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 Front Page arrow Titles (by Subject) arrow § 101.: Prohibition of employment of aliens—Exportation of laborers—Importation of alien laborers under contract—Chinese labor—Employers compelling workmen to leave unions.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

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Subject Area: Law
Topic: The American Revolution and Constitution

§ 101.: Prohibition of employment of aliens—Exportation of laborers—Importation of alien laborers under contract—Chinese labor—Employers compelling workmen to leave unions.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 101.

Prohibition of employment of aliens—Exportation of laborers—Importation of alien laborers under contract—Chinese labor—Employers compelling workmen to leave unions.—

The labor unions strenuously oppose the increase in competition of labor by the importation of labor into the State. And they endeavor by private agreements with employers to prevent such importations. But in a few cases they have attempted to secure such protection by legislation, both State and Federal. No attempt has been made by State legislation to restrain importations of laborers from another of the United States; for the constitution expressly prohibits such legislation, in guaranteeing that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”1 The States, however, have by legislation undertaken to protect native labor against alien labor. But in each case, the legislation has been declared to be an invasion of the jurisdiction of the United States government and an unconstitutional interference with the rights of resident aliens.2

But Congress has passed an act which prohibits the importation into this country from foreign lands of aliens under contract to perform labor in this country. So long as protective tariffs, which interfere with the citizen’s liberty of contract in the purchase and importation of foreign goods, are maintained as constitutional,1 it is but natural and just that the courts should sustain this act of Congress, which is properly described as a protective tariff against foreign labor, which has assumed the absolutely prohibitive form. Such has been the decision of the courts.2

It was held in California, that a city ordinance was unconstitutional, which made it a misdemeanor for a contractor, engaged in work for the city, to employ Chinese laborers.3

A curious case of an attempt to prohibit, by the imposition of a heavy license fee ($1,000) on the agent, the exportation of laborers from the State, comes from North Carolina. The statute was held to be unconstitutional; not, however, on the ground that it interfered with any provision of the United States constitution, but because the amount of the license fee made it a prohibitive or destructive police regulation, which was not justified by the innocent and harmless character of the business.4

On the other hand, in consequence of the exactions of labor unions, often unjust and tyrannous, employers have frequently stipulated in the contract of hiring that the employee shall not be a member of any labor union; and that if he is a member at the time of hiring, he must sever his connection therewith, as a condition precedent to his employment. It would seem that the right to make such a stipulation was a fundamental part of the guaranteed liberty of contract; and that a State statute, which made it unlawful for an employer to refuse to employ union men, or to compel an employee to withdraw from a trade union on pain of dismissal, would be clearly unconstitutional. And that has been the decision of the Missouri Supreme Court.1 But an Ohio court has sustained such a law.2

[1]Art. IV., Sect. 2, Const. U. S.

[2]In Pennsylvania, a statute imposed upon the employers of alien laborers a tax of three cents per day for each day that each of such laborers may be employed, and authorized the employers to deduct the tax so imposed from the daily wage of the laborer. The act was held to be unconstitutional, in that it deprived the laborer of the equal protection of the law, in violation of the Fourteenth Amendment of the Constitution of the United States. Fraser v. McConway & Torley Co., 82 Fed. 257. See Juniata Limestone Co. v. Fagley, 187 Pa. St. 193. A New York statute made it a crime for alien laborers to be employed on public works by a contractor who is constructing them under contract with a municipal corporation. In a carefully prepared opinion, Judge White held the statute to be void and unconstitutional on three distinct grounds: 1. Because it was in violation of the constitution of New York, Art. I, § 1, which declares that no citizen shall be deprived of any of his rights or privileges except by the law of the land or the judgment of his peers, and Art. I, § 6, which provides that no person shall be deprived of his liberty or property without due process of law. 2. That it was in violation of the Fourteenth Amendment of the constitution of the United States, which forbids any State making a law which shall abridge the privileges and immunities of citizens of the United States, or deprive any person of liberty or property without due process of law; and 3. (so far as the alien laborers were Italians), because it violated the third article of the treaty between the United States and Italy, which guarantees to resident Italians the same rights and privileges which are secured to the citizens of the United States. People v. Warren, 34 N. Y. S. 942.

[1]As to which, see ante, § 93.

[2]United States v. Craig, 28 Fed. 795; In re Florio, 43 Fed. 114.

[3]Ex parte Kubach, 85 Cal. 274.

[4]State v. Moore, 113 N. C. 697.

[1]State v. Julow, 129 Mo. 163.

[2]Davis v. State, 30 Wkly. Law Bul. 342.