Rec. 11330 11347.

Congress is, of course, free to enact legislation along lines adopted in Great Britain, whereby dissenting members may contract out of any levies to be used for political purposes. ^[50] 'At the point where the mutual advantage of association demands too much individual disadvantage, a compromise must be struck. * * * When that point has been reached-where the intersection should fall-is plainly a question within the special province of the legislature. * * * Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a court debilitates popular democratic government. Most laws dealing with economic and social problems are matters of trial and error. * * * But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests-the people.' American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 546, 553, 69 S.Ct. 258, 262, 93 L.Ed. 222 (concurring opinion).

In conclusion, then, we are asked by union members who oppose these expenditures to protect their right to free speech-although they are as free to speak as ever-against governmental action which has permitted a union elected by democratic process to bargain for a union shop and to expend the funds thereby collected for purposes which are controlled by internal union choice. To do so would be to mutilate a scheme designed by Congress for the purpose of equitably sharing the cost of securing the benefits of union exertions; it would greatly embarrass if not frustrate conventional labor activities which have become institutionalized through time. To do so is to give constitutional sanction to doctrinaire views and to grant a miniscule claim constitutional recognition.

In Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, the legislative power of a State to subsidize bus service to parochial schools was sustained, although the Court recognized that because of the subsidy some parents were undoubtedly enabled to send their children to church schools who otherwise would not. It makes little difference whether the conclusion is phrased so that no establishment to religion was found, or whether it be more forthrightly stated that the merely incidental 'establishment' was too insignificant. Figures of the Department of Health, Education and Welfare show that the yearly cost of transportation to non-public schools in Massachusetts totals approximately $659,749; In Illinois $1,807,740. ^[51] These are scarcely what would be termed negligible expenditures. Some might consider the resulting 'establishment' more substantial than the loss of free speech through the payment of $3 per month for union dues, whereby a dissident member feels identified in his own mind with the union's position.

The words of Mr. Justice Cardozo, used in a different context, are applicable here: '(C)ountless claims of right can be discovered to have their source or their operative limits in the provisions of a federal statute or in the Constitution itself with its circumambient restrictions upon legislative power. To set bounds to the pursuit, the courts have formulated the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible. We shall be lost in a maze if we put that compass by.' Gully v. First National Bank, 299 U.S. 109, 118, 57 S.Ct. 96, 100, 81 L.Ed. 70.

I would reverse and remand the case for dismissal in the Georgia courts.

Notes

1. Although there were more complainants when the suit was brought, there were only six when the trial was completed.
2. 64 Stat. 1238, 45 U.S.C. § 152, Eleventh, 45 U.S.C.A. § 152, Eleventh.
3. In accordance with the requirements of the statute, the agreement provided, in language almost identical to that of the statute, that no employee would be required to become or remain a member of the union 'if such membership is not available to such employe upon the same terms and conditions as are generally applicable to any other member, or if the membership of such employe is denied or terminated for any reason other than the failure of the employe to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.'
4. Looper v. Georgia Southern & F.R. Co., 213 Ga. 279, 284, 99 S.E.2d 101, 104-105.
5. The trial court also held that the section as enforced violated the Fifth Ninth and Tenth Amendments. My view as to the First Amendment makes it unnecessary for me to consider the claims under the other Amendments.
6. 215 Ga. 27, 46, 108 S.E.2d 796, 808.
7. Clay v. Sun Insurance Office, 363 U.S. 207, 213, 80 S.Ct. 1222, 1226, 4 L.Ed.2d 1170 (dissenting opinion).
8. The specific problem of use of the compelled dues for political purposes was raised during both the hearings and the floor debates. Hearings on S. 3295, Subcommittee of the Senate Committee on Labor and Public Welfare, 81st Cong., 2d Sess., pp. 316-317; Hearings on H.R. 7789, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., p. 160; 96 Cong.Rec. 17049 17050.
9. 351 U.S. at pages 235, 236, 238, 76 S.Ct. at page 720. See also id., 351 U.S. at page 242, 76 S.Ct. at page 723 (concurring opinion).
10. See DeMille v. American Federation of Radio Artists, Cal.App., 175 P.2d 851, 854, affirmed 31 Cal.2d 139, 147-149, 187 P.2d 769, 775-776, certiorari denied 333 U.S. 876, 68 S.Ct. 906, 92 L.Ed. 1152.
11. United States v. C.I.O., 335 U.S. 106, 144, 68 S.Ct. 1349, 1368 (concurring opinion).
12. See, e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834.
13. We held in the Hanson case, with respect to this very same § 2, Eleventh, that even though the statutory provision authorizing union shops is only permissive, that provision, 'which expressly declares that state law is superseded,' is 'the source of the power and authority by which any private rights are lost or sacrificed' and therefore is 'the governmental action on which the Constitution operates.' 351 U.S. at page 232, 76 S.Ct. at page 718. Even though § 2, Eleventh is permissive in form, Congress was fully aware when enacting it that the almost certain result would be the establishment of union shops throughout the railroad industry. Witness after witness so testified during the hearings on the bill, and this testimony was never seriously disputed. See Hearings on S. 3295, supra, note 8, passim; Hearings on H.R. 7789, supra, note 8, passim.
14. 1 Stokes, Church and State in the United States, 391 (1950).
15. Brant, James Madison: The Nationalist, 354 (1948).
16. Cf. Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711.
17. The trial court went on to include in the class other employees who opposed the use of union funds for any purposes 'other than the negotiation, maintenance and administration of agreements coc erning rates of pay, rules and working conditions, or wages, hours, terms or other conditions of employment or the handling of disputes relating to the above.' I read the two opinions of the Georgia Supreme Court, however, as limiting its holding to the precise question of whether the First Amendment is violated by the compulsory legal requirement that employees pay dues and other fees which are partly used to propagate political and ideological views obnoxious to the employees. I consequently do not reach or consider the different question lurking in this part of the trial court's definition of class.
18. See, e.g., Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 367, 41 S.Ct. 338, 342, 65 L.Ed. 673.
19. Cf. Hansberry v. Lee, 311 U.S. at pages 41-42, 61 S.Ct. at pages 117-118.
20. 'A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.'
21. Taft, The A.F. of L. in the Time of Gompers, p. 71 (1957).
22. Perlman and Taft, History of Labor in the United States, 1896-1932, pp. 380-385.
23. S.Rep. No. 2262, 81st Cong., 2d Sess. 2-3.
24. Remarks of Mr. Harrison, Hearings, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., p. 253.
25. 96 Cong.Rec. 17049-17050; Hearings, Subcommittee of the Senate Committee on Labor and Public Welfare on S. 3295, 81st Cong., 2d Sess., pp. 173-174.
26. Remarks of Mr. Smith, Hearings, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., pp. 115 116.
27. Compare Railway Employes' Dept. v. Hanson, 351 U.S. 225, 236-237, 76 S.Ct. 714, 720-721, note 8.
28. The pertinent portion of the section follows:
29. See the provisions of the constitutions of the Brotherhood of Maintenance of Way Employees, the Brotherhood of Railway Carmen of America, and the International Association of Machinists before the Court in the Hanson record, pp. 103-143.
30. Appellees' brief, pp. 16-17, 65.
31. 'B. The Grand Lodge Constitution of the Brotherhood Railway Carmen of America prohibits members from 'interfering with legislative matters affecting national, state, territorial, dominion or provincial legislation, adversely affecting the interests of our members.' § 64.' 351 U.S. at page 237, 76 S.Ct. at page 721, n. 8.
32. To ignore this distinction would be to go far beyond the severely criticized, indeed rather discredited, case of United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, which found coercive implications in the processing tax of the Agricultural Adjustment Act, 7 U.S.C.A. § 601 et seq. The dissenting views of Mr. Justice Stone, concurred in by Brandeis and Cardozo, JJ., may surely be said to have won the day: 'Although the farmer is placed under no legal compulsion to reduce acreage, it is said that the mere offer of compensation for so doing is a species of economic coercion which operates with the same legal force and effect as though the curtailment were made mandatory by act of Congress.' 297 U.S. at page 81, 56 S.Ct. at page 326.
33. The following States have integrated bars: Alabama (Ala.Code, Tit. 46, § 30); Alaska (Alaska Laws Ann. §§ 35-2-77a to 35-2-77o); Arizona (Ariz.Code Ann. § 32-302, A.R.S. § 32-201); California (Cal.Bus. & Prof.Code § 6002); Florida (Fla.Stat.Ann., Vol. 31, pp. 699-713 (court rule)); Idaho (Idaho Code & 3-408 to § 3-417); Kentucky (Ky.Rev.Stat. § 30.170); Louisiana (LSA-Rev.Stat. 37:211; Art. IV, Articles of Incorporation, La.State Bar Assn., 4 Dart, Annotations to La.Stat.1950, p. 29); Michigan (Mich.Stat.Ann. § 27-101, Comp. Laws 1948, § 691.51); Mississippi (Miss. Code, § 8696); Missouri (Mo.Supreme Court Rule 6, V.A.M.R., 352 Mo. xxix); Nebraska (Neb.Supreme Court Rule IV, In re Integration of Nebraska State Bar Assn., 133 Neb. 283, 275 N.W. 265); Nevada (Nev.Rev.Stat. 7.270-7.600); New Mexico (N.Mex.Stat.Ann. § 18-1-2 to § 18-1-24); North Carolina (N.C.Gen.Stat. § 84-16); North Dakota (N.D.Rev.Code § 27-1202); Oklahoma (In re Integration of the Bar of Oklahoma, 185 Okl. 505, 95 P.2d 113, amended by Okla. Supreme Court rules approved October 6, 1958, Okl.Stat.Ann., 1960 Cum.Ann. Pocket Part, Tit. 5, c. 1, App. 1; Oregon (Ore.Rev.Stat. §§ 9.010-9.210); South Dakota (S.D.Code § 32.1114); Texas (Vernon's Ann.Civ.Stat., Art. 320a-1, § 3); Utah (Utah Code Ann. § 78-51-1 to § 78-51-25); Virginia (Va.Code § 54-49); Washington (Wash.Rev.Code § 2.48.020); West Virginia (W.Va.Code Ann. 51-1-4a); Wisconsin (Wis.Stat. § 256.31, 5 Wis.2d 618, 627, 93 N.W.2d 601, 605); Wyoming (Wyo.Stat. § 5-22; Wyo.Supreme Court Rules for State Bar, Rule 5).
34. So far as reported, all decisions have upheld the integrated bar against constitutional attack. Carpenter v. State Bar of California, 211 Cal. 358, 295 P. 23; Herron v. State Bar of California, 24 Cal.2d 53, 147 P.2d 543; Petition of Florida State Bar Ass'n, Fla., 40 So.2d 902; In re Mundy, 202 La. 41, 11 So.2d 398; Ayres v. Hadaway, 303 Mich. 589, 6 N.W.2d 905; In re Scott, 53 Nev. 24, 292 P. 291; In re Platz, 60 Nev. 296, 108 P.2d 858; In re Gibson, 35 N.Mex. 550, 4 P.2d6 43; Kelley v. State Bar of Oklahoma, 148 Okl. 282, 298 P. 623; Lathrop v. Donohue, 10 Wis.2d 230, 102 N.W.2d 404, affirmed 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191.
35. The Maloney Act of 1938 added § 15A to the Securities Exchange Act of 1934. 52 Stat. 1070, 15 U.S.C. § 78o-3, 15 U.S.C.A. § 78o-3. In order to be registered, a number of statutory standards must be met. The statute specifically requires that an association's rules provide for democratic representation of the membership and that dues be equitably allocated. See § 15A(b)(5) and (6). Only one association, the National Association of Securities Dealers, Inc., has ever applied for or been granted registration. NASD membership comprises roughly three-quarters of all brokers and dealers registered with the Securities and Exchange Commission. Loss, Securities Regulation 766-67 (1951, Supp.1955). Sections 15A(i) and (n) of the Act authorize the NASD to formulate rules which stipulate that members shall refuse to deal with non-members with immunity from the antitrust laws. See S.Rep. No. 1455, 75th Cong., 3d Sess. 8-9 (1938); Loss, op. cit., supra, 769-770. The Commission has stated that it is 'virtually impossible for a dealer who is not a member of the NASD to participate in a distribution of important size.' National Association of Securities Dealers, Inc., 19 S.E.C. 424, 441.
36. In 1949 Senator Frear introduced a bill which would have greatly expanded the applicability of the registration, proxy, and insider trading provisions of the Securities Exchange Act to small corporations. S. ,2408, 81st Cong., 1st Sess. The NASD supported the passage of the proposed legislation, and testified on its behalf before the Senate subcommittee. Hearings Before Subcommittee of Senate Committee on Banking and Currency on S. 2408, 81st Cong., 2d Sess. 53-62 (1950); Loss, op. cit., supra, 620, 621.
37. To this extent Thornhill v. State of Alabama, 310 U.S. 88, 101-106, 60 S.Ct. 736, 743-746, 84 L.Ed. 1093, has survived and was applied in Chauffeurs, Teamsters, etc. Union v. Newell, 356 U.S. 341, 78 S.Ct. 779, 2 L.Ed.2d 809.
38. See Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 829-851.
39. 1 Commons, History of Labor in the United States, 318-325 (1918).
40. Taft, The A. F. of L. in the Time of Gompers, 289-292 (1957); Bakke and Kerr, Unions, Management and the Public, 215 (1948).
41. 3 Cole, A Short History of the British Working Class Movement, 56 (2d ed. 1937).
42. Logan, Trade Unions in Canada, 59-60 (1948).
43. William v. Hursey, 33 A.L.J.R. 269 (1959).
44. These are the totals of the figures for 1957, 1958, and 1959 reported in Proceedings of the AFL-CIO Constitutional Convention, Vol. II, pp. 17-19 (1959) and id., pp. 17-19 (1957).
45. 39 Stat. 721, 45 U.S.C. §§ 65-66, 45 U.S.C.A. §§ 65-66.
46. Letters from Clerk of House of Representatives to Supreme Court Librarian, May 5, 1960; May 10, 1961.
47. For a recent example, see the statement of Stanley H. Ruttenberg, Director of Research for the AFL-CIO, on pending tax legislation before the House Ways and Means Committee, reported in part in the New York Times, May 12, 1961, p. 14, col. 3.
48. A contested question in the corporate field is the legitimacy of corporate charitable contributions. This presents a not dissimilar problem whether the Governmen may authorize an organization to expend money for a purpose outside the corporate business to which an individual stockholder is opposed. A shareholder who joined prior to the authorization and who therefore cannot be said to have impliedly consented surely is as directly affected as is the member of a union shop. See A. P. Smith Mfg. Co. v. Barlow, 13 N.J. 145, 98 A.2d 581, 39 A.L.R.2d 1179, which upheld against federal constitutional attack a state statute which authorized New Jersey corporations to make contributions to charity. The amounts involved were substantial.
49. See Proceedings of the AFL-CIO Constitutional Convention, Vol. II, pp. 183-192 (1959).
50. The course of legislation in Great Britain illustrates the various methods open to Congress for exempting union members from political levies. As a consequence of a restrictive interpretation of the Trade Union Act of 1876, 39 & 40 Vict., c. 22, by the House of Lords in Amalgamated Society of Ry. Servants v. Osborne, (1910) A.C. 87, Parliament in 1913 passed legislation which allowed a union member to exempt himself from political contributions by giving specific notice. Trade Union Act of 1913, 2 & 3 Geo. V, c. 30. The fear instilled by the general strike in 1926 caused the Conservative Parliament to amend the 'contracting out' procedure by a 'contracting in' scheme, the net effect of which was to require that each individual give notie of his consent to contribute before his dues could be used for political purposes. Trade Disputes and Trade Unions Act of 1927, 17 & 18 Geo. V, c. 22. When the Labor Party came to power, Parliament returned to the 1913 method. Trade Disputes and Trade Unions Act of 1946, 9 & 10 Geo. VI, c. 52. The Conservative Party, when it came back, retained the legislation of its opponents.
51. Statistics of State School Systems, 1955-1956: Organization, Staff, Pupils, and Finances, c. 2, p. 70 (U.S. Department of Health, Education, and Welfare, 1959).