The fundamental question before us is what did Congress mean by section 14 (b) of the Taft-Hartley Act? It is too elementary to require citation that in determining the meaning of legislation the intent of those who wrote it is of paramount importance. This should weigh far more than ingenious and subtle arguments which able counsel have marshalled since the passage of the act. To discover the intent we must consider the legislative history of the statute, including what was said and done at the time by the men who made it. At the outset it is of vital importance to note that the temper of the 80th Congress was to halt the massive invasion of states rights by the Federal government which had gone on for some years. Nowhere it seems was the check more plainly dealt than in the field which lies before us.
Turning to the question of intent we find the record showing that the men who sponsored the law and the men who fought it alike believed that it left with the states the power to regulate the question of compulsory union security. Originally section 13 of the House bill spelled this out in specific if rather lengthy terms. As a result of a conference between the House and the Senate, section 13 of the House bill was condensed into section 14 (b) of the enacted law. Both Senator Taft, speaking for the Senate conferees, and the House Conference Report stated flatly that section 14 (b) was to have the "same effect" as section 13 of the House act. (Congressional Record, Vol. 93, No. 106, page 6602; Report No. 510, House, 80th Congress, first session, page 60). Remarks by members of both the House and Senate, including those who advocated the bill and those who opposed it were unequivocal that such was their understanding. For what it may be worth, it was argued without objection by brief and orally *Page 168 that the President, who presumably had followed the debate carefully and knew what was going on, in his veto message stated that his understanding of section 14 (b) was the same as that of the members of the House and Senate. Congressional Record, Vol. 93, No. 117, page 7503. It is fair to assume that had any contrary intent or understanding been expressed during the debate preceding the passage of this bill industrious counsel for the petitioners would have brought it to our attention.
There is no conflict between the Willey Act and the Taft-Hartley Act in the narrow issue before us. At the time as of which we must consider the constitutionality of the Willey Act, the closed-shop agreement between the petitioners and the defendant Faltin was not invalidated by either federal or state provision since the petitioners' contract antedated the Taft-Hartley Act and thereby remained valid under that law until its termination date on December 31, 1948. No election had been held prior to the transfer of the case to this court within the six months period under the state law which expired December 31, 1947. Had there been one, a successful vote would have resulted in the defendant Riley's certifying the existing contract valid until its termination date. What Congress in effect said to the states by section 14 (b) was simply this: You may have less union security by state legislation than the Hartley-Taft Bill provides but you cannot have more.
What little commentary there is on the subject appears to come out against the majority opinion. In an article "The Taft-Hartley Act and State Jurisdiction over Labor Relations" (Vol. 46) Michigan Law Review, Professor Russell A. Smith, page 598, states after quoting section 14 (b) "The legislative history of this provision confirms what is apparent on its face that Congress thereby desired to make clear its intent to leave the states free to deal with union security provisions, provided state action is not less restrictive than the federal act. The draftsmen simply wanted to make sure that the uncertainty as to state authority which, for some inexplicable reason, existed under the original NLRA should not obtain under the act as amended. The amended NLRA outlaws the closed shop as a form of discrimination, but permits the union shop under certain conditions. There is no question but that the states are not bound to tolerate even the union shop. They may, if they so desire, adopt the federal policy which applies under the Railway Labor Act and thus prohibit both the closed and the union shop. Or, they may permit the union shop, but on conditions more restrictive than those provided by the *Page 169 amended NLRA. This is true, of course, whether the state imposes the limitations by legislation or by judicial decision." (Italics supplied.)
In this state it is fundamental law "`that it has always been the practice in this jurisdiction to follow the universally accepted doctrine that the constitutionality of an act passed by the coordinate branch of the government is to be presumed. It will not be declared invalid except upon unescapable grounds.'" (Italics supplied.) Chronicle c. Pub. Co. v. Attorney General, 94 N.H. 148, 151. The majority opinion in declaring the Willey Act invalid holds in substance that the conclusion is unescapable, that Congress intended the word "prohibit" to be given its narrowest and most restricted effect. Unless the legislative history is meaningless it indicates that if any conclusion is unescapable it is the opposite one from that which the majority opinion has reached. In Bethlehem Co. v. N.Y. Labor Relations Board, 330 U.S. 767, 780, Justice Frankfurter speaks as follows: "Since Congress can, if it chooses, entirely displace the States to the full extent of the far reaching Commerce Clause, Congress needs no help from generous judicial implications to achieve the supersession of State authority. To construe federal legislation so as not needlessly to forbid preexisting State authority is to respect our federal system. Any indulgence in construction should be in favor of the States, because Congress can speak with drastic clarity whenever it chooses to assure full federal authority, completely displacing the States."
To summarize, it appears that if we hold that the State retains its power to regulate we have a construction practical in application, consistent with the temper of the Congress which passed it and in accordance with the intent and understanding of both the friends who proposed the law and the foes who fought it. The majority opinion on the other hand gives us a narrow interpretation which seems not to consider the intent or the common understanding of the men who passed the law, and which seemingly resolves all doubts against, rather than for the validity of a state statute. *Page 170