264 U.S. 286

44 S.Ct. 323

68 L.Ed. 686


No. 163.

Argued Jan. 15 and 16, 1924.

Decided March 10, 1924.

Messrs. Redmond S. Brennan, of Kansas City, Mo., John F. McCarron, of Washington, D. C., Frank Bonar Hegarty, of Kansas City, Mo., and Phil. H. Callery, of Pittsburg, Kan., for plaintiff in error.

Messrs. John G. Egan, of Topeka, Kan., Chester I. Long, of Wichita, Kan., and Richard J. Hopkins, of Topeka, Kan., for the State of Kansas.

Mr. Justice BRANDEIS delivered the opinion of the Court.


The Court of Industrial Relations Act was approved January 23, 1920. Laws of Kansas, 1920, Special Session, c. 29. The purpose of the statute is to insure continuity of operation in coal mining and other businesses declared to be affected with a public interest.1 The means provided for accomplishing this is a system of compulsory arbitration of industrial disputes. The instrument is the so-called industrial court. Upon it is conferred power to investigate all matters involved in such controversies; to make findings thereon; to issue such orders as it may deem needful, fixing the wages to be paid, the hours of work, the rules for work, and the working and living conditions. The provisions in aid of the enforcement of this system are both comprehensive and detailed. The employer is prohibited, among other things, from limiting or ceasing operations with a view to defeating the purpose of the statute. Likewise, every association of persons (e. g., trade unions) is prohibited from acting to that end. In effect, strikes and lockouts, the boycott and picketing, are made unlawful. Any person violating any provision of the statute, or any order of the so-called court, is declared guilty of a misdemeanor. Some of the provisions of the act were considered in Howat v. Kansas, 258 U. S. 181, 42 Sup. Ct. 277, 66 L. Ed. 550, and in Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 43 Sup. Ct. 630, 67 L. Ed. 1103.


Section 19 provides that any officer of a union of workmen engaged in an industry within the provisions of the act, who shall willfully use the power incident to his official position to influence any other person to violate any provision of the statute or any valid order of the Court of Industrial Relations, shall be deemed guilty of a felony punishable by a fine not to exceed $5,000, or by imprisonment at hard labor, not to exceed two years, or by both such fine and imprisonment. Under this section an information was filed against Dorchy, a union official, for calling a strike in a coal mine. He was found guilty. The judgment entered was affirmed by the highest court of the state, 112 Kan. 235, 210 Pac. 352; and a rehearing was denied. The case is here on writ of error under section 237 of the Judicial Code as amended (Comp. St. Ann. Supp. 1923, § 1214). It is contended that section 19 is void, because it prohibits strikes; and that to do so is a denial of the liberty guaranteed by the Fourteenth Amendment.


After the judgment under review was entered in the Supreme Court of Kansas, this Court declared, in the Wolff Packing Co. Case, supra, p. 544, that the system of compulsory arbitration as applied to packing plants violates the federal Constitution. For the reasons there set forth, it is unconstitutional, also, as applied to the coal mines of that state. The question suggests itself whether section 19 has not, therefore, necessarily fallen as a part of the system of compulsory arbitration. If so, there is no occasion to consider the specific objection to the provisions of that section. This Court has power not only to correct errors in the judgment entered below, but, in the exercise of its appellate jurisdiction, to make such disposition of the case as justice may now require. Gulf, Colorado & Santa Fe Ry. Co. v. Dennis, 224 U. S. 503, 506, 32 Sup. Ct. 542, 56 L. Ed. 860. In determining what justice requires the Court must consider changes in law and in fact which have supervened since the judgment was entered below. Watts, Watts & Co. v. Unione Austriaca di Navigazione, 248 U. S. 9, 21, 39 Sup. Ct. 1, 63 L. Ed. 100, 3 A. L. R. 323. If section 19 falls as the result of the decision in the Wolff Packing Co. Case, the effect is the same as if the section had been repealed without any reservation.


A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad. Berea College v. Kentucky, 211 U. S. 45, 54-56, 29 Sup. Ct. 33, 53 L. Ed. 81; Carey v. South Dakota, 250 U. S. 118, 121, 39 Sup. Ct. 403, 63 L. Ed. 886. But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall. Section 19 does not, in terms, prohibit the calling of strikes or influencing workingmen to strike. It merely declares that one who uses his offcial position, or his position as an employer, to 'influence, impel, or compel any other person to violate any of the provisions of this act, or any valid order of said Court of Industrial Relations, shall be deemed guilty of a felony.' Most of the provisions of the original act are very intimately connected with the system of compulsory arbitration. Whether section 19 is so interwoven with the system held invalid that the section cannot stand alone, is a question of interpretation and of legislative intent. Compare Butts v. Merchants Transportation Co., 230 U. S. 126, 33 Sup. Ct. 964, 57 L. Ed. 1422. Section 28 of the act,2 (which resembles that discussed in Hill v. Wallace, 259 U. S. 44, 70, 71, 42 Sup. Ct. 453, 66 L. Ed. 822) provides a rule of construction which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command.


The task of determining the intention of the state legislature in this respect, like the usual function of interpreting a state statute, rests primarily upon the state court. Its decision as to the severability of a provision is conclusive upon this Court. Gatewood v. North Carolina, 203 U. S. 531, 543, 27 Sup. Ct. 167, 51 L. Ed. 305; Guinn v. United States, 238 U. S. 347, 366, 35 Sup. Ct. 926, 59 L. Ed. 1340, L. R. A. 1916A, 1124; Schneider Granite Co. v. Gast Realty Co., 245 U. S. 288, 290, 38 Sup. Ct. 125, 62 L. Ed. 292. In cases coming from the lower federal courts, such questions of severability, if there is no controlling state decision, must be determined by this Court. Compare Myers v. Anderson, 238 U. S. 368, 381, 35 Sup. Ct. 932, 59 L. Ed. 1349; Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 298, 311, 34 Sup. Ct. 48, 58 L. Ed. 229. In cases coming from the state courts, this Court, in the absence of a controlling state decision, may, in passing upon the claim under the federal law, decide, also, the question of severability. But it is not obliged to do so. The situation may be such as to make it appropriate to leave the determination of the question to the state court. We think that course should be followed in this case.


The Supreme Court of Kansas has already dealt, to some extent, with the effect of our decision upon other sections of the act. When a motion was made there in the Wolff Packing Co. Case to spread the mandate of this Court upon its record, the state court held that the order of the Court of Industrial Relations under review remains in force in so far as it regulates hours of labor and weekly rest periods. 114 Kan. 304, 219 Pac. 259. The judgment then entered was modified November 10, 1923, upon a rehearing.3 The relation of section 19 to the provisions held invalid is a different matter. So far as appears, the state court has not passed upon the question whether section 19, being an intimate part of the system of compulsory arbitration held to be invalid, falls with it. In order that the state court may pass upon this question, its judgment in this case, which was rendered before our decision in the Wolff Packing Co. Case, should be vacated. Compare Gulf, Colorado & Santa Fe Ry. v. Dennis, supra, p. 509 (32 Sup. Ct. 542). To this end the judgment is




Section 2 of the statute, as enacted, conferred upon the Court of Industrial Relations the functions theretofore performed by the Public Utilities Commission. These functions were restored to a Public Utilities Commission by chapter 260, Laws of 1921. There was conferred upon the Court of Industrial Relations by chapter 262 of the Laws of 1921 the functions theretofore performed by the Commissioner of Labor and Industry, and by chapter 263 of the Laws of 1921 the functions theretofore performed by the Industrial Welfare Commission. These latter powers were also enlarged.


Section 28: 'If any section or provision of this act shall be found invalid by any court, it shall be conclusively presumed that this act would have been passed by the legislature without such invalid section or provision, and the act as a whole shall not be declared invalid by reason of the fact that one or more sections or provisions may be found to be invalid by any court.'


The action of the state court has been brought here for review by proceedings entered February 16, 1924, and not yet disposed of.

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