
    The State v. Julow, Appellant.
    
    Division Two,
    June 18, 1895.
    l. Constitution: enjoyment op lies, liberty and property: coincident rights. The constitutional guarantee of the enjoyment of life, liberty and property carries with it, as its natural and necessary coincident, all that effectuates and renders complete the full and unrestrained enjoyment of the right guaranteed.
    2. -: -: contract. The constitutional guarantee of the enjoyment of the right of property includes the right to acquire property by labor and by contract and of terminating a contract at pleasure, being civilly liable for any unwarranted termination.
    3. -: -. Depriving an owner of property of one of its essential attributes is depriving him of his property within the meaning of the constitutional provision that no person shall be deprived of life, liberty or property without due process of law.
    
      4. -: -: law of the land: due process of law. The “law of the laud” and “due process of law” are legal equivalents, and the constitutional guarantee that no one shall be deprived of life, liberty or property without due process of law means that their enjoyment shall be controlled by the general rules which govern society, and not that anything which passes under the form of an enactment shall be considered the law of the land.
    5. -: -: due process of law: employer and employee: labor unions: COERCION. The act of March 6, 1893 (Laws 1893, p. 187) prohibiting an employer or other person exercising authority over certain employees from contracting with the latter to withdraw from any trade or labor union or other lawful organization, or to refrain from joining such organization or from attending any lawful meeting or assemblage and forbidding an attempt, by any means, to compel or coerce any employee into withdrawing from any lawful organization, is violative of section 30 of article 2 of the constitution of Missouri and the fifth amendment to the constitution of the United States, declaring that no one shall be deprived of life, liberty or property without due process of law, and of section 1, article 14 of the constitution of the United States forbidding that any state deprive any person of life, liberty or property without due process of law.
    6. -: -: -:-:-:-. Said act is unconstitutional upon the ground of being class legislation, inasmuch as it does not relate to all workingmen, but only to those who belong to some lawful organization or society.
    7. -: legislation: police regulation. Rights guaranteed to a. citizen by the constitution can not be abridged by legislation under the guise of a police regulation.
    
      Appeal from St. Louis Court of Criminal Correction.— Hon. James R. Claiborne, Judge.
    Reversed.
    The defendant, being tried upon an information, was fined $50 and appeals to this court.
    The information had for its origin, the following statute: “Section 1. No employer, superintendent, foreman, or other person exercising superintendence or authority over any mechanic, miner, engineer, fireman, switchman, baggageman, brakeman, conductor, telegraph operator, laborer or other workingman, shall enter into any contract or agreement with, any such employer requiring said employee to withdraw from any trade union, labor union, or other lawful organization of which said employee may be a member, or requiring said employee to refrain from joining any trade union, labor union or other lawful organization, or requiring any such employee to abstain from attending any meeting or assemblage of people called or held for lawful purposes, or shall ly any means attempt to compel or coerce any employee into withdrawal from any lawful organisation or society.
    
    Section 2. Corporations, and the managers, superintendents, overseers, master mechanics, foremen, officers and directors,, and others exercising authority for and on behalf of corporations doing business in this state, shall be subject to the provisions of this act, and, upon conviction of the violation of any of its provisioüs, to the punishment prescribed by it.
    Section 3. Any person or corporation' violating any of the provisions of this act shall, upon conviction, be punished by a fine of not less than fifty dollars nor more than one thousand dollars, or imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.;;
    The particular portion of section 1, on which the information is bottomed, is that in italics.
    The information, in substance, charged that George Julow, was on the twenty-third of May, 1894, a foreman or superintendent of the Hamilton-Brown Shoe Company, and as such exercised authority over one Richard C. Simmonds, then a mechanic or workman and employee of said Hamilton-Brown Shoe Company, but not under contract for any definite period of time; that at the same time Simmonds was a member of the Lasters’ Protective Association of America, a lawful labor organization or society; that on the date last aforesaid, Julow notified Simmonds that unless fie withdrew from membership of said association, he could no longer work for or be employed by said shoe company; that Simmonds refused to withdraw from said association, and thereupon, he was on said date, for the reason aforesaid, by Julow discharged from the service of said shoe company.
    The evidence supported the charge contained in the information. The defendant introduced no evidence on his part, nor did he make any admission as to the truth of such charge but having previously demurred to the sufficiency of the information without success, at the close of the testimony of the state, he unsuccessfully renewed his attack on the information and the evidence offered in support thereof, by moving for his discharge, which motion being denied, and he found guilty and judgment rendered against him as aforesaid for $50, he moved for a new trial and in arrest, but without avail; hence this appeal.
    
      S. D. Jones & Williams for appellant.
    An individual's necessities, be they as dire as the mind can imagine, can never per se in the judgment of criminal law constitute compulsion or coercion. Queen v. Dudley, L. E. 14 Q. B. Div. 273. Direct or positive coercion exists., where one is by physical force compelled to do an act against his will — as where enemies seize a party and compel him through fear of death to fight against, his friends. Implied coercion exists, where a person is legally under subjection to another; and in consequence of such legal subjection is induced to act contrary to his will — as where in some instances a wife commits an offense in the presence of her husband. 1 Bouv. Law Diet., p. 328 [5 Ed.], under head “Coercion." See also as defining compulsion as a defense to crime. 1 Whart. Orim. Law [9 Ed.], sec. 94. But the servant is not in legal subjection to the master, nor the agent to the principal, nor the inferior to the superior; therefore, the command of the superior to the inferior, or of the principal to the agent, or of the master to the servant, does not amount to coercion in criminal law. Hays v. State, 13 Mo. 246; Schmidt v. State, 14 Mo. 137; 1 Bouv. Law Dict.,p. 328; 6 Am. and Eng. Encyclopedia of Law, p. 90, note under head “Master and Servant;” 4 Am. and Eng. Encyclopedia of Law, p. 707. For the meaning of the words compulsion, coercion and duress, see Bouvier’s Law Dictionary and Anderson’s Law Dictionary, under those words respectively. To constitute duress there must be a seizure of the property or arrest of the person of an individual, or a threat or attempt to seize the property or arrest the person of an individual. Wolfe v. Marshal, 52 Mo. 167; Claflin v. McDonough, 33 Mo. 412; Buchanan v. Sahlein, 9 Mo. App. 552; 6 Am. and Eng. Encyclopedia of Law, p. 57, et seq. Where the facts are undisputed, or are admitted, it is a question of law whether they are sufficient to constitute duress, compulsion, or coercion in contemplation of law. Davis v. Luster, 64 Mo. 43; Claflin v. McDonough, 33 Mo. 412; Buchanan v. Sahlein, 9 Mo. App. 552. The doing of an act which is in itself lawful can not constitute duress. No duress in contemplation of law can arise from the doing of a lawful act. Davis v. Luster, 64 Mo. 43; Hackley v. Headley, 45 Mich. 569; Dunham v. Griswold, 100 N. Y. 224; Schneyder v. Draden, 58 Ind. 143; Wilcox v. Howland, 23 Pick. 167; Brown v. Pierce, 7 Wall. 205; 6 Am. and Eng. Encyclopedia of Law, p. 71. Where one only does or threatens to do that which he has a lawful right to do, there can result in contemplation of law no duress therefrom. Davis v. Luster, 64 Mo. 43; Haekley v. Headley, '45 Mich. 569; Whittaker v. Improvement Go., 34 W. Ya. 217; Wilson 8. M. Go. v. Curry, 126 Ind. 161; Skeate v. Beale, 11 Ad. & Ellis, 983. Though a man’s business necessities be very urgent, indeed necessitous, and in consequence he yields, there is in this no duress in law. Silliman v. United States, 101 U. S. 465; Haekley v. Headley, 45 Mich. 569; Custin v. Viroqua, 67 Wis. 314; Emery v. Lowell, 127.Mass. 138. Mere embarrassment, or loss of credit, or mortification, do not amount to duress in law. De La Cuesta v. Ins. Co., 136 Pa. St. 62. The law has no concern with mere guilty intention unconnected with an - overt act -'or outward manifestation. The mere intent to commit a crime is not a crime. Howell v. Stewart, 54 Mo. 400; State v. Eider, 90 Mo. 54; 1 Bishop’s New Crim. Law, sec. 204. Where an attempt to commit a crime is punishable, it is essential to conviction that the means employed in the attempt are at least apparently adapted to the end. 1 Whart. Crim. Law [9 Ed.], sec. 182 et seq. Where the means used in an alleged attempt to commit a crime are absolutely and apparently inadequate to the end, then there is no attempt in contemplation of law. 1 Whart. Crim. Law, sec. 183; 1 Bishop’s New Crim. Law, see. 749; Eobinsonv. State, 31 Texas, 170; Smith v. State, 32 Texas, 593; State v. Napper, 6 Nevada, 113; Blake v. Bernard, 9 Carr. & Payne, 626; Eegina v. James, 1 Carr. & Kirwan, 530. The right of the wage-earner to freely choose his own employer; and the right of the employer to engage for his service only whom he .chooses to so engage; and the right of both to freely dissolve the relation of master and servant, unless there is a contract between them to the contrary, is now thoroughly understood, and is settled law. Arthur v. Oaks, 63 Fed. Rep. 310, U. S. C. C. A. 7th Cir. The right of all persons sui juris to freely contract in regard to a lawful subject-matter is fundamental; and a legislative enactment, which abridges this right in certain classes of individuals, or in those who follow certain trades or employments, is unconstitutional and void. State v. Loomis, 115 Mo. 307, and the cases therein cited.
    
      E. F. Wallter, Attorney G-eneral, for the state.
    The meaning of “an attempt to compel or coerce,” as applied to this statute, is clearly defined by the act-itself, and it is not necessary to cite authorities in support of the position that the appellant, by his act in discharging Simmonds, under the circumstances stated, brought himself expressly within its provisions. Laws' of Mo. 1893, p. 187. It is elementary that where a person is under the legal subjection of another, ;as Simmonds was under Julow, and it is sought to make him do any act contrary to his will, it may be properly said that the act is done from coercion. Davis v. State, 30 Weekly Law Bulletin (Ohio), 342. This case construes the act of1 the general assembly of Ohio, approved April 14,1892, similar to the act of 1893, swpra, (89 Ohio Laws, 269). The bill of rights in the constitution of Ohio is similar to the bill of rights in the constitution of Missouri. A statutory enactment should not be declared unconstitutional unless a clear and substantial conflict exists between it and the constitution. Every presumption is in favor of the constitutionality of legislative acts, and a case must be practically free from doubt before an act of the legislature should be declared unconstitutional. All property is held subject to the general police power of the state to so regulate and control its use as to secure the general safety and public welfare. The statute under discussion does not seek to limit the authority of employers to discharge employees for any inefficiency or failure to properly discharge their duties, or, in fact, for no reason at all; but it does prohibit them from making a withdrawal from a labor organization by an employee a condition requisite to such employee continuing in their employment. The rapid resolution of all business enterprises into corporations renders it possible, without such a statute as the one under consideration, for the employer not only to coerce the employee into complying with any demand made, no matter how foreign to his employment, or to even continue at work at the price designated by the employer, regardless of the value of the services or the laws of supply and demand. No possible harm can arise from the upholding of this statute. The substantial rights of the employer are in no way abridged, and if a cause exists for the discharge of an employee, it is not limited. While the state can not under the guise of the police power overthrow rights which the constitution guarantees, yet the legislature may do many things in the legitimate exercise of this power which, however injudicious they may seem, are not obnoxious to the objection of being beyond the scope of legislative action. State v. Addington, 77 Mo. 110. The statute under consideration does not conflict with any express provision of the constitution. Unless it does, this court will not declare it void. St. Louis Go. Gt. v. Griswold, 58 Mo. 175. Acts of the legislature are presumed 'to be constitutional. It is only where they violate some express provision that they will be declared void. Phillips v. Railroad, 86 Mo. 540. In case of doubt, every possible presumption not inconsistent with the • language is to be made in favor of the constitutionality of an act. State v. New Madrid, 51 Mo. 82; Ewing v. Eioblitseile, 85 Mo. 64. Our constitution declares (art. 12, sec. 5) that the exercise of the police power shall never be abridged or so construed as to permit corporations to conduct their, business so as to infringe upon the equal rights of individuals or the general well-being of the state. Our statutes contain numerous instances of checks placed by the legislature upon the liberty to contract. Laws regulating the rate of interest. Sec. 5972, R. S. 1889. Giving Mechanics’ Liens, sec. 6705, R. S. 1889. Contracts prohibiting the limiting of time of bringing suits. Sec. 2934, R. S. 1889. Inserting statutory terms in insurance contracts not made by the parties thereto. Sec. 5856, R. S. 1889. And statutes establishing weights and measures. Chapter 170, R. S. 1889. In several other states statutes similar to the one under discussion have been enacted, but in none of the courts of last resort, save Ohio, have these laws been construed. They are as follows: Laws, Cal. 1893, chap. 149, p. 176; Laws, 111. 1893, p. 98; Laws, Mass. 1892, p. 315; Laws, Idaho, 1893, p. 152; 89 Laws, Ohio, 1892, p. 269.
   Sherwood, J.

I. The defendant alleges various grounds why the act under which he was convicted is unconstitutional. Among them these: “Because the act of the legislature under which the said information •was drawn, is unconstitutional and void, because it violates the following provisions of the constitution of the state of Missouri: First. ‘That all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; sec. 4, art. 2.’ Second. ‘That no person shall be deprived of life, liberty or property with due process of law.’ Sec. 30, art. 2; Third. That the act of the legislature aforesaid violates the constitutional provision forbidding the legislature to grant ‘to any corporation, association or individual any special or exclusive right, privilege or immunity.7 Sec. 53, art. 4. That the act aforesaid violates the fourteenth amendment to the constitution of the United States, which provides: ‘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.777

Eor the present purpose it will be assumed that defendant attempted to. do the act with which he is charged, arid that it lay in his power to compel or coerce Simmonds to withdraw from a lawful organization with which he was connected; because, by so doing all discussion of matters merely preliminary to the main question herein involved will be avoided.

A similar provision to that contained in section 30, article 2, supra, is found in the fifth amendment to the constitution of the United States, providing among other things, * * * “nor deprived of life, liberty or property without due process of law.77 In section 30, supra, as well as in a like section in the federal constitution just recited, it will be noted that the rights of life, liberty and property are grouped together in the same sentence; they constitute a trinity of rights, and each as opposed to unlawful deprivation thereof, is of equal constitutional importance. "With each of these rights, under the operation of a familiar principle, every auxiliary right, every attribute necessary to make the principal right effectual and valuable in its most extensive sense, pass as incidents of the original grant. “The rights thus guaranteed are something more than the mere privileges of locomotion; the guarantee is the negation of arbitrary power in every form which results in a deprivation of a right.77

These terms, “life,77 “liberty,77 and “property,77 are representative terms and cover every right to which a member of the body politic is entitled under the law. Within their comprehensive scope are embraced the right of self-defense, freedom of speech, religious and political freedom, exemption from arbitrary arrests, the right to buy and sell as others, may — all our liberties — personal, civil, and political; in short, all that maltes life worth living; and of none of these liberties can anyone be deprived, except by due process of law. 2 Story, Const. [5 Ed.], sec. 1950.

Now, as before stated, each of the rights heretofore mentioned, carries with it as its natural and necessary coincident, all that effectuates and renders complete and full, unrestrained enjoyment of that right. Take for instance that of property, necessarily blended with that right are those of acquiring property by labor, by contract, and also of terminating that contract at pleasure, being liable, however, civilly for any unwarranted termination. In the case at bar, as will be remembered, the contract was not made for any definite period. Prom these premises it follows that, “depriving an owner of property of one of its essential attributes, is depriving him of his property within the constitutional provision.” People ex rel. v. Otis, 90 N. Y. 48.

In State v. Goodwill, 35 W. Va. 179, relative to the subject under consideration, it is said: “The right to use, buy, and sell property, and contract in respect thereto, including contracts for labor — which is, as we, have seen, property — is protected by the constitution.”

In the present instance does the act in question seek to deprive the owner or the representative of the owner of one of the essential attributes of his property, to wit, the right to terminate any contract made by him, and does it profess to do this by force of its own terms, and without opportunity of being heard? If it does, then it falls under the ban of the prohibitory provisions of both the state and federal constitutions.

The “law of the land” and “due process of law” are the legal equivalents of each other. Touching this topic, a distinguished jurist observes: “Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College Case: ‘By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land.’ ” Cooley, Const. Lim. [6 Ed.] 431.

Comstock, J., when discussing a constitutional prohibition such as ours, said: “No doubt, it seems to me, can be admitted of the meaning of these provisions. To say, as has been suggested, that ‘the law of the land’, or ‘due process of law’, may mean the very act of legislation which deprives the citizen of his rights, privileges or property, leads to a simple absurdity. The constitution would then mean, that no person shall be deprived of his property or rights, unless the legislature shall pass a law to effectuate the wrong, and this would be throwing the restraint entirely away.

-* * * Where rights of property are admitted to exist, the legislature can not say they shall' exist no longer; nor will it make any difference, although a process and a tribunal are appointed to execute the sentence. If this is the ‘law of the land’, and ‘due process of law,’ within the meaning of the constitution, then the legislature is omnipotent. It may, under the same interpretation, pass a law to take away liberty or life without a pre-existing cause, appointing judicial and executive agencies to execute its will. Property is placed by the constitution in the same category with liberty and life.” Wynehamer v. People, 3 Kern. 378.

Here, the law under review declares that to be a crime, which consists alone in the exercise of a constitutional right, to 'wit, that >of terminating a contract, one of the essential attributes of property, indeed property itself, under preceding definitions. Brought to the bar of a court on such a charge, the accused would have been prejudged in so far as the criminality of the act charged is concerned; no question could there be made or admitted as to the quality of the act; that would have been settled by the previous' legislative declaration, and it would only remain to find the feet as charged, in order to declare the guilt is ’charged. But the fact as charged as already seen, is not a crime, and will not be a crime, so long as constitutional guarantees and constitutional prohibitions are respected and enforced.

If an owner, etc., obeys the law on which this prosecution rests, he is thereby deprived of a right and a liberty to contract or terminate a contract' as all others may; if He disobeys it, then he is punished for the performance of an act wholly innocent, unless indeed the doing of such act guaranteed by the organic law, the exercise of a right of which the legislature is forbidden to deprive him can, by that body, be conclusively pronounced criminal. We deny the power of the legislature to do this; to brand as an offense that which the constitution designates and declares to be a right, and therefore an innocent act, and consequently we hold that the statute which professes to exert such a power is nothing more nor less than a “legislative judgment,” and an attempt to deprive all who are included within its terms, of a constitutional right without due process of law. In support of these views see State v. Loomis, 115 Mo. 307; Com. v. Perry, 155 Mass. 117; Godcharles & Co. v. Wigeman, 113 Pa. St. 431; State v. Goodwill, 33 W. Va. 179; In re Jacobs, 98 N. Y. 98; People v. Gillson, 109 N. Y. 389; Millett v. People, 117 Ill. 294; Tilt v. People, 27 Chicago Leg. News, 270.

II. But the statute is obnoxious to criticism on other grounds. It does not relate to persons or things as a class; to all workingmen, etc., but only to those who belong to some “lawful organization or society,” evidently referring to a trade union, labor union, etc. Where a statute does this, where it does not relate to persons or things as a class, but to particular persons or things of a class, it is a special, as contradistinguished from a general law. State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Herrmann, 75 Mo. 340.

Here a non trade union man, or non labor union man, could be discharged without ceremony, without let or hindrance, whenever the employer so desired, with or without reason therefor, while in the case of a trade union or labor union man he could not be discharged if such discharge rested on the ground of his being a member of such an organization. In other words, the legislature have undertaken to limit the power of the owner or employer as to his right to contract with, or to terminate a contract with, particular persons of a class, and therefore the statute which does this is a special, not a general law, and, therefore, violative of the constitution.

Judge Cooley says: “A statute would not be constitutional * * * which should select particular individuals from a class or locality, and subject them to peculiar rules, or impose upon them special obligations or burdens from which others in the same locality or class are exempt. * * * Every one has a right to demand that hebe governed by general rules, and a special statute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments.” Cooley, Const. [6 Ed.] 481-483.

The legislature may legislate in regard to a class of persons, but they can not take what may be termed a natural class of persons, split that class in two, and then arbitrarily designate the dissevered fractions of the original unit as two classes, and enact different rules for the government of each. This would be mere arbitrary classification without any basis of reason on which to rest, and would resemble a classification of men by the color of their hair or other individual peculiarities, something not competent for the legislature to do. State ex rel. v. Herrmann, 75 Mo. loc. cit. 353.

III. The litigated statute is also in conflict with section 1, article 14, of the federal constitution aforesaid, forbidding that “any state deprive any person of life, liberty or property without due process of law,” as to which the same considerations as heretofore announced apply.

IY. Nor can the statute escape censure by assuming the label of a police regulation. It has none of the elements or attributes which pertain to such a regulation, for it does not in terms or by implication promote, or tend to promote, the public health, welfare, comfort or safety; and if it did, the state would not be allowed under the guise and pretense of police regulation, to encroach or trample upon any of the just rights of the citizen, which the constitution intended to secure against diminution or abridgment. In re Jacobs, 98 N. Y. 98, and cases cited.

Y. In conclusion it may be said that there is. a - broad distinction between the invasion of a right conferred by tbe constitution, to wit, a right of property, carrying with it, as we have seen, all tbe liberties, attributes and coincident rights which go to effectuate the principal right, and those rights which are the mere creatures of legislative gratuity, where the legislature granting a privilege or bestowing a bounty, may, of course, as no constitutional right is involved, prescribe the conditions upon which the privilege may be exercised or the bounty be obtained. This point finds ample illustration in the recent cases of Frisbie v. United States, 157 U. S. 160, and City of St. Joseph v. Levin, 128 Mo. 588.

The premises considered, we reverse the judgment and order the defendant discharged.

All concur.  