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District Court of Appeal, Second District, Division 1, California.


Civ. 14590.

Decided: December 06, 1944

H. C. Tallmadge and Roger B. Smith, both of Burbank, and Chase, Barnes & Chase, of Los Angeles, for petitioner. J. H. O'Conner, County Counsel, Douglas De Coster, Deputy County Counsel, and Katz, Gallagher & Margolis, all of Los Angeles, for respondents.

This is an application for a writ of prohibition to restrain respondent court and certain of the judges thereof from taking any further steps or proceedings in connection with or based upon a subpoena re deposition duces tecum in a certain proceeding now pending in respondent court, and praying that a writ of mandate issue directing said court and certain judges thereof to enter an order of said court quashing the subpoena re deposition duces tecum issued in said action.

The record before us reveals that on January 10, 1944, Andrew J. Charles and the 17 other above named defendants, as plaintiffs, instituted in the Superior Court of Los Angeles County a certain action No. 490452 against petitioner herein, Lockheed Aircraft Corporation, a corporation, as defendant. By their amended and supplemental complaint, plaintiffs alleged that they were employees of defendant corporation and that, at various times, each of them was discharged from his employment by defendant; that such discharge from employment was occasioned by reason and in pursuance of rules, regulations and policies adopted by defendant corporation forbidding and preventing its employees, including plaintiffs, from engaging and participating in politics, and which regulations, rules and policies controlled, directed and tended to control and direct the political activities and affiliations of defendant's employees, including plaintiffs, in violation of section 1101 of the Labor Code, St.1937, p. 212. By their complaint, plaintiffs sought to recover damages allegedly sustained by reason of their discharge from defendant's employ and prayed for the issuance of a mandatory injunction directing defendant corporation to reinstate plaintiffs in their former positions without prejudice to their seniority and other rights and privileges set forth in detail in plaintiff's complaint and allegedly appurtenant to their said employment.

By its answer, defendant denied the existence of any of the rules, regulations or policies above referred to or that plaintiffs were discharged by reason of the enforcement by defendant of any rule, regulation or policy condemned by section 1101 of the Labor Code.

By way of a further, separate and distinct defense, defendant alleged that at all times mentioned in plaintiffs' complaint, defendant was engaged and now is engaged in the manufacture and construction of materials essential to the war effort, to wit: airplanes; that said airplanes are constructed and manufactured in compliance with the terms of certain contracts and agreements entered into by defendant with the United States government and its agencies, and between defendant and other of the United Nations; that by the terms of said contracts defendant was required to assume full responsibility to ‘protect its plants from the entry of any and all persons of unknown loyalty, or of suspected disloyalty to the government of the United States, or to the cause of the allied nations, or to this answering defendant’.

By its separate defense, defendant further alleged that it was required by ‘directives' issued by the government of the United States to exclude from its property and plants all persons, including citizens of the United States, either of unknown loyalty, or of suspected disloyalty to the United States government or to the cause of the United Nations, or of suspected loyalty to any nation other than the United States, or of unknown loyalty to defendant as an employer, or of suspected disloyalty to said defendant, as an employer. Defendant alleges that by reason of the terms of the aforesaid contracts and ‘directives', it is made liable for contract cancellation, penalties and fines in the event of its failure to comply with the terms and conditions of said contracts and ‘directives'.

It is further alleged by defendant in its separate defense that, pursuant to the terms of the hereinbefore mentioned contracts and ‘directives', it is required to become the sole judge of the qualifications of all persons coming upon defendant's premises, not authorized so to do directly by the Government of the United States.

Finally, by its separate defense, it is alleged by defendant that it does not have ‘sufficient information or belief as to the respective plaintiffs to satisfy itself of the unquestioned patriotism and loyalty of the plaintiffs and each of them to the United States Government and to the cause of the allied nations, and to this answering defendant, as an employer’.

Hereinafter when the term ‘plaintiffs' is used it will refer to plaintiffs in the aforesaid action commenced January 10, 1944, while petitioner herein, Lockheed Aircraft Corporation, will be designated ‘defendant’, unless otherwise referred to as ‘petitioner’.

Pursuant to an affidavit filed by one of the attorneys for plaintiffs, a subpoena duces tecum was issued by the clerk of respondent court to Robert E. Gross, as president and a member of the board of directors of defendant corporation, to appear before a notary public and give his deposition, and at the same time to produce certain personnel records, interoffice communications and other documents having to do with the employment of plaintiffs and reflecting the reasons for their discharge.

Thereafter, on behalf of defendant corporation and its president, Robert E. Gross, there was served upon plaintiffs and filed in respondent court a notice of motion to ‘quash subpoena re deposition duces tecum’. After hearing had upon said motion, respondent court made its order denying the same and directing said Robert E. Gross, as president of defendant corporation, to appear before a designated notary public to give his deposition and that he bring with him the documents and records enumerated in the subpoena duces tecum. Thereafter, upon application to this court we issued an alternative writ of prohibition.

The subpoena duces tecum, around which this controversy centers, was issued upon the affidavit of Ben Margolis, one of counsel for plaintiffs, Sec. 1985, C.C.P. In such affidavit, it is averred that Robert E. Gross, as president of defendant corporation, has in his possession or under his control certain documents which referred to or concerned the plaintiffs herein as former employees of defendant corporation. Then follows a detailed and complete description of all of the documents which plaintiffs desired to examine upon the taking of such deposition. In that regard, the affidavit reads: ‘Personnel records, notices, communications, and all other records and documents showing the terms of employment, advancement, transfers, increases in pay, and favorable or unfavorable criticisms of the work of said former employees; all personnel records and other records of the defendant corporation showing the reasons for discharge of the persons named above; all plant protection records and other records of investigations of the said above-mentioned former employees showing investigations made and results thereof prior to the discharge of said former employees; all communications relating to the discharge of said former employees, including all inter-company communications so relating; all reports of commercial reporting agencies and retail merchants type of reporting agencies regarding the aforementioned former employees.’

The affidavit then clearly, explicitly and in full detail, sets forth the claimed materiality of the above named documents to the issues involved in the instant case. In that regard, the affidavit, in part, sets forth that the foregoing records and documents relating to the discharge of plaintiffs and the cause therefor are material to the following issues:

‘whether plaintiffs, and each of them, were discharged pursuant to the company's rules, regulations and policies forbidding and preventing its employees, including the plaintiffs herein, from engaging and participating in politics and controlling and directing and tending to control and direct the political activities and affiliations of its employees as alleged in the Amended and Supplemental Complaint herein. Plaintiffs expect to prove through said records that they were discharged because of the aforesaid rules, regulations and policies, and for no other reason.

‘3. That the said records relating to the discharge of said plaintiffs and the cause therefor are material to the proceedings herein insofar as they relate to the possible defense of the defendant corporation showing that plaintiffs were allegedly discharged for reasons other than the rules, regulations and policies hereinabove referred to.

‘4. That the records showing the terms of employment are material to the inquiry herein for the purpose of establishing that plaintiffs, and each of them, were not discharged pursuant to or upon the basis of any of the terms of employment authorizing such discharge, and are further material to any defense of the defendant corporation based upon such terms of employment.

‘5. That the records and documents of the company relating to advancements, transfers, increases in pay, and criticisms are material to the proceedings herein for the purpose of establishing that plaintiffs were not discharged because of failure to properly perform work or for lack of ability or skill, and are further material because of the possible defense of defendant corporation based upon any claim that plaintiffs did not properly perform their work or were not in other ways qualified as employees.

‘6. That the main issue in this proceeding relates to the cause ofof discharge of each of the plaintiffs herein, and that each of the documents and records requested are relevant to and have bearing upon the cause of discharge of each of said plaintiffs.

Section 1101 of the Labor Code reads as follows:

‘No employer shall make, adopt, or enforce any rule, regulation, or policy:

‘(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.

‘(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.’

The provisions of section 1102 read: ‘No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.’

Section 1103 provides that any employer who violates the foregoing provisions is guilty of a misdemeanor punishable by imprisonment in the county jail not to exceed one year or a fine of not to exceed $1,000, and in the case of a corporation by a fine not to exceed $5,000.

Section 1104 provides that, in prosecutions under the provisions of the foregoing sections, the employer is responsible for the acts of his managers, officers, agents and employees.

Section 1105 of the same chapter (ch. 5 of the Labor Code) provides that: ‘Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.’

Petitioner's first ground of objection to the issuance of the subpoena duces tecum in re deposition is that the statements and averments contained in the affidavit upon which the subpoena was issued are not based upon facts within the knowledge of the affiant, Ben Margolis. This claim is not supported by the record, which shows that the averments contained in the affidavit upon which the subpoena was issued were not made upon information and belief. Such averments, which we have hereinbefore set forth, are stated to be within the affiant's knowledge and are of a most positive and direct character.

Petitioner's next contentions that the affidavit does not contain sufficient averments of the materiality of the documents sought, that the description of such documents is insufficient, and that the same would not be competent evidence in the action are equally without merit. In determining the materiality of the evidence sought to be obtained, reference may be had not only to the supporting affidavit, but as well to the pleadings. Union Trust Co. v. Superior Court, 11 Cal.2d 449, 455, 81 P.2d 150, 118 A.L.R. 259; Maclay Rancho Realty Co. v. Superior Court, 81 Cal.App. 471, 254 P. 287. All of the allegations of the amended and supplemental complaint are directly referred to and incorporated in the affidavit. This pleading sets forth the alleged rules, regulations and policies of defendant corporation. Manifestly, such rules, regulations and policies, if adopted and enforced by defendant corporation, contravene the provisions of Chapter 5 of the Labor Code, and more especially sections 1101 and 1102 thereof. The affidavit specifically sets forth that the materiality of the sought evidence lies in the fact that therefrom it can be determined whether plaintiffs were discharged because they violated said rules, regulations and policies.

A mere reading of the foregoing description of the documents sought to be produced at the deposition immediately suggests the sufficiency of such description. Surely it must be assumed that, in the ordinary conduct of its business, defendant corporation keeps personnel records of and concerning its employees, which reflect the term of their employment and the reasons for their discharge. Under the circumstances and general situation presented, viewed in the light of reason and common sense, the custodian of the documents and records should be able to recognize, distinguish and identify the particular records required. Such being the case, the description thereof is sufficient. Union Trust Co. v. Superior Court, supra, 11 Cal.2d at page 458, 81 P.2d 150, 118 A.L.R. 259. ‘Literal accuracy cannot be expected in the description of a paper in the possession of the adverse party; such description as will apprise a man of ordinary intelligence of the document desired is enough.’ Burke v. Table Mountain Water Co., 12 Cal. 403, 408. In the case of Main v. Ring, 219 Iowa 1270, 260 N.W. 859, 862, 863, cited with approval in Union Trust Company v. Superior Court, supra, 11 Cal.2d at page 456, 81 P.2d at page 154, 118 A.L.R. 259, it was said: ‘The statute is clearly designed to help a party to a suit to discover material facts even though the documents evidencing such facts are in the possession of the adverse party, and it is a wholesome aid to the proper administration of justice.’

As to the competency of the evidence sought to be produced, we are satisfied that respondent court correctly disposed of that issue when the same was in question upon the motion to quash the subpoena duces tecum re deposition. We, therefore, adopt as a part of our decision the following language used in the opinion prepared by Hon. Emmet H. Wilson, Judge of the respondent court, on the motion to quash: ‘Are the documents competent evidence? If the rules, regulations, and policies of defendant corporation are as alleged in the amended and supplemental complaint they would obviously be competent evidence that they were in violation of the statute, and if they are not as so alleged they would be competent for the purpose of defeating plaintiffs' several causes of action. If plaintiffs were discharged by reason of their violation of said rules, regulations, and policies the personnel records and other documents showing the terms of employment and the reasons for discharge would be competent for so proving, and they would likewise be competent if they showed other sufficient reasons unrelated to the alleged policies of defendant, if any such existed.’

We have reviewed the cases cited by petitioner, but find nothing therein which militates against the conclusion at which we have arrived,—that the facts in the instant case do not warrant the stricture upon the affidavit here in question that it is a mere ‘fishing expedition or device’ or a general omnibus order for the production of all defendant's books and records in the hope that, by drawing a dragnet of inspection through all of such records, plaintiffs might catch something which would aid their cause. Furthermore, to produce the documents here sought, defendant corporation would not be exposing its methods of conducting its business nor its dealings with any one other than plaintiffs themselves.

Petitioner next urges that the issuance of a subpoena duces tecum herein is violative of Article 1, section 19, of the Constitution of the State of California, which is designed to protect and uphold the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. The reasonableness of the search or seizure is dependent upon its legality. It is only when the search is illegal that it is unreasonable. The cited constitutional provision recognizes that doctrine in providing that search and seizure warrants may issue ‘on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.’ In consonance with the spirit and intent of this constitutional provision, the legislature has ordained, by the enactment of section 1985 of the Code of Civil Procedure, that an application for a subpoena duces tecum shall be accompanied by an affidavit ‘specifying the exact matters or things desired to be produced, and setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his possession or under his control.’ Manifestly, it cannot be successfully maintained that, in adopting the constitutional provision, the people intended to unreasonably hamper, interfere with, impair or abrogate the inherent power of the courts to secure the production of evidence in the trial of an action. It was only intended that, in the exercise of their inherent power in that regard, judicial tribunals should be limited to the extent that they do not direct what could be termed an ‘unreasonable’ search or seizure. Union Trust Co. v. Superior Court, supra, 11 Cal.2d pages 463, 464, 81 P.2d 150, 118 A.L.R. 259. In speaking of this protective constitutional provision in a case where it was urged as a bar to the issuance of an ‘order of inspection’, the court in Dalton v. Calhoun County District Court, 164 Iowa 187, 145 N.W. 498, 502, Ann.Cas.1916D, 695, stated that as a rule the provision ‘has reference to criminal of quasi criminal proceedings, or to forfeiture and not the statutory methods for obtaining evidence.’ Section 1985 of the Code of Civil Procedure conforms to the constitutional requirements and the affidavit herein meets the test of the code section. The commands of the subpoena issued pursuant thereto cannot therefore be characterized as either ‘unreasonable’ or ‘illegal’.

Petitioner insists that the amended and supplemental complaint herein fails to state a cause of action because section 1101 of the Labor Code, upon which the action is predicated, is a criminal statute; that the plaintiffs' cause of action is predicated upon the violation by petitioner of a penal law, and that the statute which makes certain conduct a crime does not create a new and theretofore non-existent civil cause of action. That, therefore, the Labor Code section here in question does not vest plaintiffs with a civil cause of action. We are not impressed with this argument because, under the American philosophy of government, and indeed as the very essence of civil liberty, there exists the right of every individual to claim the protection of the laws whenever he receives an injury, and one of the foremost duties of government is to afford that protection. Blackstone, in the Third Volume of his Commentaries, page 23, in referring to the cases where a remedy is afforded by mere operation of law, says: ‘It is a general and indispensable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded’. Even though we assume that, unless a criminal statute expressly sets forth a civil remedy, none exists, and notwithstanding there is credible authority to the contrary, nevertheless, in the case now before us we find that section 1105 of the Labor Code, which is part of the same chapter that includes sections 1101, 1102 and 1103, provides: ‘Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.’ Thus we have a legislative enactment expressly creating a civil remedy in favor of any employee injured by reason of a violation by his employer of sections 1101 and 1102 of the Labor Code.

We deem it unnecessary to decide whether the amended and supplemental complaint fails to state a cause of action for the reason that it asks for injunctive relief reinstating plaintiffs as employees. Petitioner argues that this is not one of the cases wherein a contract for personal services may be specifically enforced by mandatory injunction (Sub. 5, Sec. 526, C.C.P.; Sub. 5, Sec. 3423, C.C. Suffice it to say that the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., which was held constitutional by the Supreme Court of the United States in National Labor Relations Board v. Jones & Laughlin S. Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 81 L.Ed. 893, 916, 108 A.L.R. 1352, furnishes authority for the statement that legislative acts such as those contained in Chapter 5 of the Labor Code do not interfere with nor impinge upon the normal exercise of the right of the employer to select his employees or to discharge them. Such legislation merely prevents the employer, under cover of that right, from intimidating or coercing his employees and keeping them from engaging or participating in politics, becoming candidates for public office, or attempting by or through threats of discharge to control or direct the political activities or affiliations of his employees. However, in the case at bar, although it be conceded, but not decided, that the amended and supplemental complaint does not state a cause of action for injunctive relief, it does state a cause of action for damages. Consequently, there is not a total failure to state a cause of action and petitioner's challenge to the sufficiency of the pleadings on this ground is unavailing.

The next contention of petitioner is that the amended and supplemental complaint fails to state a cause of action in that section 1101 of the Labor Code is unconstitutional for the asserted reason that the language thereof is not ‘of such clarity of explanation that any one of average intelligence would be able to understand what is prohibited and what he may do without violating the law’. Sec. 24, Art. 4, Constitution of California. Petitioner urges that prior to the adoption of the challenged sections of the Labor Code, it was the settled law of this state that an employer had the right to hire or discharge his employees at will, with or without cause, in the absence of the existence of a contract to the contrary, and upon proper notice of termination in accordance with sections 2920 to 2928 of the Labor Code, which prescribe the manner of termination and the requisite notice in connection therewith; but that the new limitation upon such rights, Sections 1101, 1102, Labor Code, and the standard of conduct imposed upon an employer by the last named sections are so indefinite, uncertain and ambiguous in their terms and language that it is impossible for an employer to determine therefrom what he may do and what he is prohibited from doing. Specifically, petitioner brands the terms ‘policy’, ‘politics', and ‘political activities' appearing in the sections as uncertain, indefinite and ambiguous, and contends that the terms do not have a settled meaning understandable to a person of ordinary intelligence.

All of the cases cited by petitioner in support of this argument arose out of criminal prosecutions, and we are not directed to a single civil case which directly or by analogy supports petitioner's contention. However, even in criminal cases, statutes are upheld when the act prohibited is defined in ordinary language. When a penal statute employs words or phrases having a well settled common law meaning which would advise a reasonable person in the ordinary pursuit of his affairs of what is prohibited, the court will not decree that such statute is ambiguous or indefinite by resorting to a strained construction of the words used therein; Pacific Coast Dairy v. Police Court, 214 Cal. 668, 675, 8 P.2d 140, 80 A.L.R. 1217. In the case just cited, the word ‘diligence’ is held to have a commonly accepted meaning. In Smulson v. Board of Dental Examiners, 47 Cal.App.2d 584, 587, 118 P.2d 483, 484, the words ‘tending to deceive or mislead the public’ are held sufficiently definite. In People v. Lavine, 115 Cal.App. 289, 1 P.2d 496, 498, the court refused to declare subdivision 4, section 519, of the Penal Code ambiguous or uncertain because it contained the phrase ‘to expose any secret affecting him or them’. In this case, the question arose as to the meaning of the word ‘secret’. In commenting thereon the court (at page 295 of 115 Cal.App., at page 499 of 1 P.2d) said: ‘In relation to point one, supra, we are of the opinion that the provisions of section 519, subdivision 4, of the Penal Code, are not so far uncertain or indefinite as to impair their validity. General terms may be used in a statute to describe things according to the common understanding of such terms.’ See, also, People v. Smith, 36 Cal.App.2d Supp. 748, 92 P.2d 1039; United States v. Ragen, 314 U.S. 513, 62 S.Ct. 374, 86 L.Ed. 383, and State of Minnesota v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744, 126 A.L.R. 530, sustaining the state court's construction of the term ‘psychopathic personality’. Where, as here, the legislature was concerned with a problem of a more general nature than a specific limited act which ordinarily gives rise to penal statutes, necessarily the language of the act must be more general.

Returning to the words and phrases of the Labor Code challenged by petitioner in the instant case, we find, in Webster's International Dictionary, that ‘politics' is defined as follows: ‘The science and art of government; the science dealing with the organization, regulation, and administration of a state, in both its internal and external affairs; political science. * * * The theory or practice of managing or directing the affairs of public policy or of political parties; hence, political affairs, principles, convictions, opinions, sympathies, or the like.’

From the definition of ‘politics', the meaning of ‘political activities' logically follows. The same dictionary defines ‘policy’ as: ‘A settled or definite course or method adopted and followed by a government, institution, body or individual’. Manifestly, people of common sense and reason would experience no difficulty in determining with a reasonable degree of certainty what the legislature intended by the sections contained in Chapter 5 of the Labor Code, and therefore, such sections cannot be held void for indefiniteness, uncertainty or ambiguity. County of Tulare v. City of Dinuba, 188 Cal. 664, 677, 206 P. 983; Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 80, 87 P.2d 848; Old Dearborn D. Co. v. Seagram-Distillers Corp., 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. 109, 106 A.L.R. 1476; Neblett v. Carpenter, 305 U.S. 297, 59 S.Ct. 170, 83 L.Ed. 182.

We come now to a consideration of petitioner's contention that a writ of prohibition should issue because, to enforce the subpoena duces tecum here under consideration would compel petitioner and its president, Robert E. Gross, to be a witness against the corporation and himself in violation of Article I, Section 13, of the Constitution of the State of California. We are satisfied that this contention was correctly determined against petitioner when the issue was before respondent court on the motion to quash subpoena re deposition duces tecum. We therefore adopt as part of this decision the following language in the opinion rendered by Hon. Emmet H. Wilson, Judge of the Superior Court, when the matter was before that tribunal.

‘Defendant claims that because the statute is penal a subpoena duces tecum cannot compel a citizen to produce documents that might tend to incriminate him. In so far as the motions to quash are based on this ground they must be denied. (a) The weight of authority is that a corporation cannot refuse to produce its corporate records in response to a lawful order or subpoena for the reason that the guaranties in the federal and state constitutions against compulsory self-incrimination do not extend to private corporations. See cases collected in 120 A.L.R. 1103. (b) Neither an officer of the corporation nor the witness is the judge as to whether the documents would incriminate it or him, but the liability to criminal prosecution and the privilege of refusing to answer questions or to produce documents must be determined by the court. Bradley v. Clark, 133 Cal. 196, 209, 65 P. 395; Overend v. Superior Court, 131 Cal. 280, 283, 63 P. 372; In re Rogers, 129 Cal. 468, 470, 62 P. 47; Ex parte Stice, 70 Cal. 51, 53, 11 P. 459; Mason v. United States, 244 U.S. 362, 364, 37 S.Ct. 621, 61 L.Ed. 1198, 1199. The privilege cannot be claimed by the witness until he has been sworn and asked a question the answer to which would tend to incriminate him. Ex parte Stice, supra. If the tendency to incriminate is not disclosed by the question itself it is the duty of the witness to make it appear to the court that his answer might have such tendency. In re Rogers, supra. (C) If the witness should claim that his answer to any question or the production of any document would tend to incriminate him personally he may present the matter to the court in an appropriate manner, but not by a motion to quash the subpoenas.’

Petitioner next asserts that section 1101 of the Labor Code is unconstitutional because it deprives corporations and persons of the right to contest its validity due to the excessive penalties imposed, and which penalties, argues petitioner, are prohibitive of a constitutional test of the validity of the statute. It is insisted that the claimed drastic penalties imposed render the statute void upon its face as being a legislative deprivation of liberty and property without due process of law. However, it is section 1103 of the Labor Code and not section 1101 which creates the criminal penalty, and that section, or the penalties therein set forth, are in no way involved in these proceedings, which are civil in character.

Petitioner next challenges the constitutionality of section 1101 of the Labor Code on the ground that it is an arbitrary and unjustifiable limitation and restriction upon the liberty and freedom of contract, and as such is violative of Article 1, § 13, of the Constitution of the State of California and of the Fourteenth Amendment to the Constitution of the United States. The main premise relied upon by petitioner is that section 1101 of the Labor Code is not a valid exercise of the police power and amounts only to an attempt by the legislature to prohibit an employer of 20 or more persons from making a free choice of those persons whom he desires to hire or retain in his employment, and is therefore an arbitrary and unjustifiable limitation upon the liberty of contract. The presumption is that the legislature had adequate and reasonable basis for its police regulations and that a statute providing for such regulations is constitutional. 5 Cal.Jur. 628, et seq. And, as pointed out in West Coast Hotel Company v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330, the only question to be decided is whether the legislative body acted arbitrarily and capriciously. In connection with the relation of employer and employee, in order to protect the health and safety, as well as to insure the promotion of peace and good order, the legislature is clothed with a wide field of discretion in making regulations to insure wholesome conditions of work and freedom from oppression. Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 31 S.Ct. 259, 55 L.Ed. 328.

In the case of West Coast Hotel Company v. Parrish, supra, 300 U.S. at page 392, 57 S.Ct. at page 582, 81 L.Ed. 703, 108 A.L.R. 1330, the Supreme Court of the United States said: ‘This power under the Constitution to restrict Freedom of contract has had many illustrations. That it may be exercised in the public interest with respect to contracts between employer and employee is undeniable. Thus statutes have been sustained limiting employment in underground mines and smelters to eight hours a day (Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780); in requiring redemption in cash of store orders or other evidences of indebtedness issued in the payment of wages (Knoxville Iron Co. v. Harbison, 183 U.S. 13, 22 S.Ct. 1, 46 L.Ed. 55); in forbidding the payment of seamen's wages in advance (Patterson v. The Eudora, 190 U.S. 169, 23 S.Ct. 821, 47 L.Ed. 1002); in making it unlawful to contract to pay miners employed at quantity rates upon the basis of screened coal instead of the weight of the coal as originally produced in the mine (McLean v. Arkansas, 211 U.S. 539, 29 S.Ct. 206, 53 L.Ed. 315); in prohibiting contracts limiting liability for injuries to employees (Chicago, B. & Q. R. Co. v. McGuire, supra); in limiting hours of work of employees in manufacturing establishments (Bunting v. Oregon, 243 U.S. 426, 37 S.Ct. 435, 61 L.Ed. 830, Ann.Cas.1918A, 1043); and in maintaining workmen's compensation laws (New York C. R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1, Ann.Cas.1917D, 629; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, [13 N.C.C.A. 927], Ann.Cas.1917D, 642).’

It is noteworthy that the constitution does not speak of ‘freedom of contract’. It speaks of ‘liberty’ and prohibits the deprivation of liberty without due process of law. In its provisions outlawing that deprivation of liberty, the Constitution does not establish or recognize a liberty that is absolute or uncontrollable. The liberty guaranteed by the Constitution is liberty in an organization of social beings which requires the protection of law against those evils which demoralize and menace the health, safety, morals and welfare of the people. Therefore, regulation which is reasonable in relation to the subject to which it is applied and which is adopted in the interests of the communty is in itself due process. Through the years, now more than twenty-five in number, the courts have recognized and declared that freedom of contract is a qualified and not an absolute right. No one is vested with the absolute freedom to do as he pleases or wills or to contract as he chooses. It is the absence of arbitrary restraint, and not immunity from reasonable regulations and prohibitions adopted in the interests of the community, that liberty implies.

Another reason why employees should be protected in the matter of employment contracts with their employer is the inequality in the footing of the parties. This situation was encountered and decisively met more than 40 years ago in Holden v. Hardy, 169 U.S. 366, 397, 18 S.Ct. 383, 390, 42 L.Ed. 780, 793, wherein the Supreme Court of the United States, in directing attention to the inequality in the positions of the respective parties, said:

‘The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employes, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules, and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may promptly interpose its authority.

‘* * * But the fact that both parties are of full age, and competent to contract, does not necessarily deprive the state of the power to interfere, where the parties do and stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. ‘The state still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer.’'

The principles just stated have a peculiar and significant application in regard to employees whose political activities and affiliations are sought to be directed and controlled by employers. If the American philosophy of government is to be preserved, founded as it is on the recognition of the dignity of the individual as a natural right, it would seem necessary that each person should have absolute freedom to pursue the particular course of political action or political activity that he chooses, and the state owes to the individual the duty of making him secure in that right. That is all Chapter 5 of the Labor Code does. It protects the employee from oppression by the employer in the former's inherent right to freedom of political thought and action. It inhibits the employer from attempting to dictate the employee's political action under threat of economic pressure through discharge from employment if the employee refuses to follow the political course of action charted for him by the employer. To us this seems a wholesome exercise of the legislative power to protect each individual in his freedom of political thought and action. Since the employer has no constitutional right to interfere with the freedom of the employee in the latter's political affiliations and activities, the employer cannot complain of the statute on constitutional grounds.

Petitioner's contention that section 1101 of the Labor Code is unconstitutional in that it deprives employers of the right to free speech in violation of Article I, section 9, of the State Constitution, and the Fourteenth Amendment to the Constitution of the United States is without merit. Section 1101 does not in any manner or form either directly or indirectly impinge upon the freedom of speech. Nowhere is the employer prohibited from freely expressing his views. In fact, the section prohibits discrimination against the employee because he exercises his right to freedom of expression in regard to his political beliefs and does not in the slightest degree impair the employer's right in the same regard.

That petitioner will suffer no prejudice through compliance with the subpoena duces tecum in re deposition herein is further indicated by the special defenses interposed in the action and hereinbefore narrated. If the documents sought by the subpoena duces tecum show that the plaintiff employees were discharged by reason of disloyalty to the United States or for other reasons assigned in the special defenses, then it is manifest that no prejudice or damage will ensue to petitioner.

From that which hereinbefore has been said, it follows that the alternative writ hereinbefore issued should be discharged and that a peremptory writ should be denied. It is so ordered.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.

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