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 s^
 
 HANDBOOK 
 
 TO 
 
 THE LABOR LAW 
 
 OF 
 
 THE UJ^ITED STATES 
 
 BY 
 
 F. J. STIMSON 
 
 NEW YORK 
 
 CHARLES SCEIBNERS SONS 
 
 1907
 
 Copyright, 1896, bt 
 CHARLES SCRIBNEE'S SONS 
 
 TROW OlfltCtORT 
 
 PRINTING AND eOOKBINOING COMPAtfV 
 
 «EW YORK
 
 PREFACE 
 
 This book is the resvilt of an attempt to set 
 forth, as it exists in the United States to-day, 
 that law of labor disputes and the regulation of 
 industrial affairs and protection of employees 
 which has had its greatest development in the 
 last few years. While it is hoped that the work 
 is sufficiently full and accurate to serve as a legal 
 text-book, the author's chief object has been to 
 make it a clear and trustworthy guide for labor- 
 ing men and their several organizations through- 
 out the United States. Therefore, though occa- 
 sionally indicating in what directions future 
 improvement may be looked for, he has mainly 
 confined himself to a statement of the law as it 
 exists to-day. To save space, the words chap- 
 ter, section, etc., have generally been omitted 
 from the citations of statutes, their absence 
 being indicated by commas ; and the references 
 are always to the annual laws of the several 
 States, or to the latest revision in general use. 
 The abbreviation C. is used for Constitution. 
 
 Boston, .January, 1896.
 
 TABLE OF CONTENTS 
 
 FAOE 
 
 Table of Cases, ....... xi 
 
 CHAPTER I 
 
 The Labor Contract, 1 
 
 § 1. General Constitutional Right to Freedom of 
 
 Contract, ...... 1 
 
 § 2. Right to Freedom of Contract by Written 
 
 Constitutions, ...... 10 
 
 § 3. The Employment Contract, ... 15 
 
 § 4. The Police Power, 19 
 
 § 5. Intimidation and Interference, ... 22 
 
 § 6. The Enforcement of the Labor Contract, . 29 
 § 7. Breach of the Employment Contract not 
 
 Criminal, ...... 34 
 
 § 8. Discharge or Termination by the Employer, 35 
 
 § 9. Of the Duties of the Employee, ... 38 
 
 CHAPTER II 
 
 Statutes Regulating the Employment Contracts, 40 
 
 § 10. Wages, 40 
 
 § 11. Hours of Labor, Generally, .... 43 
 
 § 12. Public Labor Hours, 52 
 
 § 13. Hours of Labor, Women and Minors, . . 65 
 § 14. Hours of Labor, Special Occupations, . 65 
 § 15. Women's and Children's Hours in Special Oc- 
 cupations, 71
 
 viii TABLE OF CONTENTS 
 
 PAGE 
 
 § IG. Eilurational Kcstrittions on Minors, . . 73 
 Table of Legal Hours of Labor for all the 
 
 States, 74, 75 
 
 § 17. Fiirtlier Statutory Restrictions upon Child 
 
 Labor, 70 
 
 § 18. Further Statutory Restrictions upon Female 
 
 Labor, ....... 78 
 
 § 19. Sundays and Holidays, . . . . 81 
 
 § 20. Fines and Deductions for Imperfect Work, 
 
 etc., 81 
 
 § 21. Time of Payment of Employees, Weekly Pay- 
 ment Laws, ...... 87 
 
 § 22. Notice of Discharge, 98 
 
 § 23. Money of Wage-Payments, . . . 101 
 
 §24. Company Stores, etc., 109 
 
 § 25. Payment of Piece Work; Screen Laws, etc., 110 
 
 §26. Labor upon Shares, Croppers, etc., . . 112 
 
 § 27. The Exaction of Bonds from Employees, . 113 
 
 § 28. Charitable Funds, Relief Societies, etc., . 114 
 
 § 29. Company Physicians, ..... 116 
 
 CHAPTER III 
 
 Political Protection and Legal Privileges of La- 
 borers, ......... 117 
 
 § 30. General Political Rights, . . . . 117 
 
 § 31. Voting, 117 
 
 § 32. Alien Labor and Contracts, . . . .119 
 
 § 33. Special Privileges of the G. A. R., . . 123 
 
 § 34. Attachment of Wages, 124 
 
 § 35. Ordinary Exemptions not Valid against Labor 
 
 Debts, 126 
 
 § 36. Preference or Priority of Wage Debts, . 127 
 § 37. Stockholders Specially Liable for Wage 
 
 Debts, 130 
 
 § 38. Insurance and Beneficiary Funds Exempt to 
 
 Laborers, 132
 
 TABLE OF CONTENTS IX 
 
 PAGE 
 
 § 39. Other Legal Privileges of Laborers, etc., . 132 
 
 § 40. Prison Labor, 133 
 
 § 41. Industrial Education and Apprentices, . 138 
 
 CHAPTER IV 
 
 Profit-sharing, Co-operation, and Laborers' Stock, 140 
 
 § 42. Co-operative Associations, . . . 140 
 
 § 43. Special Stock, 142 
 
 § 44. Profit-sharing, ...... 144 
 
 CHAPTER V 
 
 State Regulation of Factories, Mines, Etc., . 146 
 
 § 45. The I'actory Acts, 146 
 
 § 46. Sweatshops, . . . . . . .151 
 
 § 47. Intelligence Offices and Employment Agen- 
 cies, 153 
 
 CHAPTER VI 
 
 Other Legal Rights and Liabilities of Master 
 
 and Servant, ........ 156 
 
 § 48. As to Third Persons, .... 156 
 
 § 49. Liabilities of Servant to Master, . . . 157 
 
 § 50. Liabilities of Master to Servant, , , 161 
 
 CHAPTER VII 
 
 Trades Unions, ........ 167 
 
 § 51. Trades Unions Legalized, .... 167 
 
 § 52. The Legal Protection of Labor Unions, . 181 
 
 § 53. Union Labels, 184 
 
 § 54. Combinations among Employers, . . . 185
 
 TABLE OF CONTENTS 
 
 rilArTEK VIII 
 
 PAGE 
 
 Stkikks anu Boycotts, ...... 194 
 
 § 55. Strikes 194 
 
 § oG. Lockouts, 221 
 
 § 57. Boycotting, . . . . ' , . . 222 
 
 § 58. Boycotting, the American Decisions, . 247 
 
 § 59. Boycotting, the American Statutes, . . 283 
 
 § GO. Picketing, 290 
 
 § 61. Blacklisting, 300 
 
 § 62. Special Laws Concerning Bailroad Employ- 
 ees, etc., 303 
 
 § 63. Pinkerton Men, etc., 305 
 
 CHAPTER IX 
 
 Equity Process and Injunctions — The Anti-Trust 
 
 Law and the Interstate Commerce Law, 310 
 
 § 64 Remedies by Injunction, .... 310 
 
 § 65. Strikes against Receivers, .... 326 
 § 66. Labor Combinations Unlawful upder Recent 
 
 Federal Statutes, 334 
 
 CHAPTER X 
 
 Remedies by Arbitration, ..... 348 
 
 § 67. State Boards of Arbitration, .... 348 
 
 § 68. Creation of Private Boards of Arbitration, 359 
 
 § 69. State Labor Bureaus or Commissioners, . 362 
 
 § 70. State Aid to the Unemployed, . . . 364
 
 TABLE OF CASES 
 
 A 
 
 PAGE 
 
 Abbot of Lilleshall's Case, Selden Soc. Pub., vol. i..224, 246 
 
 Angle V. Ry. Co., 151U. S. , 1 207 
 
 Anonymous, 12 Mod., 248 186 
 
 Antonio Ry. Co. v. Wilson, 19 S. W., 913 99 
 
 Arthur v. Oakes, 63 F. R., 310, 317, 321 207, 
 
 210, 215, 324, 333 
 
 Atchison & N. Ry. v. Baty, 6 Neb., 37, 39 4, 14 
 
 Austin t'. Murray, 16 Pick., 121 4, 21 
 
 B 
 
 Bachelder v. Bickford, 62 Me., 526 51 
 
 in re Baker, 29 How. Prac, 485 18 
 
 Bank of Chenango v. Brown, 26 N. Y., 467 4 
 
 Barr v. Essex Trades Council, 30 Atl., 881 279 
 
 Bartlett v. Street Ry. Co., 82 Mich., 658 51 
 
 Baughmann's Case, 11 Va. L. J., 324 197, 198, 256 
 
 Bergman -y. Cleveland, 39 O. St., 651.,.., 80 
 
 Bellows V. Bellows, 58 N. H., 60 314 
 
 Birdsall i;. Twenty-third St. Ry. Co., 8 Daly, 419 86 
 
 Blindell v. Hagan, 54 F. R., 40 320, 339 
 
 Bohn Mfg. Co. v. Hollis, 55 N. W., 1119, 54 Minn., 223 
 
 189, 275 
 
 Bonham's Case, 8 Co., 1186 2 
 
 Booth f. Brown, 62 F. R., 794 334 
 
 Bootmakers of Philadelphia, pamp^ilet 176, 202 
 
 Boston Glass Mfg. z\ Binney, 4 Pick., 425 29, 302
 
 Xii TAHLK OF CASES 
 
 PAOB 
 
 Howon V. Mathoson, U Allen, 4<)0 29, 2oO 
 
 Bowes V. Press, 70 L. T. 11., 110 38, 8rt 
 
 Bowman v. Middleton, 1 Bay, 252 4 
 
 Brace v. Evans, 3 R. & C. L. J., 561 2G4 
 
 Braceville Coal Co. v. People, 35 N. E., 62 10, 93 
 
 Braddee v. Brownfield, 2 W. & S., 271 -1: 
 
 Bradley v. Falbrook Irrigation Co., 68 F. K., 948 5 
 
 Britain's Case, 36 P. L. J., 17 50 
 
 Brooks V. Cotton, 48 N. H., 50 52 
 
 C. B. & Q. R. R. V. Wymore, 58 N. W., 1120 lU 
 
 C. RR. V. Greely, 17 N. H., 47 4 
 
 Campbell v. Shotwell, 3 Wkly. L. B., 433 314 
 
 Calder v. Bruce, 3 Dall., 386 4 
 
 Callan v. Wilson, 127 U. S., 540 262 
 
 Carew v. Rutherford, 106 Mass., 1 23, 29, 215, 251 
 
 Carson v. Ury, 39 F. R., 777 184 
 
 Casey v. Cincinnati Typographical Union, 45 F. R., 
 
 135 265, 319 
 
 re Charge to Grand Jury, 62 F. R., 828, 340 ; 63 F. R., 
 
 436 ; 64 F. R., 724 345 
 
 Chair Co. v. Runnels, 77 Mich., Ill 133 
 
 Chipley v. Atkinson, 1 So. R., 934 37 
 
 Cigarmakers' Union v. Conhaiin, 40 Minn., 243 184, 250 
 
 Cigarmakers' Union v. Brendel, 22 Atl., 912 184, 185 
 
 Clark, Mary's Case, 1 Blackf., Ind., 122 30 
 
 Cochran v. Van Senley, 20 Wend., 365 4 
 
 Coeur d'Alene Mining Co. v. Miners' Union, 51 F. R. 260 
 
 322, 332 
 
 Cohn V. People, 37 N. E, 60 185 
 
 Commonwealth v. Alger, 7 Cush., 53. 19 
 
 Commonwealth r. Carlisle, Brightley's Rep., 36 168, 203 
 
 Commonwealth v. Curran, 3 Pittsburg, 143 216
 
 TABLE OF CASES Xlll 
 
 PAGE 
 
 Commonwealth v. Dyer, 128 Mass., 170 25 
 
 Commonwealth v. Hamilton Mfg. Co., 120 Mass., 383. .7, 64 
 
 Commonwealth v. Hunt, 4 Mete, 111 168, 204, 247, 270 
 
 Commonwealth v. Judd, 2 Mass., 329 247 
 
 Commonwealth v. Perry, 155 Mass., 117, 121, 127 4, 
 
 6, 10, 11, 83 
 
 Commonwealth v. Shelton, 11 Va. L. J., 324 256 
 
 Commonwealth v. Sheriff, 38 Leg. Int., 412 215 
 
 Commonwealth v. Tack, 1 Brewster (Fa.), 511 190 
 
 Commonwealth v. Waite, 11 Allen, 264 22 
 
 ContaudRR. v. Greely, 17 N.H., 47 4 
 
 Corfield v. Coryell, 4 Wash. C. C, 371, 380 4, 12 
 
 Cote V. Murphy, 159 Pa. St., 420 ; 28 Atl., 190 14, 278 
 
 Crump V. Commonwealth, 84 Va., 927 264 
 
 Curran v. Treleaven, 17 Cox C. C, 354 208, 295 
 
 D 
 
 ex parte Dalton, 28 L. R. Ir., 36 197 
 
 Davis t'. Ohio, 30Wkly. L. B., 342 .. 182 
 
 Debs, pet., v. 158 O. S., 564 (see U. S. v. Debs) 339 
 
 De Pear v. The Cooks' Union, 27 Chicago Legal News, 
 
 387 274 
 
 Delz i>. Winfree, 80 Tex., 400 ; 16 S. W., Ill ." . 277 
 
 Denny's Case, Lewis Cr. L., 625 214 
 
 Dodd V. Una, 13 Stew., 672 314 
 
 re Doolittle, 23 F. R., .544 205, 327 
 
 Dueber Watch Case Co. v. Howard Watch Co. 55 F. R., 
 
 851; 66 F. R., 637 187, 266 
 
 Dueber Watch Case Co., 24 N. Y. Sup., 647 268 
 
 East Kingston v. Towle, 48 N. H., 57, 61 4,7 
 
 re Eight-hour Law, 39 Pac. (Col.), 328 45
 
 Xiv TABLE OF CASES 
 
 PAOB 
 
 Eilenbeekor r. riymouth Co., 134 U. S., 31 314 
 
 Emanuel's Case, G C. II. Rec, 33 199 
 
 Emperor of Austria v. Kossuth, 3 De G. F. & J., 232 317 
 
 F 
 
 Farmers' Loan & Trust Co. v. No. Pacific R. R. Co., 60 
 
 F. R.,803. 210, 324, 332 
 
 Farrer v. Close, L. R., 4 ; Q. B., 602 202 
 
 Fletcher v. Peck, 6 Cranch, 87 4 
 
 Ford V. ^licago Milk Assocn., 39 N. E., 651 192 
 
 Frisbie v. United States, 157 U. S., 160 85 
 
 Frorer v. People, 31 N. E., 395 107 
 
 Fuller V. Brown, 11 Mete, 440 39 
 
 G 
 
 Garrigus v. State, 93 Ind., 239 314 
 
 Georgia v. Brailsford, 2 Dall., 402 317 
 
 Gibson f. Lawson, 17 Cox C. C, 854 206, 208, 295 
 
 Gladstone, W. E., speech 219 
 
 Godcharles v. AVigeman, 113 Pa. St., 437 106 
 
 Graham ^•. St. Charles Ry. Co., 27 L. R. A., 416 310 
 
 in re Grand Jury, 62 F. R., 834 343 
 
 in re Grand Jury, 62 F. R. , 828 345 
 
 in re Grand Jury, 62 F. R., 840 345 
 
 Gregory v. Duke of Brunswick, 6 Mann. & Gr., 205, 953 
 
 197, 232 
 Grey's, Lord, Case, 9 How. St. Tr., 127 196 
 
 H 
 
 Hagan v. Blindell, 54 F. R., 40; 56 F. R., 696 268 
 
 Ham V. McClaws, 1 Bay, 98 4 
 
 Hancock r. Yaden, 121 Ind., 366 85, 92, 107
 
 TABLE OF CASES XV 
 
 PAGE 
 
 Harmon v. Salmon Falls Co., 35 Me., 447 100 
 
 Hartford Carpet Weaver's Case, pamphlet 178 
 
 Haskins v. Royster, 70 N. C, 001 29 
 
 Helpbenstine v. Hartig, 5 Ind. App., 172 46, 51, 186, 202 
 
 reHiggins, 27 F. R., 443 ' 205, 330 
 
 Hilton V. Eckersley, 6 El. & Bl., 47 180, 245 
 
 Hocking V. Coal Co. v. Rosser, 41 X. E., 263 48, 133 
 
 Hoke V. Henderson, 4 Devine, 15 4 
 
 Holden v. James, 11 Mass., 396 4 
 
 Holmes, O. W., decision 207, 296 
 
 re House Bill, No. 107, 39 Pac, 431 .^ 88 
 
 re House Bill, No. 203, 39 Pac, 431 Ill 
 
 Hunt v. Otis Co., 4 Mete, 464 39 
 
 re Jacobs, 98 N. Y., 98 20, 151 
 
 Jackson v. Stanfield, 36 N. E., 345 277 
 
 Johnson Harvester Co. v. Meinhardt, 60 How. Pr., 
 
 163, 168 183, 214 
 
 Jones 1). Shiawassee Circuit Judge, 53 N. W., 976 133 
 
 Journeyman Cordwainers of New York. 2 Wheel. Cr. 
 
 C, 202 202 
 
 Journeymen Cordwainers of Pittsburg, pamphlet 176 
 
 Journeymen Tailors' Case, 8 Mod., 11 176 
 
 Journeymen Tailors' of Philadelphia, pamphlet 178 
 
 Judd V. Harrington, 139 N. Y., 105 192 
 
 Judge V. Bennett, 36 W. R., 103 294 
 
 K 
 
 re Keimer, 12 Misc. (N. Y., 615) '. 124 
 
 King, etc. See Rex. 
 
 Koehler v. Buhl, 94 Mich., 496 37 
 
 re Kuback, 85 Cal., 274 53, 55
 
 XVI TABLK OK CASES 
 
 L 
 
 Page 
 
 T.ako Eric & AV. Ry. Co. v. Bailey, 61 F. R., 494 324 
 
 re Leaeli, KU Ind., (J65 65 
 
 Leas V. Penna. Co., 37 N. E., 423 114 
 
 Leep V. Ry. Co., 25 S. W., 75 10, 92 
 
 ex parte Lennon, 64 F. R., 320 312, 325 
 
 Longshore Printing Co. v. Howell, 26 Ore., 527 273 
 
 Low V. Rees Printing Co., 59 N. W., 362, 366, 368, 762, 
 
 41 Neb., 127 2, 3, 4, 10, 11, 14, 15, 19, 20, 44, 46 
 
 Lumley v. Wagner, 1 I)e G., M. & G., 604 30 
 
 Luske V. Hotchkiss, 37 Ct., 219 52 
 
 M 
 
 Macauley v. Shackell, 1 Bligh N. S., 96, 127 318 
 
 McCarthy v. Mayor of N. Y., 96 N. Y., 1 52 
 
 McCullough V. Brown, 19 S. E., 458, 41 S. C, 220. .13, 365 
 
 McDonnell v. Henderson, 38 N. C, 562 314 
 
 McVey v. Brendel, 144 Pa., 235 184 
 
 Maguire, Mary's Case, 57 Cal., 604 80 
 
 Maine v. Doherty, 60 Me., 504 4 
 
 Mapstrick v. Ramge, 9 Neb. , 390 210 
 
 Master Stevedores v. Walsh 2 Daly, 1 (See Stevedores 
 
 r. Walsh) 171, 201, 203 
 
 Merschiem v. Musical Mutual Protective Union, 24 Abb. 
 
 N. C, 252 172 
 
 Miller v. C. B. & Q. Ry. Co., 65 F. R., 305. 114 
 
 Millettf. People, 117 111., 294.. Ill 
 
 Minor v. Happersett, 21 Wall, 162 65 
 
 Mitchel f. Reynolds, 1 P. W., 181 , 2 
 
 Mogul S. S. Co. V. Macgregor, 66 L. T., N. S., 1 ; L. R 
 
 23 Q. B. D., 598 187, 200, 231, 244, 319 
 
 Moor V. Veazie, 32 Me., 344, 360, 544 5 6, 84 
 
 Moores v. Bricklayers' Union, 23 Wkly L. B., 48 227 
 
 More V. Bennett, 29 N E. Rep., 888 , 179, 189
 
 TABLE OF CASES XVll 
 
 PAGE 
 
 Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St., 
 
 173 191, 245 
 
 Mugler V. Kansas, 123 U. S., 624 21 
 
 Mulcahy's Case, L. R., 3 ; H. of L., 806 242 
 
 Murdock v. Walker, 152 Pa., 595 271, 296 
 
 N 
 
 National Distilling Co. v. Cream City Co., 86 Wis., 352. 192 
 
 Nester v. Continental Brewing Co., 161 Pa. St., 473 192 
 
 Newman v. Commonwealth, 34 P. L. J., 313 215 
 
 New York Elevated Railway Cases, 70 N. Y., 350 14 
 
 O 
 
 Old Dominion S. S. Co. v. McKenna, 30 F. R., 48. .256, 319 
 
 Olive V. Van Patten, 25 S. W., 428 276 
 
 Olmstead v. Beal, 19 Pick, 528 39 
 
 Opinions of Justices, 163 Mass., 589 7, 85, 90 
 
 Opinions of Justices, 4 N. H., 566 7 
 
 Orr V. Quimby, 54 N. H., 690, 606 4 
 
 P 
 
 Palmer v. State, 39 O. St., 236 22 
 
 Park v. Detroit Free Press Co., 72 Mich., 560 14, 50 
 
 Parrot, Tiburcio's Case, 5 Pac. C. L. I. Supp't. 119 
 
 Payne v. RR. Co., 13 Lea, 507 38 
 
 People f. Budd, 117 N. Y., 1 21 
 
 People V. Coachmen's Union, 24 N. Y. S., 114 171 
 
 People tJ. Ewer, 141 N. Y., 129.. 64, 78 
 
 People V, Fisher, 14 Wend., 1 176 
 
 People V. Fisher, 50 Hun, 552 184 
 
 People V. Flagg, 46 N. Y., 404 5
 
 XVlll TABLE OF CASES 
 
 PAGE 
 
 People r. Gallagher, 4 Mich., 244 4 
 
 People V. Gill, 1 N. Y. Crim. Rep., 292; 6 N. Y. Crim., 
 
 509 259 
 
 People V. Gillson, 109 N. Y., 389, 399 10, 13, 20 
 
 People V. Hawkins, 32 N. Y. Sup., 524 137 
 
 People V. Kostka, 4 N. Y. Crim. R., 429 259 
 
 People V. Lawrence, 54 Barb., 516 4 
 
 People V. Hawkins, 32 N. Y. Sup., 524 137 
 
 People V. Hughes Ray, Contr. Lim., 356 183 
 
 People V. Melvin, 2 Wheeler, Crim. Cas. (N. Y.), 262. . 
 
 176, 202 
 
 People V. Milk Exchange, 27 L. R. A., 437 192 
 
 People V. Mas. Mut. Pro. Union, 118 N. Y., 101 171 
 
 People V. North River Sugar Refinery, 121 N. Y., 582. . 192 
 
 People V. Petherani, 64 Mich., 252 197, 225 
 
 People V. Sheldon, 139 N. Y., 251 192 
 
 People V. Trequier, 1 Wheeler Crim. Cas., 142 204 
 
 People V. Walbridge, 3 Wend., 120 14 
 
 People V. Warren, 28 N. Y. Sup., 303 63 
 
 People V. Warren, 34 N. Y. Sup., 942, 944 18, 120 
 
 People V. Wilzig, 4 N. Y. Crim. Rep., 403 257, 296 
 
 People V. Phyfe, 136 N. Y., 554 71 
 
 People ex rel. Warren v. Beck, 144 N. Y., 225 53 
 
 Perham's Case, 5 H. & N., 30 238 
 
 Pettibone v. U. S., 148 U. S., 197 214, 269, 311, 321 
 
 Phoenix Bridge Co. v. Keystone Co., 142 N. Y., 425 192 
 
 Pittsburg Cordwainers' Case, Cogley, 65 183, 203 
 
 Piatt V. P. & R. R. R. Co., 65 F. R., 660 183 
 
 Poulterers' Case, 9 Co., 55 B 199 
 
 Preston v. Am. Linen Co., 119 Mass., 400 100 
 
 Printing Co. v. Sampson, L. R. 19, Eq., 462 1 
 
 Queen, etc. See Reg.
 
 TABLE OF CASES XIX 
 
 R 
 
 PASE 
 
 Ramsey v. People, 142 111., 380 Ill 
 
 Regents V. Williams, 9 Gil. & J., 365 4 
 
 Beg.v. Bauld, 13 Cox C. C, 283 293 
 
 Reg. V. Best, 1 Salk, 174 196, 198 
 
 Reg. V. Bunn, 12 Cox C. C, 316 34, 35, 206, 241 
 
 Reg. V. Duffield, 5 Cox C. C, 404 236 
 
 Reg. V. Druitt, 10 Cox C. C, 592 2, 206, 225, 241, 291 
 
 Reg. V. Hewitt, 5 Cox C. C, 162 225, 236 
 
 Reg. V. Hibbert, 13 Cox C C, 82 293 
 
 Reg. V. McKenzie, 67 L. T. R., N. S., 201 295 
 
 Reg. V. Parnell, 14 Cox C. C, 508 224, 241 
 
 Reg. V. Rowlands, 5 Cox C. C, 436 237 
 
 Reg. V. Shepherd, 11 Cox C. C, 325 293 
 
 Bexv. Bykerdike, 1 Moody & R., 179 238 
 
 Rex V. Cope, 1 Stra., 144 197 
 
 Bexv. Eccles, 3 Dougr., 337 197, 199 
 
 Rexv. Gill, 2 B. & Aid., 204 199 
 
 Rex V. Mawbey, 6 T. R., 619 197 
 
 Rex V. Starling, 1 Keble, 650 202 
 
 Richardson v. Buhl, 77 Mich., 632 192 
 
 Ripley v. Evans, 87 Mich., 217 130 
 
 Ritchie v. Illinois, 155 111., 98 14, 15, 47, 56, 64 
 
 Rogers v. Dutt, 13 Moore P. C , 209 198 
 
 Rogers r. Evarts, 17 N. Y. Sup., 266 323 
 
 Salt Co. V. Guthrie, 35 O. St., 666 192 
 
 San Antonio Ry. Co. v. Wilson, 19 S. W., 910 13, 90, 99 
 
 Schnurr v. Savigny, 85 Mich., 144 52 
 
 Secor V. RR. Co., 7 Biss., 513 205 
 
 Shelbourne v. Oliver, 13 L. T. R., N. S., 630 240 
 
 Sherry v. Perkins, 147 Mass., 212 214, 263, 296 
 
 Shivers v. Newton, 16 Vroom, 469 22
 
 XX TABLE OF CASES 
 
 PAGE 
 
 Skinner r. Kitch, 10 Cox C. C, 493 240 
 
 Slauglitcr House Cases, 16 Wall., 106 4, 85, 91 
 
 Smith T. People, 25 111., 17 196 
 
 Snow r. "Wheeler, 1 13 Mass., 179 168, 178 
 
 Solteau r. I)e Held, 2 Sim. & Stew., 153 318 
 
 Southern California Ry. Co. v. Rutherford, 62 F. R., 
 
 796 32, 342 
 
 Spariiawk r. Union RR. Co 318 
 
 Spies V. People, 122 111., 1 197 
 
 Springhead Spinning Co. v. Riley, L. R. 6 Eq., 551 315 
 
 Stark V. Parker, 2 Pick., 267 39 
 
 State V. Aiken, 42 S. C, 223 365 
 
 State V. Bishop, 31 S. W., 9 185 
 
 State V. Brown & Sharpe Mfg. Co., 25 Atl. Rep., 246. . . 91 
 
 State V. Buchanan, 5 Harris & J. (Md.), 317 196, 245 
 
 State V. Burnham, 15 N. H., 396 195 
 
 State V. Campbell, 64 N. H., 402 22 
 
 State V. Donald.son, 32 N. J. L., 151 249 
 
 State V. Dyer, 32 Atl., 814 283 
 
 State tJ. Firecreek Coal Co., 33 W. Va., 188 11, 106 
 
 State V. Fourth Jud. Distr. Court, 34 Pac, 39 314 
 
 State V. Glidden, 55 Conn., 46 253 
 
 State V. Goodwill, 13 W. Va., 179 ; 22 S. W., 353. . 11, 15, 106 
 
 State V. Hughes, Ray, 356 183 
 
 Staler. Julow, 31 S. W., 781 50, 182 
 
 State V. Loomis, 22 S. W., 350 13, 107 
 
 State V. Marshall, 64 N. H., 549 22 
 
 State V. Nebraska Distilling Co., 29 Neb., 700 192 
 
 State V. N. River Sugar Refinery, etc. (see Sugar Trust 
 
 Case). 
 
 State V. Stewart, 59 Vt , 272, 273 11, 183, 232, 296 
 
 Stevedores' Association v. Walsh, 2 Daly, 1 
 
 168, 169, 201, 203 
 
 Strasser v. Moonelis, 108 N. Y., 611 184 
 
 Sugar Trust Case, 121, N. Y., 582 192 
 
 Sweet v. Hulbert, 51 Barb., 318 4
 
 TABLE OF CASES XXI 
 
 T 
 
 FAGK 
 
 Tarleton v. McGawley, Peak N. P. C, 270 23, 310 
 
 Taylor v. Porter, 4 Hill, 144 5 
 
 Temperton v. Russell, 69 L. T. R., N. S., 78 245 
 
 Terrett v. Taylor, 9 Cranch, 43 4 
 
 Texas Standard Cotton Oil Co. v. Adoue, 19 S. W., 274. 191 
 Thomas v. C. N. O. & T. P. Ry. Co., 62 F. R., 303, 803 
 
 205, 214, 272, 343 
 
 Timberly v. Childe, 1 Sid., 68 195 
 
 Toledo, etc., Ry. Co. v. Penna. Ry. Co., 54 F. R., 746, 
 
 730 320, 339 
 
 Tubworaen of London, 1 Keble, 650 201 
 
 U 
 
 U. S. V. Agler, 62 F. R., 824 344 
 
 U. S. V. Cassidy, 67 F. R., 698, 700, 705 198, 275, 347 
 
 U. S. V. Debs, 64 F. R., 724, 725; 65 F. R., 210; 62 F. 
 
 R., 832 222, 273, 325, 339, 346, 347 
 
 U. S. V. Elliot, 62 F. R., 801 342 
 
 U. S. V. Kane, 23 F. R., 748 205, 329 
 
 U. S. V. Martin, 94 U. S., 400 53, 54 
 
 U. S. V. Ollinger, 55 F. R., 959 53 
 
 U. S. V. Patterson, 55 F. R., 605 341 
 
 U. S. V. Workingmen's Amalgamated Council of New 
 
 Orleans, 54 F. R., 994 320, 321, 341 
 
 V 
 
 Van KoTUv. Van Horn, 56 N. J. L , 318 269 
 
 W 
 
 re Wabash RR. Co., 24 F. R., 217 829 
 
 Walker v. Cronin, 107 Mass., 555 214, 252, 319 
 
 Wallace v. Georgia Ry. Co., 22 S. E., 579 302
 
 XXll TABLE OF CASES 
 
 PAGE 
 
 Walls I'. Coleman, 34 N. Y. St., 281 100 
 
 WalLshy r. Anley. 7 Jurist, N. S., 465 239 
 
 Wally's Heirs v. Kennedy, 2 Yerger, 554 50 
 
 Warren t>. Solen, 112 lud., 213 130 
 
 Waterhou.se v. Comer, 55 F. R., 149 334 
 
 Watertown v. Mayo, 109 Mass., 315 21 
 
 Weener v. Brayton, 152 Mass., 101 184 
 
 Weideman v. State, 56 N. W., 688 22 
 
 Wells v. McGeoch, 71 Wis. ,196 192 
 
 Wheeling Bridge Co. v. Gilmore, 8 O. C. C, 164, 658, 
 
 664, 669 4, 5, 10, 47, 50, 70, 108 
 
 Wick China Co. v. Brown, 30 Atl. R., 261 215, 299 
 
 Wilkinson v. Leland, 2 Pet., 627 4, 8 
 
 Williamstown v Darge, 71 Wis., 643 314 
 
 re Wood, 82 Mich., 75 .. 314 
 
 Wood tJ. Bowron, L. R., 2 Q. B., 21 239 
 
 re Worthen, 58 JF. R., 467 22
 
 HANDBOOK 
 
 TO 
 
 THE LABOR LAW 
 
 OF 
 
 THE UNITED STATES
 
 HANDBOOK TO THE LABOR LAW 
 OF THE UNITED STATES 
 
 CHAPTER I 
 
 THE LABOE CONTEACT 
 
 § 1. General Constitutional Right to Freedom 
 of Contract. — It is a question much discussed, 
 whether there is such a thing as unwritten con- 
 stitutional right to freedom of contract ; that is, 
 whether it has been established as a principle 
 of English liberty that a man may make any 
 contract he choose, not criminal or immoral, and 
 call upon the courts to enforce it. If there is 
 such a right, it may only be forbidden or limited 
 by express act of Parliament in England, and 
 only in this country by constitutions, not by 
 Congress or the state legislatures. Although 
 there are both historic and modem statements 
 of English courts affirming such a right,' it is 
 
 • By Sir J. Jessel, M. R., p. 465 (Printing Co. v. Sampson, 
 L. R. 19, Eq., 462). 
 
 " It must not be forgotten that you are not to extend arbi- 
 trarily those rules which say that a given contract is void
 
 2 lIA\l>HOOK TO THE LABOK LAW 
 
 I)robable that parliament is in that country 
 supreme ; ' and that these statements are not 
 meant to extend to a case where a statute has 
 been enacted forbidding any special kind of 
 contract before it is made. Important statutes, 
 such as the Irish Land Acts, have been passed 
 
 as being against public policy, because if there is one thing 
 which more than another public policy requires, it is that men 
 of full age and competent understanding shall have the ut- 
 most liberty of contracting, and that their contracts, when en- 
 tered into freely and voluntarily, shall be held sacred and 
 shall be enforced by courts of justice. Therefore, you have 
 this paramount public policy to consider — that you are not 
 lightly to interfere with this freedom of contract. Now, 
 there is no doubt public policy may say that a contract to 
 commit a crime, or a contract to give a reward to another to 
 commit a crime, is necessarily void. The decisions have 
 gone further, and contracts to commit an immoral offence, or 
 to give money or reward to another to commit an immoral 
 offence, or to itiduce another to do something against the 
 general rules of morality, though far more indefinite than the 
 previous class, have always been held to be void. I should 
 be sorry to extend the doctrine much further." 
 
 So, in Mitchel v. Reynolds, 1 P. W., 181, decided in 1711, 
 the courts say that "restraints of trade, though by grants or 
 charters from the Crown or b\' laws of towns, etc., are void 
 both as contrary to Magna Charta and the general liberties of 
 the subject. Magna Charta says, ' No freeborn man shall 
 be disseized of his free tenement or liberties, or his free cus- 
 toms,' and the word ' customs ' has always been taken to 
 extend to freedom of trade." See also Lord Bramwell's 
 opinion in Reg. v. Druitt, 10 Cox C. C, 592, hereinafter, § 57. 
 
 -' Cooley, Const. Limitations, *172; 1 Blackstone, 91. Coke 
 held the opposite opinion; see Bonham's Case, 8 Co., 1186.
 
 OF THE UNITED STATES S 
 
 iu the present century, denying unlimited free- 
 dom of contract in special cases. A safer state- 
 ment of the English law would therefore be that 
 this right to freedom of contract only extends 
 to contracts which are neither criminal, immoral, 
 nor expressly made illegal by existing laws. 
 
 In this country, however, our courts have fre- 
 quently taken a stronger position ; and in some 
 cases have seemed to hold that general freedom 
 of contract is an old English constitutional prin- 
 ciple. If so, as the American colonists, ac- 
 cording to the opinion of both Blackstone and 
 Benjamin Franklin,' brought over the principle 
 as part of their common inherited liberties, be- 
 fore the adoption of our written state and fed- 
 eral constitutions, and, unless contradicted by 
 express provisions of these latter, it may stand 
 as a constitutional principle to-day. 
 
 No state constitution expressly denies the 
 principle of freedom of contract ; therefore, if 
 this be an old constitutional right, it remains to 
 all American citizens to-day, unless we hold that 
 by the adoption of written constitutions they 
 have impliedly abandoned, at least as to the leg- 
 islature, all constitutional rights not expressed in 
 these. It may still be questioned whether this is 
 generally the case ; there is no high authority in 
 favor of it, except in Massachusetts, which has a 
 
 3 1 Bl. Com., 107; 4 Franklin's Works, Sparks, 271.
 
 4 HANDBOOK TO THE LABOR LAW 
 
 peculiar provision iu its constitution giving to 
 the legislature of that state unusual scope ; and 
 there are many early decisions of leading judges 
 against such a view ; ■* just as there are plenty of 
 
 * Tliat there are fundamental principles of free government 
 underlying the provisions even of our written constitutions, 
 unless expressly denied by tliem, was the opinion of Mar- 
 shall, Story, Bushrod Washington, and Daniel Webster. 
 See Fletcher v. Peck, 6 Cranch, 87, at pp. 135, 139 ; Terrett 
 V. Ta^'lor, 9 Cranch, -13, at p. 51 ; Wilkinson v. Leland, 2 
 Peters, 027, at p. 657; 5 Webster's Works, 487; 2 ib., 392; 
 Washington's Opinion, Corfield v. Coryell, 4 Wash., 371, at 
 p. 380; see also The Regents v. Williams, 9 Gil. & J., 365, 
 at p. 408; Ham v. McClaws, 1 Bay, 98; Bowman v. Middle- 
 ton, 1 Bay, 252 ; Field's dissenting opinion, Slaughter-House 
 cases, 16 Wallace, at p. 106; Bradley's opinion at p. 116; 
 Calder v. Bruce, 3 Dallas, 386, by Chase, J., at p. 388 ; Hol- 
 den v. James, II Mass., 396, at p. 404; Austin zi. Murray, 
 16 Pick., 121, at p. 124; Hoke v. Henderson, 4 Dev. (X. C), 
 15; Atchison & N. Ry. v. Baty, 6 Neb., 37; Sweet v. Hul- 
 bert, 51 Barb., 318, 319; People v. Lawrence, 54 Barb., at 
 p. 616; Doe's dissenting opinion, Orr v. Quimby, 54 N. H., 
 606; C. R. R. v. Greely, 17 N. H., 47, at p. 56; E. Kingston 
 V. Towle, 48 N. H., 57, at pp. 60, 61 ; Maine v. Doherty, 60 
 Me., 504, at pp. 509, 510; Wheeling Bridge v. Gilmore 
 (1894), 8 O. C. C, 658, at p. 664; Com. v. Perry, 155 Mass., 
 at p. 121. 
 
 Cooley takes the contrary view (Const. Limitations, pp. 
 ♦165-171), but his subsequent statements, though based on 
 the threefold division of power, appear substantially incon- 
 sistent. (See *pp. 174-177.) And see, to the contrary, 
 People V. Gallagher, 4 Mich., 244; Iredell's opinion, Calder 
 V. Bruce, 3 Dallas, 386; Orr v. Quimby, 54 N. H., 590; 
 Cochran v. Van Senley, 20 Wend., 365, at p. 382; Braddee 
 V. Brownfield, 2 Watts & Serg., 271 at p. 277 ; Bank of
 
 OF THE UNITED STATES 5 
 
 recent decisions on the bare point that state leg- 
 islatures are only limited by the state and 
 federal constitution. 
 
 Chenango v. Brown, 26 N. Y., 467, at p. 469 ; People v. 
 Flagg, 46 N. Y., 404; Moor f. Veazie, 32 Me., 344. 
 
 That there are unwritten constitutional rights in this coun- 
 try would seem to be the theoretical principle ; but there are 
 not many actual cases directly nullifying a statute on tliis 
 ground since the Revolution. As Iredell said, in Calder v. 
 Bruce, above cited, " it is true that some speculative jurists 
 have held that a legislative act against natural justice must, 
 in itself, be void ; but I cannot think that under a govern- 
 ment composed of legislative, executive, and judicial depart- 
 ments, any court of justice would possess a power to declare 
 it 80." (See, however, Maine v. Doherty, and Sweet v. 
 Hulbert, above; Taylor ?;. Porter, 4 Hill (N. Y.), 144; Brad- 
 ley V. Falbrook Irrigation Co., Pac. R., and Wheeling Bridge 
 V. Gilmore, above.) On the other hand, the better opinion 
 would seem to be that if there be any such, the people have 
 not waived them by adopting written constitutions, except in 
 so far as these expressly control them. The courts, more- 
 over, have been very broad in interpreting the provisions of 
 the written constitutions to include such fundamental prin- 
 ciples. In East Kingston v. Towle, 48 N. H., 57, 61, and 
 other similar cases, the provision in the bill of rights that 
 " no subject shall be arrested, imprisoned, despoiled, or de- 
 prived of his life, liberty, or estate but by . . . the law 
 of the land," has been interpreted to mean, not any law or 
 statute which the legislature might pass, but only a law not 
 in violation of the fundamental maxims of justice and equity, 
 not arbitrarily benefiting one person, or the state at the ex- 
 pense of another, nor arbitrarily making class distinctions. 
 The phrases " law of the land," " due process of law," are 
 thus made practically synonjmous with what we have termed 
 the " unwritten constitution."
 
 6 HANDBOOK TO THE LABOR LAW 
 
 The Massachusetts constitutional provision 
 (Part II., Chap, i., Sect. 1, Ai-t. 4) expressly 
 empowers the legislature " to make, ordain, and 
 establish, all manner of wholesome and reason- 
 able orders, laws, statutes, and ordinances, 
 directions and instructions, either with penalties 
 or without ; so as the same be not repugnant or 
 contraiy to this constitiition, as they shall judge 
 to be for the good and welfare of this Common- 
 wealth, and for the government and ordering 
 thereof, and of the subjects of the same." The 
 word this might seem to authorize the Massa- 
 chusetts Legislature to pass any laws which are 
 reasonable ^ and not in conflict with the pro- 
 visions of the written constitution of that state. 
 And in three instances at least the Massachu- 
 setts Supreme Court has held, twice by direct 
 decision and once inferentially, that the legisla- 
 ture has power to limit or forbid the making of 
 certain kinds of contracts concerning labor.® 
 
 ' And of this reasonableness the courts, by the usual doc- 
 trine, may not be the judge. To leave this determination to 
 them would be subversive of our principle of three depart- 
 ments of government, to determine the reasonableness of a 
 statute being not a judicial but a legislative function. Of its 
 constitutionality alone are the courts the judge. Moor v. 
 Veazie, 32 Me., 544 ; and see next note. 
 
 " Thus, Com. V. Perry, 155 Mass., 121, the majority opin- 
 ion, while recognizing general freedom of contract, seems 
 to hold that under the above provision the legislature might 
 constitutionally forbid contracts under which the employee
 
 OF THE UNITED STATES 7 
 
 But there is no such broad authority usually 
 giveu to the legislatures by the constitutions of 
 the other states,^ It is probable that in most of 
 
 rendered himself liable to a fine by the employer ; while in 
 Opinion of Justices, Weekly Payment Law, 163 Mass., 589, 
 and Com. v. Hamilton Mfg. Co., 120 Mass., 383, a definite 
 prohibition by law of certain contracts was sustained. 
 
 ' Nevertheless there are similar provisions in the neighboring 
 states of New Hampshire, Maine, Vermont, and in Georgia 
 and Alabama; N. H. C, 1, 31; 2, 5; Mass. C, 2, 1, 1, 4; Me. 
 C, 4, 3, 1; Vt. C, 2, 9; Ga. C, 3, 7, par. 22; Ala. C, 4, 25. 
 But it does not appear that they have ever been construed, ex- 
 cept in Massachusetts and Maine, to extend the power of the 
 legislature to all things not expressly forbidden in the state 
 constitution; and the Maine constitution expressly so re- 
 quires. On the contrary, by an early opinion of the Supreme 
 Court of New Hampshire, given in 1827 (4 N. H., 566), this 
 constitutional limitation of the legislative authority is stated 
 and explained as follows : " The power granted is a power to 
 make all manner of laws and statutes which are wholesome 
 and reasonable, and not repugnant to the constitution. It is 
 in its nature a limited, restricted power. It is an old maxim 
 of the common law, that when an act of parliament is against 
 common right and reason, the common law will control it and 
 adjudge it void; and one object of this provision in our con- 
 stitution was to adopt and confirm that maxim of the common 
 law. An act of the legislature, in order to have the force of 
 a statute, must, therefore, be neither repugnant to reason nor 
 to the constitution." 
 
 And in a later case, East Kingston* f. Towle, 48 N. H., at 
 p. 59, by Judge Perley, "The general court is the legislative 
 department of the state government, and has under the con- 
 stitution an ample grant of legislative power; the extent of 
 the power is, however, limited, not only by the express prohi- 
 bitions of the constitution, but by the nature itself of the
 
 8 HANDBOOK TO THE LABOR LAW 
 
 the states such power is expressly denied the 
 legislature under their constitutional provision 
 (inserted usually at the end of the first, or Bill 
 of Rights section) that " this enumeration of 
 rights shall not be construed to impair or deny 
 others, retained by the people ; " ^ or that " all 
 
 power granted ; and to be valid and binding the act of legisla- 
 ture must be within the general scope of legislative authority. 
 The power delegated by the constitution " to make and or- 
 dain all manner of reasonable and wholesome orders, laws," 
 etc., confers no authority to make an order or law in plain 
 violation of the fundamental principles of natural justice, 
 though the act may not be prohibited by any express limita- 
 tion in the constitution." 
 
 And in a Rhode Island case (Wilkinson v. Leland, 2 
 Peters, 627), occurring before the adoption of the state con- 
 stitution, but under the old charter of Charles IL, which 
 gave the legislature power to make laws in the most ample 
 manner, the United States Supreme Court, by Judge Story, 
 held in effect that such power did not allow the legislature to 
 interfere with general rights of personal liberty and property 
 based on unwritten constitutional principles, and said (p. 657), 
 "No court of justice in this country would be warranted in 
 assuming that the power to violate and disregard them — a 
 power so repugnant to the common principles of justice and 
 civil liberty — lurked under any general grant of legislative 
 authority, or ought to be implied from any general expres- 
 sions of the will of the people. The people ought not to be 
 presumed to part with rights so vital to their security and 
 well-being, without very strong and direct expressions of such 
 an intention." 
 
 ' Me. C, 1, 24 ; R. I. C, 1, 23 : N. J. C, 1, 21 ; O. C, 1, 
 20; lo. C, 1, 25; Minn. C, 1, 16; Kan. C, B. Rts., 20; 
 Neb. C, 1, 26; Md. Decln. Rts., 45; Va. C, 1, 21; N. C. 
 C, 1, 37; Mo. C, 2, 32; Ark. C, 2, 29; Cal. C, 1, 23; Ore.
 
 OF THE UNITED STATES 9 
 
 powers not herein delegated remain with the 
 people."^ So in some other states the constitu- 
 tions declare that " a frequent recurrence to fun- 
 damental principles is necessary to preserve the 
 blessings of liberty." '" Do these fundamental 
 principles include property or freedom of con- 
 tract ? If so, it will in these states be expressly 
 withheld from legislative action, or even from 
 the constitution itself. Thus, the constitutions 
 of three states declare that some rights cannot 
 be surrendered by men when they enter into a 
 state of society ; as the New Hampshire phrase 
 puts it, they are inalienable, because no equiva- 
 lent can be given for them ; as, in New Hamp- 
 shire rights of conscience ; in the Virginias the 
 enjoyment of life and liberty, with the means of 
 acquiring and possessing property ; " while in 
 Massachusetts and most of the other states the 
 phrase is " certain, natural, essential, and unal- 
 ienable rights ; among which may be reckoned 
 
 C, 1, 33; Nev. C, 1, 20; Col. C, 2, 28; Wash. C, 1, 30; 
 Mon. C, 3, 30; Wy. C, 1, 3G; Ida. C, 1, 21; S. C. C, 1, 
 41; Ga. C, 1, 5, 2; Ala. C, 1, 39; Miss. C, 3, 32; Fla. C, 
 Decln. Rts., 24; La. C, 13. 
 
 » O., Kan., Neb., N. C, S. C. 
 
 '» Vt. C, 1, 18; 111. C, 2, 20; Wis. C, I, 22; Va. C, 1, 
 17; W. Va. C, 3, 20; N. C. C, 1, 29; Wash. C, 1, 32; S. 
 
 D. C, 6, 27. In New Hampshire and Massachusetts alone 
 such " fundamental principles " are limited to those set forth 
 in the constitution itself: N. H. C, 1, 38; Mass. C, 1, 18. 
 
 " N. H. C, 1, 4; Va. C, 1, 1 ; W. Va. C, 3, 1.
 
 10 HANDBOOK TO THE LABOU LAW 
 
 . . . that of acquiring, possessing, and pro- 
 tecting property " ; '^ and of this the right to con- 
 tract has been generally held to be a necessary 
 result.'^ So in Arkansas, the bill of rights de- 
 clares that " the right of property is before and 
 higher than any constitutional sanction." '* 
 
 § 2. Right to Freedom of Contract by Written 
 Constitutions — But however we decide as to 
 the unwritten constitutional right the courts 
 have held universally that freedom of contract 
 is part of the written constitution of every 
 state where it has come in question, even in 
 Massachusetts, despite the peculiar provision of 
 its constitution discussed in § 1, Such right is 
 based usually on the expressed constitutional 
 " essential " or " unalienable " right to acquire, 
 possess, and protect property ; ^ which necessa- 
 
 " For these states see § 2, note 1. 
 
 '3 Low ^•. Rees Printing Co., 59 N. TV., 362 ; Braceville 
 Coal Co. V. People, 35 N. E., G2 ; Leep v. Ry. Co., 25 S. W., 
 75 ; People v. Gilson, 109 N. Y., 399 ; Com. v. Perry, 155 
 Mass., 121 ; Wheeling Bridge Co. v. Gilmore, 8 O. C. C, 
 at p. 665. 
 
 » Ark. C, 2, 22. 
 
 ' This is substantially the phrase in twenty states, substi- 
 tuting in some the words " inherent " and '• indefeasible " for 
 " essential " and " unalienable " : N. H. C, 1, 2; Mass. C. 
 1, 1 ; Me. C, 1, 1 ; Vt. C, 1, 1 ; N. J. C, 1, 1 ; Pa. C, 1 
 1; O. C, 1, 1; lo. C, I, 1; Del. C, Preamble; Va. C, 1 
 1; W, Va. C, 3, 1; Ky. C, 1; Ark. C, 2, 2; Cal. C, 1, 1 
 Nev. C, 1, 1 ; Col. C, 2, 3; Mon. C, 3, 3; Ida. C, 1, 1
 
 OF THE UNITED STATES 11 
 
 rily " includes the right to make reasonable con- 
 tracts which shall be under the protection of the 
 law ; " ^ for the express phrase " freedom of con- 
 tract " is not found in any constitution, probably 
 because the makers thought it unnecessary. 
 But it is also a provision of the federal constitu- 
 tion (Art. IV., § 2), that " the citizens of each 
 state shall be entitled to all the privileges and 
 immunities of citizens in the several states," and 
 
 S. C. C, 1, 1; Fla. Decln. of Rts., 1. But in other states it 
 is only declared to be the object, or the sole object, of govern- 
 ment to protect the citizen in the enjoyment of life, liberty, 
 and property: 111. C, 2, 1; Neb. C, 1, 1; Wy. ; Ark. C, 
 2,2; Ga. C.,1, 1,2; Ala. C, 1, 37; La. C, 1 ; so in Missouri 
 C, 2, 4, and South Dakota C, 6, 1, the test word " unalien- 
 able " is not used. 
 
 As the states have commonly a provision that the people 
 have at all times the right to alter the government if it fail of 
 its purposes, or that "when the government assumes other 
 functions it is usurpation and oppression," it would follow that 
 if the legislature passed laws interfering with these natural 
 rights, and the courts maintained such laws, the people would 
 have as it were a constitutional right to revolution. (See 
 Stimson's American Statute Law, §§ 15, 182, 183, and 184.) 
 
 The constitutions of Kentucky and Wyoming, moreover, 
 provide that " absolute arbitrary power over the lives, liberty, 
 or property of freemen exists nowhere in a republic, not even 
 in the largest majority" : Ky. C, 2; Wy. C, 1, 7. 
 
 And that of Washington, " that no person shall be dis- 
 turbed in his private affairs or his home invaded without au- 
 thority of law" : Wash. C, 1, 7. 
 
 'Com. V. Perry, 155 Mass., 127; State v. Goodwill, 13 
 W. Va., 179, and State v. Fire Creek Coal Co., ib., 188; State 
 V. Stewart, 59 Vt., 273.
 
 12 HANDBOOK TO THE LABOR LAW 
 
 these were held by Judge Washington ^ to in- 
 chide all fimdameutal rights belonging to the cit- 
 izens of all free governments, such as the right to 
 life and liberty, and to acquire and possess prop- 
 erty of every kind, and the right to engage in 
 trade, etc. ; and (Fourteenth Amendment) that 
 " no state shall make any law which shall abridge 
 the privileges or immunities of citizens of the 
 United States, 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." 
 And the Ninth Amendment provides, " The enu- 
 meration in the constitution of certain rights shall 
 not be construed to deny or disparage others re- 
 tained by the people." There is also the proAdsion 
 common to the federal and all state constitutions, 
 except that of New Jersey, Ohio, and Indiana, 
 that no person can be deprived of his life, lib- 
 erty, and property except " by due process of 
 law," or by " the law of the land ; " ^ but this ap- 
 plies rather to criminal or penal process. See, 
 however, § 1, note 4, above. 
 
 For this reason (that right to contract is ex- 
 pressly guaranteed by the constitution) the fol- 
 lowing kinds of law have been declared uncon- 
 stitutional : statutes limiting the hours of labor 
 
 'Corfield v. Coryell, 4 Wash. C. C, 380. 
 
 *See Stimson's Am. Stat. Law, § 130; U. S. C. Amt.
 
 OF THE UNITED STATES 13 
 
 for adults, such as eight-hour laws, etc.; ' truck- 
 ads, or laws providing that employees shall be 
 paid in money only, not in goods or orders ; ^ 
 laws forbidding dealers to give or offer prizes 
 with goods sold ; ^ laws forbidding employers to 
 measure wages by screened coal ; ^ or to with- 
 hold wages for imperfect work,^ or damage to 
 material; laws providing that employees must 
 be paid at stated intervals and forbidding con- 
 tracts for a longer time ; "^ laws limiting the 
 right of a person to contract with whom he will, 
 as for instance, with non-union employees ; ^^ 
 laws forbidding the citizens of a state to engage 
 in any specified business.^^ 
 
 And the right to contract is further protected 
 by the fact that laws specially regulating or pro- 
 hibiting certain kinds of contracts are very apt 
 to fall under the constitutional prohibition of 
 " class legislation." (See § 11, below.) Thus, 
 weekly payment laws, etc., have been held un- 
 constitutional because they applied solely to 
 miners or railway employees ; ^^ laws restricting 
 remedies for libel because they applied solely to 
 
 * See, hereinafter, §§ 11, 13. « See §§ 23, 24. 
 
 ' People V. Gillson, 109 N. Y., 389. ^ gge § 25. 
 
 ' This was the point in Com. v. Perry, above ; and see 
 § 20. 
 
 '» See § 21. " See § 52. 
 
 '« McCulIough V. Brown, 19 S. E., 458. 
 
 '.2 San Antonio & A. P. Ry. Co. v. Wilson, 19 S. W., 910; 
 State V. Loomis, 22 S. W., 350.
 
 14 HANDBOOK TO TIIK LABOR LAW 
 
 newspapers ; " laws relating to actions for cattle 
 killed, because they applied solely to railroads ; '^ 
 and the Supreme Court of Pennsylvania has ex- 
 pressed a doubt whether a statute legalizing 
 trade combinations is not unconstitutional, be- 
 cause it does not in terms apply to employers as 
 well as employees ; ^^ and the leading decisions 
 against eight-hour laws went partly on the 
 gi'ound that the laws applied to factories and 
 workshops, but not to other classes of laborers, 
 or not to farm and domestic labor. '^ On the 
 other hand, a statute forbidding attorneys-at- 
 law from buying promisory notes has been sus- 
 tained.^^ 
 
 Our conclusion must be that laws limiting the 
 natural or constitutional rights of any persons or 
 class of persons are generally invalid, unless they 
 can be sustained under the police power of the 
 legislature, as defined in the next section ; and 
 that laws which apply only to a class or to cer- 
 tain persons of a class, may be invalid also be- 
 cause class legislation.^^ This matter is more 
 fully discussed in § 11, below. 
 
 '* Park V. Detroit Free Press Co., 72 Mich., 560. 
 •* Atchison & N. Ry. v. Baty, 6 Neb., 39. 
 '« Cote V. Murphy, 159 Pa, St., 420. See post, § 58. 
 '' Ritchie v. Illinois, 155 111., 98 ; Low v. Rees Printing Co., 
 59 N. W., 366. See post, § 11. 
 
 '« People V. Walbridge, 3 Wend., 120. 
 
 " New York Elevated RR. Cases, 70 N. Y., at p. 350.
 
 OF THE UNITED STATES 15 
 
 Finally, it should be noted that the phrase 
 " obligation of contracts " has in the state and 
 federal constitutions nothing to do with the 
 freedom of contract we have been discussing. 
 Nearly all our state and the national constitu- 
 tions expressly forbid the passing any statute 
 which shall have effect to impair the obligation 
 of contracts ; but this only applies to contracts 
 actually existing at the time any such law is 
 passed. 
 
 § 3. The Employment Contract — Freedom of 
 contract, as above defined, being a constitutional 
 right, it follows also as to contracts for labor or 
 employment. Furthermore, this has been fre- 
 quently held to be a property right also,' and as 
 such would be further protected by the constitu- 
 tions of the states which expressly recognize the 
 right to property,- without the necessity of recur- 
 ring to the unwritten constitution, which, how- 
 ever, is universally recognized, according to 
 Blackstone's definition, to cover at least the three 
 primary individual rights of personal security, 
 personal liberty, and private property.^ There- 
 fore, in a double way the freedom of the labor 
 contract is a constitutional right, both as part of 
 
 ' State V. Goodwill, 33 W. Va., 179 ; Low v. Rees Print- 
 ing Co., 59 N. W., 362 ; Ritchie v. Illinois, 155 111., 98. 
 ** See § 2, above. 
 ' Blackstone's Commentaries. Book I., Chap. I., *129.
 
 16 HANDBOOK TO THE LABOR LAW 
 
 man's personal liberty and as necessarily result- 
 ing from the view that labor is property. Other 
 contracts, perhaps, rest on the second principle 
 alone, but the labor contract involves also the 
 principle of personal liberty, and might remain 
 though private property were abolished. 
 
 In England the freedom of the labor contract 
 was not, during some centuries, recognized. In 
 1349 (22d Edward III.) and 1350 the famous 
 statutes of laborers were passed, owing to a scar- 
 city of laborers caused by the great plague, which 
 provided, substantially, both that laborers might 
 be compelled to work, and that the rate of wages 
 should be legally limited. The statute of labor- 
 ers, after the insurrection of Wat Tyler, whereby 
 all laborers were declared free by the sovereign 
 of England, became inoperative ; but later, by a 
 statute of Queen Elizabeth * all persons able to 
 work as laborers or artisans, and not having inde- 
 pendent means, might be compelled to agricultural 
 labor, and the hours of work were fixed, and the 
 justices given power to fix the rate of wages, and 
 in industrial labor all persons were prohibited 
 from exercising any trade without first serving 
 an apprenticeship of seven years. This law, 
 providing for a legal rate of wages, made it ille- 
 gal to pay higher rates, and still more illegal to 
 combine^ for the purpose of exacting higher 
 
 * 5 Eliz., Chap. 4. ' 2 and 3 Edward VI., Chap. 15.
 
 OF THE UNITED STATES 17 
 
 rates ; as did a still earlier statute of 1549, and 
 this English law lies at the root of the English 
 doctrine as to strikes and boycotts, which pre- 
 vailed until recent statutes, as the statute of 
 Elizabeth was not formally repealed until 1875.^ 
 But in the United States this statute was never 
 in force, and although some of the colonies — 
 notably Massachusetts and Virginia — attempted 
 in early times to regulate wages and the hours 
 of labor, such ordinances, passed in colonies 
 which were practically religious or feudal oligar- 
 chies, and in sympathy with the English prac- 
 tice, have no weight as precedent since the 
 Revolution. and the adoption of the state consti- 
 tutions. In the United States, therefore, the 
 labor contract has been always constitutionally 
 free in the same manner that all other contracts 
 under the general growth of English liberty be- 
 came free by the common law. And by the time 
 Blackstone Avrote, the freedom in England also of 
 the labor contract, except in the special matter 
 of apprenticeships, was practically admitted in 
 general cases. 
 
 In this country the freedom of the labor con- 
 tract has been certainly always recognized since 
 the revolution. " Personal liberty, that is, the 
 right to make contracts for labor for others, and 
 to employ others to labor, is secured by consti- 
 
 « 38 and 30 Vict., Chap. 86.
 
 18 HANDBOOK TO THE LABOR LAW 
 
 tutional law to all members of this state, and 
 the right is inalienable." "^ Laws which limited 
 it, or even regulated it, in the case of adult citi- 
 zens, have been commonly annulled by the courts 
 as unconstitutional (see § 2). As in the case of 
 ordinary contracts (see §§ 1, 2), the framers of our 
 constitutions thought it unnecessary even to state 
 it expressly. Only three state constitutions 
 touch expressly upon the subject, and they are 
 of the newest.** 
 
 AYe conclude, therefore, that laborers and em- 
 ployees on the one hand, and masters and em- 
 ployers on the other, may freely make with each 
 other any contract they choose, not criminal or im- 
 moral, and such contract will be valid ; and gen- 
 
 ' People V. Warren, 34 N. Y. Supp., p. 944; In re Baker, 
 29 How. Prac, 485. 
 
 * "Every citizen of this State shall be free to obtain em- 
 ployment wherever possible." North Dakota Const, Art. 1, 
 §23. 
 
 " No law shall be passed fixing the price of manual labor." 
 La. Const., Art. 49. 
 
 " The rights of labor shall have just protection through 
 laws calculated to secure to the laborer proper rewards for 
 his service and to promote the industrial welfare of the State." 
 Wy. Const., Art. 1, 22. 
 
 The Western Code States define (and hence permit) the 
 labor contract by express statute ; thus it is "a contract by 
 which one, who is called the employer, engages another, who 
 is called the employee, to do something for the benefit of the 
 employer or a third person." Cal. Civ. C, 1965; Men. Civ. 
 C, 2650. 
 
 This definition is far from exhaustive.
 
 OF THE UNITED STATES 19 
 
 erally speaking, the legislatures have no right to 
 forbid or regulate such contracts by law if the 
 parties are citizens of full age.^ The exceptions 
 to this latter principle will be considered in the 
 next section and the next chapter. 
 
 § 4. The Police Power — This right to make 
 any contract not immoral nor criminal is only 
 limited in the United States by what is called 
 " the police power of government ; " that is, the 
 right of the state and national legislatures to 
 pass any laws, although regulating, or limiting, 
 property, contract, or personal rights, which are 
 clearly necessary to the safety, comfort, or well- 
 being of society. It rests upon the legal maxim 
 that a man must so use his own i^property or 
 rights) as not to injure others (in their persons, 
 property, or rights). The power is indefinite 
 in extent and incapable of definition ; though 
 a definition has often been attempted. Text- 
 books frequently adopt Judge Shaw's defini- 
 tion,* that it is " the power vested in the legis- 
 lature by the constitution to make, ordain, and 
 establish all manner of wholesome and reason- 
 able laws, statutes, and ordinances, either with 
 penalties or without, not repugnant to the con- 
 stitution, as they shall judge to be for the good 
 and welfare of the commonwealth, and of the 
 
 •Low V. Rees Printing Co , 59 N. W., 362. 
 
 ' CoJimonwealtb v. Alger, 7 Cusliing, 53, at pp. 84, 85.
 
 20 HANDBOOK TO THE LABOR LAW 
 
 subjects of the same " — not observing that this 
 broad statement of the poAver may have been 
 based upon the peculiar provision of the Massa- 
 chusetts constitution (discussed ante, § 1) and 
 therefore be no authority for other states. How- 
 ever, as Judge Shaw adds, " It is much easier 
 to perceive and realize the existence and sources 
 of this power than to mark its boundaries or 
 prescribe limits to its exercise." 
 
 This much is clear, that the power " is not 
 above the constitution, but is bounded by its 
 provisions ; and if any liberty, or franchise, is 
 expressly protected by any constitutional pro- 
 vision, it cannot be destroyed by any valid ex- 
 ercise by the legislature, or by the executive, of 
 the police power ; " and " if the legislature shall 
 determine what is a proper exercise of its police 
 power, the decision is subject to the scrutiny of 
 the courts."^ And the object of the law must 
 really be such health and safety of society, and 
 its measures must have a visible relation to that 
 end ; the law will not allow property or personal 
 rights to be invaded under the guise of a police 
 regulation for the protection of health, or safety, 
 when it is manifest the real object is something 
 different.^ 
 
 '^ People V. Gillson, 109 N. Y., at p. 400 (differing here 
 from the questions of the "reasonableness" of a law, dis- 
 cussed in § 1, note 5, above). 
 
 3 Low V. Rees Printing Co., 59 N. W., 368 ; Re Jacob.s
 
 OF THE UNITED STATES 21 
 
 The various instances in Avbicli laws regulating 
 the employment contract have been held uncon- 
 stitutional, or constitutional, under the police 
 power, form the special subject of the next 
 chapter. The best way to define the police 
 power generally is to mention a few of the prin- 
 cipal subjects in which it has been maintained. 
 These are health regulations ; laws defining pub- 
 lic nuisances and regulating noxious trades ; 
 building laws ; liquor laws ; ^ Sunday laws ; road, 
 highway, and street regulations ; wharf, levee, 
 and drainage laws ; and laws regulating charges 
 of persons, or corporations in employments " af- 
 fected with a public interest," ^ or which enjoy 
 from the public special rights, privileges, grants, 
 or monopolies ; and in the domain of labor, gen- 
 eral factory regulation. More questionable, in 
 America at least, are laws imposing restrictions 
 upon dealings with classes of persons, not minors, 
 or women, supposedly unable to protect them- 
 selves, such as regulations governing minors, 
 intelhgence-offices, etc. The exception of laws 
 protecting sailors comes hardly under the police- 
 power doctrine, but rather from ancient custom 
 coeval with the unwritten constitution itself ; and 
 the same may be said of the laws against usury. 
 
 98 N. Y., 98 ; Austin v. Murray, IG Pick., 121, at p. 126 ; 
 Watertown v. Mayo, 109 Mass., 315. 
 
 *Mugler V. Kansas, 123 U. S., 624. 
 
 "People V. Budd, 117 N. Y., 1,
 
 2"J HANDBOOK TO THE LABOR LAW 
 
 But the branch of the police-power doctrine 
 iinder which the greatest modern extension has 
 happened, and the greatest future growth may 
 be expected, peculiarly in laws afiecting labor, 
 or the employment relation, is that of fraud ; 
 the doctrine by which laws are justified which 
 interfere with private rights in order to prevent 
 a prevailing fraudulent imposition on the public 
 generally, or upon any definite class of persons. 
 Such are laws which require the employer to 
 give the same notice of discharge to his em- 
 ployees that he requires of them ; ^ laws forbid- 
 ding the screening of coal before weighing, to 
 determine the miners' wages ;^ the laws against 
 adulterations of food, or imitations, like oleo- 
 margai'ine ; ^ and laws giving a special protec- 
 tion to claims for wages, or priority to labor 
 liens.^ 
 
 § 5. Intimidation and Interference with the 
 Employment Contract, Trades, and Lawful Occu- 
 pations. — It results dii'ectly from the general 
 
 ' See § 22. ' See § 25. 
 
 » Palmer v. State, 39 O. St., 236 ; Commonwealth v. 
 Waite, 11 Allen, 264 ; Shivers v. Newton, 16 Vroom, 469 ; 
 State V. Campbell, 64 N, H., 402 ; State v. Marshall, 64 
 N. H., 549 ; Weideman v. State, 56 N, W., 688. It must be 
 noted that such laws, if the commodity be harmless, may, how- 
 ever, be unconstitutional as an interference with the inter- 
 state commerce. Re Worthen, 58 F. R., 467. 
 
 ' §§ 34-37.
 
 OF THE UNITED STATES 23 
 
 freedom of the labor contract (§ 3) that any at- 
 tempt, even of a single iudividual, by violence, 
 intimidation, or threats of injury to person or 
 property, to control such employment contract, 
 to prevent a man from working, or an employer 
 from employing, or to obstruct or molest either 
 party to a contract of employment in making it 
 or carrying it out when made, is a civil wrong 
 for which either party, if injured, may recover 
 damages. Such is the law in the absence of any 
 statute, both in England and this country.^ But 
 it is not, in the absence of statute, a criminal of- 
 fence, unless it be more than a threat or mere 
 civil trespass, and amounts to an assault or crimi- 
 nal destruction of property. In many states, 
 however, as in England, it is made a criminal 
 offence by statute. If the acts or threats are 
 committed as part of a combination of two or 
 three or more persons for the purpose of so inter- 
 fering with the employment contract or its car- 
 rying out, the law is much stricter ; in such cases 
 even moral intimidation, such as ridicule, or per- 
 suasion to break or not to make the employment 
 contract, may suffice to make the parties there- 
 to guilty of conspiracy (see Chapter VIII., on 
 Trade Conspiracies and Boycotts, and § 59). 
 
 ' Carew v. Rutherford, 106 Mass., 1. This law seems to 
 apply even to intimidation of persons trading with the plain- 
 tiff. Tarleton v. McGawley, Teak N. V. C, 270.
 
 "■24 HANDBOOK TO THE LABOR LAW 
 
 Thus, in New Englaud, Indiana, Illinois, 
 Wisconsin, Missoiu'i, Oregon, the Dakotas, 
 Montana, South Carolina, Georgia, Alabama, 
 and Texas it is made by statute a crime or mis- 
 demeanor to prevent or seek to prevent by force, 
 threats, or intimidation any person from enter- 
 ing into or continuing in the employment of any 
 other person or corporation, or (in Maine, Ver- 
 mont, Illinois, Oregon, the Dakotas, Montana, 
 Oklahoma, and Georgia) the employer from em- 
 ploying, or any person (in New Hampshire, Illi- 
 nois, Montana, Georgia, Wisconsin, Oklahoma, 
 and Alabama) from carrying on any lawful trade 
 or calling, as by interfering (in Illinois, New 
 York, Minnesota, Montana, Georgia) with a per- 
 son's tools or other property and the use there- 
 of. Or, in Oregon, Dakota, and Oklahoma, to 
 compel another to employ any person, or to force 
 or induce another to alter his mode of carrying 
 on business, or to limit or increase the number of 
 persons employed by him, or their rate of wages 
 or term of seiwice. While in the New York law, 
 followed also in Connecticut and Minnesota, it 
 is made a misdemeanor to use or attempt the 
 intimidation by threats or force of any person 
 from doing or abstaining from any act which 
 such person has a legal right to do or abstain 
 from doing, as by depriving him of his tools, 
 clothing, or implements. And finally, in North 
 Dakota, there is a constitutional provision that
 
 OF THE UNITED STATES 25 
 
 " any person, coi-poration or agent thereof, mali- 
 ciously interfering or hindering in any way, any 
 citizen from obtaining or enjoying employment 
 already obtained, from any other corporation 
 or person, shall be deemed guilty of a misde- 
 meanor." 2 
 
 There are, further, in several states important 
 statutes specially forbidding intimidation or in- 
 terference with the employment contract, in cer- 
 tain occupations where it would be dangerous to 
 the public, such as railways, etc., or even in gen- 
 
 «N. H., 266, 12; Mass., 1894, 508, 2; Me., 1889, 303; 
 1891, 127; Vt., 5041, 5042; R. I., 241, 8; Ct., 1518; N. Y. 
 P. C, 653; Ind. R. S., 2126 (this does not appear in the 
 new revision, and is perhaps repealed) ; 111., R. S., Chap. 38, 
 207; Wis., 1887, 427, 1; Minn. P. C, 490; Mo., 3783; Ore., 
 Hill, 1893; N. D. and S. D. P. C, 733, 734; Mon. Crim. 
 L., 252 (does not appear in new revision) ; Ga., 1887, p. 107 ; 
 Ala., 3763; Tex., 1887, 18; Okla., 1893, 2544, 2545. 
 
 In Michigan the statute appears to be limited to mechanics 
 or laborers; it reads: "If any person or persons shall, by 
 threats, intimidations, or otherwise, and without authority of 
 law, interfere with, or in any way molest, or attempt to in- 
 terfere with, or in any way molest or disturb, without such 
 authority, any mechanic or other laborer, in the quiet and 
 peaceable pursuit of his lawful avocation, such person or per- 
 sons shall be deemed guilty of a misdemeanor, punishable by 
 fine of one hundred dollars, or imprisonment for one year, or 
 both." Mich., Howell, 9273. 
 
 For interpretation of such statutes, see the English cases 
 generally (§§ 55, 57), and Commonwealth v. Dyer, 128 
 Mass., 170. X. D. Const., Art. 1, 23.
 
 26 HANDBOOK TO THE LABOR LAW 
 
 eral occupations (see § 62), and in Illinois the 
 statute takes special notice of coal mines.^ 
 
 Enticing Labor. — At the common law a person 
 enticing away another's servant into his own 
 ser\ace might be liable for an action for dam- 
 ages ; and there are in a few southern states 
 statutes upon the subject making it, in some 
 cases, a misdemeanor, and imposing single or 
 double damages upon the guilty party ; * and 
 
 ^ " Whoever enters a coal bank, mine, shaft, manufactory, 
 building, or premises of another, with intent to commit any 
 injury thereto or by means of threats, intimidation, or riotous 
 or other unlawful doings, to cause any person employed 
 therein to leave his employment, shall be fined not exceeding 
 five hundred dollars, or confined in the county jail not ex- 
 ceeding six months, or both." 111., 38, 208. 
 
 " Whoever, without authority of law and not being the own- 
 er or agent of adjoining lands, enters the coal bank, mine, 
 shaft, manufactory, or place where workmen are employed, 
 of another, without the expressed or implied consent of the 
 owner or manager thereof, after notice that such entry is for- 
 bidden, shall be fined not exceeding two hundred dollars, or 
 confined in the county jail not exceeding six months, in the 
 discretion of the court." 111., 38, 324. 
 
 * Thus, in Mississippi, and Florida, Kentucky, Arkansas, 
 and Louisiana, "If any one shall wilfully interfere with, en- 
 tice away, knowingly employ, or induce a laborer, " cropper," 
 or renter who has contracted with another for a specified 
 time, to leave his employer or the leased premises, before the 
 expiration of his or her contract, without the consent of the 
 employer, he shall be guilty of a misdemeanor." (Ky., 
 1349; Ark., 4792; Miss., 1068; Fla., 2405; La., 1892, 50.) 
 And in Mississippi and Arkansas, " upon conviction he shall
 
 OF THE UNITIin) STATES 27 
 
 the provisions of the law would seem to ex- 
 tend to any person so persuading a laborer 
 
 be fined in any sum not less than twenty - five dollars nor 
 more than one hundred dollars; in addition to such fine be 
 shall be liable to the employer or landlord in double the 
 amount of damages which he or she may sustain by reason of 
 such breach of contract ; " but in Kentucky he is liable only 
 in actual damages. 
 
 In South Carolina, " Any person who shall entice or per- 
 suade, by any means wliatsoever, any tenant, servant, laborer 
 under contract with another, duly entered into between the 
 parties in the presence of one or more witnesses, whether 
 such contract be verbal or in writing, to violate such contract, 
 or shall employ any laborer, knowing sucli laborer to be im- 
 der contract with another, shall be deemed guilty of a misde- 
 meanor, and, upon conviction, shall be fined not less than 
 twenty-five nor more than one hundred dollars, or be im- 
 prisoned in the county jail not less than ten nor more than 
 thirty days." S. C, 2479. 
 
 In Georgia, " If any person, by himself or agent, shall be 
 guilty of employing the servant, cropper, or farm laborer of 
 another, under a written contract, which shall be attested by 
 one or more witnesses, during the term for which he, she or 
 they may be employed, knowing that such servant, cropper, 
 or farm laborer was so employed, and that liis term of ser- 
 vice was not expired ; or if any person or persons shall entice, 
 persuade or decoy, or attempt to entice, persuade or decoy 
 any servant, cropper, or farm laborer, whether under a writ- 
 ten or parol contract, after he, she or they shall have actually 
 entered the service of his or her employer, to leave his em- 
 ployer, either by offering higher wages, or any way whatever, 
 during the term of service, knowing that said servant, cropper, 
 or farm laborer was so employed, shall be deemed guilty of a 
 misdemeanor." Ga.. 4500, am'd. 
 
 In Alaliama. '' Any person who knowingly interferes with.
 
 28 ' IIAXDBOOK TO THE LABOR LAW 
 
 or servant to break his contract, whether 
 he emplo}'^ the laborer in his own service or 
 
 hires, employs, entices away, or induces to leave the service 
 of another, or attempts to hire, employ, entice away, or in- 
 duce to leave the service of another, any lahorer or servant 
 who has contracted in writing to serve such other person for 
 any given time, not to exceed one year, before the expiration 
 of the time so contracted for, or who knowingly interferes 
 with, hires, employs, entices away, or induces any minor to 
 leave the service of any person to whom such service is law- 
 fully due, without the consent of the party employing, or to 
 whom such service is due, given in writing, or in the presence 
 of some creditable person, must, on conviction, be fined not 
 less than fifty nor more than five hundred dollars, at the dis- 
 cretion of the jury, and in no case less than double the dam- 
 ages sustained by the party whom such laborer or servant 
 was induced to leave ; . . . 
 
 " When any laborer or servant, having contracted as pro- 
 vided in the preceding section, is afterward found in the 
 service or emplojTiient of another before the termination of 
 such contract, that fact is prima facie evidence that such per- 
 son is guilty of a violation of that section, if he fail aud re- 
 fuse to forthwith discharge such laborer or servant, after 
 being notified and informed of such former contract or em- 
 ployment. 
 
 " Any person who employs any immigrant, or otherwise en- 
 tices him from his employer, in violation of the contract of 
 such immigrant, must, on conviction, be fined in a sum not 
 less than the amount of wages for the unexpired term of the 
 contract, and may be imprisoned in the county jail, or sen- 
 tenced to hard labor for the county, at the discretion of the 
 jury, for not more than three months." Ala., 3757, 3758, 
 3761. 
 
 In Tennessee. ''It shall not be lawfi;l for any person in 
 this state knowingly to hire, contract with, decoy or entice
 
 OF THE UNITED STATES 29 
 
 not.' Thus, an early Nortli Carolina case " de- 
 cided that a person who so entices one who has 
 contracted to render personal service to the 
 plaintiff, for a consideration however slight, and 
 even though under an unreasonable contract, is 
 liable in damages. But there must, in modern 
 law, be a contract ; no action lies against an 
 individual for persuading a servant to leave at 
 the end of his term, or if under no contract.^ 
 
 § 6. The Enforcement of the Labor Contract. — 
 The labor or employment contract is, however, 
 subject to one great exception from the law gov- 
 erning other contracts, and that is that it can 
 never be enforced in courts of equity. The 
 
 away, directly or indirectly, any one, male or female, who is 
 at the time under contract or in the employ of another. 
 
 " Any person violating the provisions of the above section 
 shall be liable to the party who originally was entitled to the 
 services of said employee, by virtue of a previous contract, 
 for such damages as he may reasonably sustain by the loss of 
 the labor of said employee ; and he shall also be liable for such 
 damages, whether he had knowledge of an existing contract 
 or not, if he fails or refuses to discharge the person so hired, 
 or to pay such damages as the original employer may claim, 
 after he has been notified that the person is under contract or 
 has violated the contract with another person." Tenn., 3438, 
 3439. 
 
 * Carew v. Rutherford, 106 Mass., 1. 
 
 ' Haskins v. Royster, 70 N. C, 001. 
 
 ' Boston Glass Co. v. Binney, 4 Tick., 425 ; Bowen v. 
 Matheson, 14 Allen, 49'J.
 
 30 HANDBOOK TO THK LABOH LAW 
 
 specific perforiuiiuce of all other contracts will 
 be granted in proper cases ; but the English 
 Court of Chancery, followed by all United 
 States Courts, has consistently refused to enforce 
 the contract for labor or personal service. In 
 the absence of exjiress statute, the only remedy 
 of the employer lies in an action for damages 
 against the employee. He may however get an 
 injunction against his servant or employee from 
 working for others, in breach of his contract 
 with him.' 
 
 The reason of this is obvious. The contract 
 of service is by its nature indefinite in its terms, 
 and deals not with goods or commodities in the 
 ordinary sense, but with a man's self, his abili- 
 
 ' It is unnecessary to cite cases on this point, but the one 
 usually referred to is that of Lumley v. Wagner, 1 De G., M. 
 & G., 604. The principle was well discussed and sustained 
 in the case of Mary Clark, 1 Blackford, Ind., 122, where an 
 emplojer endeavored to enforce a contract for twenty years' 
 service made by a mulatto woman. 
 
 But the western codes have this peculiar provision : 
 " A contract to render personal service, other than a con- 
 tract of apprenticeship, . . . can not be enforced against 
 the employee beyond the term of two years from the com- 
 mencement of service under it , but if the employee volunta- 
 rily continues his service under it beyond that time, the 
 contract may be referred to as affording a presumptive meas- 
 ure of the compensation." Cal. Civ. C, 1980; Mon. Civ. 
 C, 2675 ; it would appear from the above that the contract 
 mat/ be enforced specifically during the two years. See also 
 § 9, below.
 
 OF THE UXITED STATES 31 
 
 ties, or his person. To enforce such a contract 
 against a person's will would be too much like 
 enforcing a contract of slavery. The English 
 and American courts, therefore, both wisely and 
 humanely, have always granted this special priv- 
 ilege to laborers and servants, and even to em- 
 ployees : that they would not enforce their 
 contracts against them specifically, but only 
 allow the master or employer a suit for damages, 
 which in most cases is no remedy. The contract 
 may, however, be enforced against the employer, 
 even specifically ; that is, the employee doing or 
 offering to do the work may recover his wages. 
 The labor or employment contract, therefore, 
 rests in this jDeculiar condition, that it is the 
 only contract known to the law which is practi- 
 cally open to one party to break, but not to the 
 other. 
 
 Whether the employer has any remedy against 
 a simultaneous breaking of the employment 
 contract by a number of persons upon precon- 
 certed agreement, will be considered later in 
 the chapter upon strikes (§ 55). 
 
 There has, however, been a recent tendency in 
 the federal courts of the United States, mainly 
 as a consequence of the Anti-Trust Act of 1890, 
 and the Interstate Commerce Law of 1887, to 
 enforce by equity process the performance of 
 the contract of employment by large bodies of 
 persons, such as railway employees or steve-
 
 3:2 HANDBOOK TO THE LABOR LAW 
 
 doi*es, who are engaged in transporting or hand- 
 ling articles the subject of interstate commerce. 
 The most notable instance is, perhaps, the case 
 of the Southern California Railway v. Ruther- 
 ford,- in which Judge Ross, of the U. S. District 
 Coiu't for California, upon a bill alleging that 
 the employees of a railroad company, not hav- 
 ing formally quitted their employment, refused 
 to perform their diities of operating its trains, 
 gi'anted an injunction requiring the defendants 
 to perform all of their regular and accustomed 
 duties '* so long as they remain in the employ- 
 ment of the complainant company." This de- 
 cision, so far as it rests upon the contract of 
 service, seems open to criticism. The ordinary 
 doctrine that courts of equity will not enforce 
 employment contracts does not seem to have 
 been present in the court's mind, and there 
 would appear no tenable distinction between 
 enforcing an employment contract specifically 
 and getting a mandatory injunction upon em- 
 ployees to perform all the duties of such em- 
 ployment until such time as they chose to leave 
 the employment. When a servant refuses to 
 obey the directions of the master, the master's 
 only remedy is to discharge him, and then sue 
 for damages if he thinks it worth while. In so 
 far as Judge Ross's decision rests on the pecul- 
 
 « 62 F. R., 79G.
 
 OF THE UNITED STATES 33 
 
 iar provisions of the Auti-Trust Act, that is, on 
 the ground that the defendant employees were 
 conspiring to hinder interstate commerce, it may 
 be sustained ; but this matter will be discussed 
 more fully hereafter. 
 
 There are, however, a few state statutes de- 
 fining the labor contract and prohibiting viola- 
 tions of it. Thus, in Louisiana, " Whoever shall 
 wilfully violate a contract upon the faith of 
 which money or goods have been advanced and 
 without first tendering to the person from whom 
 said money or goods were obtained the amount 
 of money or value of the goods, shall be deemed 
 guilty of a misdemeanor." ^ 
 
 In Arkansas, " If any laborer shall, without 
 good cause, abandon his employer before the 
 expiration of his contract, he shall be liable to 
 such employer for the full amount of any ac- 
 count he may owe him, and shall forfeit to his 
 employer all wages or share of crop due him, or 
 which might become due him from his em- 
 ployer.^ 
 
 In Tennessee, " Any persons so under contract 
 or employ of another, leaving their employ with- 
 out good and sufiicient cause, before the expira- 
 tion of the time for which they Avere employed, 
 shall forfeit to the employer all sums due for 
 service already rendered, and be liable for such 
 
 ' La., 1890, 138, 1. * Ark., 4790.
 
 [U HANUl'.OOK TO THK LAHOll LAW 
 
 other damages the employer may reasonably 
 sustain by such violation of contract." ^ 
 
 In England also a recent statute had pro- 
 vided a summary remedy for breach of contract 
 or refusal to work by laborers in certain specified 
 employments, by which servants, apprentices, 
 and factory employees can bo brought before a 
 magistrate, who may either abate the wages due, 
 or direct the fulfilment of the contract of service, 
 and require recognizance therefor and commit 
 the employee to jail, for a term not exceeding 
 three months, in case he fail to comply there- 
 with. The effect of this provision is to make 
 such breach of the employment contract a penal 
 offence in England, and for that reason the 
 leading case of Reg. v. Bunn^ was decided. 
 With the exception of the few statutes above 
 cited, there is no such law in this country. 
 
 § 7. Breach of the Employment Contract not 
 Criminal.— As the breach of the employment 
 contract only renders the employee liable in 
 damages, and does not subject him to specific 
 performance in a court of equity, so it can never 
 be a criminal offence in the absence of such 
 special statutes as those mentioned in the last 
 section ; and not being a criminal offence on the 
 part of an individual, it is not a criminal offence 
 
 » Tenn., 3438. • 12 Cox C. C, 316.
 
 OF THE UlS'ITED STATES 35 
 
 on tlie part of any number ; that is, the mere 
 lea^'ing employment of a large number of work- 
 men, simultaneously or successively, in itself 
 can never subject them to criminal punish- 
 ment. When they combine by preconcerted ar- 
 rangement to leave at the same time, certainly 
 when such combination is for the purpose of in- 
 juring the employer or any other person, such 
 combination may become punishable as a con- 
 spiracy ; but in such case it is not the leaving 
 service that is punished, but the combination or 
 conspiracy to injure the employer by so leaving. 
 This matter will be fully discussed in Chapter 
 VIIL, §§ 51, 55. If, however, the employees 
 are all under contract to work for a certain 
 period of time, then the combination merely to 
 break such contract without intent to do any 
 other injury may also become an unlawful con- 
 spiracy.^ In most cases, however, of industrial 
 occupations, the employment of the operative is 
 an indefinite one as to time. He may leave at 
 any time without committing a technical breach 
 of contract ; and hence may combine with other 
 workmen to leave work at any time without 
 thereby committing an unlawful conspiracy. 
 
 § 8. Discharge or Termination of the Labor 
 Contract by the Employer. — Where there is no 
 
 ' Reg. V. Bunn, 12 Cox C. C, 316.
 
 SG IIAXDBOOK TO THK LABOII LAW 
 
 determinate period of service, the employment 
 contract may, of coni'se, be ended by the em- 
 ployer also at any time and without giving any 
 claim to the employee for damages. Whether 
 the mere fact that wages are paid regularly at 
 certain terms, such as weekly or monthly, re- 
 quires a notice equal to such period of payment, 
 is not so clear. In domestic service, by custom 
 or otherwise, the law has usually so settled it ; 
 but in ordinary industrial employment, it Avould 
 seem that the employer may discharge at any 
 date upon payment of wages due up to that 
 time. As a matter of custom a reasonable no- 
 tice is usually given. 
 
 But there are in some states statutes requir- 
 ing notice of discharge from the employment in 
 cases where a notice of leaving service is re- 
 quired by special contract from the employee. 
 Such statutes will be fully discussed under 
 §22. 
 
 Where, however, the express contract of em- 
 ployment is for any definite period, or from term 
 to term, the employer may not discharge the 
 employee, except for his misconduct, without 
 becoming liable in damages for the breach of 
 contract, and such damages may either be com- 
 puted at the full amount of the wages- which 
 would accrue if the employees served out the 
 entire contract, or at the difference between 
 such amount and the wages he might actually
 
 OF THE UNITED STATES 37 
 
 earn in other employments. This latter question 
 is for the jury. 
 
 The nature and amount of fault on the part 
 of the employee that would justify the employer 
 in putting an end to the contract is somewhat 
 indeterminate. Under some cases it would be 
 a question of fact for the jury. Where, how- 
 ever, there is an express agreement that the 
 work must be done to the employer's satisfac- 
 tion, the employer is the sole judge of the suf- 
 ficiency of such work, and may discharge for 
 bad work at his own discretion.^ 
 
 Statutes, however, are beginning to be passed 
 aimed at preventing arbitrary discharge by cor- 
 poration employers ; thus in Massachusetts 
 " railroad, express, and telegraph companies are 
 required to furnish any discharged employee 
 with a written statement of the causes thereof " ^ 
 (see § 61, Blacklisting) ; or at preventing dis- 
 charge for membership in labor unions (see 
 § 52). 
 
 An employee may have- an action for damages 
 against a person causing his discharge, though 
 under an indefinite contract, by refusing to 
 furnish his employers with a side track from a 
 railroad of which the defendant was manager.^ 
 But in these cases the threat or efifort to obtain 
 
 ' Koehler v. Buhl, 94 Mich., 496. ' Mass., 1892, 382. 
 
 » Chipley v. Atkinson, 1 So. Rep., 934.
 
 ;^S HANDBOOK TO THE LABOR LAW 
 
 defendant's discharge must be successful. A 
 mere threat is not sufficient.^ 
 
 § 9. Of the Duties of the Employee ; Terms of 
 the Contract ; Slavery. (Compare § 49.) — As 
 has been said in § 6, while the duties of the em- 
 ployee are to carry out in full the contract of 
 work for Avhich he is employed, the employer 
 has no remedy if he fail in the same other than 
 by discharging the workman and suing him for 
 damages ; but this latter remedy is rarely em- 
 ployed.' A contract for any definite employ- 
 ment requiring only certain prescribed duties, 
 or a part of the employee's time, may probably 
 be made for any period of years, though this is 
 rarely the case except in case of skilled business 
 men, overseers, or master workmen whose ser- 
 vices are paid for by an actual salary, or a percent- 
 age of the profits, or by commission on the busi- 
 ness they bring. In the case of general service, 
 however, such as domestic or farm labor, which 
 involves the residence of the employee or ser- 
 vant with the master, it is probable that a con- 
 
 * Paj-ne v. R. R. Co., 13 Lea, 507. 
 
 ' An interesting case where it was employed is Bowes v. 
 Press (1894), 70 L. T. R., 116, where the contract provided 
 for two weeks' mutual notice of termination. Without such 
 notice a miners' union gave notice they would not descend in 
 cages with non-union men, and twenty days thereafter re- 
 fused to do so. The employers were held entitled to sub- 
 stantial (5 shillings) damages against all who so refused.
 
 OF THE UNITED STATES 39 
 
 tract for a long period of years or for life would 
 not be sustained by the courts even to the ex- 
 tent of giving the master an action for damages. 
 The only statute on the subject is in California, 
 which limits contracts of personal service to two 
 years (see § 6, note 1). 
 
 Contracts of employment or service may, 
 however, provide that until or unless the whole 
 period of service is performed the servant or 
 employee can demand no part of his wages. 
 The legality of such a contract rests on the prin- 
 ciple that the performance of the whole work, or 
 of a prescribed term of the work, is a condition 
 precedent to the recovery by the employee of 
 his wages for the whole time or for any special 
 period, as the case may be. Such contracts are 
 perfectly legal, but they must be clear. If it is 
 not clear that the contract means to forfeit all 
 claim for damages in case the employee leave 
 the employment before the prescribed time, such 
 leaving employment will only give the master a 
 right to have the wages to be paid abated by a 
 proportionate amount.^ 
 
 Some states have, however, passed express 
 statutes providing against the workman's leaving 
 without giving a certain notice (see hereafter 
 in § 62) in special occupations. 
 
 ''Stark V. Parker, 2 Pick., 267; Olmstead v. Beal, 19 
 Pick., 528; Hunt v. The Otis Co., 4 Met., 464; Fuller v. 
 Brown, 11 Met., 440.
 
 40 HANDBOOK TO THE LABOR LAW 
 
 CHAPTEE II 
 
 STATUTES REGULATING THE EMPLOYMENT 
 CONTRACTS 
 
 § 10. Wages No one of the United States 
 
 has attempted to legishite concerning the rate of 
 private wages ; the constitution of Louisiana 
 specially forbids it (see § 3, note), and such a 
 law would be unconstitutional in all the states. 
 As to public work (see § 12), it is possible 
 that a statute requiring municipal corporations 
 to -psij not more, nor less, than a certain sum, 
 or to pay a ceiiain sum, would also be held 
 unconstitutional in favor of any city or town re- 
 sisting it ; but no case of this sort has yet arisen. 
 A municipal corporation may, however (in the 
 absence of any prohibition in its charter or the 
 general law governing it, such as " that all pub- 
 lic contracts shall be let to the lowest bidder "), 
 fix the payment for wages by resolution or vote 
 at what price it choose ; and towns and cities in 
 the New England states often do fix the price 
 they shall pay unskilled labor in that way, usu- 
 ally at $2 a day. Such resolutions have not com- 
 monly been questioned, though it may be doubted 
 whether town ofiicers are bound by them. But
 
 OF THE UNITED STATES 41 
 
 municipal ordinances or by-laws must generally 
 be reasonable and subject to review by the 
 courts ; and it is probable they would set aside 
 an ordinance prescribing a grossly unreasonable 
 rate. And Cooley ' says : " The power of mu- 
 nicipal corporations to make by-laws is limited 
 in various ways. 
 
 "It is controlled by the constitution of the 
 United States and of the state. The restric- 
 tions imposed by those instruments, and which 
 directly limit the legislative power of the state, 
 rest equally upon all the instruments of govern- 
 ment created by the state. If a state cannot 
 pass an ex post facto law, or law impairing the 
 obligation of contracts, neither can any agency 
 do so which acts under the state with delegated 
 authority. By-laws, therefore, which in their 
 operation would be ex post facto, or violate con- 
 tracts, are not within the power of municipal 
 corporations ; and whatever the people, by the 
 state constitution, have prohibited the state 
 government from doing, it cannot do indirectly 
 through the local governments. 
 
 " Municipal by-laws must also be in harmony 
 with the general laws of the state, and with the 
 provisions of the municipal charter. Whenever 
 they come in conflict with either, the by-law 
 must give way." 
 
 ' Cooley : Const. Lira ., * p. 108.
 
 42 HANDBOOK TO THE LABOll LAW 
 
 It is possible, however, that even an ordinance 
 fixing the rate of wages to be paid by the town, 
 for a brief period, or from year to year, might be 
 regarded rather as a contract, or as a vote in- 
 structing the town officers as to the terms of a 
 contract which they had the legal power to 
 make, than as a by-law ; and hence would not 
 be subject to any constitutional objections. The 
 question whether any town had power so to 
 limit and control its officers, would turn upon the 
 statutes of the state and its general system of 
 municipal government. Where, as in most west- 
 tern states, the powers of city or town govern- 
 ments are expressly delimitated, it would seem 
 that they have no power to fix wages by order 
 or by-law, but the rate must be left in each case 
 to the parties or officers to whom the law has 
 delegated authority to make the contract for the 
 labor in question. In California there is a stat- 
 ute requiring all municipalities to hire labor by 
 the day only (see § 12). 
 
 There is one constitutional provision ^ seeking 
 to provide reasonable pay for labor in general 
 cases. From the nature of the thing such pro- 
 visions can hardly be more than glittering gen- 
 eralities. And there is a new law in Michigan 
 requiring all highway labor and taxes to be ex- 
 pended " within the limits of the township ; " 
 
 ' Wyoming. See § 3, note.
 
 OF THE UNITED STATES 43 
 
 which may mean that laborers without the town 
 cannot be employed, and hence might have some 
 effect in locally advancing the rate of wages.^ In 
 Kansas, municipal corporations, the state, or 
 contractors for public work shall pay " not less 
 than the current rate of per diem wages in the 
 locality where the work is performed." ^ 
 
 § 11. Hours of Labor, Generally. — No states 
 have passed laws limiting, in all occupations, 
 the hours of daily labor of adult men, or forbid- 
 ding contracts to labor for any length of time 
 the parties may voluntarily agree ujjon. (See, 
 however, §§ 13, 14, Georgia and South Carolina 
 laws.) Such a law would probably be held un- 
 constitutional in every state (see §§ 1-3). The 
 nearest attempt to pass such a law was the Ne- 
 braska statute of 1891, ch. 54 ; this provided 
 that eight hours should " constitute a legal day's 
 work for all classes of mechanics, servants, and 
 laborers throughout the state of Nebraska, ex- 
 cepting, those engaged in farm and domestic 
 labor. . . . Any employer or corporation 
 working their employees over the time specified 
 in this act shall pay as extra compensation 
 double the amount per hour as paid for previous 
 hour." The statute also imposed a fine as for 
 misdemeanor upon any corporation or private 
 
 3 Miqh., 1895, 231. * Kan.. 180L 114.
 
 44 HANDBOOK TO THE LABOR LAW 
 
 employer who should fail to comply with, or 
 evade, these provisions. 
 
 It will be noted that this statute did not in 
 terms forbid contracts for a longer day than 
 eight hours, but only required double compen- 
 sation for the overtime. Nevertheless, the stat- 
 ute was declared unconstitutional and annulled 
 by the Supreme Court of NebrasTva in 1894,' both 
 on the ground that it denied freedom of con- 
 tract, and that it made a class distinction against 
 farm and domestic labor. The case will be 
 more fully discussed hereafter in § 13. 
 
 So, in Colorado, in 1895, the opinion of the 
 Supreme Court was asked by the legislature on 
 a bill, § 1 of which read " eight hours shall con- 
 stitute a legal day's work for all classes of me- 
 chanics, workingmen, and laborers employed in 
 any occupation in the State of Colorado." It 
 does not appear whether extra work for extra 
 pay was to be allowed, but inferentially not. It 
 appeared that an amendment was proposed limit- 
 ing the act to laborers employed in mines, fac- 
 tories, and smelters ; and the court expressly 
 decided both questions in the following words : 
 
 " It is not competent for the legislature to 
 single out the mining, manufacturing, and smelt- 
 ing industries of the state, and impose upon them 
 restrictions, with reference to the hours of their 
 
 • Low V. Rees Printing Co , 59 N. W., 762; 41 Neb., 127.
 
 OF THE UxXITED STATES 45 
 
 employees, from which other employers of labor 
 are exempt. An act such as proposed Avould be 
 manifestly in violation of the constitutional in- 
 hibition against class legislation. The bill sub- 
 mitted also violates the right of parties to make 
 their OAvn contracts — a right guaranteed by our 
 bill of rights, and protected by the fourteenth 
 amendment to the constitution of the United 
 States." ^ 
 
 Several states, however, have provided what 
 shall be regarded as a legal day's labor in the 
 absence of any express agreement (or to be im- 
 plied from well-known conditions of the trade ^) 
 to the contrary. This is eight hours in six 
 states,^ and ten hours in five states ; ^ while in 
 Floiida the agreemeut for more or less than ten 
 hours must be in writing. In New Hampshire, 
 Connecticut, Pennsylvania, California, and Flor- 
 ida this law applies to all classes of labor ; ^ in 
 
 « Re Eight-hour Law, 39 Pac, 328. 
 
 ' See below in this section. 
 
 «Ct. G. S., 1746; Pa. Dig., p. 1158; Ind., 1889, p. 143; 
 R. S., 7052; Mo. R. S., 6353; Cal. Pol. C, 3244; 1887, 85; 
 111., 1867, p. 101, 1. 
 
 ' N. H., 180, 20; Me., 82, 43; Mich., 1885, 137, § 2; Fla., 
 2117; Neb., 5329. 
 
 * The phrase is " All classes of mechanics, workingmen, and 
 laborers," Ind. "All mechanical trades and employments, 
 and other cases of labor and service by the day except farm 
 employment," 111. " All cases of labor and service by the 
 day • . . between the rising and setting of the sun,"
 
 40 HANDBOOK TO TlIK LABOR LAW 
 
 Maine, Pennsylvania, Missouri, Indiana, Illi- 
 nois, to all except those engaged in farm or 
 agricultural or domestic service ; '' and in Maine, 
 Pennsylvania, Missouri, and in general cases in 
 Illinois, it only applies to persons engaged by 
 the da}', not by the week or month, and so by 
 court decision in Indiana.** (For still narrower 
 statutes applying only to special occupations, see 
 
 §14) ^ 
 
 Evasion of the law (by exacting overtime 
 without compensation, etc.) is made a misde- 
 meanor in Indiana. ^ 
 
 Such laws provide expressly '*' or impliedly 
 that voluntary contracts for a longer time may 
 be made ; hence they are probably constitutional 
 as not interfering with the right to labor a 
 longer day if a person will. Nevertheless the 
 Supreme Court of Nebraska has lately held, " 
 
 Pa., 111. In Michigan (see § 13 also), " In any meciianical, 
 manufacturing or other labor calling." In Missouri an ex- 
 ception is made of labor " employed by the month," and ag- 
 ricultural labor. 
 
 ' The specification of domestic labor is omitted from the 
 exception in Maine, Illinois, and Missouri, but comes in in- 
 ferentialiy under the exception of " monthly labor." 
 
 =* Helphenstine v. Hartig, 5 Ind. App., 172. 
 
 9R. S., 7055. 
 
 '" The law so expressly provides in all these states except 
 Nebraska; and in that state the case of Low v. Rees Print- 
 ing Co., while not declaring this statute unconstitutional, 
 clearly renders such an interpretation necessary. See below. 
 
 " Low V. Rees Printing Co., 59 N. W., at p. 366.
 
 OF THE UNITED STATES 47 
 
 not only that an eight-hour law was unconstitu- 
 tional which required double rates for overtime, 
 on the ground that this was an interference with 
 freedom of contract, but also unconstitutional 
 as class legislation, in that the statute specially 
 excepted farm and domestic labor from its oper- 
 ation ; and the Illinois and Ohio laws (though 
 the Illinois statute applied only to women and 
 minors) rested partly on the same ground ; the 
 one covering the case of factory labor, the other 
 that of railway employees.''^ 
 
 Now this principle forbidding class legislation 
 rests on two express constitutional provisions : 
 that the legislature may not make any grant of 
 special privileges or imui unities to any citizen 
 or class of citizens,'^ or that no man or set of 
 men is entitled to exclusive public emoluments 
 or privileges from the community except in con- 
 sideration of public services ; " and upon the 
 other frequent provision, that there shall be no 
 special local or private law in any case where 
 provision may be made by general law. 
 
 It has, however, been declared by the Su- 
 
 '2 Ritchie V. Illinois, 155 111., 98. See § 13. Wheeling 
 Bridge Co. v. Gillmore, 8 O. C. C, G64. See § 14. 
 
 '3 Mass. C, 1, 6; Ind. C, 1, 23; lo. C, 1, 6; Ky. C, 3; 
 Tenn. C, 11, 8; Ark. C, 2, 18; Cal. C, 1, 21; Ore. C, 1, 
 20; Wash. C, 1, 12; N. D. C, 1, 20; S. D. C, 6, 18. 
 
 " Vt. C, 1, 7; Ct. C, 1, 1; Va. C, 1, 6; N. C. C, 1, 7; 
 Tex. C, 1, 3; N. M., 1851, July 12, § 2.
 
 48 HANDBOOK TO THE LABOR LAW 
 
 preme Court of Ohio that " the equal protection 
 of the law," the principle forbidding class legis- 
 lation, does not require any express constitu- 
 tional prohibition to render such laws invalid. 
 And this is doubtless true of all states, and 
 would be so held even in the other states than 
 those mentioned in notes 13, 14, below, states 
 which have not the constitutional provision, cer- 
 tainly where the reason and policy of the dis- 
 tinction do not appear upon the face of the law 
 creating it.'* 
 
 Local or special laws are expressly forbidden 
 by the constitutions of many states. Thus, in 
 several states, " there shall be no special, local, 
 or private law in any case for which provision 
 has been or (except in Georgia and Pennsylva- 
 nia) can be made by general law." '° And whether 
 a general law can be made applicable or not is 
 declared by the Missoim constitution to be a 
 judicial question despite any legislative asser- 
 tion to the contrary. 
 
 The usual view is that such prohibitions as the 
 above, of local or special law, do not apply to in- 
 
 '* Hocking Valley Coal Co. «. Rosser, 41 N. E., 263, at pp. 
 2G5, 266. 
 
 '' Pa. C, 3, 7; Ind. C, 4, 23; HI. C, 4, 22; Kan. C, 2, 
 17; Neb. C, 3, 15; Md. C, 3, 33; W. Va. C, 6, 39; Ky. 
 C, 59; Mo. C, 4, 53; Ark. C, 5, 25; Tex. C, 3, 56; Cal. 
 C, 4, 25; Nev. C, 4, 21; Col. C, 5, 25; Ga. C, 1, 4, 1 ; 
 Ala. C, 4, 23.
 
 OF THE UNITED STATES 49 
 
 validate laws affecting all the members of any 
 class alike, but only to laws affecting particular 
 persons, or all persons in a particular locality. 
 They have consequently only an indirect bearing 
 upon general class legislation. But the consti- 
 tutions of several states have the provision more 
 precise, specially affecting labor ; as that " the 
 legislature shall pass no local or f^ijecial law reg- 
 ulating labor, trade, manufacturing, mining, or 
 agriculture." " Possibly this word " special " may 
 extend the prohibition to legislation for special 
 classes of laborers, as well as special localities. 
 
 Such is the wording of the constitutional pro- 
 visions ; and with all deference to the opinions of 
 these high courts, the writer would submit the 
 view that these four cases, while undoubtedly well 
 decided upon the freedom of contract point, 
 should stand upon that point alone. No one of 
 the laws (except in so far as the Ohio law was re- 
 stricted to railroads more than thirty miles long) 
 fairly presents a case of class legislation. They 
 all applied to all members of the general class of 
 industrial laborers alike throughout the state ; 
 and the discrimination between such labor and 
 farm or domestic labor carried its reason on its 
 face ; it was surely not an arbitrary distinction 
 within the meaning of Cooley's well-known 
 
 " Pa. C, 3, 7; Ky. C, 59; Mo. C, 4, 53; Tex. C, 3, 56; 
 La. C, 46. 
 
 4
 
 /iO HANDBOOK TO TIIK LABOR LAW 
 
 defiuition.'^ Otherwise the statutes above cited 
 of Maine, Pennsylvania, AVisconsin, Indiana, 
 aud Illinois, wliicli all except farm or domestic 
 labor, and many similar laws, quoted below in 
 §§ 13, 14, must be held uuconstitutional also. 
 The true doctrine would seem to be that a law 
 is not class legislation which applies to all the 
 members of the class alike, aud where it rests on 
 no arbitrary ground, but carries upon its face 
 some reason of public health, safety, or moral- 
 ity, upon which it may be defended ; '^ and the 
 distinction between indefinite employment, like 
 that of a domestic servant, and the definite hours 
 of a factory or workshop, or even general me- 
 chanical labor, is surely such a reason. But the 
 
 '8 Cooley, Const. Lira., *393. 
 
 Thus, a statute allowing pedlars' licenses to be issued only 
 to lame persons, was held to involve an arbitrary distinction, 
 and declared unconstitutional in Pennsylvania. Britain's 
 Case, 3G P. L. J., 17. 
 
 And in Michigan a libel law applying only to newspapers, 
 and exempting them from liabilities for libels to which ordi- 
 nary persons were still subject, was declared unconstitutional 
 for the same reason. Park r. Free Press Co., 72 Mich., 5G0. 
 
 And finally, the case of State i\ Julow, 31 S. W., 781 (see 
 § 53), held clearly that any discrimination in a statute between 
 union and non-union men made it uuconstitutional as class 
 legislation. 
 
 See also §§ 3, 4, 15, 20, 21, 23, 25, 32, 39, 52, 57, 61, 62. 
 
 "See, however. Wheeling Bridge Co. v. Gillmore, 8 0. C. 
 C, 164, in § 14, below; also Wally's Heirs v. Kennedy, 2 
 Yerger, 554.
 
 OF thp: uxited states 51 
 
 liberty of contract, the right to labor, whether of 
 a class or of all citizens, may not be taken away 
 by any legislature ; and for this reason the 
 Colorado, Nebraska, Illinois, and Ohio cases 
 were rightfully decided. The statutes above 
 cited of other states should, however, be held 
 valid, and it does not appear that they have yet 
 been questioned in a court of last resort, as they 
 do not forbid or penalize a contract for a longer 
 day ; indeed, they all, except the Nebraska stat- 
 ute, expressly recognize contracts for a longer day. 
 Pay for Overtime. — And it follows that pay 
 for overtime may be demanded, unless the em- 
 ployee has expressly or impliedly contracted for 
 a longer day ; and this, in Maine, although the 
 laborer has been paid, by the day, in full and 
 given receipts.-^ He will be deemed to have so 
 contracted when he had actual knowledge that 
 such longer time was required by the employer, 
 either by actual notice or by the general usage 
 of the trade. Thus it was held that a night- 
 watchman at car stables, or the engineer of a 
 flouring mill could not recover extra pay for ser- 
 vice for more than ten hours ; ^' nor a photogra- 
 
 •^0 Bachelder v. Bickford, 62 Me., 526. In Florida there 
 18 an express statute, that in the absence of a written contract 
 for overtime the employee is entitled to extra pay : R. S., 
 2118. 
 
 -• Bartlett v. Street Ry. Co., 82 Mich., 058. Helphenstine 
 V, Hartig, 5 Ind. App., 172.
 
 ^2 IFANDBOOK TO THE LABOR LAW 
 
 pher's assistant paid by the week for " finishing " 
 photographs ; '" nor a manager of gas-works paid 
 by the week, though he Avorked sixteen hours a 
 day, the nature of the business requiring it.^ 
 
 And in other states the statute lias been con- 
 strued still more strictly, and pay for overtime 
 cannot be demanded unless contracted for, or 
 clearly implied from the circumstances ;^^ that is, 
 neither extra labor nor extra pay can be demanded 
 without a special contract. The workman may 
 stop work at the end of the legal day, but if he 
 choose to go on he cannot, in the absence of 
 agreement, charge for overtime. So, on the 
 other hand, if he work by the day, but less in 
 all on the average than the legal day, if each 
 day's work was accepted as such, the employee 
 may sue for the full per diem amount. '^^ 
 
 § 12. Public Labor Hours. — But many states 
 have passed laws prescribing the hours of labor 
 as to skilled or unskilled labor employed directly 
 by the state, or any county, city, town, or mu- 
 nicipal corporation, or even by private contract- 
 ors upon public work, or for such municipal 
 corporations. Such laws are generally consti- 
 
 '■■^ Schnurr v. Savigny, 85 Mich., 144. 
 "Luske V. Hotchkiss, 37 Ct., 219. 
 
 2' xMoCarthy v. Mayor of N. Y., 96 N. Y., 1 ; Luske v. 
 Hotchkiss, 37 Ct., 219 ; Ind. Stats., 1889, p. 143. 
 "Brooks V. Cotton, 48 N. H., 50.
 
 OF THE UNITED STATES 53 
 
 tutional, as they merely prescribe tlie kind of 
 contract the state, or its municipal corporations, 
 shall make, and so the federal law was inter- 
 preted by the United States Supreme Court ; * 
 but when they go further, and impose a penalty 
 upon a private person, whether laborer or em- 
 ployer, or make it a misdemeanor or criminal 
 offence for such employer to make contracts, 
 voluntary on both sides, Avith his own workmen 
 for a longer time, their constitutionality seems 
 more open to doubt ; it has been indignantly 
 denied by the Supreme Court of California,^ and 
 affirmed by that of New York ^ and (of a federal 
 law) in the federal courts.'* 
 
 ' U. S. V. Martin, 94 U. S., 400. 
 
 ' Kuback's Case, 85 Cal., 274. And this case was so de- 
 cided in spite of the statute and constitutional provision mak- 
 ing eight hours a legal day in all public work, and requiring 
 city contracts to be so made. The law creating the misde- 
 meanor for which Kuback was indicted was a city ordinance. 
 
 3N. Y. Laws, 1891, 105, 504; People v. Warren, 28 N. Y. 
 Sup., 303. The case is ill considered, however, and is in ef- 
 fect destroyed by the decision of the Court of Appeals upon 
 a habeas corpus brought by Warren, that the statute was not 
 penal, but directory merely ; and " could not be the basis of 
 a criminal indictment for misdemeanor," whereby defendant 
 was released, and it became unnecessary to consider its con- 
 stitutionality. People ex rel. Warren v. Beck, 144 N. Y., 
 225. 
 
 * The validity of the statute was not really passed upon, 
 however, the court holding that the defendant did not come 
 within 2t8 terms. U. S. v. Ollinger, 55 F. R., 959. And in
 
 54 HANDBOOK TO THE LABOR LAW 
 
 Thus, in some states eight hours is made the 
 prescribed legal day in all labor employed by 
 the state or any municipal corporation ; ^ in 
 others nine liours.^ In California, Idaho, and 
 Wyoming the former time is prescribed in the 
 constitution. And in all these states but Texas 
 the prescription applies to all work done by 
 contractors, etc., for the state or on public 
 works. And in New York, California, Indiana, 
 Kansas, and Colorado, to exact or require em- 
 ployment for a longer time subjects the employer 
 to a fine, or even renders him guilty of a misde- 
 meanor or criminal offence, and, at the option 
 of the state, forfeits his contract.' 
 
 Wages. — In Massachusetts a law provides that 
 cities shall pay laborers weekly (compare §§ 10, 
 21) at a rate not exceeding $2 per day.^ 
 
 Contract. — And the California code provides 
 that all labor on public buildings of the state. 
 
 another case in the Supreme Court the statute was held di- 
 rectory merely. U. S. v. Martin, 94 U. S., 400. 
 
 '-N. Y., 1870, 385; Ind., 1889, p. 143, § 2; R. S., 7053; 
 Kan., 1891, 114; Cal., 1893, 113; Cal. Const., 20, 17; Pol. 
 C, 3245 ; Ida. Const., 13, 2 ; Wy. Const., 19, 1 ; Utah, 1894, 
 11; U. S. R. S., 3738. 
 
 "Mass., 1890, 375; 1894, 508, 8; Tex., 1879, 137. 
 
 'N. Y., 1870, 385, 4; Kan., 1891, 114, 3; Col., 1893, 113, 
 3; Ind. R. S., 7054. 
 
 ^Mass., 28, 12. For a discussion of the validity of such 
 laws, if actually fixing the rate, see § 10. The weekly pay- 
 ment part of the law is unquestionably valid.
 
 OF THE UNITED STATES 65 
 
 skilled or unskilled, must be employed by the 
 day, and no such work done by contract.^ And 
 " every person who employs laborers upon the 
 public works, and who takes, keeps, or receives 
 any part or portion of the wages due to such 
 laborers from the state or municipal corpora- 
 tion for which such work is done, is guilty of a 
 felony." *« 
 
 § 13. Hours of Labor, Women and Minors — 
 But in the case of women and children, nearly 
 all the states regulate the hours of labor, at least 
 in factories and Avorkshops, mechanical, manu- 
 facturing, or industrial occupations ; ^ usually to 
 ten hours (in Pennsjdvania, twelve hours) a day, 
 or sixty hours a week,^ but in Massachusetts, to 
 
 *Cal. Pol. C, § 3233. The provision is ridiculous, but not 
 unconstitutional. 
 
 '«Cal. P. C, 1872, April 1, § 1. This provision is possibly 
 unconstitutional. Ex parte Kuback, 85 Cal., 274. 
 
 ' The phrase covers " any factory or workshop," O., 
 Wis., Minn., Dak., Okla., or warehouse, etc.; La., "Any 
 manufacturing or mechanical establishment ; " Mass., Me., 
 N. H., Wis., Minn., Dak., Ga., Okla., " Any manufactur- 
 ing establishment;" R. I., N. Y., Pa., Va., Md., "Any 
 manufacturing, mechanical, or mercantile establishment ; " 
 Ct., Cal., Mich., " Cotton or woollen factories ; " Ind., S. C, 
 Ga., " Any manufacturing or renovating establishment or 
 mercantile industry ; Pa., " Any factory ; " N. J., Va., 
 " Manufacturing establishments and machine shops; " Ga. 
 
 'Mass., 1894, 508, 10 ; Me.. 1887, 139, 1 ; N. H. P. S., 
 180, 14 ; K. I., 1885, 519. 1 ; Ct. G. S.. 1745 ; N. Y., 1886,
 
 56 HANDBOOK TO THE LABOR LAW 
 
 fifty-eiglit hours a -week ; in South Carolina and 
 Georgia, to eleven hours, or sixty-six a week in 
 cotton and woollen factories ; and in Wisconsin 
 (in Alabama, this law was repealed in 1895) to 
 eight hours a day ; '^ and in such cases no volun- 
 tary contract for overtime is permitted by the 
 law,^ and the employer permitting, or compelling 
 overtime, or the employment of women or mi- 
 nors, contrary to the statute, is commonly subject 
 to a fine, or guilty of a misdemeanor.^ In Geor- 
 gia the hours in all other employments are from 
 sunrise to sunset, usual meal times allowed. ® 
 
 This statute applies to all women and to all 
 minors under eighteen (Mass., N. H., Wis., 
 
 409 ; 1892, 673, 1 ; N. J. Rev., p; 485, § 18 ; Pa., 1893, 244, 
 1 ; Dig., p. 865 ; O. R. S., 6986 aa ; Ind. R. S., 2336 ; 
 Mich., 1997, a 5 ; 1895, 184, 1 ; Minn. G. S., 24, 1 ; Cal., 
 1889, 7, 1 ; Va., 1890, 193, 1 ; La., 1886, 43, 4 ; Md., 27. 
 139 ; Dak. P. C, 739 ; Okla., 1893, 2550 ; S. C, 1882, 39; 
 Ga., 1889, 599. 
 
 3 Wis., 1883, 135. The Illinois Statute (111., 1893, p. 99) 
 to the same effect has been declared unconstitutional : Ritchie 
 V. Illinois, 155 111., 98. 
 
 * But in some states the statute expressly allows voluntary 
 contract for overtime by persons over eighteen. Me., Wis., 
 Okla. ; by persons over fourteen, Minn., Dak. ; by males 
 over eighteen, and females over twenty-one, Mich. 
 
 " Mass., ib., § 60 ; N. H., ib., § 16 ; N. Y., ib., § 21 ; Ct. ; 
 Me., ib., 3 ; R. I. ; N. J. ; Pa. ; 111., 1893, p. 101, 8 ; 
 Mich. ; Minn. ; Va., ib., 2 ; Md., 27, 140 ; Wis. ; Ind. ; 
 Cal. ; Dak. : Okla. ; La. But see note 4. 
 
 « Ga. Code, 1885.
 
 OF THE UNITED STATES 57 
 
 Minn., La., Dak., Okla.) ; to all women and all 
 minors under sixteen (R. I., Ct., Me.) ; to all 
 women under twenty-one, and minors under 
 twenty-one (N. J., Pa., Ga.) ; to all women under 
 twenty-one, and minors under eighteen (N. Y., 
 Mich.) ; to all women under eighteen, and minors 
 under eighteen (O., Cal., Ind.) ; to both sexes 
 under sixteen (Md.) ; to all women and to chil- 
 dren under fourteen (Va.) ; to all persons in 
 cotton and woollen factories (S. C, Ga.). 
 
 And out of this labor period, one hour each day 
 must be taken for dinner, ' or in other states forty- 
 five minutes.^ No women and no minors under 
 eighteen (N. Y.), or twenty-one (Mass.), shall be 
 employed in factories between 10 p.m. and 6 
 A.M., in Massachusetts, or 9 p.m. and 6 a.m., in 
 New York.^ So half an hour for a meal must be 
 given, after any six hours' time, in Massachusetts ; 
 and all children and women, five in number, em- 
 ploj'ed in the same factory, must be allowed their 
 meal time at the same hour.^° Employees work- 
 ing overtime after 6 p.m. must be given twenty 
 minutes for lunch. ^^ 
 
 ■"N. Y., 1893, 173, 1; La. But the factory inspector may 
 give a written permit for a shorter meal time : N. Y., Pa., 
 Mich. 
 
 «Pa., ib., 11 ; Mich., 189a, 184, 11. 
 
 •Mass., ib., 12 ; N. Y., 1890, 398, 1. 
 
 '" Mass., ib., 26, 27, 28. This rule may be suspended in 
 special kinds of factories by the chief of police, with the 
 approval of the governor. " N. Y.. 1893. 173, 1.
 
 68 HANDBOOK TO THK LA HO II LAW 
 
 A diflfereut apportionment of hours per day 
 is, however, allowed in some states for the sole 
 purpose of making a shorter day's work for one 
 day in the week,'^ or to make up for time lost 
 by stopj)ing of machinery,'^ or when necessary 
 to make repairs to prevent interruption of its 
 ordinary running.'^ And in Maine, " nothing in 
 this act shall apply to any manufacturing estab- 
 lishment or business the materials or products 
 of which are perishable, and require immediate 
 labor thereon to prevent decay or damage." '^ 
 
 For laws limiting women's labor in special 
 occupations, see § 15. 
 
 Children. (See also § 16.) — The hours of labor 
 of younger children are usually further regulated 
 by stricter laws, and in some states an age is 
 prescribed within which they may not, under 
 penalty to the employer, or guardian, be em- 
 ployed at all in workshops and factories, or 
 mechanical and manufacturing occupations.'^ 
 This age is fixed at ten in New Hampshire, Ver- 
 mont, and California; ^'' at twelve in Maine, Ehode 
 
 >*N. H., Mass., Me., R. I., Ct., N. Y., Cal., Mich., ibid. 
 
 »SN. H., Mass., R. I., Ct., Me., ib., § 2, Ga. 
 
 »N. H., Me., R. I., Ct., Cal., Pa., Mich. 
 
 '5 Me., 1887, 139, 10. 
 
 '* In some states the prohibition is extended to mercantile 
 establishments also : Mass., Ct., R. I., 111., W. Va., Tenn., 
 Cal. For mines, see also § 15. 
 
 "N. H., 93, 10 ; Vt. Stats., 5146 ; Cal., 1889, 7, 2.
 
 OF THE UNITED STATES 59 
 
 Island, Ohio, Wisconsin, West Virginia, Tennes- 
 see, and by the constitution of North Dakota,*^ 
 at twelve for boys and fourteen for girls ; in 
 New Jersey and Louisiana,'^ at thirteen for both 
 in Massachusetts and Pennsylvania ; '^ at four- 
 teen, in Connecticut, New York, Illinois, Michi- 
 gan, AVisconsin,^' Colorado,^- A female of eigh- 
 teen, or male of sixteen, may, in Maine, contract 
 for overtime on extra compensation with the 
 parent's or guardian's consent.'^^ 
 
 Several states define the age of a " minor," 
 " child," or " young person " for purposes of this 
 section.^^ (See also above.) So a " manufactur- 
 ing establishment " sometimes is defined to mean 
 a place where five persons (in Pennsylvania, 
 
 '«Me,, 1887, 139, 5 ; R. I., 1894, 1278 ; W. Va., 1891, 
 15 ; Tenn., 1893, 159 ; N. D. Copst., 209 ; O. R. S., 6986; 
 Wis. R. S., 1728 ; 1891, 109. 
 
 'SLa., 1886, 43 ; N. J. Sup., p. 407, § 9. 
 
 ""Mass., 1894, 508, 13 ; Pa., 1893, 244, 2 ; Dig., p. 865. 
 
 ■^' Children between twelve and fourteen may be employed 
 upon permit of the county judge : Wis., 1891, 109, and so in 
 Ohio, " not more than eight hours a day, during vacations, in 
 such employments as the state factory inspector may find not 
 detrimental to the health of the child." O., 1891, p. 396. 
 
 « Ct., 1895, 118 ; N. Y., ib., 2 ; 111., 1893, p. 100, 4 ; Wis., 
 1891, 109 ; Mich., 1895, 184, 2 ; Col., 1887, p. 76. 
 
 '•'3 Me., 1887, 139, 1. 
 
 s^Thus a "minor," in Massachusetts and New York, for 
 purposes of this section, is a person under eighteen (N. Y., 
 1886, 409, 3 ; Mass., ib., 57), and in Vermont, Ohio, Illinois, 
 Iowa, Minnesota, Kansas, Nebraska, Maryland, .Missouri,
 
 60 HANDBOOK TO THE LABOR LAW 
 
 Michigan), five women or children (in Rhode 
 Island), or three persons (Wisconsin), or one 
 person (New York), are employed ; and a " fac- 
 tory " to mean any premises where steam, water, 
 or mechanical power are used in aid of manu- 
 facturing (Massachusetts). 
 
 A " manufacturing establishment," any place 
 as above where goods or products are manu- 
 factured, repaired, cleaned, or sorted, in whole 
 or in part,^ or " any factory, workshop, mine, or 
 establishment, where the manufacture of any 
 goods whatever is carried on." ^ 
 
 So in many other states no child under six- 
 teen (or a similar age) can be permitted ^ to 
 labor more than ten hours a day in such fac- 
 tories or mercantile establishments, and such 
 employment is a misdemeanor.^ No child under 
 
 Arkansas, California, Oregon, Nevada, Washington, and 
 Idaho a woman ceases to be a minor at eighteen. 
 
 A " child," in Massachusetts, is a person under fourteen. 
 
 A " woman " is a woman of eighteen and upward. 
 
 A "young person" is anyone between fourteen and eigh- 
 teen. 
 
 "N. Y., 1889, 560, 4; Pa., ib., 4; 111., 1893, p. 101, § 7; 
 R. I., 1894, 1278, 2 ; Wis., 1728 ; Mich. 
 
 56 N. J. Sup., p. 407, §9. 
 
 *' In some states the word is " compelled " : Minn. 
 
 °^ The law as in the text exists in the following states •• 
 Me., 48, 15; 1887, 139, 1; N. J. Sup., p. 772, § 20; Minn., 
 1893, 96. In Indiana the age and time limit, respectively, is 
 fourteen and eight hours. In Maine, females over eighteen,
 
 OF THE UNITED STATES 61 
 
 thirteen can, in Massachusetts, be employed on 
 any indoor work for wages, or in any manner 
 during public school hours, unless during the 
 year previous he has attended school for at least 
 thirty weeks (see § 16) ; and no child under 
 fourteen, in factories, etc., except during vaca- 
 tion, unless he have procured an employment 
 ticket, etc. (see § 16), showing that he can read 
 and write and has attended school for thirty 
 weeks during the year preceding.^ In Nebraska 
 no child under twelve can be employed in shops, 
 factories, etc., more than four months in a year.^ 
 And in Massachusetts no minor under eighteen 
 shall be employed in laboring in any mercantile 
 estabhshment more than sixty hours in a week."' 
 *' No boss or other superior in such establishment 
 shall inflict corporal punishment upon such 
 minor laborers ; and the owners of such factory 
 or machine-shop shall be directly liable for all 
 such conduct on the part of their employees ; and 
 such minor may sue in his own name for dam- 
 
 and males over sixteen, may not contract for excess labor 
 over six hours a week, or sixty hours in a year. In Vermont 
 the limits are fifteen years and ten hours ; in Wisconsin, Da- 
 kota, and Oklahoma, fourteen and ten hours. Ind., 1893, 78 ; 
 R. S., 2238; Vt., 5146; Wis., 1728; Dak. P. C, 739; Okla., 
 2550. 
 
 " Mass., 1894, 508, 13, 14, 16. 
 
 3" Neb. Cr. C, 245 aa. 
 
 2' Mass., 1894, 504, 10.
 
 0:2 HANnHOOK TO THE LABOR LAW 
 
 ages for such conduct, and the recovery shall be 
 his own property, and not belong to his parents." ^ 
 There is a common provision that, for pur- 
 poses of this section and §§ 14 and 16, a cer- 
 tificate signed and sworn to by the parent or 
 guardian may be accepted by the employer as 
 evidence of the child's age, so as to exculpate 
 him from penalties, etc.^^ And sometimes cer- 
 tificates of the child's health, ability,^ or educa- 
 tional qualifications ^ may be demanded by the 
 factory inspectors or must be required by the 
 employer. And in cases of women and children 
 operatives, it is generally required that employers 
 shall post in every room a printed notice stating 
 the number of hours' woi'k required on each 
 da}-, the hours of commencing and stopping, and 
 the hours for meals.^'' And usually a list or rec- 
 ord of all children under certain ages so em- 
 ployed must be kept and posted in the factory or 
 workshop ; ^ or kept for the state inspectors, etc.^ 
 
 ^'^ Ga. Code, 1886. 
 
 33 N. H., 180, 17; Mass., 1894, 508, IG, 61; Me., ib., §§ 3, 
 8; R L P. S., 169, 2; Ct., ib. ; N. Y., ib., 2; N. J. Sup., p. 
 409, § 18; Pa., ib., 2; 111., 1893, p. 100, § 4; Mich., 1895, 
 184, 3; Tenn., 1893, 159; Cal., 1889, 7, 2. 
 
 ^ See § 17, note 9. 
 
 3s See § 16. 
 
 36 N. H., 180, 15; Mass., ib., 11; Me., ib., 2; S. I., Ct., 
 N. Y., Pa. ; O., 6986 aa ; 111. , 1893, p. 99, § 6 ; Cal. , 1889, 7, 3. 
 
 3' N. Y., ib., 2 ; 111.. 1893, p. 100, §§ 4, 6 ; Pa. 
 
 =8R. L, 1894, 1278; Mass., 1894, 508, 16; Mich.; 0., 
 6986 aa, Cal.
 
 OF THE UNITED STATES 63 
 
 A printed form of such notice shall be fur- 
 nished by the chief of the district police, and ap- 
 proved by the attorney-general in Massachusetts 
 and Maine. 
 
 And finally, a few states have laws limiting 
 child labor in any occupation. Thus, in Cali- 
 fornia (P. C, § 651), " Every person having a 
 minor child under his control, either as a ward 
 or an apprentice, who, except in vinicultural or 
 horticultural pursuits, or in domestic or house- 
 hold occupations, requires such child to labor 
 more than eight hours in any one day, is guilty 
 of a misdemeanor." 
 
 No child under sixteen (in Minnesota), or 
 fourteen (in Massachusetts), may be employed 
 to labor outside the family (in Minnesota) in 
 any manner between 6 p.m. and 7 a.m.®^ 
 
 " The selectmen shall inquire into the treat- 
 ment of minors employed in manufacturing 
 establishments, and if the education, morals, 
 health, food, or clothing of any such minor is 
 unreasonably neglected, or he is treated with 
 improper severity, or compelled to labor at un- 
 reasonable times or manner, they may, if such 
 minor has no parent or guardian residing in the 
 state, discharge him from such employment, and 
 with his consent bind him out as an appren- 
 tice." ^» 
 
 39 Mass., 1894, 508, 14; Minn. P. C, 250. 
 ♦" Vt., 2838.
 
 04 HANDBOOK TO THE LABOR LAW 
 
 "Whoever hires or employs, or causes to be 
 hired or employed, any minor, knowing such 
 minor to be under the age of fifteen years, and 
 under the legal control of another, without the 
 consent of those having such control for more 
 than sixty days, is guilty of a misdemeanor." ^' 
 
 It is made a misdemeanor to employ and carry 
 beyond the linits of the state any minor without 
 his parent's consent.^- 
 
 The constitutionality of the above statutes, in 
 so far as they apply to minors, is undoubted ; it 
 rests on the principle of the parental position of 
 the state toward persons not citizens and not 
 able to contract for themselves.^^ As to women, 
 it has been placed upon the same ground in the 
 past and for that reason, and because of the 
 peculiar provision in the state constitution, was 
 sustained in Massachusetts.^ On the other 
 hand, it has, by a late decision most ably ren- 
 dered, been denied in Illinois. ^^ It seems clear 
 that, under the modem view that w^omen are cit- 
 izens, capable of making their own contracts, 
 particularly in states Avhere they have the right 
 of suffrage, such legislation restricting their 
 hours of labor is unconstitutional, both on ordi- 
 
 *' Fla., 2733. « N. C, 1891, 45. 
 
 « People V. Ewer, 141 N. Y., 129. Adam Smith, " Wealth 
 of Nations," Bk. I., Ch. 10. 
 
 " Commonwealth v. Hamilton Mfg. Co., 120 Mass., 383. 
 ♦' Ritchie v. Hlinois, 155 HI., 98.
 
 OF THE UNITED STATES 65 
 
 nary grounds of denying them the right to con- 
 tract/® and as class legislation of the worst sort ; 
 for such privileges, or restrictions (and they 
 would most probably be deemed the latter), can- 
 not be conferred or imposed upon women and 
 not on men/^ Only in New Hampshire, Massa- 
 chusetts, Rhode Island, Connecticut, Maine, Illi- 
 nois, Wisconsin, Minnesota, the Dakotas, Vir- 
 ginia, Oklahoma, and Louisiana does the statute 
 apply to women of full age ; and in Maine, 
 Michigan, Minnesota, Dakota, and Oklahoma it 
 expressly allows them to contract for overtime. 
 This may save the statute in these states ; but it 
 is probable that in the others, except possibly in 
 New England, it will be held unconstitutional, 
 as it has been in Illinois. 
 
 § 14. Hours of Labor, Special Occupations. — 
 In a few other states there are general laws lim- 
 iting hours of male or female labor applying 
 only to factories or special occupations. Thus 
 only in any manufacturing or mechanical busi- 
 ness is eight hours made a day's work, in the 
 absence of special contract, in Wisconsin and 
 Ohio, and ten hours in Minnesota ; eight hours 
 in Ohio, in mining also ; ' in Rhode Island ^ ten 
 
 *'' For a full discussion of this question, see §§ 1-3. 
 
 *' Re Leach, 134 Ind., 665; Minor v. Happersett, 21 Wall., 
 162. 
 ' 0. R. S., 4365; Wis. R. S., 1729 ; Minn. G. S., 24, 2. 
 ' R. I. P. S., 169. 26.
 
 C() HANDBOOK TO THE LABOR LAW 
 
 hours is a day's work " in any manufacturing 
 establislimont, and all mechanical labor," and so 
 in Michigan in " factories, workshops, salt 
 blocks, saw-mills, logging or lumber camps, 
 looms or drives or other places used for mechan- 
 ical, manufacturing, or other purposes, luhere men 
 or women are employed"^ This seems broad 
 enough to include all cases, perhaps even agri- 
 cultural labor, and we Yia^^e accordingly noted it 
 in § 11. This statute does not in Wisconsin 
 apply to labor by the week, month, or year. So 
 factory labor of men (for a definition oi factory, 
 see § 13) is limited, in the absence of contract, 
 to ten hours a day in New Jersey^ and Mary- 
 land^ and eleven hours, or sixty-six hours a 
 
 2 Mich., 1885, 137; 3 Howell Stats., 1997 a 5. 
 
 * In all cotton, woollen, silk, paper, glass, and flax factories, 
 and in manufactories of iron and brass. N. J. Rev., 1877, 
 page 485, 17. 
 
 ° To the efifect that no corporation or manufacturing com- 
 pany engaged in manufacturing cotton or AvooUen yarns, 
 fabrics or domestics of any kind, and no person or firm own- 
 ing or operating such corporation or company within the 
 state, or any agent thereof, . . . shall require or permit 
 its employees to work more than ten hours a day, . . . 
 and shall make no contract with them providing for more 
 than ten hours' work, except that male employees above twen- 
 ty-one may make contracts to work by the hour for such time 
 as may be agreed upon, or without contract may work for the 
 purpose of making repairs and improvements, and getting 
 steam up and machinery ready, etc., and have extra compen- 
 sation. Md., 1888, 100, 1 and 2; Pub. Laws, 100, 142.
 
 OF THE UNITED STATES 67 
 
 week in South Carolina and Georgia,^ and in 
 both these states contracts for overtime are de- 
 clared void (but this provision probably renders 
 the statute unconstitutional ; see § 11). 
 
 3Iines. — In the absence of special contract, 
 ten hours in Maryland is (by a local law) de- 
 clared a day's work in mines ; so eight hours 
 in Ohio (probably unconstitutional ; see below), 
 and by the Wyoming constitution.'' 
 
 Bailroads. — Ten hours in New York, Ohio, 
 Michigan, and Minnesota is declared a day's work 
 
 6 S. C, 1892, 39; Ga., 1889, p. 163. The law reads : 
 " The hours of labor required of all persons employed in all 
 cotton or woollen manufacturing establishments in this state, 
 except engineers, firemen, watchmen, mechanics, teamsters, 
 yard employees, clerical force, and all help that may be needed 
 to clean up and make necessary repairs or changes in or of 
 machinery, shall not exceed eleven hours per day, or the 
 same may be regulated by employers, so that the number of 
 hours shall not in the aggregate exceed sixty-six hours per 
 week : Provided, That nothing herein contained shall be con- 
 strued to prevent any of the aforesaid employees from work- 
 ing such time as may be necessary to make up lost time, 
 not to exceed ten days, caused by accidents or other unavoid- 
 able circumstances. 
 
 " All contracts made or entered into, whereby a longer time 
 for labor than is provided in the foregoing section of this act 
 shall be required of said employees, herein before described, 
 shall be absolutely null and void, so far as the same relates 
 to the enforcement of said contracts with said employees, any 
 law, usage, or custom to the contrary notwithstanding." 
 
 ' Md. Local Laws, 1884, 427, etc. ; O., 4365; Wy. Const., 
 91, 1.
 
 68 HANDBOOK TO THE LABOR LAW 
 
 for all classes of steam railroad employees ; * 
 and so as to street railways, in New York, Mas- 
 sachusetts, Michigan, and Washington,^ and such 
 work must, in all these states except Minnesota 
 and Washington, be performed within twelve 
 consecutive hours. In Pennsylvania, Mar3dand, 
 California, Louisiana, and New Jersey '" the 
 statute fixes twelve hours for street railways ; 
 and the statutes usually require extra pay for 
 overtime, and make the employees infracting 
 their provisions guilty of a misdemeanor. The 
 constitutionality of all of them may be ques- 
 tioned. 
 
 In Massachusetts, Pennsylvania, and Califor- 
 nia contracts for a longer time are declared void, 
 and in the latter states the company so con- 
 tracting is liable to a penalty. The constitu- 
 tionality of this part of the statute can probably 
 be sustained in Massachusetts under the police 
 power, as a regulation for the safety of the pub- 
 lic ; but in California, as it is only void at the 
 
 »N. Y., 1892, 711; 0., 1890, p. 112; Mich., 1893, 177; 
 Minn., 1891, 17. But the statute was declared unconstitu- 
 tional in Ohio. (See below, in the text.) 
 
 » X. Y., 1887, 529 ; Mass., 1894, 508, 9 ; Mich., ib. ; Wash., 
 1895, 100. 
 
 '"N. J., 1887, 112; Pa., 1887, 10; Md., 27, 142; Cal. 
 Pol. C, 3246 (Sup't) ; La., 1886, 95. In New Jersey it must 
 be twelve consecutive hours, with half-hour intervals for 
 meals.
 
 OF THE UNITED STATES 69 
 
 option of the employee, it seems more question- 
 able. Moreover the statute there prescribes 
 thirty cents an hour pay for overtime, which is 
 clearly unconstitutional. 
 
 But on holidays, and in case of accidents, 
 extra labor may, in Massachusetts, be performed 
 for extra pay. 
 
 Eailroad employees may not, by the laws of 
 several states, be compelled to work more than 
 twelve,'^ fifteen,^"^ eighteen,^^ twenty,'^ or twenty- 
 four'^ continuous hours without an eight-hour 
 rest (in New York, Colorado, and Ohio), or ten 
 hours (in Georgia), or an indeterminate period of 
 rest, as until the next day (Minnesota and Col- 
 orado). Except, in Georgia, where the train is 
 detained. 
 
 Brickyards and Stationary Engines. — Ten 
 hours exclusive of meal times, in brickyards 
 owned or operated by corporations, is declared a 
 legal day by a New York statute of 1893 ; and 
 in Montana, eight hours for stationary engi- 
 neers.'^ 
 
 The constitutionality of such laws has been 
 
 »' Ga., 1891, p. 186. 
 
 '* O., 1892, p. 311. This part of the act was sustained by 
 the court; see below. 
 
 '^ Minn., 1885, 20G; Col., 1891, p. 284. 
 
 1* Minn., 1891, 17. 
 
 i^N. Y., 1892, 711, 1. 
 
 '6 N. Y., 1893, 691 ; Mon., 1893, p. 67,
 
 70 HANDBOOK TO THE LABOR LAW 
 
 fully discussed above (see §§11 and 1-3). Such 
 laws, if sustained at all, must rest on the police 
 power (§ 4), and must clearly be both intended 
 and adapted to secure the safety of the public. 
 It is easy to see that such statutes as those re- 
 ferred to above, which provide for a necessary 
 rest for railroad employees after long periods of 
 service, are necessary to the public safety, and 
 no such statute has yet been set aside by the 
 courts ; but statutes making it illegal for men 
 to work more than eight or ten hours a day, or 
 sucli brief period as is clearly not necessary for 
 the public safety, especially when the employer 
 is made guilty of a criminal offence who suffers 
 overtime even by voluntary contract, would be 
 held unconstitutional both on the ground that 
 they interfere with the liberty of contract of the 
 employee and the j)roperty rights of the em- 
 ployer, and would probably also in most states 
 come under the prohibition of class legislation 
 (see §§ 2, 11) ; and the Supreme Court of Ohio 
 has just set aside the statute limiting work by 
 employees of a mine or railroad to ten hours a 
 day ; while the other branch of the statute, 
 Avliich required eight hours' rest after twenty- 
 four consecutive hours' work, was sustained.^'' 
 
 I'' Wheeling Bridge Ry. Co. v. Gilmore, 8 Ohio C. C, 658. 
 The opinion also contains the following words : " Statutes may 
 be, and they sometimes are, held to be unconstitutional, al- 
 though they contravene no express word of the constitution.
 
 OF THE UNITED STATES 71 
 
 The law (March 26, 1890) made it a criminal 
 offence for a railroad company to permit or re- 
 quire any employee to work more than ten hours, 
 and fui'ther provided that he should receive 
 extra pay for overtime, and both these provisions 
 were held unconstitutional. The court did not 
 put it only on the narrow ground of class legis- 
 lation, and further expressly held that the fact 
 that the law applied only to corporations made no 
 difference, that private corporations are regarded 
 as persons within the meaning of the constitu- 
 tional guarantees, and took the familiar ground 
 that the liberty of making contracts is absolutely 
 essential to the acquisition, possession, and re- 
 tention of property, the right to which is guar- 
 anteed by § 1 of the Bill of Rights of the Ohio 
 constitution."* 
 
 § 15. Women's and Children's Hours in Special 
 Occupations. — (For factories generally, stores, 
 workshops, etc., see § 13.) 3Iines. — By the laws 
 or constitutions of Pennsylvania, Indiana, Wy- 
 oming, West Virginia, and Washington no women 
 
 "Where they strike at the inalienable rights of the citizen, so as 
 to infringe the spirit of the instrument, though not its letter, 
 they are ofttimes held to be unconstitutional." (Compare 
 § 1, above.) 
 
 " In this instance, in our opinion, this act infringes directly 
 both the spirit and the letter of the constitution." 
 
 "* See, to the same effect, People v. Phyfe, 13G N. Y., 554,
 
 72 HANDBOOK TO THE LABOR LAW 
 
 can be employed in mines at all, under penalty.^ 
 And in several states no children under fourteen 
 or a neighboring age." And no child more than 
 four months in a year, in Nebraska. '^ In Kansas 
 no minor between twelve and sixteen who can- 
 not read and write. 
 
 Factories. — In manufaxitories of steel, metal, 
 machine?'?/, or tobacco no child imder fourteen 
 may be employed, in Indiana.^ In cotton, wool- 
 len, silk, paper, bagging, and flax factories no 
 male or female under twenty-one can under con- 
 tract be employed more than sixty hours a week, 
 or an average of ten hours a day, in Pennsyl- 
 vania (compare § 13) ; and no minor under thir- 
 teen may be employed about such factories, nor 
 under sixteen more than nine mouths a year, and 
 who has not attended school for three months 
 in the year.^ 
 
 ' Pa. Dig., pp. 902. 1351; Ind.. 1891, 49; W. Va. Code, p. 
 997, § 13; Wy. Const., 9, 3; Wash., 1891, 81, 12. 
 
 ' Such age is fourteen : Pa. Dig., pp. 1016, 1351 (in an- 
 thracite coalmines) ; O., 1891, p. 396; Ind. ; Col., 1887, p. 76; 
 Ida. Const., 13,4; S. D., 1890, 112, 11; Wash.; Mon. P. C, 
 474; Wy., ib. Twelve: Col. Const., 16, 2; N. J. Sup., 
 1886, p. 380, § 18; Kan. G. S., 3861; lo., 1884, 21, 13 (as 
 to boys only) ; W. Va., ib. ; Pa. Dig., p. 1372 (in bituminous 
 coal mines). Employment under such age makes it a mis- 
 demeanor; Ind. R. S., 2244. • 
 
 3 Neb. Cr. C, 245 aa. 
 
 * Ind., 1893, 78 R. S., 2237. 
 
 * Pa. Dig., p. 864.
 
 OF THE UNITED STATES 73 
 
 We are now jDrepared to present the laws upon 
 labor hours intelligibly in a table (see following 
 page). 
 
 § 16. Educational Restrictions on Minors. — 
 
 Nearly all the states specially impose restrictions 
 upon the employment of children who cannot 
 read and write, or so as to conflict with their 
 common-school attendance ; and the same effect 
 is generally produced by the compulsory school 
 attendance or truant laws. It is impracticable 
 to cite such statutes in detail ; but we may note 
 their general effect. Thus, in many states no 
 child under sixteen or fourteen who cannot read 
 and write may be employed in any manufactur- 
 ing, mechanical, or mercantile establishment ; ^ 
 except during vacations of the public schools ; ^ 
 except when a certificate is obtained from the 
 school committee that such minor's labor is nec- 
 essary to the support of the family.^ 
 
 And in some states no child of any age, who 
 cannot read and write, unless he attend day 
 schools or evening schools where such are pro- 
 vided.^ 
 
 ' The age is sixteen (N. II., 93, 11; N. Y., 1892, 673, 2) ; 
 fifteen (R. I., 1887, 649, 11); fourteen (Vt. Stats., 713; 
 Mass., 1894, 508, 24; La., 1886, 43, 2); tliirteen (Wis., 
 1889, 519). 
 
 ' N. Y., ib., Vt., N. H. 3 jiass., ib., 25. 
 
 * Mass., 1894, 508, 17, 25; O., 1889, p. 333, 3 (of minors 
 from fourteen to sixteen who cannot read English).
 
 74 
 
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 76 HANDBOOK TO THE LAHOR LAW 
 
 In many states also no child or minor of like 
 age can be so employed except during vacations 
 unless they have attended school during a cer- 
 tain prescribed period for the year preceding, 
 varying from twelve to sixteen weeks, or in some 
 states for the whole school year, according to the 
 age of the child.^ 
 
 § 17. Further Statutory Restrictions upon 
 Child Labor. — In several states the employment 
 of children or minors of a prescribed age is 
 specially forbidden as to certain dangerous oc- 
 cupations, such as running elevators,' stationary 
 engines, cleaning machinery in motion,^ or 
 dangerous machinery generally, or in any em- 
 ployment where the child is put in danger of 
 life or limb,^ or in occupations unwholesome or 
 dangerous to health,^ without a physician's cer- 
 
 *N. H., 93, 12; Me., 1887, 139, 6; Vt., 712; Mass., 1894, 
 508, 13, U, 17; R. I., 1887, 649, 6; Ct., 2105; N. Y., 1874, 
 421; Mich., 5174, g. h. ; Pa. Dig., p. 864, § 6; O., 1889, p. 
 333; N. J. Sup., p. 937, § 77; Wis., 1728; Col., 1889, p. 
 59; N. D., 1890, 62, 143; La., 1886, 43. 
 
 ' Mass., 1894, 508, 32 ; N. Y., 1892, 673, 3 ; Pa. Dig., p. 1016. 
 
 2 Mass., ib., 31; Mich., 1895, 184, 3; R. I., 1894, 1278, 6; 
 La., 1882, 60; N. J. Sup., p. 773, § 17. 
 
 » O., 1890, p. 161, § 9; N. Y. P. C, 292; Ct., 1417; R. I., 
 97, 1; Pa., ib.; 111., 38, 82; Mich., 1895, 184, 3; Mo., 1895, 
 p. 205; Wy., 1895, 46; lud. R. S., 2241; Del., 1879, 150, 
 1; Col., 1885, p. 125. 
 
 * N. J., 1887, 177, 7; Ct., O., N. Y., Pa., Mo., Wy., Ind., 
 111., Mich., R. I.
 
 OF THE UNITED STATES 77 
 
 tificate ; ^ and in other states the inspector of 
 factories or chief of police may designate certain 
 employments as so injurious to health of chil- 
 dren and thereafter they may not be employed 
 therein.^ The factory inspectors are in some 
 states given jDower to demand physicians' certifi- 
 cates of the physical ability of children in all 
 cases of factory or workshop employment.' 
 
 So there are generally statutes forbidding the 
 employment of children under a certain age in 
 occupations injurious to their morals,^ under 
 penalty of misdemeanor, etc.; and specially for- 
 bidding their employment in theatrical exhi- 
 bitions or circuses,^ siiiging, ragpicking, mendi- 
 cancy, street music, etc., or begging.'^ The pre- 
 scribed age in this latter class of employments 
 
 ' N. J. 
 
 • Mass., 1894, 508, 15. 
 
 ' III., 1893, p. 101, § 4; Mich., 1895, 184, 4. 
 
 » O., 1890, p. 161, § 9 ; N, Y. P. C, 292 ; R. I., 97, 1 ; Ct. ; 
 N. J. Sup., p. 195, §§ 24, 26; Ind., 111., Mich., Mo., 1895, p. 
 205; Wy., 1895, 46, 1; Pa. Dig., p. 1015; Col., 1885, p. 124. 
 
 'Mass., 1894, 508, 49; N. H., 265, 3; Ind. R. S., 2242; 
 Pa. Dig., p. 1015; O., 6984; N. Y. P. C, 292; III.; Mich., 
 1998; R. I.; Minn. P. C, 250; Kan., 1889, 104; Ct., Mo.; 
 Cal. P. C, 272; Col.; Mon. P. C, 472; Wy., 1895, 46, 1; 
 Md., 27, 273; D. C, U. S. Stats., 1885, 58; Del., 1879, 
 1.50, 2 ; Ga., 4612 (f) (unless the child have attended school 
 for four months of the year preceding) . 
 
 '» R. I., Ct., N. J., N. Y., Pa., Mich., Ind., R. S., 2242; 
 111., Kan., Minn., Cal., Col., Mon., Md., Del., Mo., Wy., 
 D. C, La., 1886, 43, 2.
 
 78 HANDBOOK TO THE LABOR LAW 
 
 (shows and begging) varies from eighteen to 
 twelve." These laws are, of com-se, constitu- 
 tional '- (see § 13). 
 
 Minors are generally entitled to their wages 
 free from any claim on the part of parent or 
 guardians unless the employers are notified.'^ 
 And in Ohio " wages may not be retained from 
 minors for alleged negligence or incompetence, 
 nor any guarantee made with such minors. 
 
 § 18. Further Statutory Restrictions upon Fe- 
 male Labor. — The clear tendency of the law 
 throughout the United States is to make no dis- 
 tinction in civil, industr^l, or social rights be- 
 tween the sexes while reserving the distinction 
 as to political and military rights or duties. All 
 occupations are now thrown open to women and 
 they are generally given full rights of contract. 
 The legal profession remains the only one not 
 
 " Thus eighteen, in New Jersey and Indiana, as to shows, 
 immoral occupations, etc. So, as to mendicancy, etc., in 
 Pennsylvania; sixteen (R. I., N. Y., Mich., Minn., Cal., 
 Mon., Md., O., R. S., 694 ; see note 3 above) ; fifteen (Mass., 
 Pa., Ind., HI., Del.); fourteen (N. H., O., 1890, p. 161— 
 see note 1 above — Kan., Col., D. C, Mo., Wy.) ; twelve 
 (Ct., X. J., Ga.). In New York the phrase is " apparently or 
 actually under the age of sixteen." Quaere whether this is 
 constitutional. 
 
 '' People V. Ewer, 141 N. Y., 129. 
 
 i» See N. Y., 1850,266; Minn., 1893, 35, for specimen stat- 
 utes. 
 
 '* O., 1893, pp. 55-57. Compare § 9.
 
 OF THE UNITED STATES 79 
 
 generally thrown open to her by the law ; and 
 this exception rests upon the ground that mem- 
 bership in the bar is, in a sense, a political 
 office ; in the same manner she is not, except in 
 the woman-suffrage states, required to serve on 
 juries. 
 
 There is therefore no necessity for an express 
 statute, yet some states have deemed wise to 
 enact one. Thus, in Illinois, California (by the 
 constitution), and Washington 
 
 " No person shall be precluded or debarred 
 from any occui3ation, profession, or employment 
 (except military) on account of sex : Provided 
 that this act shall not be construed to affect 
 the eligibility of any person to an elective 
 office." 1 
 
 But " Nothing in this act shall be construed 
 as requiring any female to work on streets or 
 roads, or serve on juries." ^ 
 
 But, on the other hand, in a few states we find 
 a statute that " The employment of women is 
 forbidden in houses where liquor is sold at re- 
 tail.^ The reasonableness of this law is unques- 
 tionable, and hence its constitutionality under 
 the " police power " (see § 4), save in states 
 which have adopted the most radical modem 
 
 ' 111., 48, 4; Cal. C, 20, 18; Wash., 1890, p. 519. 
 
 « 111., 48, 5. 
 
 »La., 1894, 43; Wash., 1895, 90.
 
 80 HANDBOOK TO THE LABOR LAW 
 
 view of the emancipation of the sexes. But in 
 California, for this reason a similar ordinance, 
 passed by the city of San Francisco, was held 
 unconstitutional by the California Supreme 
 Court. ' On the other hand, it has in Ohio been 
 declared constitutional.^ And the same remarks 
 apply to the nearly universal law providing 
 under penalty that seats shall be supplied to 
 female employees in manufacturing or mechan- 
 ical establishments, mercantile establishments, 
 and stores,^ offices,'' schools,^ hotels,^ restaurants, 
 etc. ; and also separate toilet-rooms, screened 
 stairways,^'' and similar provisions for health and 
 decency. The constitutionality of these statutes 
 has never been questioned, and there would ap- 
 pear to be no doubt of it. 
 
 4 Case of Mary Maguire, 57 CaL, 604. 
 
 * Bergman v. Cleveland, 39 O. S.. G51. 
 
 •N. H., 1895, 16; Mass., 1894, 508, 30; R. I., 1894, 1278, 
 8; Ct., 1893, 77; N. Y. R. S., p. 1089; N. J. Sup., p. 360; 
 Pa. Dig., p. 902; O., 1891, p. 87; Ind., 1891, 120; 1893, 
 168; Mich., 1997, b 4; lo., 1892, 47; Minn., 1889, 10; R. S., 
 2224; Neb. Cr. C, 2450; Mo.,. 3500, 1891, p. 179; Cal., 
 1889, 5; Col., 1885, p. 297; Wash., 1890, p. 104; Md. Local 
 Laws, 1888, 398; Del., 1887, 238; Ga., 1889, p. 167; Ala., 
 1889, 92 (in stores only); La., 1886, 43, 5. 
 
 ■> Ind., Minn., Neb., Wash., Md., ib. 
 
 8 Neb., Wash., Md., ib. 
 
 ^ Minn., Mich. ; " in any business," Ind., Minn., ib. 
 
 '0 Mass., ib., 33; R. I., ib. ; Ct., 2267; N. J. Sup., pp. 773, 
 21-22; Pa. Dig., p. 866; 0.,ib.; Mich., 1895, 184, 7, 10; 
 Minn., 1893, 77; Cal.
 
 OF THE UNITED STATES 81 
 
 § 19. Sundays and Holidays.— The rights of 
 laborers to rest one day in tlie Aveek are commonly 
 guaranteed by the ordinary statutes relating to 
 the observance of Sunday, which are practically 
 universal throughout the country, but a few 
 states have special provisions ; thus, in California, 
 that " all employers must grant employees one 
 day in seven for complete rest from labor." ^ 
 Besides Sunday or the Jewish Saturday, four 
 states have thus far passsd laws making Satur- 
 day for banking purposes a half holiday through- 
 out the year.2 Nearly all the states have adopted 
 a special holiday called Labor Day, usually the 
 first Monday in September.^ But in some states 
 it is the first Saturday in September,^ while in 
 Wisconsin it is fixed by proclamation each year.^ 
 
 § 20. Fines and Deductions for Imperfect Work 
 and Injury to Machinery or Goods. — Two states 
 have so far enacted laws attempting to prevent 
 
 1 Cal., 1893,^1. 
 
 2 Mass., 1895, 415; N. Y., 1887, 289; N. J., 1891, 43; Col., 
 1893, 102 ; but in Colorado the law applies in the city of 
 Denver only, and for the three summer months. In Mas- 
 sachusetts the statute only applies for banking purposes. 
 
 ^N. H., 180, 24; Mass., 1887, 263; R. I., 1893, 1212; Ct., 
 1889,20; N. Y., 1887, 289; N. J., 1895, 392; Ohio, 1890, 
 p. 355; lo., 1890, 45; Neb., 1889, 92; Del., 1893, 695; Va., 
 
 1892, 106; Texas, 1893, 7; Col., 1887, p. 327; Utah, 1892, 
 13; S. C, 1891, 720; Ga., 1893, p. 115; Ala., 1892, 59; Fla., 
 
 1893, 84; Minn. R. S., 7987; 1893, 89; Ore., 1893, p. 103. 
 * Pa., 1893, 138. " Wis., 1893, 271. 
 
 6
 
 82 HANDBOOK TO THE LABOR LAW 
 
 the withholding of wages or the imposition of a 
 fine by the employer for imperfect work, and 
 declaring illegal or penal even voluntary con- 
 tracts between the employer and employee to 
 that effect. That of Ohio ' simply provides that 
 " whoever, without an express contract with his 
 employee, deducts or retains the wages, or any 
 part of the wages, of such emplo3'ee for ware, 
 tools, or machinery destroyed or damaged, shall 
 be liable to like punishment and penalties above 
 specified, and shall, in addition thereto, be liable 
 in civil action to the party aggi-ieved in double 
 the amount of any charges." 
 
 In Massachusetts the first act^ provided that 
 no person or corporation should be entitled to 
 retain any part of the wages of any weaver in its 
 employ by way of fine or deduction for imper- 
 fect weaving, except in accordance with a posted 
 list of fines, nor unlesro such imperfect weaving 
 was due to wilfulness, incapacity, or negligence 
 of the weaver, and the imperfection was discov- 
 ered when the work was first examined, and was 
 shown to the weaver forthwith, and that the 
 amount so retained should not exceed the actual 
 damage. 
 
 In 1891 this act was superseded by a new 
 law,^ providing that " no employer shall impose 
 
 >0., 1891, 319. 2 jiass., 1887, 361. 
 
 3 Mass., 1891, 125.
 
 OF THE UNITED STATES 83 
 
 a fine upon, or withhold the wages or any part 
 of the wages of, an employee engaged at weaving 
 for imperfections that may arise during the pro- 
 cess of weaving. 
 
 "Any employer who shall violate the pro- 
 visions of this act shall be subject to a fine of 
 not more than one hundred dollars, and for a 
 second and subsequent violation of this act shall 
 be fined not more than three hundred dollars." 
 
 The same year indictments were found against 
 Perry, a woollen manufacturer, and the Po- 
 tomska Mills, a cotton manufacturing corpora- 
 tion, for violation of the statute. The court, by a 
 majority opinion,* held that both the quoted sec- 
 tions were unconstitutional, saying that " if the 
 act went no further than to forbid the imposi- 
 tion of a fine by an employer for imperfect work 
 it might be sustained as within the legislative 
 power conferred by the constitution of this com- 
 monwealth.^ . . . There are certain funda- 
 mental rights of every citizen which are recog- 
 nized in the organic law of all our free Ameri- 
 can States. A statute which violates any of 
 these rights is unconstitutional and void, even 
 though the enactment of it is not expressly for- 
 bidden. Article 1 of the Declaration of Rights 
 in the Constitution of Massachusetts enumerates 
 
 *Com. V. Perry, 155 Mass., 117. 
 
 'Mass. Const., Chap. 1, § 1, Art. 4. For a full discussion 
 of this peculiar constitutional provision see §§1 and 2.
 
 84 HANDBOOK TO THE LABOR LAW 
 
 among the natural, inalienable rights of men the 
 right ' of acquiring, possessing, and protecting 
 property.' . . . The right to acquire, pos- 
 sess, and protect property includes the right to 
 make reasonable contracts, which shall be under 
 the protection of the law." 
 
 On the same day a similar decision was ren- 
 dered in the case against the Potomska Mills, 
 which is interesting, as showing that the Massa- 
 chusetts courts at least, like Ohio, and contrary to 
 Missouri and Khode Island, recognize no distinc- 
 tion between the power of the legislature to limit 
 the contracts of private persons and those of cor- 
 porations. Mr. Justice Holmes dissented from 
 the majority of the court in both cases, on the 
 ground that no express provision could be found 
 in the United States or Massachusetts Constitu- 
 tions, and none implied upon a fair and historical 
 construction, which prevented the legislature 
 from depriving a certian class of a contract right 
 which they might be using for a dishonest pur- 
 pose ; that the legislature were the sole judge of 
 the reasonableness of the law, and the court 
 could know nothing about the matter, ** citing 
 
 *The courts are sole judge of the reasonableness of a law 
 under the constitutional provisions of Maine and Massachu- 
 setts, that the legislature may make all reasonable laws, etc. 
 (see § 2). Moore v. Veazie, 32 Me., 360. But though the 
 legislature may forbid contracts against public policy, or es- 
 tablish regulations under the police power, these being ju-
 
 OF THE UNITED STATES 85 
 
 Hancock v. Yaden,'' and it would seem as if 
 this position had been practically sustained in 
 the later decision rendered bj the same court in 
 1895, as to the constitutionality of a general 
 weekly payment law.^ 
 
 Accordingly, in 1892, a new statute was passed ^ 
 merely providing that imperfections complained 
 of should be pointed out to the person whose 
 wages were to be aifected thereby, and this was 
 was substantially re-enacted in a Massachusetts 
 general labor law of 1894,^" and another statute 
 passed requiring the manufacturers of cotton 
 factories to supply tickets containing specifica- 
 tions with each warp to every weaver paid by 
 the piece, cut, or yard. To these latter statutes 
 there can, of course, be no constitutional objec- 
 tion. 
 
 As the Ohio statute quoted above expressly 
 reserves express contracts for such deductions, 
 and the Massachusetts decision has been gener- 
 ally quoted with approval by Western courts, 
 we conclude that the law to-day is that, while 
 possibly a statute forbidding the imposition of 
 
 dicial principles, are not thereby removed from the scrutiny 
 of the courts to see that they are in fact such. Erisbie v. 
 U. S., 157 U. S., 160; in re Jacobs, 98 N. Y., 98. 
 
 '121 Ind., 366. And see the Slaughter House cases, 16 
 Wall, 36. 
 
 * Opinion of Justices, 163 Mass., 589. See hereafter § 21. 
 
 »Mass., 1892, 410. 
 
 '"Mass., 1894, 508, 55; 1894, 534.
 
 86 HANDBOOK TO THE LABOR LAW 
 
 ai-bitrary fines would be sustained, there can be 
 no law passed forbidding employers to make de- 
 ductions from wages proportionate to the dam- 
 age or loss caused by actual imperfect work. 
 The question of damage to tools or machinery 
 might, however, rest on a different basis, that 
 this, being recoverable in an action of tort, could 
 not be set off against an action of contract, and 
 that therefore the employee might recover his 
 wages in full, and leave the employer to his ordi- 
 nary remedies for such injury. 
 
 In other states, in the absence of a statute, 
 the imposition of fines fixed by contract for bad 
 and imperfect work has been sustained, and 
 hence such contracts recognized as legal; ^^ and 
 so in England ; ^- and they are undoubtedly legal 
 under the common law. The imposition of such 
 contracts may be resisted by the trades-unions, 
 or by laborers individually refusing to assent to 
 them ; the legislatures have no power to prohibit 
 them. 
 
 " "A provision in a written contract of hiring between a 
 railway company and a conductor on its cars provided that if 
 the latter received any fare from any passenger (a fare being 
 five cents) he should be liable to a fine of fifteen dollars, 
 which might be deducted from his wages : Held, that the 
 fifteen dollars were intended to be liquidated damages, and 
 not a penalty, and that the agreement for payment of it 
 could be enforced." Birdsall v. Twenty-third St. Ry. Co., 
 8 Daly, 419. 
 
 '•^ Bowes V. Press, 70 L. T. R., 116.
 
 OF THE UNITED STATES 87 
 
 § 21. Time of Payment of Employees ; Week- 
 ly Payment Laws. — Weekly or fortnightly pay- 
 ment laws have now been enacted in fourteen 
 states ; ' but in most of these states they apply 
 to corporation employers only,^ in several only to 
 manufacturing companies,^ or to mining labor. 
 In Ohio the law includes street railways and rail- 
 road contractors, but in Massachusetts it does 
 not include steam railroads. 
 
 In Wisconsin the law does not apply if there 
 be a written contract to the contrary ; while in 
 
 1 Weekly : N. H., 180, 21 ; Mass., 1894, 508, 51, 1895, 
 438; R. I., 1891, 918; Ct., 1749; N. Y., 1890, 388, 1895, 
 791; Ind., 1893, 114; R. S., 7059 (as to mining and manu- 
 facturing companies only) ; 111., 1891, p. 213 ; Wis., 1889, 
 474; Kan., 1893, 187. Fortnightly: Me., 1887, 134; Pa., 
 1887, 121, O., 1887, 214; R. S., 8769; Wy., 1891, 82; W. 
 Va. Code, p. 1003, § 2. Monthly : Va., 1887, 391, 1-2; Ind. 
 R. S., 7056; Mo., 2538; Tenn. Ex. Ses,, 1891, p. 5, 
 Weekly or monthly: Cal., 1891, 146; in Connecticut eighty 
 per cent, only need be paid weekly, the balance monthly. 
 Ct., 1750. 
 
 ■^ So in all states above mentioned except Massachusetts, 
 Wisconsin, Maine, Indiana, Pennsylvania, Tennessee, Wy- 
 oming. In Massachusetts they apply to all persons, etc., en- 
 gaged in any manufacturing business, and having more than 
 twenty-five employees, or in Maine, ten ; but there is no pen- 
 alty imposed except upon corporations. 
 
 * Pa., Ind., O., Va., W. Va. ; in New York and Maine they 
 apply to substantially all corporations but street railroads ; 
 as to which monthly payments are required in New York, 
 not later than the twentieth of the month. 
 
 *0., Pa., xMo., 1891, p. 183; Ind., Wy., Va., W. Va.
 
 88 HANDBOOK TO THE LAIIOr. LAW 
 
 Indiana contracts in waiver of sucli rights are 
 expressly declared illegal ; ^ and in several the 
 whole law has been declared unconstitutional," 
 In Ehode Island the law has been declared 
 constitutional, as it relates to corporations only. 
 The Supreme Court of Massachusetts stands 
 thus far alone in declaring it constitutional as 
 to natural persons,'' the Colorado court having 
 recently refused upon a technicality to render an 
 opinion on the subject,^ though it is clear from 
 its opinion on the eight-hour law (see § 11), that 
 its opinion, if rendered, would have been adverse. 
 And the times of such periodical payments 
 are fui'ther defined in several states ; thus, not 
 later than Friday of each week in Kansas, or 
 eight days after the week's expiration in New 
 Hampshire and Connecticut, or six days there- 
 after in New York, Illinois, and Massachusetts. 
 So in others the full amount due up to within 
 fifteen days must be paid ; ^ and in Alleghany 
 County, Maryland, if the wages of miners or 
 
 '' Tnd. R. S., 7071. So, in New York, the company is for- 
 bidden to require them. 
 
 * Arkansas, Texas, Illinois, and probably it would be so 
 held in Missouri, West Virginia, and others ; see below, and 
 in § 23. 
 
 '' See below in the text. 
 
 8 Re House Bill 107, 39 Pac, 431. 
 
 * Mo., Pa., or ten days (O.), or twenty days (W. Va., tJ., 
 § 5), or nine days (R. I.).
 
 OF tup: united states 89 
 
 manufactui-ing employees remain unpaid thirty 
 days the court may appoint a receiver of the de- 
 linquent employer. ^° 
 
 Employers failing to comply vdth. these laws 
 are commonly made liable to a fine ^^ or to in- 
 creased damages to the employee.'' 
 
 Thus, any corporation or person failing for 
 ten days after demand to pay employees for 
 labor, is liable to a penalty of one dollar for 
 each succeeding day, and an attorney's fee ; '^ so 
 due bills must be issued for labor due up to the 
 date of demand of jjayment, whenever such de- 
 mand is made, which due bills must be 
 negotiable and redeemable in cash ; '^ and thirty 
 days' notice of a reduction in rate of wages is 
 required from all corporations. 
 
 Weekly payments by large employers of labor 
 are certainly to the advantage of the laborer. 
 They tend to prevent both waste and the attach- 
 ment of wages by creditors. Nevertheless, the 
 disadvantage of permanently forbidding by law 
 contracts ordinarily free was curiously shown in 
 the late panic, when many companies or firms 
 desirous of going on provided they could make 
 
 •" Mfl. Loc. L., Alleghany Co., § 189. 
 " Ind. R. S., 70G9. 
 
 '- Mo., 2.-)39; Ind. K. S., 7057, 70G8; but see note 6, and 
 compare § 23. 
 •3 Ind., ib. 
 '4 Mo., 7059.
 
 90 HANDBOOK TO THE LABOR LAW 
 
 an extension of time of payment with their em- 
 ployees, were prevented from so doing imder 
 such statutes, although the employees Avere 
 more than willing to accept half their wages in 
 ,cash and wait for the balance rather than have 
 the factory closed. As to private individuals, 
 however, weekly payment statutes have been 
 declared unconstitutional in every court where 
 they have been discussed, with the exception 
 only of that of Massachusetts.'^ In Ehode 
 Island alone has the law been sustained as to 
 corporations, while in Missouri and Texas, w'here 
 it applied solely to certain classes of corpora- 
 tions, it was declared void as class legislation. 
 
 Thus, in Texas, where the first case arose,'^ 
 the statute provided that in the event of the 
 railway company refusing to pay wages to an 
 employee within fifteen days of demand, it 
 should be liable to pay twenty per cent, on the 
 amount due him as damages in addition thereto. 
 The court held that while railwaj's occupied a 
 two-fold character, public and private, and might 
 be regulated as a highway, they could not be 
 specially regulated as a corporation in all their 
 internal economy, and that although the doctrine 
 is often stated that a statute is not subject to the 
 objection of being class legislation when it 
 
 '' Opinions of Justices, 163 Mass., 589. 
 
 '« San Antonio & A. P. Ry. Co. v. Wilson, 19 S. W., 910.
 
 OF THE UNITED STATES 91 
 
 aflfects equally all who are brought within the 
 relations and circumstances provided for, it by 
 no means follows that the legislature has the 
 right to impose any burden while simply placing 
 it on all the individuals of a certain class. " It 
 must rest upon some reason upon which it could 
 be defended. . . . No well-considered case 
 can be found sustaining a penalty on an ordinary 
 contract where public interest was not involved. 
 . . . An exception that undertakes to single 
 out a single class and attach a penalty to a fail- 
 ure to pay one class of their creditors is not 
 * the law of the land ' and cannot be sustained." 
 
 There is no special provision in the Texas 
 constitution against class legislation, and the 
 court apparently based its decision on the Four- 
 teenth Amendment to the United States consti- 
 tution, siding with the minority opinion in the 
 Slaughter House cases, ^^ or upon the general 
 principle that such legislation would be invalid 
 without an express constitutional prohibition. 
 
 The next case was the case of an ordinary 
 weekly payment law, but applying only to the em- 
 ployees of corporations, and occurred in Rhode 
 Island.'^ Here the court denied that the Four- 
 teenth Amendment applies to such a case, on 
 the ground that the law was but a valid exercise 
 
 " 16 Wall, 36. 
 
 '* State V. Brown & Sharpe Mfg. Co., 25 Atlantic Rep., 
 246. Qucere as to the law of this case.
 
 02 HANDBOOK TO THE LABOR LAW 
 
 of the power reserved to the legislature to amend 
 or repeal acts of iucorporation, and that a cor- 
 poration was not a citizen of the United States 
 within the meaning of the Foui'teeuth Amend- 
 ment ; and noted that the act still permitted 
 employees of such corporations to be paid by 
 the job or by the piece. 
 
 To the same effect, as to corporations, was the 
 Arkansas case arising in 1894,'* but it held that 
 an act of Ai'kansas requiring corporations and 
 persons operating or constructing railroads, to 
 pay their employees on the day of discharge the 
 unpaid wages then earned by them at the con- 
 tract rate, without abatement or reduction, was 
 only valid in so far as it applied to corporations. 
 The court differed from the Texas coiu't, on the 
 groimd of class legislation, denying that it fell 
 within the prohibition of special legislation, for 
 the reason that it was general and uniform in its 
 operations on all persons coming within the class 
 to which it applied ; but affirmed the right to 
 contract of individuals, disapproved Hancock v. 
 Yaden,"^ and declared that part of the act un- 
 constitutional which api^lied to private individ- 
 uals. Mr. Justice Bunn, however, filed a dis- 
 senting opinion to the effect that the whole stat- 
 ute was unconstitutional. 
 
 But the case of Braceville Coal Co. v. People, 
 
 13 Leep V. Ry. Co., 25 S. W., 75. 
 50 121 Ind., 3GG (see §23).
 
 OF THE UNITED STATES 93 
 
 decided by the Supreme Court of Illinois in 
 1893,2' declared directly that, even a law provid- 
 ing that certain classes of corporations (which 
 classes included all corporations for profit) 
 should pay weekly each and every employee 
 engaged in its business, the wages earned by 
 such employee to within six days of the date 
 of such employment, and forbidding contracts 
 for other times of payment, was imconstitu- 
 tional under the provision of the constitution 
 of Illinois, Section 2, Article 2, identical with 
 that of the Federal Fourteenth Amendment, that 
 " no person can be deprived of life, liberty 
 or property except by due process of law ; " 
 and that it was also contrary to that provis- 
 ion of the Illinois constitution which forbids 
 corporate charters from being amended by 
 special laws, since it attempts to amend the 
 charters of the kinds of corporations named in 
 the act, while not affecting others created under 
 the same general laws. As there is no such 
 constitutional limitation in Rhode Island, the 
 reason of this branch of the case does not im- 
 pair the Rhode Island decision ; but on the 
 former point the case appears conclusive, at least 
 under such states as have the constitutional pro- 
 vision against depriving persons of property 
 without due process of law,'^^ and perhaps in the 
 
 »'35N. E., C2. "See §2.
 
 94 HANDBOOK TO THE LABOK LAW 
 
 others under the Federal Fourteenth Amend- 
 ment. The court say that " the words ' due 
 j)rocess of law ' are to be held synonymous with 
 * the law of the land,' and this means general 
 public law, binding upon all the members of 
 the community under all circumstances, and 
 not partial or private laws, affecting the rights 
 of private individuals or classes of individuals. 
 There can be no liberty, protected by gov- 
 ernment, that is not regulated by such laws 
 as will preserve the right of each citizen to pur- 
 sue his own advancement and happiness in his 
 own way, subject to the restraints necessary to 
 secure the same right to all others. The funda- 
 mental principle upon which liberty is based in 
 free and enlightened government is equality 
 under the law of the land. It has accordingly 
 been everywhere held that liberty, as that term 
 is used in the constitution, means not only free- 
 dom of the citizen from servitude and restraint, 
 but is deemed to embrace the right of every 
 man to be free in the use of his powers and 
 faculties, and to adopt and pursue such avo- 
 cation or calling as he may choose, subject 
 only to the restraints necessary to secure the 
 common welfare. . . . Property, in its 
 broader sense, is not the physical thing which 
 may be the subject of ownership, but is the 
 right of dominion, possession, and power of 
 disposition which may be acquired over it. And
 
 OF THE UNITED STATES 95 
 
 the right of property preserved by the constitu- 
 tion is the right, not only to possess and enjoy 
 it, but also to acquire it in any lawful mode, or 
 by following any lawful industrial pursuit which 
 the citizen, in the exercise of the liberty guaran- 
 teed, may choose to adopt. Labor is the primary 
 foundation of all wealth. The property which 
 each one has in his own labor is the common 
 heritage. And, as an incident to the right to 
 acquire other property, the liberty to enter into 
 contracts by which labor may be employed in 
 such way as the laborer shall deem most bene- 
 ficial, and of others to employ such labor, is 
 necessarily included in the constitutional guar- 
 anty. . . . It is undoubtedly true that the 
 people in their representative capacity may, by 
 general law, render that unlawful, in many cases, 
 which had hitherto been lawful. But laws de- 
 priving particular persons, or classes of persons, 
 of rights enjoyed by the community at large, to 
 be valid, must be based upon some existing dis- 
 tinction, or reason, not applicable to others, not 
 included within its provisions. . . 
 
 " The restriction of the right to contract affects 
 not only the corporation, and restricts its right to 
 contract, but that of the employee as well. . . . 
 An illustration of the manner in which it affects 
 the employee, out of many that might be given, 
 may be found in the conditions arising from the 
 late unsettled financial affairs of the country.
 
 00 HANDBOOK TO THE LABOR LAW 
 
 It is a matter of common knoAvleclge tliat a large 
 number of mannfactorics were shut tlown because 
 of the stringency iu the niouey market. Em- 
 ployers of labor were unable to continue pro- 
 duction for the reason that no sale could be 
 found for the product. It was suggested in the 
 interest of the employers, as well as in the pub- 
 lic interest, that employees consent to accept 
 only so much of their wages as was actually 
 necessary to their sustenance, reserving pay- 
 ment of the balance until business should revive, 
 and thus enable the factories or workshops to 
 be open, and operated with less present ex- 
 penditures of money. Public economists and 
 leaders in the interest of labor suggested and 
 advised this course. In this state, and under 
 this law, no such contract could be made. The 
 employee who sought to work for one of the 
 corporations enumerated in the act would find 
 himself incapable of contracting as all other 
 laborers in the state might do. The corpora- 
 tions would be prohibited entering into such a 
 contract, and, if they did so, the contract would 
 be voidable at the will of the employee, and the 
 employer subject to a penalty for making it. 
 The employee would, therefore, be restricted 
 from making such a contract as would insure to 
 him supi3ort during the unsettled condition of 
 affairs, and the residue of his wages when the 
 product of his labor could be sold. They would,
 
 OF THE UNITED STATES 97 
 
 by the act, be practically under guarcliausliip ; 
 their contracts voidable, as if they Avere minors ; 
 their right to freely contract for and to receive 
 the benefit of their labor as others might do 
 denied them." 
 
 The substance of this case appears to be, 
 therefore, that the act was void because it inter- 
 fered with the freedom of contract, both of em- 
 ployer and employee, impliedly guaranteed by 
 the Illinois constitution under the clause iden- 
 tical with the Fourteenth Amendment ; and that 
 it could not be upheld on the ground that it 
 amended the charter of corporations, for the 
 reason that the Illinois constitution also re- 
 quired that such charter should not be amended 
 by special laws, and that this was such a special 
 law, which did not carry with it its reason on its 
 face. We are, therefore, met with a dilemma. 
 If a general weekly payment law is proposed, 
 applying to all persons and corporations, it is 
 an interference with general liberty of contract, 
 and can hardly be sustained under the police 
 power, because to prohibit everybody from pay- 
 ing wages or salaries monthly or quarterly can 
 hardly be said to be reasonable on its face ; and 
 on the other hand, if it apply to special classes, 
 or even special corporations, it may be hold un- 
 constitutional as class legislation. Such laws 
 are probably valid only as to corporations, in 
 states which have a provision that their charters 
 7
 
 98 HANDBOOK TO THE LABOR LAW 
 
 may be amended, except in those states which, 
 like Illinois, provide that it shall only be done 
 by general law. In those states, weekly pay- 
 ment laws to be valid would have to apply gen- 
 erally to all corporations ; and as to individuals, 
 or private employers, such laws would to-day 
 be probably held unconstitutional in all states 
 with the exception of Massachusetts. They 
 therefore fall naturally within those reforms 
 which should be attempted only through the 
 trades - unions or otherwise by voluntary con- 
 tract. 
 
 § 22. Notice of Discharge. — By the usual cus- 
 tom, when an employee, or laborer, or servant is 
 discharged without cause, and in some cases, 
 where the employee, etc., leaves without cause, 
 the Employer in the one case, the employee in 
 the other, is entitled at most to a notice equal to 
 the term of payment of wages ; and inferentially 
 the statutes referred to in the last section pre- 
 scribing such terms would prescribe a like no- 
 tice. In the absence of such custom, no notice 
 is necessary on either side. 
 
 But this usual law is being rapidly modified 
 by statutes in the interest of the employee ; and 
 even express contracts requiring notice on either 
 side or both are being forbidden or regulated. 
 The usual form of such statutes is that " where 
 a contract provides, under penalty of forfeiture
 
 OF THE UNITED STATES 99 
 
 of wages or of some deposit or money fine by 
 the employee that he shall give a notice of in- 
 tention to leave the employer, the employer shall 
 be liable to payment of a like forfeiture if he dis- 
 charge without similar notice an employee ex- 
 cept for incapacity or misconduct, unless in case of 
 a general suspension of labor in his shop or fac- 
 tory ; ^ and by an act of Massachusetts, passed / 
 this year, the italicised exception has been ^ 
 stricken out of the law.^ So in Louisiana, there 
 is a statute prohibiting steamboat employees un- 
 der a penalty from leaving without notice ; and 
 in Connecticut it is made a penal offence to with- 
 hold wages because of any contract express or 
 implied to give such notice.^ The constitution- 
 ality of such laws is perhaps doubtful. So, in 
 Texas, the law is probably unconstitutional which 
 declares that " All persons in the employment of 
 any railway company shall be entitled to receive 
 thirty days' notice from said company before 
 their wages,ea» be reduced by said company; " "* 
 while the Maine statute, that " Any person or 
 corporation may contract with employees to give 
 one week's notice of intention on such employees' 
 
 ' Mass., 1894, 508, 1 ; R. I,, 1886, 571 ; N. J. Sup., p. 772, 
 § 14, 1895, 142; Pa., 1887, 122. 
 
 2 Mass., 1895, 129. 
 
 3 La. R. L., 945 ; Ct., 1748. See § 62. 
 
 * San Antonio Ry. Co. v. Wilson, 19 S. W., 913. See 
 Texas Laws, 1887, 30. 
 
 .//I/.
 
 100 HANDBOOK TO THE LABOR LAW 
 
 part t(> quit employment, under penalty of for- 
 feiture of one week's wagjes ; but in such case 
 the employer shall be required to give a like no- 
 tice, or shall pay such employee discharged a 
 sum equal to one week's wages, except when the 
 discharge or leaving of the employee is for a rea- 
 sonable cause " (Me., 1887, 139, 4), if there be 
 such a constitutional principle as liberty of con- 
 tract, certainly infringes it ; unless the contract 
 can be considered such a fraud upon the em- 
 ployee as to come under the police power (§ 4). 
 
 There is uo doubt, in the absence of such stat- 
 ute, of the legality of contracts providing against 
 sudden abandonment of work without notice ; 
 and such contracts express or implied have been 
 universally sustained, both as to a fixed penalty^ 
 and the withholding of any or all wages.^ La- 
 borers desire the law altered so as to facilitate 
 sudden strikes ; but the true path of improve- 
 ment, as well as the tendency of the statutes, 
 would seem rather to be the other way. Just as 
 indeterminate relation is the essence of slavery, 
 so a definite contract is the relation of freedom ; 
 and if employees are to go on raising their posi- 
 tion, it must be done through contract, by bar- 
 gaining on both sides. Such bargaining may be 
 
 6 Walls V. Coleman, 34 N. Y. State, 281. 
 ^ Preston v. Am. Linen Co., 119 Mass., 400; Harmon v. 
 Salmon Falls Co., 35 Me., 447.
 
 OF THE UNITED STATES 101 
 
 collective; that is, it may be enforced by the 
 mass of employees, or by trades-unions, in the 
 interest of any one employee ; but to make such 
 bargaining effectual, both sides must be respon- 
 sible. The necessity of preventing an arbitrary 
 and sudden cessation of the employment con- 
 tract on the part of the employee has already 
 impressed the public mind, and statutes are be- 
 ing passed, at least in the case of railroads and 
 other employments necessary to the public safety 
 and convenience, which prohibit employees from 
 leaving without notice at inopportune times. 
 Such statutes will be found later collected under 
 § 62, and the matter will be further discussed in 
 the case of strikes. But the withholding of 
 wages for a reasonable time as a guaranty for 
 the employee's compliance with a contract requir- 
 ing reasonable notice, such as one week, seems to 
 be the actual and proper method by which the 
 employer can protect himself, and the public as 
 well, against the injury caused by sudden breach 
 or rescission of the contract on the part of all his 
 employees simultaneously. 
 
 § 23. Money of Wage-Payments. — The Eng- 
 lish anti-truck act, passed in 1831, has been 
 copied in many of our states in laws providing 
 generally that laborers may be paid only in 
 money, not in goods or orders, even orders for 
 the payment of money. But in every state, save
 
 102 HANDBOOK TO THE LABOR LAW 
 
 Imliaua, where the law has been questioned, the 
 coiirts have held it nnconstitutional. Thus, in 
 many states the law is that all employers of labor 
 may pay only in lawful money, and not in goods 
 or orders upon company stores, or any other 
 stores, nor may (except in New Mexico) he set- 
 off money so due for goods against money due 
 for wages, even by voluntary contract of the 
 laborer.^ In others the statute is the same, 
 but it applies only to corporation employers.^ 
 In some the law applies only to certain industries, 
 such as mining ; ^ in Kansas it does not apply 
 to farmers' help ; and in Marjdand its operation 
 is made local to certain counties. In Kansas and 
 Ohio the emj)loyer may give orders on stores 
 " in which he is not interested," but in Kansas 
 only " at the solicitation of the employee." The 
 employer offending is usually made guilty of a 
 misdemeanor,^ or liable to the employee in dam- 
 
 'N. J. Sup., p. 771, § 7; Pa., 1891, 96; Ind., 7059, 
 7066; O. R. S., 7015; 111., 1891, p. 212, and W. Va., 1887, 
 31, 3 (law annulled as unconstitutional) ; Wash., 2531 ; S. C, 
 2086; N. M., 1893,26. 
 
 -N. Y., 1895, 791, 2; O., 1890, p. 78 (annulled as un- 
 constitutional) ; Md. Local Laws, 1880, 273; Ky. Const., 244 
 (as to general labor) . 
 
 ^Thus, to mining employees only (lo., 1888, 55; Ind., 
 Ky. Const., 244; 1892, 35), or manufacturing companies 
 (Ind., Ky.), or to various specified industries (N. J.). 
 
 * Pa., Ind. R. S., 7063; 0., 7015; Kan., 2441; Md., Va., 
 Wash., 2532.
 
 OF THE UNITED STATES 103 
 
 ages, or for a penalty ; ^ and contracts to the con- 
 trary are forbidden.** • 
 
 And in other states the money payment must 
 either be cash or orders in lawful money, pay- 
 able at a limited period,^ or at sight ^ (and com- 
 pare also § 22). But in several the statute ex- 
 pressly provides that checks, notes, or orders for 
 money may be given, payable at any time, 
 though in Ohio and South Carolina they must 
 be checks on a bank.^ Bank bills may, however, 
 be used, though not legal tender, with the em- 
 ployee's consent. '° 
 
 In Louisiana there is a new law, prohibiting 
 the issue of checks or tickets redeemable in 
 goods alone by any person, firm, or corporation ; 
 and such checks, etc., must be redeemed in 
 money." And a new statute in Missouri makes 
 it a misdemeanor for any person or corporation 
 to pay wages in orders, etc., not redeemable in 
 money at their face value, and not to redeem the 
 same at any time during business hom-s when 
 
 'Ind. R. S., 70G2; Wash., 2533. 
 
 6Md. Loc. L., Alleghany Co., § 185; Ind. R. S., 7071. 
 
 •N. J. Sup., p. 771, § 4; Ind., 7066; Va., 1887, 391; W. 
 Va. Code, p. 1003, § 3; Tenn., 1887, 209. It must be at a 
 fixed time, and with eight per cent, interest. Ind., 7060. 
 
 »N. J., ib.; Kan. G. S., 2441; O., 7015; Wash. 
 
 9 Ind., ih.; S. C, 2086; 0., 1890, p. 78 (annulled as un- 
 constitutional) . 
 
 '"Md. Local Laws, 1880, 273; Alleghany County, § 187. 
 
 "La., 1894, 71.
 
 104 HANDBOOK TO THE LABOU LAW 
 
 prcscntei'l,'- the class legislation principle being 
 thus avoided, as the old law was declared im- 
 constitutional on that ground (see below). '^ 
 
 Although in five states this statute has been 
 annulled as unconstitutional (see below) and the 
 decisions of other states in the case of weekly 
 payment laws '^ would seem to make it likely 
 that the courts of those states would also hold 
 this law unconstitutional, it may fairly be ques- 
 tioned whether such laws, the reasonableness, 
 even the necessity, of which have been proved by 
 more than a generation of actual trial in England, 
 do not fairly fall w'ithin the province of the police 
 regulation of government. The case seems much 
 stronger than that of weekly payments, discussed 
 in § 21 ; for by process of compelling the em- 
 ployees to trade at companies' stores and accept 
 their pay in credits, and giving them credit at 
 such stores in advance, it is easy to see that 
 they may be kept under the power or the con- 
 
 "Mo., 1895, p. 206. 
 
 '^ See § 21. So in North Carolina no person or corpora- 
 tion may issue in payment for labor orders or tickets not 
 transferable, or in any form that would render them void by 
 transfer from the person to whom issued, but all such tickets, 
 etc., shall be paid to the person holding the same their face 
 value, provided that this act only applies in certain counties. 
 N. C, 1889, 280. 
 
 In Wisconsin lumber and building corporations must give 
 employees written evidence of indebtedness when the payment 
 of their wages is deferred. Wis., 1891, 430.
 
 OF THE UNITED STATES 105 
 
 trol of the employer, unless, indeed, they are 
 willing to leave both the occupation and the 
 neighborhood entirely, which in most cases they 
 cannot do ; for these laws apply specially to 
 laborers who are generally ignorant, notably 
 miners, who are frequently newly arrived Hun- 
 garians and Poles, without education, and em- 
 ployed necessarily in places remote from towns, 
 where there may be no other source of supply 
 than company stores, and no other easy market 
 for their labor. The reason of such legislation 
 as to such classes would seem to be justified on 
 its face. (Compare §§ 4, 11.) 
 
 Nevertheless, wherever these statutes have 
 been questioned, the courts have, except in In- 
 diana, held them unconstitutional ; these states 
 being Pennsylvania, Ohio, West Virginia, Mis- 
 souri, and Illinois. The Pennsylvania act '* pro- 
 vided that all persons and companies engaged 
 in mining of any kind, or manufacturing, should 
 pay their employees weekly in cash, and not 
 in goods or otherwise. The court simply said 
 that the first four sections of the act were ut- 
 terly unconstitutional and void, " inasmuch as 
 by them an attempt has been made by the 
 legislature to do what, in this country, cannot 
 be done ; that is, prevent persons who are sui 
 juris from making their own contracts. The 
 
 '^Pa. Laws, 1881, .June 29, Dig., Ed. 1885, p. 1010.
 
 106 HANDBOOK TO THE LABOR LAW 
 
 act is an infringement alike of the right of 
 the employer and the employee ; more than 
 this, it is an insulting attempt to put the laborer 
 under a legislative tutelage, Avhich is not only 
 degrading to his manhood, but subversive of his 
 rights as a citizen of the United States. He 
 may sell his labor for what he thinks best, 
 whether money or goods, just as his employer 
 may sell his iron or coal, and any and every law 
 that proposes to prevent him from so doing is 
 an infringement of his constitutional privileges, 
 and consequently vicious and void." " 
 
 In the next cases, arising in West Virginia, 
 the statute prohibited persons engaged in min- 
 ing or manufacturing fropa issuing orders in pay- 
 ment of labor, except such as could be payable 
 in money, and from selling to their employees 
 at a gi'eater percentage of profit than to others, 
 and made violations of such jDrovisions a misde- 
 meanor. The court here seems to put the ob- 
 jection more particularly on the ground of class 
 legislation, but said : " The right to use, buy, 
 and sell property, and contract in respect there- 
 to, including contracts for labor, which is, as we 
 have seen, property, is protected by the consti- 
 tution." '• 
 
 The Illinois statute provided that it should be 
 
 '* Godcharles v. Wigeman, 113 Pa., p. 437. 
 '« State V. Goodwill, State v. Fire Creek Coal Co., 33 W. 
 Va., 179, 188; 10 S. E., 285.
 
 OF THE UNITED STATES 107 
 
 unlawful for any person or corporation engaged 
 in mining or manufacturing to keep a truck 
 store, or be interested therein, and was held un- 
 constitutional for the same reasons as in West 
 Virginia, and the court " expressly dissented 
 from Hancock v. Yadeu," which case sustained 
 the statute of Indiana requiring miners to be 
 paid in lawful money, and not in goods and mer- 
 chandise, and forbidding the making of contracts 
 to be so paid otherwise than in lawful money. 
 This case, however, was put largely on the gi'ound 
 that the standard money of the government must 
 be maintained, and that such contracts would 
 open the door to the legality of contracts for 
 payment in something else than lawful money, 
 such as gold coin. This reason is certainly fal- 
 lacious, and the whole case may be considered 
 of doubtful authority. And the weight of au- 
 thorities is further sustained in the case of State 
 V. Loomis,'" decided in the Supreme Court of 
 Missouri in 1893, upon the statute, R. S., § 7058, 
 expressly affirming Frorer v. The People, and 
 differing from Hancock v. Yaden ; and also, in 
 1894, by a case in Ohio. The Missouii statute, 
 like the Illinois statute, refen'ed to corporations 
 engaged in manufacturing and mining, and for- 
 
 >' Frorer v. People, 31 N. E., 395. 
 " 121 Ind., 366. 
 '» 22 S. W., 350.
 
 108 HANDBOOK TO TIIK LABOR LAW 
 
 bade them to issue any order iu payment of 
 wages payable otherwise than in lawful money, 
 or redeemable in goods except at the option of 
 the holder at the company's store ; the court re- 
 fusing to recognize any special state of oppres- 
 sion peculiar to mining and manufacturing labor. 
 But Barclay, J., filed a dissenting opinion, re- 
 ferring particularly to the English precedents, 
 and basing the statute expressly on the ordinary 
 police power of the legislature to interfere on 
 behalf of a weak or ignorant class when the 
 contracts in common use led to fraud. The 
 Ohio case apparently concerned only the law 
 of 1890, p. 78 ; but its reasoning would ap- 
 parently render R, S., § 7015, unconstitutional 
 as well,* 
 
 We must therefore conclude that, except, per- 
 haps, in Massachusetts, these anti-truck laws 
 are likely to be held unconstitutional. Such 
 statutes may, however, be valid when they are 
 limited only to corporation employers. (See 
 discussion of this distinction in § 21.) The legis- 
 lature of Pennsylvania, since the decision in 
 Godcharles v. Wigeman, has passed a new law 
 which applies generally to all persons or cor- 
 porations, and has not yet been passed on by 
 the coui-ts, (See above, p, 102, note 1.) 
 
 ^ Case not yet reported. See Wheeling Bridge Ry, Co. r. 
 Gilmore, 8 O. C. C, 669.
 
 OF THE UNITED STATES 109 
 
 § 24. Company Stores, etc — In line with the 
 statutes referred to in the last section, the run- 
 ning by companies or individual employers of 
 general supply stores is in some states forbidden. 
 Thus, in some, " it is unlawful for any manufact- 
 urer, firm or corporation, who own or control a 
 store for the sale of general store goods or mer- 
 chandise in connection with their manufactur- 
 ing or other business, to attempt to control their 
 employees or laborers in the purchase of store 
 goods in supplies at such stores by Avithholding 
 the payment of wages longer than the usual 
 time." ' In other states the company may have 
 such stores, but it is made a penal offence to 
 compel or coerce an employee to deal with them 
 or with any particular person or corporation.'^ 
 In other states the prohibition is only against 
 selling to employees at a higher profit than to 
 others, or than to cash customers, or at higher 
 prices than the market value ; ^ and such debts 
 are made not collectible, or (as in Ohio) the em- 
 ployee may recover back double such excess in 
 
 ' N. J. Sup., p. 772, § 12; Tonn., 1887, 155. In Maryland 
 the statute applies to railways and mines only : Md., 23, 202; 
 in Pennsylvania only to mining and manufacturing corpora- 
 tions : Pa. Dig., p. 1385. 
 
 « O., 7016; Ind. R. S., 7072, 7073, 7074; lo., 1888, .55, 2; 
 Kan. G. S., 2442 ;^Mo., 7000; Wash., 1888, 128, 2. 
 
 3 O., 701f5; Va.,* 1887, 391, 4; W. Va. Code, p. 1003, § 4 
 (annulled as unconstitutional, see § 23) ; Ind. R. S., 7061, 7067.
 
 110 HANDBOOK TO THE LABOR LAW 
 
 price.'' But in Illinois and West Virginia the 
 several cases discussed in § 23 held this stat- 
 ute, forbidding certain corporations to maintain 
 company stores, as invalid as the other, which 
 forbade the payment of wages in goods. Proba- 
 bly, therefore, such statutes are unconstitutional 
 everywhere except perhaps in some states where 
 they apply generally to all classes of corpora- 
 tions, and not to individuals. See cases cited 
 in § 23. 
 
 § 25. Payment of Piece Work ; Screen Laws, 
 etc. — Several of the states have passed statutes 
 providing generally for the fair weighing, etc., of 
 coal at mines,' or that the coal must be weighed 
 and credited to miners in determining the 
 amount of wages due them before it is screened.^ 
 The latter statute, however, has been in Illinois 
 declared unconstitutional, and the one in "West 
 Virginia will probably be so held under the de- 
 cision in State v. Goodwill ; ^ while the Colo- 
 rado Supreme Court has recently rendered the 
 
 * O., ib. 
 
 ' Pa. Dig., pp. 1341, 1312; Ind., 1891, 49; W. Va., 1891, 
 82; lo., 1888, 53; Ky., 1885, 6, 1251; Tenn., 1887, 20G; 
 Ala., 1895, 140; Mo., 7055. 
 
 -Ind., t6. 5; 111., 1887, p. 235; 1891, p. 170; Ic, 1888, 
 54; W. Va., 1891, 82; Mo., 7054; Wash., 1891, 161; N. M., 
 1889, 126. 
 
 =* 33 W. Va., 179, discussed in § 23.
 
 OF THE UNITED STATES 111 
 
 legislature an opinion to the same effect.^ There 
 have been two Illinois decisions to this effect. 
 The first in Millett v. The People,^ applying to 
 a statute passed in 1883 and amended in 1885, 
 declared void as unconstitutional such part of 
 the then statute as prohibited all contracts for 
 the mining of coal in which the weighing of 
 the coal as provided for in the act should be 
 dispensed with ; and also that the legislature 
 had not the power to require the owners of 
 coal mines to furnish scales and employ a per- 
 son to use them and keep books of entry and 
 weights for the benefit or information of the 
 public without first making compensation to 
 the owners, that being tantamount to an ap- 
 propriation to pubHc use of private property. 
 The court held that these sections could not 
 be maintained under the police power, as they 
 had no tendency to insure the personal safety 
 of a minor or to protect his property or the 
 property of others, and that the legislature 
 could not compel the owners of coal mines in 
 particular to make contracts for labor for wages 
 to be determined by weight of output, and not 
 otherwise. 
 
 And in the case of Ramsey v. The Peo- 
 ple,*' the act of 1891 was in question which pro- 
 
 * Rt House Bill, 39 Pac, 431. ' 117 HI., 294. 
 
 « 142 111., 380.
 
 112 HANDBOOK TO THE LABOPw LAW 
 
 vided that where the owner of coal mines did 
 contract for labor to be paid upon the basis of 
 the quantity of coal mined, such coal must be 
 weighed before being screened. The contracts 
 of the plaintiff made with his miners were to pay 
 them for each ton of screened coal, and it was 
 held that such contracts were legal, and the 
 statute forbidding them unconstitutional on the 
 ground that those engaged in coal mining could 
 not be singled out and subjected to restriction 
 of their power to contract as to wages, while 
 those engaged in all other classes of business 
 are left free to contract as they see fit. 
 
 The same remarks apply to these statutes as 
 to the anti-truck acts discussed in § 23. If it 
 be true that coal miners are as a class in danger 
 of being fraudulently imposed upon by their 
 employers as to the amount due them for wages 
 when paid by the ton, owing to the peculiar 
 nature of the business, it would seem that their 
 contracts for wages might reasonably be regu- 
 lated under the police power in order to prevent 
 a general fraud ; but as the decisions now stand, 
 such statutes are unconstitutional. 
 
 § 26. Labor upon Shares, Croppers, Etc. — In 
 one or two southern states there are special 
 provisions as to agricultural labor in the case 
 of farming upon shares and hke contracts, by 
 which a contract between the land owner and
 
 OF THE UNITED STATES 113 
 
 the laborer, duly put in writing and Avitnessed 
 and executed before a trial justice, whose duty 
 it shall be to read and explain the same to 
 the parties, may not be broken by either party 
 Tinder penalty of misdemeanor.' This statute 
 is notable as making the breach of an ordinary 
 contract a criminal offence, and if such statutes 
 were enacted generally, they would very mate- 
 rially change the law of strikes and boycotts. 
 (Compare sections 7, 8, 49, 55, 57.) 
 
 § 27. The Exaction of Bonds from Employees. 
 — In New Mexico, "No corporation, company, 
 firm, or individual, shall demand as a condition 
 precedent to giving employment to any person 
 or retaining such person in employment, that 
 such employee shall procure the bond or guar- 
 antee of any foreign guarantee company as an 
 indemnity to such employer against loss by the 
 act of such employee, unless such guarantee 
 company shall have a designated agent at the 
 county seat of some county in this territory." 
 (N. M., 1888-89, 30, 1.) 
 
 The example of such legislation has not been 
 followed in other states, though by the usual 
 laws no foreign insurance or guarantee company 
 can be admitted to do business in any state un- 
 til it has complied with certain restrictions. 
 
 ' S, C, 2081-2084.
 
 114 HANDBOOK TO THE LABOR LAW 
 
 § 28. Charitable Funds, Relief Societies, EtCo 
 — The institution l)y large railroad corporations 
 of charitable or relief funds has been usual in 
 England, and it has met with general approval 
 in this country. Many such funds have been 
 established, and some of them, as in the case of 
 the Pennsylvania and the Chicago, Burlington 
 and Quincy Railroads, now amount to sums 
 ranging in the millions of dollars. They have 
 generally effected an economic saving and have 
 been supposed to be beneficial to the employee 
 as insuring him against accident or physical in- 
 capacity, and to the employing company as pro- 
 tecting it against groundless suits, and especially 
 to both as tending to more cordial and perma- 
 nent relations between the company and its em- 
 ployees. Membership in such societies, or par- 
 ticipation in such funds, undoubtedly tends to 
 prevent strikes, to discourage the employees 
 from forfeiting their rights by misconduct or by 
 unreasonably leaving their employment. It has 
 been common in the constitution of such relief 
 societies to require that the members should 
 enter into contract not to sue the company in 
 the coui'ts for injuries occurring in the course of 
 their employment. But such contracts have 
 lately been held illegal,^ even although the in- 
 
 ■ Miller vs. C. B. & Q. R. R., 65 F. R., 305; C. B. & Q. 
 R. R., V. Wymore, 58 N. W., 1120. Contra, Leas vs. Peana. 
 Co., 37 N. E., 423.
 
 OF THE UNITED STATES 115 
 
 jured employee has first had recourse to the 
 relief fund and been paid out of it his full claim 
 according to its rules, and in several states 
 recent statutes have been passed forbidding em- 
 ployers to require of any person seeking em- 
 ployment as a condition or preliminary there- 
 to, that he should enter into any contract 
 whereby they shall agree to contribute to any 
 fund for charitable, social, or financial purposes f 
 or forbidding corporations to keep back wages 
 on pretence of relief or assistance to employees ^ 
 or to pay for wares, tools, etc.; or for the benefit 
 of or as a contribution to relief associations, 
 etc.;"* or for the maintenance by raih'oads of any 
 hospital, reading-room, librarj^ gymnasium or 
 restaurant.^ Compulsory insurance in any par- 
 ticular company is forbidden in Michigan by 
 a new law (1895, 209), but voluntary agreements 
 for benefit funds are allowed, and the employer 
 may deduct sums due for such from the em- 
 ployee's wages. 
 
 But on the other hand, in Massachusetts, and 
 possibly other states, there are recent statutes 
 expressly permitting the establishment of relief 
 
 « N. J., 1891, 212; Mich., 1893, 192. 
 •'' N. J., ib. 
 
 • Md., 1890, 443. (The Maryland statute applies to rail- 
 road corporations only.) Mich., ib. 2. 
 
 * Ind., 2300. (But wages may be kept back for such a 
 purpose under a written contract.)
 
 no HANDBOOK TO THE LABOR LAW 
 
 societies for employees of railroads,^ street rail- 
 way compauies,' and steamboat companies. 
 
 § 29. Company Physicians. — In Tennessee 
 there is a statute making it unlawful for manu- 
 facturers, firms, or companies to dictate to or in 
 any manner interfere with any employee or la- 
 borer in his right to select his own physician, 
 or to retain or • withhold any portion of the 
 wages due for paying a " company doctor," etc. 
 (Tenn., 1889, 259.) 
 
 •Mass., 244, 1; 1886, 195. 
 ' Mass., 1890, 191. 
 
 I
 
 OF THE UNITED STATES 117 
 
 CHAPTER III 
 
 POLITICAL PROTECTION AND LEGAL PRIVILEGES OF 
 LABORERS 
 
 § 30. General Political Rights.— By the Con- 
 stitution laborers in all states must have the 
 same political rights and liberties as any other 
 class of citizens ; and no express statutes are 
 needed to secure this. A few statutes upon the 
 subject have, however, been passed. Thus, in 
 Minnesota and Wyoming, where " Employers 
 are forbidden to require as a condition of em- 
 ployment the surrender of any right of citizen- 
 ship or to discharge candidates because of their 
 nomination for an election, or to interfere in the 
 matter of such nomination." ' 
 
 § 31. Voting — And in nearly all the states it 
 is made penal or criminal for any person, by 
 threatening to discharge an employee or to re- 
 duce his wages, or by promising to give him 
 higher wages, or otherwise, to attempt to influ- 
 ence a voter to give or withhold his vote ; ' but 
 
 1 Wy., 1893, 9; Minn., 1893, 25. 
 
 'Mass., 1894, 508, 5; Ct., 276; N. .!., 1890, 231, 71; Pa. 
 Dig., p. 480, §52; Del., 1881, 329; O., 7065; Ind., 2341;
 
 118 HANDBOOK TO THE LABOR LAAV 
 
 in Tennessee this statute applies to corporation 
 employers only. And in New York and Montana 
 political " pay envelopes " or placards are for- 
 bidden to be used by employers."^ In a few- 
 states a period of two lionrs, or reasonable time 
 to vote, is required to be given employees of 
 manufacturing, meclianical, or mercantile estab- 
 
 Mich., 9382; Wis., 4548a; W. Va., 5, 7; N. C, 2715; 
 Tenn., 1887, 208; Mon. P. C, 108; Wy., 1890, 80, 174; 
 S. C, 2552; La. R. L., 902; U. S., R. S., 5507; N. M., 
 1889, 135, 4. But in some states this statute applies only to 
 corporations : Tenn., W. Va. 
 
 * " It shall not be lawful for any employer, in paying his 
 employees the salary or wages due them, to enclose their pay 
 in ' pay envelopes ' upon which there is written or printed 
 any political mottoes, devices, or arguments containing 
 threats, express or implied, intended or calculated to influ- 
 ence the political opinions or actions of such emploj'ees. 
 Nor shall it be lawful for any employer, within ninety days 
 of general election, to put up or otherwise exhibit in his 
 factory, workshop, or other establishment or place where his 
 employees may be working, any hand-bill or placard contain- 
 ing any threat, notice, or information that in case any partic- 
 ular ticket or candidate shall be elected, work in his place or 
 establishment will cease, in whole or in part, or his establish- 
 ment be closed up, or the wages of his workmen be reduced, 
 or other threats expressed or implied, intended or calculated 
 to influence the political opinions or actions of his employees. 
 This section shall apply to corporations, as well as individ- 
 uals, and any person or corporation violating the provisions 
 of this section shall be deemed giiilty of a misdemeanor, and 
 any corporation violating this section shall forfeit its charter." 
 (N. Y. P. C, 41, c (1890, 94) ; Mon. P. C, 109.)
 
 OF THE UNITED STATES 113 
 
 lishments upon election days ; ^ and in Tennes- 
 see absence for voting is declared no violation 
 of a contract for personal service ; " and every 
 contract which will, or is designed to, keep such 
 voters away from the polls shall be void."^ In 
 many states election day is made a legal holi- 
 day ; ^ so, in New Jersey, eight hours is made a 
 full day's work upon election days.^ 
 
 § 32. Alien Labor and Contracts — By the con- 
 stitution of California, "No corporation now 
 existing or hereafter formed under the laws of 
 this state shall, after the adoption of this con- 
 stitution, employ, directly or indirectly, in any 
 capacity, any Chinese or Mongolian . . ." 
 (Cal. Const., 19, 2). This section, and sections 
 178 and 179 of the Penal Code, which were en- 
 acted to give it effect, were adjudged by the 
 Circuit Court of the United States to be in con- 
 flict with the treaty of the United States with 
 China, and to be therefore void (see " in re 
 Tiburcio Parrot, 1 F. R., 481"); and this deci- 
 
 "Mass., 1894, 508, 4; N. Y., 1892, 680, 113; O., 1890, p. 
 280; Ind., 2341. 
 
 'Tenn., 1039. 
 
 'N. Y., Pa., Wis., Md., Mo., Tex., Cal., Ore., Dak., Ida., 
 Mon., S. C, Fla., Ariz. ' But qucere as to whether these 
 statutes apply to industrial labor. See Stimson's Am. Stat. 
 Law, §§ 4134, 4727. 
 
 «N. J., p. 368, §177.
 
 120 HANDBOOK TO THE LABOR LAW 
 
 sion would probably also annul similar laws 
 in Nevada (Nev., 4764-4766, 4948-4949. See 
 Note 6). 
 
 This is the only attempt that has been made 
 to prohibit by statute the employment of aliens 
 in private employments. But in several states it 
 is forbidden to employ Chinese ' or aliens ^ upon 
 state, municipal, or public works (in California, 
 Wyoming, Idaho, by the Constitution), and such 
 work can be given only to United States citi- 
 zens ; ^ or in New York, as to stone-cutting work, 
 only to citizens of that state,^ while in all cases 
 " preference " is to be given to such citizens. 
 And in New York it was made a criminal offence 
 for a contractor on public work to employ an 
 alien ; but this statute has been declared uncon- 
 stitutional, besides being in violation of our 
 treaty with Italy.^ 
 
 There are further specific provisions in Cali- 
 fornia and Nevada restricting the immigration 
 and labor rights of Chinese and Mongolians, but 
 
 ' Cal. Const., 19, 3; Nev., 4947; Ida., 1891, p. 233. Ex- 
 cept, in California and Idaho, as a punishment for crime. 
 
 ='N. Y., 1874, 622; 111., 1889, p. 2; Ida. Const., 13, 5; 
 Wy. Const., 19, 1. 
 
 »N. Y., 111., Ida. 
 
 •N. Y., 1894, 277; 1889, 380, 2. 
 
 'N. Y., 1870, 385, §2; 1894,622; People f. Warren, 34 
 N. Y. Sup., 942.
 
 OF THE UNITED STATES 121 
 
 they are probably inconsistent with federal law 
 and treaties.'' 
 
 ° " The presence of foreigners ineligible to become citizens 
 of the United States is declared to be dangerous to the well- 
 being of the state, and the legislature shall discourage their 
 immigration by all the means within its power. Asiatic coolie- 
 ism is a form of human slavery, and is forever prohibited in 
 this state, and all contracts for coolie labor shall be void. 
 All companies or corporations, whether formed in this coun- 
 try or any foreign country, for the importation of such labor, 
 shall be subject to such penalties as the legislature may pre- 
 scribe. The legislature shall delegate all necessary power to 
 the incorporated cities and towns of this state for the removal 
 of Chinese without the limits of such cities and towns, or for 
 their location within prescribed portions of those limits, and it 
 shall also provide the necessary legislation to prohibit the in- 
 troduction into this state of Chinese after the adoption of 
 this constitution. This section shall be enforced by appro- 
 priate legislation." Cal. Const., Art. 19, § 4. 
 
 "No supplies of any kind or character, ' for the benefit of 
 the state, or to be paid for by any moneys appropriated or to 
 be appropriated by the state,' manufactured or grown in this 
 state, which are in whole or in part the product of Mongolian 
 labor, shall be purchased by the officials for the state having 
 the control of any public institution under the control of the 
 state, or of any county, city and county, city, or town there- 
 of." Cal. Pol. Code, § 3235. 
 
 "Preamble. — Whereas^ all Chinese who come to this 
 coast arrive here under a contract to labor for a term of 
 years, and are bound by such contract, not only by the super- 
 stitions of their peculiar religions, but by leaving their blood 
 relations, fathers, mothers, sisters, brothers, or cousins, as 
 hostages in China for the fulfilment of their part of the con- 
 tract; and, whereas, such slave labor and involuntary servi- 
 tude is opposed to the genius of our institutions, opposed to 
 the prevailing spirit of the age, as well as to humanity and
 
 122 HANDBOOK TO THE LABOli LAW 
 
 Alien Contract Laios. — In Indiana, it is made 
 unlawful for any person or corporation to trans- 
 port, or assist, or pay for the transportation of 
 aliens into the state under contract, express or 
 
 Christianity, and degrades the dignity of labor, which is the 
 foundation of ropnbliuan institutions; and, whereas, section 
 17 of Artick^ 1 of tiie constitution of the state of Nevada 
 roads as follows : Neither slavery, nor involuntary servitude, 
 unless for the punishment of crimes, shall ever be tolerated 
 in this state ; " therefore, 
 
 The people of the state of Nevada .... do enact 
 as follows : 
 
 The immigration to this state of all slaves and other people 
 bound by contract to involuntary servitude for a term of 
 years, is hereby prohibited. 
 
 It shall be unlawful for any company, person, or persons, 
 to collect the wages or compensation for the labor of the per- 
 sons described in the first section of this act. 
 
 It shall be unlawful for any corporation, company, person, 
 or persons, to pay to any owner, or agent of the owner of 
 any such persons mentioned in section 1 of this act, any 
 wages or compensation for the labor of such slaves, or per- 
 sons so bound by said contract to involuntary servitude. 
 
 Any violation of any of the provisions of this act shall be 
 deemed a misdemeanor." Nev., 4764-4767. 
 
 " Hereafter no right of way or charter, or other privileges 
 for the construction of any public works by any railroad or 
 other corporation or association shall be granted to such cor- 
 poration or association, except upon the express condition 
 that no Mongolian or Chinese shall be employed on or about 
 the construction of such work in any capacity. 
 
 Any violation of the conditions of this act shall work a 
 forfeiture of all rights, privileges, and franchise granted to 
 such corporation or association. Nev., 4948-4949.
 
 OF THE UNITED STATES 123 
 
 implied, to labor, and such contracts are void.''' 
 But compare the (U. S., 1885, ch. 164) federal 
 law, which forbids such assistance and annuls 
 such contracts in toto, and hence overrides this 
 and similar statutes of the states regulating or 
 allowing such contracts ; as, in Wyoming, not 
 exceeding six months, or, in Virginia, two years.^ 
 
 § 33. Special Privileges of the G. A. R — There 
 are in many states recent statutes specially giv- 
 ing preference of work to members of the G. A. 
 R., or exempting them from the operation of 
 civil service laws, or giving to them or the Sons 
 of Veterans special educational or eleemosynary 
 privileges. Thus, in many states discharged 
 soldiers or sailors are to be 'preferred in all pub- 
 lic works by or in behalf of the state or munici- 
 palities thereof,' but only provided they possess 
 the other requisite qualifications ; or, in Massa- 
 chusetts, if they have passed the civil service 
 examination. So, the widows and orphans of 
 deceased soldiers and sailors may not be dis- 
 charged.^ 
 
 The new constitution of New York provides 
 for such a preference ; and that all examinations 
 
 ' Ind. K. S., 7079, 7080. 
 
 8 Va. Code, 6, 44 ; Wy., 1075-1077. 
 
 "Pa., 1887, 132; Ct., 1889, 124; N. Y., 1887, 464; O., 
 1888, p. 149; R. S., 8209-16; Minn., 8041; Kan., 5927, 
 5928 ; Dak., 1887, 205 ; Mass., 895, 501. « Kan., 5928.
 
 124 HANDBOOK TO TlIK LAKOK LAW 
 
 shall be competitive "so far as practicable;" 
 aud uuder it the act of 1895, chap. 344, provid- 
 ing that competitive examination shall not be 
 deemed practicable or necessary in cases Avhen 
 the pay of the office does not exceed $4 per day, 
 has been held constitutional in a lower court.^ 
 
 § 34. Attachment of Wages. — Laborers are gen- 
 erally protected by laws prohibiting the attach- 
 ment, by garnishment or trustee process, of 
 debts due them or their wives and children for 
 wages or personal service. In some states such 
 wage debts are exempt to any amount ; ' in others 
 the amount exempt is limited to $50 or $100,^ 
 or to one month, or 60 days' wages.^ And in a 
 
 3 Re Keymer, 12; Misc. (N. Y.), 615. 
 
 ' Fa. Dig., p. 836, 49; Del., v. 15, 185; Tex. Const., 16, 
 28; Ala., 2512; Ga., 3554; Fla., 2008; Okla., 2846. But 
 at a rate not exceeding §25 a month (Ala.), .§100 (D. C). 
 
 5 Thus, $20 : Mass., 183, 30 ; $25 : Minn., 1889, 204 ; 
 Mich., 8032, 8096 ; $30 : Tenn., 2931 ; Col., 1889, p. 463 ; 
 ^50: Ct., 1231; 111., 62, 14; Ky., 1894, 92; Va., 3652; 
 Nev., 3267 ; $100 : Md., 9, 32 ; Wy., 2831.. 
 
 ''Thirty days or one month's wages only are exempt: lo. 
 463; Ind., 971; Minn., Mo., 5220; Nev.; Ky. ; Cal. C. P. 
 690 (7); Ore., C. P., 313; Col.; Ida., C. C. P., 4470 ; Ga. 
 Ariz., 4, 97. So 60 days' wages only ; Neb. C. C. P., 531a 
 Ark., 3717 ; D. C. (U. S.), 1878, 321 ; Dak., C. C. P., 371 
 S. C, C. C. P., 317. 90 days: lo., 4299; Kan., 5012; N 
 M., 1887, 37, 1. One half the debtor's wages only are ex 
 empt for 30 (Col.) or 60 days (Uta.) preceding; Col., 1889
 
 OF THE UNITED STATES 125 
 
 few of these states an exception is made of 
 claims for necessaries furnished the debtor or 
 his family.^ 
 
 In some states the exemption only exists 
 when the debtor is a householder having a fam- 
 ily,^ or is head of a family,*' or when the wages 
 thus exempted are necessary for the support of 
 his family.^ 
 
 The wages of the debtor's wife and children, 
 or family, are also exempt in like manner re- 
 spectively in several states.^ 
 
 No assignment of wages is valid against the 
 employer unless he has actual notice thereof ; ^ 
 or it is recorded in the town clerk's office (or 
 register of deeds) where the assignor resides.'" 
 
 The constitutionality of such statutes ap- 
 pears never to have been raised ; the right to 
 attachment is not a common law but a statutory 
 right ; but the exempting of certain debts from 
 attachment appears to savor somewhat of class 
 legislation. It is probably justified as ordinary 
 exemptions are justified (see § 35). 
 
 p. 463; Uta., 3429. Twenty dollars are exempt unless the 
 suit is for necessaries ; in that case ten dollars ; Mass., 183,30. 
 
 * Mass., Ky., Cal., Ga. 
 
 ' Va. » D. C, Fla., 111., Col., Mo. 
 
 ' Cal., Col., Utah., Ida., Ariz., S. C, Dak., Kan., Wy., Ore. 
 
 « Mass., 183, 29 ; Ct., Vt., 1075 ; Mich., 8096; Minn., lo., 
 4299 ; N. M. 
 
 8 Me., 1891, 73. loMass., 183, 37; R. I., 1884, 458.
 
 126 HANDBOOK TO THE LABOR LAW 
 
 In Wyoiniug there is a new statute (1895, 47) 
 making it unlawful for any creditor or holder of 
 any debt, book account, or claim against any 
 laborer, servant, clerk, or employee of any cor- 
 poration, firm, or individual in the state to sell, 
 assign, or dispose of such claim, etc., to any 
 person, iii'm, or corporation, or to institute else- 
 where than in the state, or prosecute any suit 
 for such claim against such laborer, etc., by any 
 process seeking to attach the wages of such per- 
 son earned within sixty days prior to the com- 
 mencement of such proceedings for the purpose 
 of avoiding the effect of the laws of "Wyoming 
 concerning exemptions, and it is made unlawful 
 for any person to aid, assist, abet, or counsel a 
 violation of this act. Proof of the institution of 
 such suit or service of garnishment by any per- 
 son, firm, or individual in any court of any state 
 or territory other than in Wyoming, is declared 
 prima facie evidence of such evasion of the law 
 of Wyoming, and such persons may be made 
 liable to the parties injured for the amount of 
 the debt so sold or assigned and an attorney's 
 fee. The constitutionality of this amazing stat- 
 ute may, perhaps, be questioned. 
 
 § 35. Ordinary Exemptions not Valid against 
 Labor Debts. — By the constitution of Virginia, 
 and the statutes of a few other states, no prop- 
 erty is exempt from attachment or execution
 
 OF THE UNITED STATES 127 
 
 for wages due any clerk, mechanic, laborer, or 
 servant,^ or no stay is granted upon such claims.^ 
 
 And the ordinary exemptions of personal 
 property from execution are much restricted 
 in tlie case of judgments obtained for labor or 
 services other than professional.^ 
 
 The constitutionality of such statutes will be 
 discussed in § 36. The New York law, applying 
 only to female creditors, is subject to special 
 criticism ; see § 13. 
 
 § 36. Preference or Priority of Wage Debts 
 
 And further, the state laws very generally give a 
 claim either absolutely preferred, or preferred 
 after taxes, state or government dues, and costs, 
 to servants, laborers and employees, and in some 
 cases clerks, for debts due for wages or salaries, 
 above all other claims against the estate of an 
 insolvent person,' or an insolvent corporation or 
 
 ' Va. Const., 11, 1; Code, 3630; New York city, N. Y.. 
 1882, 410, 1086 (as to females, only, up to $50) ; Mich., 7091 ; 
 Mo., 4910; Kan., C. L., 1885, 2G60; Neb. C. C. P., 531; 
 Okla., 2848. But the amount of the claim is sometimes 
 limited ; as, in Michigan, $25, in New York, .$50, in Mis- 
 souri, $90. The ordinary exemption may be claimed against 
 labor debts of a greater amount. 
 
 •■' Mich., 7091 a. 
 
 « Mich., 7717 a-7717f. 
 
 ' N.H., 201, 32; Vt.,2148; R. I., 237, 14; 1885,497; Ct., 
 514; Mass., 137, 1; 157, 104; N. Y. R. S., p. 2542; 1885, 
 376; 1886, 283; 1895, 899; Pa. Dig., p. 140, § 4; 1891, 46;
 
 128 HANDBOOK TO THE LABOR LAW 
 
 its receiver,^ or the estate of a deceased insol- 
 vent.^ Such preference is usually given to claims 
 not exceeding a fixed amount/ or for wages due 
 for not more than a limited time.^ But in the 
 case of a receivership, there appears to be no 
 such limitation, iu Indiana.*^ 
 
 And in some states a lien is given to all la- 
 borers for amounts due from a corporation up 
 to the time of the act of insolvency upon all the 
 assets of the company, which is paid prior to any 
 other debt, and such lien is given to all work- 
 men or employees, or claimants for labor or ser- 
 vices whether in the actual employ of the cor- 
 
 N. J., p. 38, 8; Ind., 7051; Mich. 8749 m; 111., 72, 42; 1887, 
 p. 308; Wis., 1693 c; Del., 1879, 147; lo., 1890, 48; Minn., 
 6256; Neb., 6, 44; Mo., 4911; Cal., 1204-5; Nev., 3829; 
 Ore., 1893, p. 30; Col., 1885, p. 48, 25; Wash., 3122; Wy., 
 1893, 15; Mon. C. C. P., 2150; Utah, 1892, 30; La , 3191; 
 Ariz., 1889, 10. 
 
 «N. Y., 711, 1887, p. 308; Mo., 2538; lo., Pa., Minn., 
 6254; Ore., Nev., Mon., Utah. 
 
 = Mas8.; Minn., 6256; Cal.; Nev., 3830; Wash., 3123; 
 Mon. ; Ala., 2079 ; La. ; Mo., 183. 
 
 * Such as $50 (Del., N. H., Vt., Ind., Col.) ; #100 (Ct., 
 R. I., Mo., Mass., Pa., Neb., Ariz., Cal., Wash., lo.); $200 
 (Pa., 1891, 46; Minn., Nev., Mon., Ariz.); $300 (N. J.). 
 
 * In others the amount is not limited (N. Y., Utah, Mich., 
 Wis., Wy., Ore.). For a time not exceeding one month 
 (Del.) ; sixty days (Cal., Wash., Ariz., Mon.) ; three months 
 (Wy., Nev., Wis., lo., Ct., 111.) ; six months (N. H., Vt., 
 Ind., Minn., Col., R. I., Mo., Ore., Uta.) ; nine months 
 (Neb.); twelve months (Mass., Ala., La.). 
 
 •R. S., 7058.
 
 OF THE UNITED STATES 129 
 
 poration at the time of the insolvency or not.' 
 So, in New Jersey, whenever a receiver is ap- 
 pointed in a suit at law or equity, to take pos- 
 session of property of any manufacturer, etc., 
 and wages are due, the chancellor may order a 
 sale of the property to pay the same without 
 delay, or so much of it as may be necessary.^ 
 
 And the statute is not unusual that claims for 
 labor done on railroads, or liabilities to con- 
 tractors for construction, laborers, etc., take pre- 
 cedence of any mortgage before or after created.' 
 And, in Pennsylvania, and any assignment or 
 conveyance of the real or personal estate of said 
 company without the written assent of such 
 creditors first obtained is declared fraudulent 
 and void. And in New Jersey no attachment or 
 execution may be made on the property of any 
 manufacturer or other person unless all claims 
 due for labor, not exceeding one month's wages, 
 are first paid.'" 
 
 'N.J. Rev., p. 188, § 63; 1887, 71; Minn., 6254; Del., 
 1883, 147, 38. « N. J. Sup., p. 770, § 1. 
 
 »Pa. Dig., p. 139, § 1; Ky. G. S., 70, 3, 1; and so of 
 manufactories, etc., in Kentucky. In Garrett County, Mary- 
 land, if any individual engaged in mining or manufacturing, 
 or any corporation whatever, is indebted for thirty days to 
 employees, or to furnishers of raw material in the aggregate 
 sum of twenty-five dollars, and neglects or refuses to pay the 
 same, the circuit court may. upon petition of any such em- 
 ployee or material man appoint a receiver : — Md. Local Laws, 
 1888 (Garrett Co.), 145. "N. J. Rev., p. 749, § 1. 
 
 9
 
 130 HANDBOOK TO THE LABOR LAW 
 
 The constitutiouality of such statutes as the 
 above has rarely been brought into question, but 
 must probably rest either on the police power 
 (^ 4) or on the precedent of the bankruptcy 
 act. They do not "impair the obligation of 
 contracts " (see § 2), because all contracts, in- 
 cluding those of other creditors, may be con- 
 sidered as entered into with reference to these 
 laws. They have been upheld in the case of 
 mortgages of coal mines, where a statute gave 
 laborers a superior claim, the mortgage being 
 made after the statute;" and in the case of a 
 statute giving preference to labor creditors over 
 the ordinar}^ creditors of a corporation,'* Still it 
 is difficult to see Avhy they are not class legisla- 
 tion, however justifiable morally. 
 
 § 37. Stockholders Specially Liable for Wage 
 Debts. — Besides the ordinary provisions of law 
 making stockholders personally liable for the 
 debts of corporations in certain cases, Michigan 
 has a constitutional jorovision, and several states 
 have passed express statutes, making them in all 
 cases individually liable for debts of the cor- 
 poration due for labor or personal ser\dces.' In 
 
 >i Warren v. Solen, 112 Ind., 213. 
 
 "Ripley V. Evans, 87 Mich., 217. 
 
 'Mass., 106, 61; N. Y., 1892, 688, 54; Pa., 1854,4385, 
 1874, 10, 11; Mich. Const., 15,7; Wis., 1769; N. C, 1940; 
 Okla., 1074.
 
 OF THE UNITED STATES 131 
 
 some states each stockholder is jointly and sev- 
 erally liable therefor- to any extent,^ in others 
 only to an amount equal to the par value of his 
 stock.^ In most cases a demand must first be 
 made/ or suit brought,^ against the corporation. 
 In some states the law applies only to railroads ^ 
 or manufacturing corporations,'^ mining compa- 
 nies,^ and other specified classes of corporations.' 
 
 Of the constitutionality of such statutes there 
 can be no doubt, except perhaps in states where 
 the constitution forbids the amendment of cor- 
 porate charters by special law. Compare § 11. 
 
 In New York stockholders of any corporation 
 are jointly and severally liable personally for 
 debts due laborers, servants, or employees, after 
 written notice by such employee given within 
 thirty days after termination of such services, 
 and action brought within thirty days after the 
 return of an execution unsatisfied against a cor- 
 poration. Executors and trustees are not so 
 liable, unless they voluntarily invested them- 
 selves in the stock.'" 
 
 ^ Mass., N. Y., N. C, Okla. But not for an amount due 
 for services rendered more than six months before : Mass., 
 Pa. (in mfg. co's). So, for thirty days' wages, only (N. C), 
 or six months (Wis.). 
 
 ^ Pa. Dig., p. 423, 99 (of general corporations) ; Wis. 
 
 * Mass., N. Y. " Pa.. N. Y., N. C, Okla. 
 
 "N. C. "I Pa., Mass., Okla. 
 
 8 Pa., Okla. » Mass. 
 
 "N. Y., 1890, 564, 57; 1892, 688, 54.
 
 132 HANDBOOK TO THE LABOR LAW 
 
 § 38. Insurance and Beneficiary Funds Exempt 
 to Laborers. —There are frequent provisions in 
 the various states providing that life insurance 
 moneys shall go to the widow or children free 
 of the claims of creditors.' And in some states 
 there are similar provisions relating to benefi- 
 ciary funds paid over by benefit societies, etc., 
 not exceeding the sum of five thousand dollars, 
 or a similar amount.^ 
 
 § 39. Other Legal Privileges of Laborers, Etc. — 
 Suitors for money due for personal service have 
 in several states special privileges in the courts. 
 Thus in some states action for wages " shall be 
 first in order for trial," ' no security for costs is 
 required,^ additional costs may be recovered,^ 
 no court fees at all required,'* no stay of execu- 
 
 ' See, particularly, S. D., 1890, 86, 45; Fla., 2347, whereby 
 any sum is so free if insured to the widow or children. In 
 Mississippi $5,000 is free, though the policy be in the name 
 of the executor, Miss., 1965, or $10,000 to the insured, Miss., 
 1966. 
 
 *Any amount is so declared free, Minn., 1885, 184, 17; 
 $5,000, Minn., G. S., 34, 369; any amount up to $250 an- 
 nual premium, Ida., 4480. 
 
 'O., 5134. 
 ■ •■'Wis., 3783a; Mich., 7717e. 
 
 ^ As to female employees others than domestic servants : 
 N. Y., 1882, 410, 1424 (in New York City) ; C. C. P., 3131 
 (in Brooklyn). 
 
 * In suits for less than $50 in New York City : N. Y., 1882, 
 410, 1416.
 
 OF THE UNITED STATES 133 
 
 tion allowed,^ or a special attorney's fee re- 
 covered.^ 
 
 The constitutionality of such class legislation 
 may in some states be open to question. It 
 was denied in Michigan and Ohio as to extra 
 attorney's fees," but sustained in Michigan as to 
 dispensing with security for costs in cases of 
 claims for labor.* 
 
 And in Michigan, where there is a stringent 
 law against trusts, there is a special exception 
 that this anti-trust act shall not apply to con- 
 tracts and combinations relating to the services 
 of laborers or artisans who are formed into so- 
 cieties or organizations for the benefit and pro- 
 tection of their members.^ See in section 54. 
 
 § 40. Prison Labor has lately been forbidden 
 or regulated in many of the states, in the in- 
 terest of the labor class ; while in others it is 
 expressly authorized. In some it may be leased 
 or hired out indefinitely, in others only within 
 the prison walls, in others only in certain pre- 
 scribed occupations. 
 
 Thus the New York constitution provides that 
 
 'Mich., 7001a; lo., 3063. 
 'Mich., 7091a. 
 
 'Chair Co. v. Runnels, 77 Mich., Ill; Hocking V. C. Co. 
 V. Rosser, 41 N. E., 263. 
 
 * Jones V. Shiawassee Circuit Judge, 63 N. W., 976. 
 •Mich., 93540.
 
 134 HANDBOOK TO THE LABOR LAW 
 
 the legislature shall provide for the occupation 
 and employmeut of prisoners, but that on and 
 after January 1, 18J)7, no prisoner shall be 
 allowed to work at any trade or occupation 
 wherein the product or profit of his Avork is 
 farmed out, contracted, or sold to any person or 
 corporation, although the legislature may provide 
 that convicts may work for, and the products of 
 their labor be disposed of to, the state, or any 
 political division thereof, or for any public insti- 
 tution owned or managed by the state, or any 
 political division thereof.' 
 
 The Michigan constitution, that no mechani- 
 cal trades are to be taught to convicts except 
 those of which the chief supply for home con- 
 sumption is imported from outside the state.^ 
 
 The Idaho constitution, that all labor of con- 
 victs confined in the state's prison shall be done 
 within the prison grounds, except where the 
 work is done on public works under the direct 
 control of the State.^ 
 
 The California and Washington constitutions, 
 that " the labor of convicts shall not be let out 
 by contract to any person, copartnership, com- 
 pany, or corporation, and the legislature shall by 
 law provide for the working of convicts for the 
 benefit of the state. " ^ 
 
 ' N. Y. Const., 3, 29. *Mich. Const., 1, 38. 
 
 3 Ida. Const., 13, 3. 
 
 <Cal. Const., 10, 6; Wash. Const., 2, 29.
 
 OF THE UNITED STATES 135 
 
 The Montana constitution, to the same eflfect.' 
 
 By that of North Carolina,^ " convict labor 
 may be employed on public works or highways 
 or other labor for public benefit, and may be 
 farmed out as provided by law, but no convict 
 shall be farmed out who has been sentenced for 
 murder, manslaughter, rape, or arson." 
 
 Where the statutes are silent, prison labor is 
 of coui'se legal, and many states have laAvs re- 
 quiring it ; ^ and so, commonly, as to tramps, for 
 a short sentence, or even for one night.^ 
 
 But by statute of many states prison labor 
 may not be leased or hired outside the state pris- 
 on or penitentiary.^ In others no contract may 
 be made for prison labor at all.'*^ While in many 
 
 «Mon. Const., 18, 2. 
 
 «N. C. Const., 11, 1. 
 
 'N. H., 182, 14; 283, 3; 285, 1; Mass., 1884, 255, 28; 
 Me., 140, 2 ; Vt., 4349 ; Pa. Dig., p. 1076 ; Del., 133, 6 ; Md., 
 27, 315; O., 6801; Ind., 8218; 111., 108, 19; Mich., 9697; 
 Wis., 4938; Minn., 1889, 255, 2; lo., 6136; Kan., 6442; 
 Neb., 519; Va., 4125; W. Va., 163,26a; Ky., 85, 2, 13; N. 
 C, 3431; Tenn., 6366; Mo., 7232; Ark., 5500; Cal. P. C, 
 1590; Ore., 3862; Nev., 1405 ; 1887, 91 ; Col., 937 ; Ida. C, 
 13, 3 ; Wy., 3377 ; S. C, 2710 ; Ga., 4310 ; Ala., 4563 ; Miss., 
 3201 ; La., 2855 ; Tex., 3560 ; Fla., 3057 ; N. M., 479 ; Ariz., 
 2424 ; Dak., Pol. C. App., 53, 9. 
 
 « Me., 1889, 288. 
 
 • Minn., t6., 7, 8 ; Wis., 4938 ; Kan., 6440; Mo., 7238; 
 Ariz., 2424 ; Ore., 3864 ; Ida., Dak., Pol. C. App., 53 ; La., 
 Miss. ; and so in other states of convicts for murder, rape, or 
 arson ; Tenn., 6367; N. C, S. C. 
 
 '"Mass., 1887, 447 ; N. J. Sup., p. 969, 17, 18, 21; Del.;
 
 1H6 HANDBOOK TO THE LABOR LAW 
 
 contracts are expressly authorized," or even 
 leases imtsiile the prison walls. ''^ In others, pris- 
 on labor outside the walls may be employed by 
 the state, or by counties or towns," or by rail- 
 way, or other specified corporations,'* or in spe- 
 cified occupations, such as work on the roads,'' 
 railroads," coal mines," or tramps at breaking 
 stone only." 
 
 Contracts for prison labor are often limited 
 to a certain period ; that is, they are prohibited 
 for a longer time than two," four," five,°' ten," or 
 twenty " years, and the time of labor may not 
 exceed eight " or ten hours a day."' 
 
 Pa. Dig., 1661 ; O., 7388-58 ; Minn., ib.", 7 ; Col., 1887, p. 232 ; 
 Ga., 4310 ; Wy., 33729 ; U. S., 1887, 213 ; except on the 
 " piece " or " process " plan, N. J., O., Minn. 
 
 " Vt. ; R. I., 254, 10 ; Ind., 111. ; Mich., 9709; Kan., 6440; 
 Neb., Va., W. Va., Ky., Tenn., Ark., Nev., Dak., ib. ; Tex., 
 3572; S. C, 1885, 64; Fla., 3065 ; N. M., Ariz., 2424. 
 
 '«Ind., Mich., 9709; Neb., Md., W. Va., Ky., Tenn., 
 Ark., Tex., 3577, 3604; Nev., 1406; S. C, 2729; Ga., 
 4813 (a) ; Ala., 4595 ; Miss., Fla., N. M., 488; Ariz. 
 
 >3Io., 6137 ; O., 6801; Va., 4133; W. Va., N. C, Col., 
 S. C, 1885, 64; Tex., 3591 ; Ida. 
 
 "N. C, 3433 ; 1889, 314; A^a., 4136. 
 
 "Wy., 3374; lo., 6137. »«Va., 4136. 
 
 " Ark. '8 Me. 
 
 " Two years ; N. M., Mich., Minn., 7497. =° Fla., 3065. 
 
 «' O., Nev., Dak., Pol. C, p. 710 ; Vt. 
 
 ''•^Ky., Mo., Kan., 6442 ; Ore. '^Qa. 
 
 **Minn., lo. Eight hours in winter, ten in summer; 
 Mo., 7214. 
 
 "Kan., 6446; W. Va., Tenn., Ore., Kan., Fla., 3033.
 
 OF THE UNITED STATES 137 
 
 In states where prison labor is authorized only 
 in the gaol limits, it is frequently subject to 
 strict limitation by law. Thus it is usually to be 
 employed, so far as practicable, upon industries 
 which do not exist outside in the state,^*' or so as 
 to compete as little as possible with free labor.^^ 
 So far as possible, prison labor is to be devoted 
 to the manufacture of articles for the use of the 
 state and county institutions ; ^ and in some the 
 labor is to be of the hardest and most servile 
 kind,'^ in others only so much as may be neces- 
 sary for the prisoners' health.^ And in some 
 states no machinery may be used not propelled 
 by hand or foot power.^^ There is a recent statute 
 in several states requiring that all prison -made 
 goods must be so labelled ; *^ but this law ap- 
 plies (except in Maine) only to goods made out 
 of the state,^ and was therefore, in New York, 
 declared unconstitutional.^^ 
 
 So, " It shall be unlawful for the state, its offi- 
 
 «Me., 1887, 149; Col., 1889, p. 427. 
 
 " Ct., 3355 ; Mass., 1887, 447 ; 1888, 403 ; Ga., 4310 ; Wy., 
 3375 ; Minn., 1889, 255. 
 
 '8 Mass., O., Minn., N. J. Sup., p. 969, §21. 
 
 "D. C, 1126. 
 
 ^'Wy., 3375. 
 
 ^' Mass. 
 
 3- Me., 1887, 149 ; N. Y., 1887, 323 ; N. J., 1887, 176; 
 Pa. Dig., p. 1661 ; Ind., 1895, 162. 
 
 "0., 1888, 92; N. Y., 1894, 698 ; Ind., ib. 
 
 "* People V. Hawkins, 32 N. Y. Sup., 524.
 
 138 IIAXDROOK TO THE LABOR LAW 
 
 cers or represeutatives, or any county, city, or 
 town, ov their officers or representatives, to 
 knowingly bring into the state, or cause to be 
 brought into the state, any material for use in 
 the erection of or repairing of, any public build- 
 ing, the labor in preparing which or any part 
 of which has been performed by convicts. " ^^ 
 
 And in Indiana, no person can sell convict- 
 made goods without a license ; and there are 
 other elaborate provisions for returns and regu- 
 lations. 
 
 No person confined in any penitentiary, or 
 other place for confinement of offenders, under 
 the control of the state, shall be employed in or 
 about the manufacture or preparation of any 
 drugs, medicines, food or food material, cigars 
 or tobacco, or any preparation thereof, pipes, 
 chewing-gum, or any other article or thing used 
 for eating, drinking, chewing, or smoking, or for 
 any other use within or through the mouth of 
 any human being. ^ 
 
 § 41. Industrial Education — The apprentic- 
 ing of minors is regulated in all the states ; but 
 most of the statutes upon this subject are old 
 laws, as the practice has generally fallen into dis- 
 use. See, however, Ala., 1890, 51. For refer- 
 
 '*Col., 1887, 232, 3. 
 »' Ct.. 1895. 153.
 
 OF THE UNITED STATES 139 
 
 ences to the statutes, see Vol. I., Stimson's Am. 
 Stat. Law, Art. 666. The enticement and har- 
 boring of apprentices is sometimes forbidden 
 by more recent statutes. Compare § 5.^ 
 
 Provision is now made in many of the states 
 for industrial training, or the teaching of manual 
 arts in the public schools.^ 
 
 In New Jersey and New York provision is 
 made for free lectures to working j)eople on nat- 
 ural science and kindred subjects, and the pur- 
 chase of books, stationery, charts, and other 
 things necessary. These lectures are given in 
 New York in the evening in public school-houses, 
 one at least in each ward.^ 
 
 In Pennsylvania special legislative encourage- 
 ment is given to the Pennsylvania Museum and 
 School of Industrial Art, which is declared to be 
 the only institution of its kind in the United 
 States.^ 
 
 ' See Md., 1890, 811. 
 
 - For special statutes upon this subject, see N. J., 1887, 
 173; 1888, 38; 1895, 294; Ct., 2118; N. Y., 1888, 334; O., 
 1887, P., 92; lo., 1621; 1874, 64; Ga., 1273; 1885, 423; Wy., 
 1895, 88. In other states it is provided for in many cases 
 by the general school law. 
 
 3 N. Y., 1888, 545; N. J., 1895, 48. 
 
 * Pa., 1888, 88.
 
 140 HANDBOOK TO THE LABOR LAW 
 
 CHAPTEK IV 
 
 PROFIT-SHARING, CO-OPERATION, AND LABORERS* 
 STOCK 
 
 § 42. Co-operative Associations. — The consti- 
 tution of Wyoming provides that the legislatui'e 
 shall provide by suitable legislation for the or- 
 ganization of mutual and co-operative associa- 
 tions or coi-porations.^ 
 
 The laws of several states provide for co- 
 operative associations to carry on any ordinary 
 manufacturing or distributive business. Of 
 these the statutes of Massachusetts, Connecticut, 
 New Jersey, and Minnesota are somewhat simi- 
 lar.^ They provide that seven or more persons 
 may associate themselves with a capital between 
 $1,000 and $100,000 (in Ct. $50,000) for the pur- 
 pose of carrying on any mechanical, mining, 
 manufacturing, agricultural, quarrying, or print- 
 ing business, etc. Such corporations must dis- 
 tribute their profits and earnings among their 
 workmen, purchasers, and stockholders at cer- 
 
 ' Wy. Const., Art. 10, § 10. 
 
 ' Mass., 106, 9, 72 & 73; Ct., 1895-1904; N. J. Sup., p. 
 138; Minn. G. S., 34, 155, 165.
 
 OF THE UNITED STATES 141 
 
 tain times and in such manner as prescribed by 
 their by-laws, but at least (except in Connecti- 
 cut) as often as once in twelve months. Except 
 in New Jersey, no person may hold shares in 
 such co-ojDerative association to an amount ex- 
 ceeding $1,000 at their par value ; and in all states 
 no stockholder is entitled to more than one vote 
 on any subject, and this provision is commonly 
 followed in all such statutes. In Massachu- 
 setts, Connecticut, and New Jersey no distribu- 
 tion of profits can be made until at least ten per 
 cent, (in New Jersey 5 per cent.) of the net prof- 
 its has been appropriated for a sinking fund, 
 until there has been accumulated a sum equal to 
 thirty per cent, (in Connecticut 20 per cent.) in 
 excess of its capital stock. No certificate of shares 
 shall be issued to any person until the full amount 
 thereof shall have been paid in cash. No person 
 shall be allowed to become a shareholder in such 
 association except by the consent of the manag- 
 ers of the same.^ The members are liable 
 ratably upon dissolution for debts.* 
 
 Similar laws exist in several other states.^ 
 
 3 Minn. G. S., 34, 162; Ct., 1902; N. J., p. 140. 
 
 < N. J. 
 
 ^ In New York any number of persons, not less than three, 
 may form a co-operative association, with a capital of not 
 less than one thousand dollars, and must use the word " co- 
 operative " as part of their corporate or business name, but 
 are liable ratably for debts, etc. N. Y., 18G7, 971; and so
 
 14"i HANDBOOK TO THE LABOU LAW 
 
 § -43. Special Stock — In Massachusetts there 
 is a hiw ]>ioviding for special stock which may 
 
 in Kansiis, each member having one vote. (Kan., 1456-58.) In 
 Pennsylvania, co-operative associations, protective and dis- 
 tributive, may be incorporated by five or more persons, whose 
 stock capital shall consist of the amount standing to the credit 
 of the members ; and there may be two classes of shares, one 
 of which, known as '' permanent stock," shall not be with- 
 drawable, but may be transferred subject to the by-laws, and 
 each member must hold at least one share thereof; and the other 
 class, " ordinary stock," which may be repaid, transferred, 
 or withdrawn in accordance with the by-laws. The shares of 
 either class, in amounts from five to twenty-five dollars each, 
 may be paid for by installments, or otherwise, or by the in- 
 terest thereon, or by profit dividends. No amount of stock to 
 be held by any one person or firm shall exceed one thousand 
 dollars, unless specially consented thereto, and no member to 
 have more than one vote, to be given in person, and not by 
 proxy. Minors may hold such shares. All transactions be- 
 tween such association and its members or other persons 
 shall be for cash, the members to be severally and jointly 
 liable for all debts for labor, and for other debts lawfully 
 incurred to the amount of their unpaid capital stock and no 
 more, and such company may be authorized to invest its 
 funds in stock of other similar co-operative associations. (Pa. 
 Dig., p. 389.) And by a recent statute, with the preamble 
 that, "whereas associations of capital are protected by law, 
 associations of labor should have the same privileges," it is 
 enacted that five or more employees, three of whom must be 
 citizens of the United States, may form themselves into 
 an association for their mutual aid and benefit and pro- 
 tection in their trade concerns, with the ordinary corporate 
 powers and authority to hold indefinite amounts of real estate 
 and personal property, and adopt by-laws, etc., not inconsist- 
 ent with law. (Pa., 1889, 194.)
 
 OF THE UNITED STATES 143 
 
 be issued to the employees only of any corpora- 
 tion by vote of the general stockholders. The 
 
 This preamble is a glittering generality, but rather a dan- 
 gerous one, as it would seem to be easy for any five persons 
 who call themselves employees thereby to form a corporation 
 with practically unlimited powers in holding real estate, etc., 
 which is distinctly not a privilege granted to ordinary corpo- 
 rations of capital. It has been omitted from the new Digest. 
 Pa. Dig., p. 2017. 
 
 In Wisconsin, any number of persons, not less than five, 
 may form a co-operative association to carry on any trade 
 or business with shares of a par value from one to ten dollars, 
 and such association or its members may own shares in any 
 similar association not exceeding one-third the capital stock 
 thereof, but having only one vote therein. The capital stock 
 is exempt from execution or attachment except for debts of 
 the association, and members are liable for such debts to an 
 amount equal to the par value of their paid-up capital stock 
 proportionately, and such associations may sue and be sued, 
 hold property, and have all the rights and privileges of other 
 corporations or citizens. Wis., 1887, 126. 
 
 In Michigan, five or more persons may unite as a co-opera- 
 ative association for purposes of distribution or manufacture 
 or agriculture, with capital stock consisting of shares from 
 five to twenty-five dollars in par value, and not less than five 
 thousand nor more than five hundred thousand dollars in 
 amount. But both stockholders and directors are severally 
 and jointly liable for all debts for labor performed for said 
 corporation. Mich., 3935-3940. 
 
 "A co-operative business corporation is a corporation formed 
 for the purpose of conducting any lawful business and of 
 dividing a portion of its profits among persons other than its 
 stockholders. Co-operative business corporations shall be 
 formed under and governed by Division First, Part IV., Title 
 1, of the civil code of the state, and when so formed, may,
 
 144 HANDBOOK TO THE LABOII LAW 
 
 par value of such stock is ouly teu dollars, and 
 may be paid for iu instalments. Such special 
 stock shall not exceed two-fifths of the actual 
 capital of the corporation. Whenever a dividend 
 is paid, the holders of such stock receive their 
 full proportionate share. Special stock can only 
 be sold or transferred to employees or to the cor- 
 poration itself, and the by-laws may provide as 
 to the number of shares of such stock which 
 may be held by any one employee, and the 
 methods of transfer and redemption of such 
 stock in case any person holding it cease to be 
 an employee. (Mass., 1886, 209.) 
 
 This statute has not, however, proved effective, 
 and it has not been copied in other states. 
 
 § 44. Profit-sharing. — Except as above and in 
 section 42, there have been no statutes passed in 
 
 in their by-laws, in addition to the matters enumerated in 
 section three hundred and three of said code, provide : 
 
 " 1. For the number of votes to which each stockholder 
 shall be entitled, and, 
 
 '• 2. The amount of profits which shall be divided among 
 persons other than the stockholders, and the manner in which 
 and the persons among whom such division shall be made." 
 Cal. Civil Code, 1878, p. 63, § 1. 
 
 " There is also a recent and elaborate statute providing for 
 the incorporation of co-operative associations for any lawful 
 business, in which " the rights and interest of all members 
 shall be equal, and no member can have or acquire a greater 
 interest therein than any other member has," wherefore it 
 appears likely to become a dead letter. See Cal., 1895, 183.
 
 OF THE UNITED STATES 145 
 
 any of the states regulating the subject of profit- 
 sharing in the ordinary way. There is, however, 
 no legal objection to an employer's determining 
 wages or part of the wages paid by the amount 
 of profits of the business, and such a relation will 
 not effect a partnership between him and his 
 employees. It is possible, however, that such 
 an arrangement w^ould be difticult, if not impos- 
 sible, in states where weekly payment laws exist. 
 (See discussion of this subject in section 21.) 
 
 10
 
 146 HANDBOOK TO THE LABOK LAW 
 
 CHAPTER V 
 
 STATE REGULATION OF FACTORIES, MINES, AND 
 WORKSHOPS 
 
 § 45. The Factory Acts — (See also §§ 17, 18.) 
 The precedent of the English factory acts passed 
 originally in 1831 has been very generally fol- 
 lowed in nearly all the states. The right of the 
 state legislatures to impose such regulations 
 by law rests upon the Police Power, which we 
 have discussed in § 4. Such statutes are doubt- 
 less constitutional in any case where the reason 
 of the regulation is based upon considerations of 
 the public health, safety, and comfort, or the 
 health and morals of the operatives, and is ap- 
 parent on the face of the statute ; but it will not 
 do, under the guise of police regulation, to pass 
 statutes of which the real purpose is different, 
 even though they be in the interest of any par- 
 ticular trade or otherwise desirable. Such regu- 
 lations or reformations can only be attained by 
 combination among the workmen themselves to 
 see that they are complied with. 
 
 The statutes which have been passed on this 
 subject are very many in number, but among the 
 more important may be mentioned the following :
 
 OF THE UNITED STATES 147 
 
 Statutes providing for the preservation of the 
 health of employees in factories by the removal 
 of excessive dust, or for securing pure air, or 
 requiring fans or other special devices to remove 
 noxious dust or vapors peculiar to the trade ; ' 
 statutes requiring guards to be placed about 
 dangerous machinery, belting, elevators, wells, 
 air-shafts, etc.;^ statutes providing for fire- 
 escapes,^ adequate staircases with rails, rubber 
 treads, etc.;'' doors opening outward, etc.; ^ stat- 
 utes providing against injury to the operatives 
 by the machinery used, such as laws prohibiting 
 the machinery to be cleaned while in motion, or 
 from being cleaned by any woman or minor ; ® 
 
 1 Ct., 1893, 204 ; N. Y., 1892, 673 ; N. J. Sup., p. 773, 25 ; 
 Pa. Dig., p. 866 ; Mich., 1895, 184; Md., 27, 148. Against 
 noxious vapors by fans, etc., see : Mass., 1894, 508, 38 and 39 ; 
 R. I., ib., 9; N. J., i6., 24; Mich., 1887, 136; Mo., 8220; 
 Cal., 1889, 5 ; La., 1890, 123. 
 
 2 Mass., 104, 13, 14; R. I., 1894, 1278,5,6; Ct., 2265, 
 2266 ; N. Y., ih., 16 and 18; O., 2573 c; Mich., Wis., 1887, 
 549 ; N. J. ; Pa. Dig., p. 865. 
 
 3Me., 26, 26; Mass., 1888,316; P. S., 104, 15-18; Vt., 
 1892, 83 ; R. I., 1890, 286 ; Ct., 2645, 1855, 254 ; N. Y. ; N. 
 J., 1890, 63; Pa.; O., 2573; 111., 1885, p. 201; Mich., 1875, 
 1841, 6 ; Wis., 4575 a; Minn., 24, 263 ; Del., 1881, 546; Va., 
 
 1890, 199; Mo., 8220; Dak., 1887, 544; Ga., 1889, 610; 
 La., 1888, 87; D. C, 1887, 45; Wash., 1891, 81; Mon., 
 
 1891, 282 ; Wy., 1891,80. "Mich., 1895, 184, 7; N. Y. 
 'Mass., 104, 19; N. J., 1887, 177,6; Wis., 1636c; Mich., 
 
 b ; Miss., 2088 ; Dak. 
 
 "Mass., Ct., N. Y., N. J., i6., 17 ; R. I., ib.; Mich. Com- 
 pare §§ 14, 17, 18.
 
 148 HAXDBOOK TO THE LABOR LAW 
 
 laws requiring mechanical belt shifters, etc.,' or 
 connection by bells, tubes, etc., between any room 
 where machinery is used and the engine-room ;^ 
 laws aimed at overcrowding in factories,'* and at 
 the general comfort of the operatives ; and many 
 special laws in railways, mines, and other special 
 occupations, such as the laws requiring warning 
 guards to be placed before bridges upon rail- 
 roads,'^ requiring the frogs and switches or other 
 appliances of the track to be in good condition 
 and properly protected by timber or otherwise,'^ 
 providing automatic couplings to both freight 
 and passenger trains,'^ and, in building trades, 
 providing for railings upon scaffolds and for suit- 
 able scaffolds generally.'^ 
 
 There are most elaborate statutes and several 
 constitutional provisions regulating the conduct 
 of mining industries, the condition of mines, the 
 use of safety cages, etc., in the states where the 
 mining industry predominates.^^ 
 
 'N. Y., ib.; Pa., ib., 17; Mich., ib. 
 
 8 Mass., 1886, 173; 1890, 179. 
 
 9N. J., ib., 23; Wis., 1G36 f ; Mo., 8220; N. Y., ib., 14 ; 
 Md., La. '«N. Y. 
 
 " This statute is being rapidly adopted in all the states. 
 
 "R. I., 1884, 1282. 
 
 '=N. Y., 1889, 214; 1885, 314; Md., 1894, 158. 
 
 "N. Y., 1890, 144, 394 ; Pa., 1885, 169 ; 1891, 177 ; Ind., 
 1891, 49; lo., 1884, 21; O., 290-306, 6871; Vol. 83, pp. 
 165-182; Mich., 1887, 213; Md. Loc. L., 1888, 196-209; 
 Mo., 7061-7077 ; Wash., 1891, 81 ; Mon., 1891, p. 282 ; Wy.,
 
 OF THE UNITED STATES 149 
 
 Both manufactories and mines are, in nearly 
 all these states, submitted to some kind of public 
 inspection to see that these regulations are in 
 force, and in many states there are special in- 
 spectors appointed for the purpose ; '^ in others 
 the matter is left to the state labor bureaus, the 
 board of health, the local authorities, or the 
 chief of police."' An appeal from their decisions 
 or orders may be taken to the courts." 
 
 Employers are frequently permitted or re- 
 quired to ring bells and use whistles in towns 
 and cities, for the purpose of waking their em- 
 ployees or giving them other notice. ^^ 
 
 For purposes of this act, a factory is in some 
 states defined to be any factory where five or 
 
 1891, 80; Wy. C, Art. 9; Wash., 1888, 21; 1890, 121; 
 Dak., 1890, 121 ; Mon., 1889, p. 160 ; Pol. C, 3350-3365 ; 
 N. M. Tit., 26. ; O., Vol., 85, pp. 106, 325; Vol. 86, p. 381 ; 
 Ind., 5458-5480, Sup. 1755-1783 ; 111. Const., 4, 29 ; 93, 1-19 ; 
 Kan., 3442-3474; W. Va., 1890, 9; Ky., 1883-4, 1335; 
 Tenn., 1887, 247; Cal., 1872, p. 633, 1874; Md., 127; Nev., 
 296 ; Col. Const., Art. 16 ; G. S., 176-195. 
 
 '"Mass., 104, 4, 1894, 48; R. I., 1894, 1278, 3; Me., 1893, 
 220; Ct., 2264 ; N. Y., 1892. 673 ; N. J., 1894, 54 ; Sup., 1886, 
 p. 407, 12, 13; Pa. Dig., p. 865 ; O., 2573 a ; 111., 1893, p. 9 ; 
 Wis., 1021 b ; Minn., 1887, 115 ; Mich., 1895, 184, 12 ; 
 Tenn., 1891, 157. One or some of these must be women. 
 (R. I., Pa.) 
 
 i«Mich., 1895, 184, 12 ; La., 1890, 123. 
 
 •■ R. I., 1894, 1278, 10 ; Ct., 1895, 206. 
 
 '8 Mass., 1883. 84; Vt.. 1890, 75.
 
 150 HANDBOOK TO THE LABOR LAW 
 
 more persons are employed '' (see also § 13); and 
 any such factory, or any factory, workshop, mer- 
 cantile or other establishment or office in which 
 two or more children or women are employed 
 must be kept in a cleanly state.* So, in some 
 states, factories must be limed or painted once a 
 year, or when so ordered by the inspector.^^ 
 
 In Washington there is also a statute pro- 
 viding for the sobriety, capability, and age of the 
 operatives employed.^ 
 
 There are frequently statutes forbidding the 
 employment upon a railroad of any person in the 
 habit of using intoxicating drinks under penalty 
 to the corporation.^ 
 
 In Pennsylvania, by a special statute, a man- 
 damus is given to any person to obtain an order 
 from the owners of mines to work for and re- 
 cover the bodies of miners entombed in coal 
 mines.^ 
 
 Accidents to employees in factories, etc., must 
 commonly be promptly reported to the state 
 inspectors above mentioned."^^ 
 
 For laws relating to the hours of employment, 
 
 " Mass., 1894, 508, 33 ; Mich., ib., 10 ; R. I., 1894, 1278 ; 
 Cal., one or more ; N. J. 
 
 =" Md., 27, 148 ; Mass., ib.; Cal. 
 
 =" N. J., 1887, 177, 8 ; N. Y. "Wash., 1891, 81. 
 
 " Mich., 3367. " Pa. Dig., p. 1340. 
 
 "' Mass., 1890, 83 ; R. I., 1894, 1278, 7 ; N. Y., N. J. 
 Sup., p. 772, 15 ; Pa., ib., 18 ; 0., 7458-2.
 
 OF THE UNITED STATES 151 
 
 etc., of women and children in factories, see §§ 
 13, 15, 18. 
 
 § 46. Sweatshops. — A few of the state legisla- 
 tui'es are beginning to turn their attention to the 
 abuse of sweatshops, and the danger of tene- 
 ment-made goods. Thus, in New Jersey and 
 Massachusetts, the manufacture of clothing, etc., 
 in tenements or dwelling-houses can only be 
 carried on under written permit from the state 
 official inspector.^ Such dwelling - houses or 
 workshops are made subject to official inspec- 
 tion.^ No room used for eating or sleeping pur- 
 poses shall be used for the manufacture of cloth- 
 ing, tobacco, etc., except by members of the 
 family living therein.^ 
 
 In some states the manufacture of certain ar- 
 ticles, such as clothing, artificial flowers, and 
 cigars, is absolutely forbidden in apartments, 
 tenements, and living rooms, except by families 
 living therein ; ^ and in New York and Illinois 
 the manufacture of cigars and preparation of 
 tobacco was prohibited in tenement-houses on 
 any floor partly occupied for residence purposes, 
 but this statute was declared unconstitutional.^ 
 
 'Mass., 1894, 508, 44; N. J., 1893, 216; Pa., 1895, 20, 1. 
 
 ■•' Mass., ib.; N. Y., 1892, 655 ; 111., 1893, p. 99 ; Pa., ih., 2. 
 
 »N. Y., 111., ib. 
 
 <N. Y., 1892, 673, 13; Pa., ib., 1; N. J. 
 
 5 N. Y., 1884, 272. Sec In re Jacobs, 98 N. Y., 98. ,
 
 1/52 HANDBOOK TO THK LAKOll J. AW 
 
 Such workshops are generally to be kept in 
 a oleauly state, ^ and the inspector may report 
 them to the board of health.' The sale of goods 
 made in tenements in violation of this law is 
 prohibited,^ and several states now provide 
 that all tenement-made goods must be labelled 
 accordingly.^ The inspector has authority to 
 examine the raw material or the goods manufac- 
 tured,'" and may at any time invoke the board 
 of health. In Massachusetts he has also au- 
 thority to examine garments imported into the 
 state.'" In Ne%^ York, employers of labor in 
 sweatshops must keep a register of all persons 
 to whom they give work.'' For piu-poses of this 
 section a workshop or sweatshop is defined in 
 Massachusetts to be " any premises not being a 
 factory wherein manual labor is exercised by 
 way of trade or for purposes of gain, and over 
 which premises the employer has the right of 
 access or control ; provided that the exercise of 
 manual labor in a house or room by the family 
 dwelling therein, or by any of them, or in case 
 a majority of the persons therein employed are 
 members of such family, does not in itself make 
 such house a workshop." ^ 
 
 « N. Y., 1892, 655 ; 111., Mass., ib. 
 
 ■> Mass., ih., 45 ; N. Y. ; 111., ib., 2. » N. Y., 111., ib. 3 
 
 9 Mass., ib., 47; N. Y., ib., 4; 1893, 173. 
 
 '° Mass., ib., 46. 
 
 " N. Y., 1893, 173; Pa. ''^ Mass.. ib., 57. 
 
 *
 
 OF THE UNITED STATES 153 
 
 In two states premises "in the rear" of a 
 dwelling-house cannot be used in the manufact- 
 ure of such articles as are subject to the law 
 without an official permit.'^ 
 
 In New York any building occupied by more 
 than three families was declared to be a tene- 
 ment-house," but the whole statute was held im- 
 constitutional. 
 
 The constitutionality of all such laws as pro- 
 hibit the carrying on of any lawful industry in a 
 person's own home is, of com-se, subject to ques- 
 tion. As noted above, a New York law prohib- 
 iting the manufacture of cigars in tenement- 
 houses on any floor partly occupied for residence 
 purposes, was declared unconstitutional, the 
 court holding, in substance, that it did not 
 clearly appear on the face of the law that its 
 primary object was to secure the public health. 
 And a considerable portion of the Illinois stat- 
 ute was invalidated by Eitchie v. Illinois. See 
 §11. 
 
 § 47. Intelligence OflSces and Employment 
 Agencies.' — So far as there is a legal distinction 
 
 •»Pa., 189.5, 20; N. J. '^ N. Y., 1884, 272. 
 
 'Mass., 1894, 180; Me., 1895, 156; N. J., 1893, 41 ; N. Y., 
 1888, 410; Minn., 1805, 205; Mo., 3583; Col., 1889, p. 204; 
 1891, p. 188; La., 1894, 58; 1891, p. 188. 
 
 Thus, in Massachusetts the keeper may not receive pay 
 unless employment of the kind demanded is furnished ; and
 
 ir>4 lIAXDimOK TO THE LABOR LAW 
 
 between the meaning of these two terms, it would 
 appear that the former was limited to domestic 
 
 if the person is discharged without fault witliin ten days, he 
 can recover five-sixths of the sum paid to the keeper, and 
 this act must be printed on tlie licenses. 
 
 In Minnesota and Colorado it is provided that no person 
 shall engage in the business of keeping an employment bu- 
 reau or office, or agency for the purpose of hiring men to 
 work for others, and receiving compensation therefor, with- 
 out having obtained a license, under penalty of misdemeanor, 
 and such license is granted upon payment of one hundred 
 dollars, and filing a bond conditioned for the payment of any 
 damage which any person secured or engaged to labor for 
 others by the keeper of the office may sustain by reason of 
 any fraud or misrepresentation on the part of such keeper ; 
 and if any person hiring to work for others by such keeper 
 fails to get employment according to the terms of the con- 
 tract by reason of any unauthorized act, fraud, or misrepre- 
 sentation on the part of the office keeper, he may bring an 
 action upon said bond and recover full damages. 
 
 In Louisiana a permit from the mayor and a $5,000 bond 
 to answer for frauds, misrepresentations, etc., is required. 
 In New Jersey the council of a city may require a bond and 
 fix the compensation. 
 
 In Maine the keeper of an intelligence office shall not re- 
 tain any sum above one dollar, or any sum whatever (?), 
 from a person seeking employment, unless employment of 
 the kind sought for is actually furnished; and licenses are 
 required. 
 
 The intelligence office law applying to New York state 
 provides in substance that keepers must be registered and 
 procure a license, under penalty, which license shall only be 
 granted to persons of good general character by the mayor, 
 and may be revoked if the keeper charge a fee for obtaining 
 a situation, when no such situation was, in fact, open, unless
 
 OF THE UNITED STATES 155 
 
 service, the latter to general employment. There 
 is provision in a few states for the regulation 
 and licensing of employment agencies and intel- 
 ligence offices, usually in cities only. 
 
 he refund to the person seeking employment his fares paid in 
 going to and returning from the place of the supposed situa- 
 tion. The keeper must give a receipt for any fees, stating 
 the amount, and the character of the employment they agree 
 to procure, specifying the time in which it is to be furnished, 
 and, in case of failure so to furnish employment, shall re- 
 fund the full amount of the fee. These provisions of law 
 must be printed on the back of every receipt given for the 
 fees. And for any breach of the law the license may be re- 
 voked. The mayor issues licenses yearly, and may require 
 a bond for the faithful observance of these provisions. 
 
 In Missouri, " Every person who shall agree or promise, 
 or who shall advertise through the public press, or by letter, 
 to furnish employment or situations to any person or persons, 
 and, in pursuance of such advertisement, agreement, or 
 promise, shall receive any money, personal property, or other 
 valuable thing whatsoever, and who shall fail to procure for 
 such person or persons acceptable situations or employment 
 within the time stated, or, if no time be specified, then 
 within a reasonable time thereafter, and who shall fail or 
 refuse to return the money, personal property, or other valu- 
 able things so obtained, when the same shall have been de- 
 manded by such person or persons, shall be guilty of a mis- 
 demeanor." 
 
 And in Colorado, if any person keeping an intelligence 
 office gives false information, or makes false promises, or 
 charges a greater sum than is provided for in the city ordi- 
 nances, he is guilty of a misdemeanor, and the persons in- 
 jured by such false representation may sue upon his bond. 
 
 State employment bureaus, or free town and city bureaus, 
 have recently been provided in a few states. See Mon. Pol. 
 C, 765.
 
 156 HANDBOOK TO THE LABOR LAW 
 
 CHAPTEE VI 
 
 OTHER LEGAL RIGHTS AND LIABILITIES OF MAS- 
 TER AND SERVANT 
 
 § 48. As to Third Persons.— By the common 
 law the master or employer is liable to third 
 persons for any acts or defaults of his servant 
 or servants causing injury to such third persons 
 for which they might recover if done or caused 
 by the master himself, provided only that such 
 acts, if acts, were performed by the servant in or 
 about the execution of his master's business. 
 The common law in this particular has been left 
 untouched by modern statutes in the United 
 States, with the exception that the states have 
 generally passed acts extending the liability of 
 railroads or other common carriers to cases 
 where third persons have been killed by their 
 negligence or default, the default or incompe- 
 tency of their servants, or the defective nature 
 of their machinery or appliances. Recovery in 
 cases of death is, however, frequently limited to 
 five thousand dollars, or a similar sum, and it 
 may commonly be sued for by the executors, 
 administrators, or widow or heirs of the person 
 deceased.
 
 OF THE UNITED STATES 157 
 
 § 49. Liabilities of Servant to Master. — In this 
 particular the law has not been extended iu 
 modern times,' and on the contrary the old doc- 
 
 ' The new western codes alone attempt to define the com- 
 mon law on this point, as follows : 
 
 One who, for a good consideration, agrees to serve another 
 must perform the service, and must use ordinary care and 
 diligence therein, so long as he is thus employed. 
 
 An employee must substantially comply with all the direc- 
 tions of his employer concerning the service on which he ia 
 engaged, except where such obedience is impossible or un- 
 lawful, or would impose new and unreasonable burdens upon 
 the employee. 
 
 An employee must perform his service in conformity to the 
 usage of the place of performance, unless otherwise directed 
 by his employer, or unless it is impracticable, or manifestly 
 injurious to his employer to do so. 
 
 An employee is bound to exercise a reasonable degree of 
 skill, unless his employer has notice, before employing him, 
 of his want of skill. 
 
 An employee is always bound to use such skill as he pos- 
 sesses, so far as the same is required, for the service speci- 
 fied. 
 
 Everything which an employee acquires by virtue of his 
 employment, except the compensation, if any, which is due 
 to him from his employers, belongs to the latter, whether ac- 
 quired lawfhlly or unlawfully, or during or after the expira- 
 tion of the term of his employment. 
 
 An employee muct, on demand, reader to his employer 
 just accounts of all his transactions in the course of his ser- 
 vice, as often as may be reasonable, and must, without de- 
 mand, give prompt notice to his employer of everything which 
 he receives for his account. 
 
 An employee who receives anything on account of his em- 
 ployer, in any capacity other than that of a mere servant, is
 
 158 HANDBOOK TO THE LABOR LAW 
 
 trine of petit treason, which made a servant in 
 certain cases liable to extraordinary penalties 
 
 not bound to deliver it to him until demanded, and is not at 
 liberty to send it to him from a distance, without demand, in 
 any mode involving greater risk than its retention by the em- 
 ployee himself. 
 
 An employee who has any business to transact on his own 
 account, similar to that intrusted to him by his employer, 
 must always give the Latter tlie preference. Cal. Civ. C, 
 1978, 1981-1988; Mon. Civ. C, 2()73, 2676-2683. 
 
 An employee who is expressly authorized to employ a sub- 
 stitute is liable to his principal only for want of ordinary care 
 in his selection. The substitute is directly responsible to the 
 principal. 
 
 An employee who is guilty of a culpable degree of negli- 
 gence is liable to his employer for the damage thereby caused 
 to the latter ; and the employer is liable to him, if the service 
 is not gratuitous, for the value of such services only as are 
 properly rendered. 
 
 Where service is to be rendered by two or more persons 
 jointly, and one of them dies, the survivor must act alone, if 
 the service to be rendered is such as he can rightly perform 
 without the aid of the deceased person, but not otherwise. 
 Cal. Civ. C, 1989-1991; Mon. Civ. C, 2684-2686. 
 
 Every employment in which the power of the employee is 
 not coupled with an interest in its subject is terminated by 
 notice to him of : 
 
 1. The death of the employer; or, 
 
 2. His legal incapacity to contract. 
 Every employment is terminated : 
 
 1 . By the expiration of its appointed term ; 
 
 2. By the extinction of its subject; 
 
 3. By the death of the employee ; or, 
 
 4. By his legal incapacity to act as such. 
 
 An employee, unless the term of his service has expired, or 
 unless he has a right to discontinue it at any time without
 
 OF THE UNITED STATES 159 
 
 for breach of faith as against his master, has 
 long since fallen into disuse. It is sufficient, 
 
 notice, must continue his service after notice of the death 
 or incapacity of his employer, so far as is necessary to pro- 
 tect from serious injury the interests of the employer's suc- 
 cessor in interest, until a reasonable time after notice of the 
 facts has been communicated to such successor. The suc- 
 cessor must compensate the employee for such service ac- 
 cording to the terms of the contract of employment. 
 
 An employment having no specified term may be termi- 
 nated at the will of either party, on notice to the other, 
 except where otherwise provided by this title. 
 
 An employment, even for a specified term, may be termi- 
 nated at any time by the employer, in case of any wilful 
 breach of duty by the employee in the course of his employ- 
 ment, or in case of his habitual neglect of his duty or con- 
 tinued incapacity to perform it. 
 
 An employment, even for a specified term, may be termi- 
 nated by the employee at any time, in case of any Avilful or 
 permanent breach of the obligations of his employer to him 
 as an employee. 
 
 An employee, dismissed by his employer for good cause, 
 is not entitled to any compensation for services rendered 
 since the last day upon which a payment became due to him 
 under the contract. 
 
 An employee who quits the service of his employer for 
 good cause is entitled to such proportion of the compensation 
 which would become due in case of full performance as the 
 services which he has already rendered bear to the services 
 which he was to render as full performance. Cal. Civ. C, 
 1996-2003; Mon. Civ. C, 2700-2707. 
 
 Master and Servant. 
 
 A servant is one who is employed to render personal ser- 
 vice to his employer, otherwise than in the pursuit of an in- 
 dependent calling, and who in such service remains entirely
 
 ICO HANDBOOK TO THE LABOR LAW 
 
 therefore, to state that a servant is liable to his 
 master, or au employee to his employer, only for 
 
 under the control and direction of the latter, who is called 
 his muster. 
 
 A servant is presumed to have been hired for such length 
 of time as the parties adopt for the estimation of wages. A 
 hiring at a yearly rate is presumed to be for one year ; a hir- 
 ing at a daily rate, for one day ; a hiring by piecework, for 
 no specified term. 
 
 In the absence of any agreement or custom as to the term 
 of service, the time of payment, or rate or value of wages a 
 servant is presumed to be hired by the month, at a monthly 
 rate of reasonable wages, to be paid when the service is per- 
 formed. 
 
 Where, after the expiration of an agreement respecting the 
 wages and the term of service, the parties continue the rela- 
 tion of master and servant, they are presumed to have re- 
 newed the agreement for the same wages and term of service. 
 Cal. Civ. C, 2009-2012; Mon. Civ. C, 2720-2723, 
 
 The entire time of a domestic servant belongs to the mas- 
 ter ; and the time of other servants to such an extent as is 
 usual in the business in which they serve, not exceeding in 
 any case ten hours in the day. 
 
 A servant must deliver to his master, as soon as with rea- 
 sonable diligence he can find him, everything that he receives 
 for his account, without demand; but he is not bound, with- 
 out orders from his master, to send anything to him through 
 another person. 
 
 A master may discharge any servant, other than an ap- 
 prentice, whether engaged for a fixed term or not : 
 
 1. If he is guilty of misconduct in the course of his ser- 
 vice, or of gross immorality, though unconnected with the 
 same; or 
 
 2. If, being employed about the person of the master, or in 
 a confidential position, the master discovers that he has been 
 guilty of misconduct, before or after the commencement of
 
 OF THE UNITED STATES 161 
 
 damages caused by the positive act or neglect of 
 the servant or employee. For such damage the 
 master or employer may, of course, bring suit 
 against the employee ; but for obvious reasons 
 this is rarely done, and his more usual remedy 
 is to discharge him. A discharge for such cause 
 may commonly be made without notice or 
 warning (see § 22), and gives no rise to any 
 action by the servant for damages unless en- 
 gaged by a time contract. And in such cases, if 
 the contract be that the work is to be done to the 
 employer's satisfaction, or a similar phrase is 
 used, the employer's judgment is final and the 
 employee cannot go to the jury on the question 
 whether it was warranted by the facts. 
 
 § 50. Liabilities of Master to Servant. — These 
 have been very greatly extended by statute in 
 the various states of the United States. Under 
 the old common-law doctrine an employee was 
 held to take both the risks of the employment 
 and the risks of any injury resulting from any 
 act or neglect of any servant or employee em- 
 ployed by the same master. In this particular 
 the law has been very commonly changed both 
 by court decision and statute. The tendency in 
 the United States has been to hold that the em- 
 
 his service, of such a nature that, if the master had known or 
 contemplated it, he would not have so employed him. Cal. 
 Civ. C, 20G3-20G5; Mon. Civ. C, 2724-2726. 
 11
 
 102 HANDBOOK TO THE LABOR LAW 
 
 ployee does not assume any risks which might 
 be averted by the gi-eatest care on the part of the 
 employer in the choice and construction of ma- 
 chinery or other appliances, and in the selection 
 of other agents or servants. There has been a 
 very general attempt to abolish the " fellow-ser- 
 vant " doctrine entirely, or at least to provide 
 that it should not apply except to cases where 
 the fellow-servant causing the accident is pre- 
 cisely on a par as to powers and function with 
 the person injured. And finally, there is a very 
 general statute forbidding employers from " con- 
 tracting out " of such injuries ; that is, from 
 causing the employees to sign a contract by 
 which they agree not to hold the employer Uable 
 for accidents occuiTing while they are in his em- 
 ploy, or occurring by reason of careless fellow- 
 servants or imperfect machinery. A few states, 
 furthermore, have attempted to redefine the com- 
 mon law as to injuries to servants and employees 
 while in the employ of the master. Thus in 
 several states all corporation employers, and in 
 other states all employers, are made liable for in- 
 jury to employees caused by defects and condi- 
 tion of the plant, machinery, etc., negligence on 
 the part of the corporation, or any act of omis- 
 sion on its part, or of its fellow-servants.^ Cali- 
 fornia and Montana, which have adopted the 
 
 » Mass., 1894, 499 ; Col., 1893, 77 ; Ind., 7083 ; Ala., 2590.
 
 OF THE UNITED STATES 163 
 
 general codes prepared by the late David Dud- 
 ley Field, of New York, attempt to recast the 
 common law in still greater detail.^ 
 
 In Massachusetts an action is given to the 
 executors or personal representatives of an em- 
 ployee against the employer even in cases of his 
 death, as if he had not been an employee (see § 
 48), and for damages in cases where such death 
 was not instantaneous or was preceded by con- 
 scious suffering.^ 
 
 There are more frequently peculiar statutes 
 relating to injuries on railroads ; thus in many 
 states railroads are liable for all damages sus- 
 tained by any person, including employees, in 
 
 ' An employer must indemnify his employee, except as pre- 
 scribed in the next section, for all that he necessarily expends 
 or loses in direct consequence of the discharge of his duties 
 as such, or of his obedience to the directions of the em- 
 ployer, even though unlawful, unless the employee, at the 
 time of obeying such directions, believed them to be unlaw- 
 ful. 
 
 An employer is not bound to indemnify his employee for 
 losses suffered by the latter in consequence of the ordinary 
 risks of the business in which he is employed, nor in Califor- 
 nia in consequence of the negligence of another person em- 
 ployed by the same employer in the same general business, 
 unless he has neglected to use ordinary care in the selection 
 of the culpable employee. 
 
 An employer must in all cases indemnify his employees for 
 losses caused by the former's want of ordinary care. (Cal., 
 1969-1971) ; Mon. Civ. C, 2060-2. 
 
 3 Mass., 1894, 499. See also Ala., 2591.
 
 104 HANDBOOK TO THE LA HO 11 LAW 
 
 consequence of neglect or mismanagement on 
 the part of other employees, etc."* 
 
 The " felloM-servaut " doctrine is, nioreover, 
 specially limited in a few states in peculiar ways, 
 as, for instance, in Colorado, where fellow-ser- 
 vants or employees can recover compensation for 
 injuries resulting from the negligence of a co- 
 employee to the extent of five thousand dollars.^ 
 
 Principals, vice-principals, and fellow-servants 
 are in a few states defined and made into sepa- 
 rate classes, so that the employer is only relieved 
 from liability when the injury is caused by a 
 fellow-servant of precisely the same class as the 
 servant.^ Rather than go into subtilities of this, 
 it would seem better to repeal the common law 
 liability entirely, as the states ah-eady mentioned 
 have generally done. Thus, in Ohio, 
 
 " In all actions against a railroad for personal 
 injury or death of an employee arising from the 
 negligence of such company or any of its em- 
 ployees, every person in the employ of such 
 company actually having power or authority 
 to direct any other employee, is held not the 
 fellow-servant, but the superior of such other 
 employee, and is not the fellow-servant of em- 
 ployees of any other branch or department 
 
 * lo., 1307 ; Kan., 1251 ; Ga., 3036 ; Fla., 2346 ; Mon. Civ. 
 C, 905 ; Minn., 1887, 13. 
 ' Col., 1893, 77. 
 « Tex., 1891, 24.
 
 OF THE UNITED STATES 165 
 
 who have no power to direct or control in their 
 own branch." ' 
 
 Contracting Out. — And the provisions enumer- 
 ated above are very generally enforced by a law 
 providing that any contract, releasing the em- 
 ployers from their liability to emi^loyees in the 
 manner above prescribed in the statutes of the 
 several States respectively, shall be null and 
 void.^ In other States such contracts only are 
 declared void when they attempt to release the 
 employer from liability for personal injuries 
 which result from the negligence of the employer 
 or other persons in his employ.^ As this, how- 
 ever, seems to go to the full extent of the com- 
 mon law the two conditions would seem to be 
 much the same thing ; and so the constitutions 
 of some of the new states provide that 
 
 "It shall be unlawful for any person, com- 
 pany, or corporation to require of its servants 
 or employees as a condition of their employment, 
 or otherwise, any contract or agreement where- 
 by such person, company, or corporation shall be 
 released or discharged from liability or responsi- 
 bility, on account of personal injuries received 
 by such servants or employees, while in service 
 
 ' O., 1890, p. 149, §3. 
 
 " O., 1890, p. 149 ; Ind., 7083 ; Tex., 1891, 24 ; Wy. Const., 
 10, 4, 1891, 28 ; Fla., 234G ; but in Ohio the statute applies 
 to railroads only. 
 
 9 Mass., 1894, 508, 6 ; Ala., 2590 ; Minn., 1887, 13.
 
 166 HANDBOOK TO THE LABOR LAW 
 
 of sncli person, company, or corporation, by 
 reason of the negligence of such person, com- 
 pany, or corporation, or the agents or employees 
 thereof, and such contracts shall be absolutely 
 null and void." ^° 
 
 " Col. Const., 15, 15 ; Mon. Const., 15, 16 ; P. C, 923 ; 
 Wy. Const., Art. XIX., Labor Contracts.
 
 OF THE UNITED STATES 167 
 
 CHAPTEE VII 
 
 TRADES UNIONS 
 
 § 51. Trades Unions Legalized — Under the 
 common law of England there was an impres- 
 sion, possibly justified, that any trades union or 
 labor combination Avas in its essence unlawful. 
 Under the old English statutes the rate of wages 
 was limited by law, or by a determination of a 
 magistrate, and it was illegal to pay a higher 
 rate, still more to combine for the purpose of 
 extorting a higher rate. Upon this state of the 
 statute law, the celebrated Journeymen Tailors 
 case, which will be more fully discussed in the 
 next chapter, was decided. 
 
 Substantially, however, there has never been 
 any legal determination of rates of wages in 
 this country. What few efforts of the kind were 
 made, under the theocracies of some of the 
 colonies, notably Massachusetts, or the aristoc- 
 racies of others, like Virginia, or their local 
 town councils and magistrates, all finished with 
 the Revolution. Since then it has never been 
 seriously questioned here that at common law 
 a trades union, that is the combination of the 
 members of a trade for their mutual benefit.
 
 108 HANDBOOK TO THE LABOR LAW 
 
 elevation, and protection, was perfectly legal.' 
 AVliile the general corporation acts did not ex- 
 pressly mention such associations, they could 
 not, of course, organize as corporations or joint 
 stock companies ; but the association, regarded 
 as a voluntary association for whose obligations 
 each member might become liable, was always 
 perfectly legal in all the states of this country, 
 and many states have exj^ressly taken the oppor- 
 tunity to authorize such associations to incor- 
 porate themselves under the general corporation 
 acts, whereby each member is relieved, or par- 
 tially relieved, from individual liability. Such 
 corporations are usually organized under the 
 general head of corporations not for profit, and 
 
 ' Tliis matter will be more fully discussed under section 55 
 and below. There were three early cases iu New York and 
 Pennsylvania, in inferior courts, which seemed to hold that 
 associations of workmen to raise prices to a certain level were 
 illegal in themselves, but it was established in Pennsylvania 
 as early as 1821, in Massachusetts in 1842, and finally by a 
 well-argued case in New York in 1867, which carefully re- 
 views all the decisions, that such is not the case in this coun- 
 try. See Commonwealth v. Carlisle, Brightley's Rep., 36 ; 
 Commonwealth v. Hunt, 4 ilet., Ill ; Stevedore's Association 
 T. Walsh, 2 Daly, 1 ; Snow v. Wheeler, 113 Mass., 179. 
 
 An ordinary trades union is, of course, a different thing 
 from a combination to effect a specific purpose, such as to 
 raise wages (see § 55), or to force the employers not to em- 
 ploy certain workmen (see § 57). See also below in this 
 section.
 
 OF THE UNITED STATES 169 
 
 having no capital stock. (For the organization 
 of corporations with capital, compare § 42.) 
 
 The statutes of most of the states expressly 
 provide for the incorporation of trades unions 
 generally,^ of the Knights of Labor, of the Far- 
 
 * Thus, the Massachusetts law provides that seven or more 
 persons may associate themselves to form a corporation for 
 the purpose of improving in any lawful manner the condition 
 of any employees in any lawful trades or employments, 
 either in respect to their employment, or by the promotion of 
 education, temperance, morality, or social intercourse, by the 
 payment of benefits to members if sick or unemployed, or to 
 persons dependent upon deceased members or otherwise. 
 
 The by-laws must contain no provision contrary to the law, 
 and the commissioner of corporations must endorse his ap- 
 proval upon the certificate of organization when satisfied that 
 the agreement shows the purpose to be a lawful one ; and 
 such commissioner may call for the opinion of the attorney- 
 general thereon. 
 
 The by-laws must contain clear and distinct provisions in 
 respect to the manner of electing or admitting members, of 
 expelling members ; the officers of the corporation, with 
 tlieir titles, duties, powers, and terms ; the manner of elect- 
 ing and removing them ; the number required for a quorum ; 
 the manner of calling meetings, rescinding or amending by- 
 laws ; the purposes for which the funds of the corporation 
 shall be applicable ; the purposes for which assessments may 
 be levied ; the conditions under which a member, or persona 
 dependent upon a deceased member, shall be entitled to bene- 
 fits, if anj' ; the manner in which a fine or forfeiture can be 
 imposed, if any ; the manner in which the funds are to be 
 held or invested, and the accounts of the treasurer audited, 
 and the manner of voting upon stock to be issued. 
 
 By-laws of such corporation can only be made or amended 
 at a special meeting after notice, and when approved by the
 
 170 HANDBOOK TO THE LABOR LAW 
 
 mers' Alliance or Grangers, of Knights of Labor 
 building societies, of workingmen's aid socie- 
 
 coramiasioner of corporations. No member can be expelled by 
 less than a majority vote of all the members, nor by less than 
 a thri-e-fourths vote of the members voting. Kvery member 
 is entitled to examine the books and records of the corpora- 
 tion. Mass., 1888, 134. 
 
 In Michigan any number of persons, not less than five, 
 may associate themselves together and become a body corpo- 
 rate and politic for the improvement of their several social 
 and material interests, the regulation of their wages, the 
 laws and conditions of their employment, the protection of 
 their joint and individual rights in the prosecution of their 
 trades or industrial avocations, the collection' and payment 
 of funds for the benefit of sick, disabled, or unemployed 
 members, the securing of benefits to the families of deceased 
 members, and for such other and further objects of mate- 
 rial l)enefit and protection as are germane to the purposes 
 of this act. 
 
 Such associations are made bodies politic, may sue or be 
 sued, etc., may hold real or personal property, as shall be 
 required for their corporate purposes, may make all needful 
 by-laws, establish a uniform system of dues, assessments, or 
 benefits. Mich., 1885, 145. 
 
 In Maryland corporations may be formed by any five per- 
 sons, citizens of the United States, and a majority citizens of 
 that state, or if unnaturalized, residents of that state, making 
 oath that they intend to become citizens of the United States, 
 for the creation and maintenance of mechanics' institutes, co- 
 operative stores, or societies, provided such corporations are 
 located in the state, and the property they possess is located 
 therein ; and also for the formation of trades unions, " to pro- 
 mote the well-being of their every-day life, and for mutual 
 assistance in securing the most favorable conditions for the 
 labor of their members, and as beneficial societies." Md. 
 23, §§ 14, 15, and 37.
 
 OF THE UNITED STATES 171 
 
 ties, and many other specified organizations. 
 And other states have a general provision. 
 
 Legal unions may fully enforce their by-laws, 
 penalties, etc., against their members ; and these 
 latter have the ordinary legal remedies for ex- 
 pulsion, etc., against the union.-^ 
 
 A mandamus will commonl}- lie for a member 
 of a labor union who has been improperly ex- 
 pelled from the same, to reinstate him to mem- 
 bership ; and damages Avill be awarded for loss 
 suffered in consequence of his expulsion, as 
 when he was by reason thereof discharged from 
 employment or unable to procure it.^ So, in a 
 New York case, the plaintiff, a member of a la- 
 bor union, brought suit for damages for im- 
 proper expulsion therefrom, which were awarded 
 him ; and he also, it appears, got a mandamus for 
 
 In Iowa, trades unions and other organizations of labor, for 
 the regulation, by lawful means, of prices of labor, of hours' 
 work, and other matters pertaining to industrial pursuits, may 
 become incorporated in the manner directed in the preceding 
 chapter, so far as applicable, and shall thereby become vest- 
 ed with all the powers and privileges, and subject to all the 
 liabilities provided by that chapter, except as herein modified 
 (§ 1649). 
 
 And by the United States law (1886, Ch. 567) national 
 trades unions may be incorporated for similar purposes, pro- 
 vided they have two or more branches in the several states, 
 with headquarters located in the District of Columbia. 
 
 ^Master Stevedores v. Walsh, 2 Daly, 1. 
 
 * People 7'. Musical Mutual Protective Union, IISN. Y., 
 101 ; People i'. Coachmen's Union, 24 N. Y. S.. 114.
 
 172 IIAXDROOK TO THE LAHOR LAW 
 
 reinstatement as a member of the union. Evi- 
 dence of the diminution in bis earnings caused 
 by his expulsion from the union was allowed, 
 and he was given compensation for the loss ap- 
 proximately i-esulting from his expulsion.' 
 
 Labor Combinations other than Ordinary 
 Trades Unions or Associations for Enforcing 
 Strikes or Boycotts. — The matter of strikes and 
 boycotts Avill be discussed later in Sections 55 
 and 57, respectively. We have now to consider 
 labor combinations which have some other pur- 
 pose, and which endeavor to enforce such pur- 
 pose by penalties or otherwise. In the early 
 part of this century all such combinations were 
 illegal in England, but have since been fully le- 
 galized by statute. The 2d and 3d of Edward 
 VI., Chapter 15, passed in 1548, forbade " all 
 conspiracies and covenants of workmen not to 
 make or do their work but at a certain rate or 
 price." In 1721 the statute of 7 George I., 
 Chapter 13, was passed, which punished by im- 
 prisonment agi'eements between tailors for ad- 
 vancing their wages or lessening their hours of 
 work. The statute also fixed the rate of wages, 
 
 ' Merschiem v. Musical Mutual Protective Union, 24 Ab- 
 bott, N. C, 252. See valuable note by John H. Wigmore, 
 in 21 Am. Law Rev., showing that a man may have an action 
 for damages if his customers are intimidated from trading 
 with him, and note by Austin Abbott, 24 Abb., N. C, p. 
 262.
 
 OF THE UNITP:D STATES 173 
 
 and similar statutes were extended to oth- 
 er trades. Again, in 1796, Cliaj)ter 3 of 36 
 George III. made provision for suppressing 
 combinations among workmen for raising their 
 wages, and in 1799, 39 and 40 George III., 
 Chapter 81, this was repeated in the so-called 
 Combination Laws designed to suppress all 
 combinations of workmen to raise wages. All 
 contracts for shortening hoiu*s or obtaining an 
 advance of wages, except between a single jour- 
 neyman and his master, were punished by three 
 months imj^risonment. This statute, perhaps, 
 marks the culmination of adverse legislation 
 upon this subject ; ® it Avas, however, repealed 
 in the following year.' But this latter act still 
 made it criminal for any person to attend a 
 meeting held for the purpose of making or en- 
 tering into any contract or agreement declared 
 illegal by the act, or for entering into, or con- 
 spiring, or maintaining any combination for 
 any purpose declared illegal by the act, or to 
 give notice, or call ujion, or persuade by intimi- 
 dation or any other means, any workman or other 
 person to attend such meeting, or to collect any 
 money for such purpose, etc. This is probably 
 the most drastic statute that was ever passed in 
 the direction of confirming and extending the 
 
 * See Publications American Academy of Political Science, 
 No. 123, " Peaceable Boycotts," by Chester A. Reed. 
 ' See 40 George III., Chapter 106.
 
 174 HANDBOOK TO THE LABOR LAW 
 
 principle of the Journeymen Tailors case, but it 
 ouly lield its place on the statute book twenty- 
 five years. Other of its provisions will be fur- 
 ther discussed in § 57, when we are considering 
 boycotts. But in 1824, 5 George IV., Chapter 
 99, was passed, which began the modern view in 
 England. It pro\dded that no workman enter- 
 ing into a combination to advance wages or 
 lessen working time, or to induce another to 
 depart from his service before the time for 
 which he is hired, or to refuse to enter into 
 ■work, or to regulate the mode of carrying on 
 any manufacture, trade, or business, should be 
 subject to prosecution for conspiracy or any 
 criminal punishment. This radical statute was 
 repealed the foUo^ving year (6 George IV., 
 Chapter 129), but the repealing act still pro- 
 vided that no persons should be subject to 
 punishment who meet together for the sole 
 purpose of determining the rate of wages which 
 they shall demand or the hours which they shall 
 work, or who enter into an agreement among 
 themselves for the purpose of fixing the wages 
 or prices which the parties entering into such 
 agreement shall demand, or the hours during 
 which they shall work. The subsequent sec- 
 tions of the act related to intimidation, and 
 forbade the forcing of employees to enter into 
 such associations, or the coercing employers to 
 make any alteration in their mode of business
 
 OF THE UNITED STATES 175 
 
 or regulate their mode of carrying it out, or 
 otherwise molesting them. It is now easy to see 
 why the early American cases, folloAving English 
 cases based upon such statutes, and in particu- 
 lar the Journeymen Tailors case, decided as they 
 did. Nevertheless they were probably, on that 
 point, ill-decided, and have long since been over- 
 iniled. But it is important to notice the distinc- 
 tion, well taken in Master Stevedores v. Walsh, 
 above cited, between the legality of such trade 
 combinations which only seek to control their 
 own members in their own action and impose 
 penalties upon them alone, and combinations 
 which seek to control the employer, in the man- 
 agement of his business, or other workmen. 
 These latter combinations would nearly always 
 come under the head of boycotting ; and in so 
 far as the early American cases dealt with com- 
 binations of this sort, the cases are still of some 
 authority. They held substantially that a com- 
 bination of journeymen to prevent any journey- 
 men from working below certain rates, or to 
 prevent master workmen from employing any- 
 one except at certain rates, or who was not a 
 member of their union, was unlawful, and that 
 the parties taking part might be indicted for 
 conspiracy. But at that time a combination 
 among laborers to raise wages was in itself a 
 criminal conspiracy in England (see § 55), and 
 the first case therefore also held such a combi-
 
 176 HANDBOOK TO THE LABOR LAW 
 
 nation indictable ; and this is not now the law. 
 The cases are as follows : 
 
 Boot and Shoemakers of Philadelphia (pam- 
 phlet specially printed), 1806. 
 
 People V. Melviu, 2 Wheeler Criminal Cases 
 (N. Y.), 262. 
 
 Journeymen Cordwainers of Pittsburg, pam- 
 phlet (1811). 
 
 People V. Fisher, 14 Wendell, 1 (N. Y., 1835). 
 
 This last was a case where a combination of 
 joui'neymen shoemakers in the village of Geneva, 
 for the purpose of preventing any shoemaker 
 within or without the combination in the village 
 from working below certain rates under penalty 
 of fine, and with mutual agreement that they 
 would not work for any master who should em- 
 ploy a journeyman who infringed their rules, 
 was declared a criminal conspiracy. The only 
 statute then existing was one declaring conspir- 
 acies to commit any act injurious to trade or 
 commerce a misdemeanor.^ 
 
 It is doubtful whether any of the above cases 
 really embody the principle that a combination 
 of laborers among themselves, and aimed only 
 at controlling their own action, is illegal; but in 
 so far as they do take that view, following the 
 Journeymen Tailors case, they have been over- 
 ruled by the cases cited in note 1 above. And 
 
 8 2 N. Y. R. S., 2d ed., Vol. II., p. 577.
 
 OF THE UNITED STATES 177 
 
 the case of the Master Stevedore Association v. 
 Walsh expressly affirmed the legality of a com- 
 bination of stevedores and of a by-law regulat- 
 ing the prices for which they should work, and 
 another imposing a fine of twenty-five per cent. 
 of the amount earned against any member who 
 should be found guilty of working for less. 
 Suit was brought by the corporation against the 
 defendant for such a fine, and the demurrer to 
 the suit was overruled. 
 
 We therefore conclude that in the United 
 States combinations of laborers or employers, in 
 their collective capacity to fix wages or make 
 other rules binding among themselves, are legal. 
 (For such combinations as are illegal, as where 
 the object is to molest or obstruct workmen or 
 coerce employers or other persons, see § 55, 
 Strikes ; §§ 57-59, Boycotts.) 
 
 For it has never been the common law in this 
 country that a mutual agreement amoug journey- 
 men for the purpose of raising their wages is an 
 indictable offence, or that they are guilty of a 
 conspiracy if by preconcert and arrangement they 
 refuse to work unless they receive an advance in 
 wages. (See § 55, Strikes.) It is lawful for any 
 number of journeymen to agree that they will 
 not work below certain rates, or for masters that 
 they will not pay above certain prices ; and only 
 combinations for the purpose of compelling 
 journeymen or employers to conform to any rule 
 12
 
 178 JIANDBOOK TO THE LABOR LAW 
 
 or agreemeut to which they are not parties, by 
 the imposition of penalties, by boycotting, or by 
 the threat of strikes, is an unhiwful conspiracy. 
 These are substantially the words of Judge Daly 
 in the New York case, and they seem to express 
 the American law.^ And a society of Knights 
 of St. Crispin, organized " to resist encroach- 
 ments of the masters," and having a by-law for- 
 bidding any member to teach the trade without 
 consent of the society — " there being no unlaw- 
 ful coercion to control the freedom of the indi- 
 vidual "- — is lawful.'" 
 
 Nevertheless there are some recent start- 
 ling decisions the other way in the courts of a 
 few states, even in the case of employees' com- 
 binations ; while in the case of employers, or 
 manufacturers of articles, the tendency of Amer- 
 ican courts has been almost universall}' to pro- 
 hibit combinations to limit price. All these 
 decisions rest not on the law of labor combina- 
 tions, but on the old common-law principles of 
 combinations in restraint of trade ; and this ten- 
 dency of the courts has been much accelerated 
 in the United States by the popular prejudice 
 
 " Among cases since the decision of Commonwealth v. Car- 
 lisle which further confirm the view stated in the text, see 
 also JournejTnen Tailors of Phila., pph., 1827 (copied ia 
 Cogley on Strikes, p. 70). Hartford Carpet Weavers case, 
 pph., 1836. 
 
 '°Snow^•. Wheeler, 113 Mass., 179.
 
 OF THE UNITED STATES 179 
 
 against trusts, and by the numerous and radical 
 statutes which have been enacted making all 
 trusts or trade combinations illegal (see § 54). 
 The result is that, while the American courts 
 generally have a tendency to destroy combina- 
 tions among employers, many of them have an 
 equally strong tendency to uphold combinations 
 among employees ; and when based upon the 
 vague principle of restraint of trade, as there is 
 frequently no radical difference between the 
 case of employers and employees, their decisions 
 become irreconcilable. For instance, in 1892, 
 the Supreme Court of Illinois held that " an 
 association of stenographers, formed to establish 
 and maintain uniform rates of charges, and to 
 prevent competition among its members under 
 certain penalties, is illegal, as in restraint of 
 trade and against public policy, and one member 
 cannot maintain an action against another for 
 damages occasioned by the latter underbidding 
 the former, in violation of the rules of the asso- 
 ciation." " Now, this was a clear case of a com- 
 bination among employees. The sole article the 
 parties entering into the combination had to sell 
 was labor, and the fact that the labor was of a 
 skilled nature makes, of course, no difference. 
 The only cases cited in the opinion were cases of 
 a combination among producers of commodities. 
 
 " More V. Bennett, 29. N. E. Rep. 888.
 
 180 HANDBOOK TO THE LABOR LAW 
 
 If we are (and such is the general American law 
 to-day) to take a distinction between combi- 
 nations of producers to fix prices of commodities, 
 and combinations of employers and employees 
 to fix wages of labor, and hold the latter legal 
 while the former are not, the Illinois case must be 
 held bad law ; though a distinction cannot fairly 
 be taken between employers' combinations and 
 employees' combinations, as what is legal for one 
 should be legal for the other. In 3Iore v. Ben- 
 nett there w^as no boycott, no unlawful conspir- 
 acy, nothing but an association of a portion of 
 the stenographers in Chicago to Avork at certain 
 rates, a rule of their society imposing a penalty 
 for non-conformity with such rates, and the at- 
 tempt of certain members of the society, or the 
 society itself (for the court expressly say that 
 they will take no exception to this point, but 
 Avill admit that there was a valid contractual 
 relation) to enforce said rule by recovering dam- 
 ages from its own members. We do not see, 
 therefore, how this decision can be sustained. 
 
 And finally, there are in a few states, statutes 
 on this subject.^2 
 
 "In New York (P. C, § 170) . . . "the orderly and 
 peaceable assembling or co-operation of persons employed in 
 any calling, trade, or handicraft, for the purpose of obtaining 
 an advance in the rate of wages or compensation, or of main- 
 taining such rate, is not a conspiracy." 
 
 And so, by a New Jersey statute, it is not unlawful for any
 
 OF THE UNITED STATES 181 
 
 § 52. The Legal Protection of Labor Unions 
 
 Besides the authority to incorporate referred to 
 in the last section, there is a statute being very 
 rapidly adopted throughout the states, making 
 it a misdemeanor for any employer to discharge 
 employees for joining labor unions,' or even to 
 exact pledges from employees, or making a con- 
 tract not to join any union, as a condition or 
 preliminary to employment.^ 
 
 Massachusetts has a saving provision, how- 
 two or more persons to unite, combine, or bind themselves by 
 oath, covenant, agreement, alliance or otherwise, to persuade, 
 advise, or encourage, by peaceable means, any person or per- 
 sons to enter into any combination for or against leaving or en- 
 tering into the emploj'ment of any person, persons, or corpo- 
 ration : N. J. Sup., p. 774, § 30; which statute is re-enacted in 
 Colorado with the following addition : that such combinations 
 are further not illegal when "in relation to the amount of 
 wages or compensation to be paid for labor, or for the pur- 
 pose of regulating the hours of labor, or for the procuring of 
 fair and just treatment for employees, or for the purpose of 
 aiding and protecting their welfare and interests in any other 
 manner not in violation of the constitution of tiiis state or 
 the laws made in pursuance thereof: Provided^ That this act 
 shall not be so construed as to permit two or more persons, 
 by threats of either bodily or financial injury, or by any dis- 
 play of force, to prevent or intimidate any other person from 
 continuing in such employment as he may see fit, or to boy- 
 cott or intimidate any employer of labor." — Col., 1889, p. 92. 
 ' Ind., 1893, 76 ; 111., 1893, 98; O., 1892, p. 269 ; Mass., 
 
 1894, 508, 3 ; N. Y. P. C, 171a ; N. J., 1894, 212, 2 ; "Wis., 
 
 1895, 240, 4 ; Cal., 1893, p. 149 ; Mo., 1893, p. 187 ; Ida., 
 1893, p. 152. 
 
 'N. Y., N. J., Ind., Mass., Wis., Mo., Ida.
 
 182 HANDBOOK TO THE LABOR LAW 
 
 ever, that no organization shall be considered a 
 labor union, within the meaning of this act, 
 ■whose officers, agents, or members seek directly 
 or indirectly to accomplish its objects or pur- 
 poses by intimidation or force, or other unlaw- 
 ful means.^ 
 
 The constitutionality of the above statutes is 
 very seriously open to question. It has been 
 expressly held during this last summer, by the 
 Supreme Court of Missouri, that such a law was 
 unconstitutional/ It is possible that while em- 
 ployees are under a definite contract, a discharge 
 before the legal term of the contract for cause of 
 joining a labor union might be forbidden by 
 statute, and the statute not set aside by the 
 courts ; but to prohibit an employer from choos- 
 ing to employ laborers who are not union men 
 on the condition express or implied that they 
 remain so, or to forbid him to end a contract 
 terminable at his pleasure whenever he choose, 
 is the clearest sort of interference with individ- 
 ual liberty, and cannot possibly come under the 
 exception of the police power. In Massachu- 
 setts alone may possibly these statutes be main- 
 tained. The other states are more likely to fol- 
 low the rule of Missouri and hold all such laws 
 void.^ 
 
 ' Mass., 1894, 437. * State v. Julow 31 S. W., 781. 
 
 'Davis V. Ohio, 30 Wkly. L. B., 342, to the contrary, was 
 
 decided with little argument and in an inferior court ; never-
 
 OF THE UNITED STATES 183 
 
 Laborers and laborers' unions have an entire 
 right to seek to compel employers to deal solely 
 with union men by all proper means — as by 
 persuasion or even by a properly conducted 
 strike ; ^ but when they seek to impose such com- 
 pulsion upon the employer through the hand of 
 the state, still more when so doing is made a 
 crime, the law effecting this result, though 
 passed by a majority, is none the less a tyranny 
 in a free country.' 
 
 theless, so long as it stands, it renders the Ohio statute con- 
 stitutional. The Missouri case, decided June 18, 1895, held 
 expressly that such a statute was an interference with liberty 
 of contract, and was also class legislation. See § 11. 
 
 ' Thus in Johnson Harvester Co. v. Meinhardt, 60 How. 
 Pr., 163, an injunction against members of a labor union 
 for enticing workmen in the employ of plaintiff to leave work 
 was refused. 
 
 ' So in Piatt v. P. & R. R. R. Co., 65 F. R., 660, the court 
 held that the receivers of a railroad i though officers of a 
 federal court, had a perfect right to discharge all union em- 
 ployees if tliey chose. Judge Roberts, in the case of the 
 Pittsburg Cordwainers (Cogley, p. 65), said : 
 
 " A conspiracy to compel an employer to have only a cer- 
 tain description of persons is indictable. It is a subversion 
 of the liberty of the citizen. It has a direct tendency to re- 
 strain trade and create a monopoly. A conspiracy to pre- 
 vent a man from freely exercising his trade or profession, in 
 a particular place, is indictable." To the same effect see 
 People V. Hughes ; Ray, Contractual Limitations, p. 356. The 
 case of State v. Stewart (see b=| 57), also hold that a combina- 
 tion to prevent an employer from employing non-union men 
 by threats of insult, etc.. was a criminal conspiracy.
 
 184 HANDBOOK TO THE LABOR LAW 
 
 § 53. Union Labels. — Under the earlier deci- 
 sions in the United States it was held that a 
 label or trade-mark adopted by a labor union 
 could not be protected by injunction or suit for 
 damages in courts, for the reason that the 
 laborers employing such label, being merely 
 laborers, had no property right in the results of 
 their labor, and consequently suffered no finan- 
 cial injury from the counterfeiting of their trade- 
 mark.^ To meet these cases the statute has very 
 generally been passed allowing members of trades 
 unions, or labor unions, or associated laborers 
 in any shop or class, to adopt labels or trade- 
 marks to be used solely to designate the prod- 
 ucts of their own labor, or of the labor of mem- 
 bers of their own trades unions or labor unions 
 in alliance with them ; and provision is usually 
 made for the registration of such label or trade- 
 mark in the office of the secretary of state, and 
 a penalty imposed for counterfeiting it ; '^ and in 
 
 ' Cigar-makers' Union v. Conhaira, 40 Minn., 243 ; Cigar- 
 makers' Union v. Brendel, 22 AtL, 912 ; McVey v. Brendel, 
 144 Pa., 235 ; Weener v. Brayton, 152 Mass., 101. But see 
 contra, Strasser v. Moonelis, 108 N. Y., 611 ; People v. 
 Fisher, 50 Hun., 552 ; Carson v. Ury, 39 F. R., 777. 
 
 = N. H., 1895, 442; Mass., 1895, 462; Me., 1893, 276 ; Ct., 
 1893, 162 ; N. Y., 1895, 206 ; N. J., 1895, 123 ; Pa., 1895, 
 68 ; O., 1890, p. 141 ; Ind., 1893, 40 ; HL, 1891, p. 202 ; 
 Mich., 1895, 206; Wis., 1893, 104; 1895, 151; lo., 1892, 
 36 ; Minn., 1889, 9 ; Kan., 1891, 213 ; S. D., 1890, 153 ; Md., 
 1892, 257 ; Neb., 2083 ; Del., 1893, 699 ; Ky., 1894, 46 ; Cal.
 
 OF THE UNITED STATES 185 
 
 most of the above-mentioned states remedies 
 by injunction or equity process are expressly 
 given the laborers or the labor union against the 
 infringement of their trade-mark or label, or un- 
 authorized use of such trade -mark by other 
 persons.^ In fact, the Kentucky statute pro- 
 vides that such union labels shall not be assign- 
 able at all. 
 
 Such statutes are constitutional, and are not 
 class legislation/ And it has further been held 
 in Illinois, and denied in Pennsylvania, that a 
 label declaring union-made cigars to " have been 
 made by a first-class workman, a member of 
 . . an organization opposed to inferior, 
 rat-shop, coolie, prison, or filthy tenement- 
 house workmanship," is not illegal as being im- 
 moral or against public policy within the mean- 
 ing of the law of trade-marks.^ 
 
 § 54. Combinations among Employers. — Just 
 as the common-law illegality of combinations to 
 raise wages affected in the old cases the law of 
 trades unions, so the common-law illegality of 
 
 Pol. C, 3200 ; Uta., 1894, 46 ; Ga., 1893, p. 134 ; Tex., 
 1895, 81. 
 
 > Pa., Minn., Ky., Cal., S. D., Uta., Wis., Tex. 
 
 ♦ Cohn V. People, 37 N. E., GO ; State v. Bishop, 31 S. W., 
 9. 
 
 ' Cohn V. People, and Cigar-makers' Union v. Brendle, 
 above. Browne on Trade-marks, § 602.
 
 18G HANDBOOK TO THE LABOR LAW 
 
 combinations in restraint of trade affected that 
 of emplo3'ors' unions. In neither case does this 
 illegality now generally snrvive, except in so far 
 as in the latter it is preserved by express statutes 
 like the Anti-Trust act ; and in the former it 
 has been expressly done away with by statute 
 in England. (See §§ 51, 55, and 57, and for the 
 result of the United States law against Trusts, 
 see § 66.) 
 
 Thus, in an anonymous case ' decided in 1698, 
 an indictment was sustained against several 
 bucket-makers for combining by covenants not 
 to sell under a set rate ; the chief justice (Holt) 
 declaring "it is fit that all confederacies by 
 those of a trade to raise their rates should be 
 suppressed ; " and there can be little doubt that 
 the conspiracy to raise the price of an article 
 was illegal at common law. And we find this 
 doctrine still surviving as late as 1855, when the 
 English court of Queen's Bench held that a 
 bond signed by eighteen employers to conduct 
 their business as to rates of wages and times of 
 work, etc., in conformity with a resolution of a 
 majority of them, was null and void at common 
 law, as being a combination in restraint of trade." 
 But all such combinations, both by employers 
 and employees, have in England been legalized 
 
 • 12 Mod. R., 248. 
 
 » Hilton V. Eckersley, 6 El. & Bl., 47.
 
 OF THE UNITED STATES 187 
 
 by statute ; and in this country the law to-day 
 probably is that any combination, short of an 
 attempt to create a monopoly in a necessity of 
 life, which is entered into by employers merely 
 for their own protection or to secure a larger 
 share of the business, is not an unlawful conspi- 
 racy, unless it amounts to an actual boycott of 
 some person or persons, or to an infringement 
 of the anti-trust law of 1890, or similar anti- 
 trust laws in the several states.^ These anti- 
 trust laws have been adopted in more than half 
 the states, and are generally aimed against the 
 combination of dealers or manufacturers to fix 
 the prices of a commodity, or to limit the out- 
 put, not to fix the rates of labor. Indeed, all 
 labor combinations are in some states expressly 
 excepted from the restrictions of the anti-trust 
 act ; ^ and so, in others, combinations of farmers or 
 agricultural or live stock producers.^ It is a 
 curious fact that while the tendency of our laws 
 is more and more to legalize combinations among 
 employees and the laboring class, or even among 
 farmers and the agricultural class, there has, at 
 the same time, grown up this vast body of legis- 
 lation prohibiting the corresponding combina- 
 
 3 Dueber Watch Case Co. v. Howard Watch Co., 66 F. 
 R., 637. Mogul S.S. Co. v. Macgregor, 66 L. T., 1. 
 
 * Wis., 1893, 219, 9; Tex., 1895, 83, 12. 
 
 » Tex., ib.; Mich., 1889, 225. See, for the anti-trust laws 
 up to 1893, Stirason's Am. Stat. Law, Vol. II., §§ 9900-9905.
 
 188 HANDBOOK TO TIIP: LAHOR LAW 
 
 tioii Oil the part of the employer or producer. 
 Most of these statutes are, however, ineffectual 
 for one reason or another. For instance, the 
 last one, passed in Missouri,^ which superseded 
 the previous existing statute of 1891, makes it 
 illegal for any corporation or individual to be- 
 come a member of any pool, trust, agreement, 
 combination, federation, or understanding with 
 any other corporation or individual to fix the 
 price of any article or product, etc. Now, while 
 it might possibly be conceded to be in accord- 
 ance with common law principles to prohibit any 
 actual pools by which the price or output was 
 limited to a certain amount, and the profits di- 
 vided, such a combination being in restraint of 
 trade, and while perhaps even it might be 
 deemed unlawful at common law to make a 
 combination not to sell any product or more 
 than a certain amount of any product, or not 
 to sell for a long period of time, except at a 
 certain price, it is hard to see any constitu- 
 tional justification for forbidding two or three 
 individual dealers to come to any understand- 
 ing among themselves as to what, at least for a 
 certain period of time, they shall charge for 
 their commodities. Such statutes are against 
 general constitutional principles, if not against 
 express provision of our state or federal consti- 
 
 • Mo., 1895, p. 237.
 
 OF THE UNITED STATES 189 
 
 tutions. Owing to the great difficulty of en- 
 forcing such laws, and procuring the necessary 
 evidence, there has been little authoritative de- 
 termination of their constitutionality as yet in 
 the courts. Then, coming to an agreement 
 among employers to pay a certain price for 
 labor : It is hard to see why this should bo 
 considered illegal, if the Avhole authority of 
 American judicial decision is to make similar 
 combinations on the part of laborers or em- 
 ployees perfectly legal. Such statutes may be 
 constitutional, but they are hardly fair. How- 
 ever, as we have said, the ordinary statute 
 against trusts does not cover this point, and 
 consequently they are not cited in this hand- 
 book. (See Stimson's " American Statute Law," 
 Vol. II., pp. 580-590.) 
 
 The case of More v. Bennett, fully discussed 
 in § 51 above, is direct authority that a combi- 
 nation of employees, and consequently of em- 
 ployers, to fix wages and impose penalties on its 
 own members for working for less, is illegal. 
 We have stated at great length in §§ 51 and 55 
 our opinion that the modern law is otherwise, 
 and that combinations, either of employers or em- 
 ployees, to fix wages, etc., in the absence of any 
 illegal act or of any combination otherwise un- 
 lawful — such as a boycott — are perfectly legal.' 
 
 ' See Bohn Mfg. Co. v. HoUis, 55 N. W., 1119 ; § 57 below.
 
 190 HANDBOOK TO THE LABOIl LAW 
 
 Partly as a consequence of the modem preju- 
 dice against tmsts or combinations of producers, 
 however, there are a great many recent cases 
 which drasticall}^ enforce the okl common law 
 doctrine against combinations in restraint of 
 trade, and make any combination, agreement, or 
 association of producers or wholesale dealers to 
 fix prices unlawful ; such as combinations to fix 
 the price of milk, sugar, coal, lumber, salt, 
 matches, sheep, whiskey, or other necessaries of 
 life, and refusing to allow parties to the combi- 
 nation to enforce penalties provided by the by- 
 laws for imder-selling. 
 
 Thus in Commonioealth v. Tack (1 Brewster, 
 511), decided in 1868, the defendant was in- 
 dicted for a conspiracy to stimulate the price of 
 oil. The fact was that the prosecutor, one James 
 O'Connor, having been advised by the defend- 
 ants that oil would go lower and that he had 
 better " go short," entered into contracts with 
 Tack Bros. & Co. for the delivery of 16,000 
 barrels of oil, whereby he lost lai-ge sums of 
 money ; and he procured the indictment of Tack 
 Bros, on the charge of combining to raise the 
 price. The case is, in fact, a curious surA^val 
 of the old English statutes against forestalling, 
 and probably would not have been possible but 
 for the allegation of conspiracy. The court 
 charged that an agreement between two or more 
 persons to forestall and control the market for
 
 OF THE UNITED STATES 191 
 
 any necessary of life by the employment of false- 
 hood, and " an unmixed motive of mischief 
 either to the public or an individual," was 
 indictable as a conspiracy; but the jury disa- 
 greed. 
 
 As good an example of such cases as any is 
 perhaps the case of the Texas Standard Cotton 
 Oil Co. V. Adoue,^ and also Morris Run Coal 
 Co. V. Barclay Coal Co.,^ the former being a 
 case where plaintiffs, representing four cotton- 
 seed mills, combined with defendants represent- 
 ing a large number of other mills, all being deal- 
 ers in cotton seed and manufacturers of products 
 therefrom, for the purpose of having defend- 
 ants take the enthe yield of their mills, they 
 guaranteeing the plaintiffs a certain profit, estab- 
 lishing prices to be paid for seed cotton, to be 
 changed only by agreement, and the minimum 
 price at which all meal cake, etc., should be sold ; 
 and that the plaintiffs should not purchase or 
 ship any seed from a certain place. The court 
 refused to sustain an action by the plaintiffs to 
 recover the net profits under the guaranty, on 
 the ground that the contract was void at com- 
 mon law as being in restraint of trade. In the 
 latter case, five coal companies in Pennsylvania 
 entered into an agreement in New York to di- 
 
 * 19 S. W. Rep., 274. 
 ' 68 Pa. St., 173.
 
 192 HANDBOOK TO THE LABOR LAW 
 
 vide two coal regions of which they had con- 
 trol, to appoint a general agent who should re- 
 ceive the coal mined from both companies, each 
 in a certain proportion, with a committee to ad- 
 just prices, freight rates, etc., and providing for 
 settlements betweien the several companies ev- 
 ery month. The coui-t refused to enforce this 
 contract also, in a suit brought by one of the 
 companies against the others. In this case 
 there was a New York statute, but the decision 
 would probably have been the same without it,'" 
 In fact these modern anti-trust acts, so far as 
 they can be bi'ought under the most stringent 
 provisions of the common law, are unnecessary ; 
 because the courts in their present temper w^ould 
 commonly come to the same conclusion without 
 them ; while in cases where the statutes them- 
 
 »» See also the Sugar Trust Case, 121 N. Y., 582 ; State v. 
 Neb. Distilling Co., 29 Neb., 700; Diamond Match Case, 
 Richardson v. Buhl, 77 Mich., 632; Salt Co. v. Guthrie, 
 35 O. State, 66G; People v. Sheldon, 139 N. Y., 251; Phoe- 
 nix Bridge Co. v. Keystone Co., 142 N. Y., 425 ; Wells v. 
 McGeoch, 71 Wis., 196; People v. Milk Exchange, 27 L. R. 
 A., 437; Ford v. Chicago Milk Association, 39 N. E., 651; 
 Judd V. Harrington, 139 N. Y., 105. Such pools, etc., are 
 illegal although the public be uot in fact injured : Judd v. 
 Harrington. A pool not to sell beer to outsiders for less than 
 $9 a barrel was refused enforcement bj' a court of equity : 
 Neater v. Continental Brewing Co., 161 Pa. St., 473. But 
 sales by a member of such a trust maj' be sued upon : Nat. 
 Distilling Co. v. Cream City Co., 86 Wis., 352.
 
 OF THE UNITED STATES 193 
 
 selves depart from the common law, the courts 
 have usually found a reason for not enforcing 
 them. It is difficult for a southwestern legisla- 
 ture to improve upon the common law in its first 
 attempt. 
 
 13
 
 194 HANDBOOK TO THE LABOR LAW 
 
 CHAPTER Vin 
 
 STRIKES AND BOYCOTTS 
 
 § 55. Strikes. — In the first chapter we dis- 
 cussed the termination of employment contracts, 
 or the quitting of work by employees indi\ddu- 
 ally, and also the legaHty of efforts by way of 
 persuasion or intimidation to bring others to 
 quit employment. We now come to the much 
 more complex question of the legality of con- 
 certed efforts to bring about siicli results. There 
 is no subject connected "«ith labor law about 
 which there has been so much disagreement 
 among judges and jurists, and about which there 
 is still so much doubt. A recent text-book u]:X)n 
 strikes and V^jc^ tts g '^'^ s s" far fiR t^ " ^ny thnt 
 there can be no such thing as a legal strike. The 
 
 truth is probably the exact opposite. Ixiatead 
 of paying no strikes are legahw e shonlrl now say 
 a ll strikes are legal ; that is, all plain and simple 
 combinations to quit work when there is no 
 breach of a definite time-contract in so doing, 
 and where it is not complicated with any ele- 
 ment of boycotting, or marked by any disorder 
 or intimidation. When- these l^ttf^r exist, it m 
 th e boycotting, disorder, or intim idation that is
 
 OF THE UNITED SPATES 195 
 
 il legal, and may be punished or prevented by in- 
 junc tion ; not the strike. 
 
 The notiouthat mere strites are illegal is 
 based entirely upon old English cases, which 
 were followed perhaps, to some extent, in this 
 country early in the present century, but which 
 our courts have now ceased to follow, and the 
 doctrine of which has long since been abrogated 
 in England by express statute. We showed in 
 Chapter I. how the mere quitting of work by 
 an individual is never criminal, nor even gives 
 the employer any action for civil damage, unless 
 there is a breach of a definite time-contract ; and 
 it is only the old-established English common 
 law concerning conspiracy which made the mat- 
 ter difi'erent in case of a combination to leave, 
 or strike. This doctrine was, and is, except 
 when modified by recent statutes in labor cases, 
 that an unlawful conspiracy is a combination of 
 two or more persons to accomplish a criminal, un- 
 lawful, or immoral purpose by means ivhich may 
 he unlaivful or lawful ; or a combination to ac- 
 complish a laicful purpose by criminal or illegal 
 means (or perhaps even fraudulent or immoral 
 means'), or for a purpose which could only be 
 
 'State V. Burnham, 15 N. H., 396, at pp. 401, 402. In 
 Timberly v. Childe, 1 Siderfin, 68, decided as early as 1663, 
 it was held that it was an unlawful conspiracy for persons to 
 combine for charging a man with being the father of a bas- 
 tard child, although that was nut a legal offence, but purely
 
 19G HANDBOOK TO THE LABOR LAW 
 
 hromjht ahoiU by the use of S2ich means. This law 
 of conspiracy is perfectly definite and well set- 
 tled, and exists to-day, and the participants in 
 such conspiracy render themselves criminally 
 liable, besides being in all cases liable civilly to 
 the party or persons injured for any actual 
 damage they incur. Now, the word " immoral " 
 in the above definition is very important, and 
 has been construed very broadly. It means 
 substantially not only purposes against morality, 
 such as the seduction of a woman,* but things 
 which are contrary to ordinary Ckristian doc- 
 trine/ or even the principle of the Golden Kule.* 
 Thus, a conspiracy to do financial harm to a 
 
 a moral one ; and to the same effect in the case of Queen v. 
 Best, 1 Salk., 174, the indictment was for conspiracy to make 
 the same charge. The court said " the conspiracy is the gist 
 of the indictment, and that, tho' nothing be done in prose- 
 cution of it, is a complete and consummate offence of it- 
 self ; and whether the conspiracy be to charge a temporal or 
 ecclesiastical offence on an innocent person, it is the same 
 thing." And in the case of the indictment of Lord Grey and 
 others for combining to seduce a young woman under eigh- 
 teen, decided in 1682, the indictment was sustained, and the 
 defence were found guilty, although it appeared that the 
 young woman was willing, so there was no criminal offence. 
 9 Howell's State Trials, 127. 
 
 2 Smith r. People, 25 111., 17. 
 
 =" Hawkins, in his " Pleas of the Crown " (Vol. II., p. 121), 
 states that a conspiracy wrongfully to prejudice a third person 
 is highly criminal at the common law. And see Reg. v. Best, 
 1 Salk., 17-1. 
 
 * State V. Buchanan, 5 Harris and Johnson (Md.), 317.
 
 OF THE UNITED STATES 197 
 
 definite person, or class of persons, is an unlaw- 
 ful conspiracy, within the meaning of the defini- 
 tion/ So a conspiracy to accomplish a thing 
 against the general welfare of the state, such as 
 suppression of records, or the destruction of 
 boundaries, the bringing about of legislation by 
 improper means, or the manufacture of evi- 
 dence/ The court seems to have held in the 
 Spies case, of the Chicago anarchists, that an 
 association of anarchists was in itself a criminal 
 conspiracy, because its object is the subversion 
 of all laws.' I t is easy to see why a combina tion 
 to j-O a thing harmful to the stat e mffy ^^^ pun - 
 ished by the state, but it is harder at first in s ap. 
 why a co mbination merely to injure a perso n's 
 su ccess or p rosperity, such^s a^ co mbin ation to 
 h iss an actor/ or not to pay rent/ should al so 
 
 •Thus, in Rex v. Cope, 1 Strange, 144, a husband and 
 wife and their servants were indicted for a conspiracy to ruin 
 the trade of the prosecutor, who was a card-maker, by put- 
 ting grease in the paste for his cards. In Baughmann's case 
 (see 11 Va. L. T., 324) defendants, members of trades 
 unions, were indicted for conspiring to injure the plaintiff's 
 business by threatening to break up the business of third 
 parties if they purchased goods of the plaintiff. See also 
 People V. Petheram, 64 Mich., 252 ; Rex v. Eccles, 3 Doug., 
 337. 
 
 •King V. Mawbey, 6 T. R., 619. 
 
 'Spies V. People, 122 111., 1. 
 
 "Gregory v. the Duke of Brunswick, 6 Manning & 
 Granger, 205. 
 
 » Ex-pm-te Dalton, 28 L. R. Irish, 36.
 
 198 HANDBOOK TO THE LA BOM LAW 
 
 bc-piiiiisbedjby the stat e as a criminal offen ce, 
 w hen the same licts, \vIieirTlx)ne by any num ber 
 of indivithials without concert of action, wo uld 
 in jio sen se be criminal, nor perhaps e ven sub- 
 j ect the individuals to damages. One individual 
 may wish another any amount of harm, may seek 
 to injure his business or prosperity in all possible 
 ways, but still, so long as he commits no trespass 
 or battery, and no fraud or theft, he is not liable 
 even civilly, still less criminally.'" But the law of 
 conspiracy is one of the rare instances where the 
 l aw goes solely into the^ntent and purpo ses of 
 t he act. It_ js the combining with such wr ong 
 int ent or purpose that makes the participat ors 
 lia ble to the criminal law, not the ultimate mo- 
 tiv£^jD or the acts which they do, even t hough 
 thes e be criminal in themselves , or though they 
 d o no acts whatev er. "It is one of the few 
 cases where the law undertakes to punish crim- 
 inally an unexecuted intent." " For instance, a 
 conspiracy to prevent men taking Avork by as- 
 saulting them with weapons would render all 
 the members of it liable to conviction for crim- 
 inal conspiracy, and besides, those actually com- 
 
 '•> Thus the Calcutta Marine Superintendent ordered all his 
 pilots not to employ a certain tug, and was held not liable in 
 damages to the owner of the tug. Rogers v. Dutt, 13 
 Moore P. C, 209. 
 
 "Queen v. Best, 1 Salk., 174; U. S. i>. Cassidy, 67 F. 
 R., 705; Baughmann's Case, 11 Va. L. J., 324.
 
 OF THE UNITED STATES 199 
 
 mitting the assaults would also be liable for 
 criminal assault and battery ; and all the mem- 
 bers of the combination might be so guilty of 
 conspiracy, although no actual assault were com- 
 mitted,"' provided that was the agreed method 
 of carrying out the conspiracy ; or in cases where 
 it was necessarily and obviously the only 
 method by which the result could be attained. 
 So, under the first branch of the definition as 
 above expressed, a combination to drive A B 
 out of business in a certain town is a criminal 
 conspiracy, though the means employed are 
 merely legal combination ; " but a combination 
 by other merchants in the town to get all the 
 business in the town would not be a criminal 
 conspiracy, even though the things done in both 
 cases were precisely the same, and as a result 
 
 '* King V. Eccles, 3 Douglas, 337 (see next note) ; King 
 V. Gill, 2 B. & Aid., 204; Poulterer's Case, 9 Coke, 55 B. 
 
 '' King V. Eccles, 3 Douglas, 337. This was a case where an 
 indictment was sustained charging that the defendants con- 
 spired "by indirect means" to impoverish the prosecutor by 
 depriving and hindering him from following his trade of a 
 tailor in Liverpool, and it was held unnecessary to set forth 
 in the indictment any particular acts which were done, that be- 
 ing mere matter of evidence. So, in an early New York case 
 of sailors' boarding-house keepers, indicted for combining 
 not to ship men through a certain notary, the court held that 
 a combination to do or not to do an act which, if done or not 
 done respectively, would injure an individual in person, prop- 
 erty, or reputation, was a criminal conspiracy. Emanuel's 
 Case, 6 C. H. Rec, 33.
 
 200 HANDBOOK TO THE LABOR LAW 
 
 A B iu both cases was driven out of busi- 
 ness." 
 
 -'" T his, I think, will be found to be th e ultimate 
 tedL ijf the unlawful conspira cy. The InTw^h erft 
 ^ oes into the domain of conscienc e and morals. 
 The c[uestion is not so much whal^ i s done , nor 
 eveii ^ what results follow, bnt wli^f is th^ in- 
 m(^t real intent of the persons engaged in do- 
 ing]iC 
 
 Under the statute of Elizabeth wages were at 
 least pretended to be fixed by law, or by a ma- 
 chinery of magistrates, etc., provided by statute. 
 A combination to raise the rate of wages, there- 
 fore, became technically illegal, and upon this 
 ground the leading and oldest case, that of the 
 Joui-neymen Tailors, was probably decided and 
 can only be maintained. (See below.) And be- 
 sides these statutes regulating wages, we must 
 note that there was also in existence a statute 
 (the second and third of Edward VI.), passed in 
 1548, forbidding "all conspiracies and covenants 
 of workmen not to make or do their work but at 
 a certain rate or price," the third conviction un- 
 der this statute being punishable by the pillory 
 and the loss of an ear. This statute was not 
 expressly repealed until the present century, and 
 there were divers other statutes passed in the 
 seventeenth and eighteenth centui'ies regulating 
 
 "Mogul S. S. Co. V. iSlcGregor, L. R., 23 Q. B. D., 598.
 
 OF THE UNITED STATES 201 
 
 wages," and in 1717 Hawkins published his 
 " Pleas of the Crown," which is usually quoted 
 as the leading authority for the principle above 
 stated, " that there can be no doubt but that all 
 conspiracies whatsoever wrongfully to prejudice 
 a third person are highly criminal at common 
 law." (2 P. C, 121.) And Chitty adds the 
 words "whether the intention is to injure his 
 l^roperty, his person, or his character." (3 Crim. 
 L., 1139.) 
 
 Upon this state of the law and statutes the 
 Journeymen Tailors case '^ arose. Certain jour- 
 neymen tailors of the toAvn of Cambridge were 
 indicted for a conspiracy among themselves to 
 raise their wages by refusing to work at so 
 much per diem. The defence was that the 
 statute of Elizabeth did not require them to 
 work by the day, but by the year, and there- 
 fore no crime appeared upon the face of the 
 indictment. The court held that it was not for 
 the refusing to work, but for the conspiracj", that 
 they were indicted, and that a conspiracy of any 
 kind is illegal, though the matter about which 
 they conspired might be lawful for one of them, 
 or any of them, to do if they had not conspired 
 to do it ; " and this appeared in the case of the 
 Tubwomen v. the Brewers of London." This 
 
 '^ See, for discussion of these laws, Master Stevedore's As- 
 sociation V. Walsh, 2 Daly (N. Y.), 1. 
 '•8 Mod., 11.
 
 202 IIAXDBOOK TO THE LABOR LAW 
 
 case of the Tubwomen is somewhat mythical, 
 but is believed to be the case of the King v. 
 Starling, 1 Keble, 650, in which certain brewers 
 were indicted for conspiracy to cease making 
 small beer, and thus incite a riot, and deprive 
 the king of his excise. It has, therefore, no 
 bearing on the question of a strike, but is an 
 authority for the proposition above advanced 
 that a_ legal combination by lawful means to 
 effect a t hing injuriouYlEo the slate Ts~ a cr iminal 
 conspiracy. On this Journeymen Tailors case 
 alone hangs all the law of the illegality of a 
 strike as strike, and it will be seen that the case 
 itself only goes to the length of so holding when 
 the object of the strike is to raise wages, which 
 may frequently not be the case. Yet its doc- 
 trine persisted in England as late as the case 
 of Hilton V. Eckersly (see § 54) and Farrer v. 
 Close " (1869 j, where the court were divided 
 whether a labor union, part of whose by-laws 
 countenanced strikes, was not thereby rendered 
 wholly illegal. 
 
 But in this country, wages never having been 
 fixed by law, the case should never have been 
 followed. It was followed in three early cases, 
 happening respectively in Philadelphia, in 1806, 
 in New York, in 1809, and in Pittsburg, in 1815 ; " 
 
 " L. R., 4 Q. B., 602, at p. 612. 
 
 '* The Boot and Shoemakers of Philadelphia, pamphlet, 
 1806 ; Journeymen Cordwainers of New York (People v.
 
 OF THE UNITED STATES 203 
 
 all decided, however, in inferior courts. The 
 first supreme court which had to treat the sub- 
 ject was that of Pennsylvania.'" This case was 
 not, indeed, decisive of the exact point, because 
 instead of being, a combination of employees to 
 raise wages, it was a combination of employers 
 to reduce them ; but the court held incidentally, 
 apparently without knowledge of the Mer- 
 chant Tailors case, that it had never been de- 
 cided in England that it was unlawful for 
 either side to make combinations not to work, 
 or not to employ below or above certain wages. 
 It is probable that in England the combination 
 of employers to pay not more than the rate of 
 wages legally prescribed would not have been 
 held a criminal conspiracy. But finally, Judge 
 Daly, of the New York court of Common Pleas, 
 in the first really well-argued and exhaustive 
 decision on the subject," decided in 1867, af- 
 firmed the principle of Commonwealth v. Car- 
 lisle, and denied the authority of the Merchant 
 Tailors case at least in this country, although 
 to Judge Shaw, of Massachusetts, and Mr. Ran- 
 toul, of Salem, belong the chief credit of pre- 
 venting the doctrine of the Merchant Tailors 
 case from being established in this country. In 
 
 Melvin), 2 Wheel. Crim. C, 262 ; Pittsburgh Cordwainers, 
 pamphlet, 1816. 
 
 '» Com. V. Carlisle (1821), Brightly's Rep., 36. 
 
 ■•«' Master Stevedores v. Wal.«h, 2 Daly, 1.
 
 204 HANDBOOK TO THE LABOR LAW 
 
 the case of the Commonwealth v. Hunt," de- 
 cided in 1842, ai-gued by Rantoul, Shaw first 
 clearly expressed the view above set forth." 
 
 T his view, that it is lawful for a labo rer, or 
 anj^ number of laborers, to leafve his work at 
 any^_time^ or to combiiie_toifia:ve-at any time for 
 a ny lawful purpose, such as the raising his ow n 
 wa i3;es, or the bettering his own (^onrlition in 
 otherj'e spects, w ould probably have never more 
 be en disputed in this country but for the ex- 
 traordinary^ statutes known as the Interstate 
 C ommerce Act and t he Anti-Trust Act, passed 
 in 1887 and 1890, respectively, and for the 
 American practice of putting railroads and other 
 corporations when insolvent in the hands and 
 under the active management of c ourts of equity. 
 AVe shall have occasion to discuss much more 
 fully the effects of this practice, and of these 
 statutes, in a later section. /"/It will be suf- 
 ficient to say here that the effect of the Inter- 
 st ate Commerce Act Avas to make any combina- 
 tion of persons, for an y purpose wiriclrhad the 
 ne cessary or intended effect of interferi ng with 
 interstate transp ortation, an unlawful conspir acy ; 
 an effect which was confirmed by the later sec- 
 tions of the Anti-Trust Ac t, which, moreover, 
 provided expressly that the United State s 
 th rough its district attorneys should go i nto 
 
 2' 15, 4 Met., 111. 
 
 " See also People r. Trequier ; 1 Wheeler Cr. C, 142.
 
 OF THE UNITED STATES^ 205 
 
 no m-ts of e qui ty and obtain injnuctiops aga inst 
 suc^_persons, and expressly definecL_a_jafiW_soa't 
 of co nspiracy which, though the statute was 
 aimed at combinations of employers, equally 
 covers combinations of employees or other per- 
 sons, and has in practice worked mainly against 
 them. 
 
 Thus in Thomas v. Cincinnati, N. O. and T. 
 P. E., 62 F. R., 303, the court held that it was 
 an unlawful conspiracy at common law for em- 
 ployees of a railroad to strike with the motive 
 of retarding mails, under section 3995 U. 8, 
 Kev. Stats., and affirmed the principle that any 
 unlawful interference with the operation of a 
 road in the hands of a receiver is a contempt of 
 court." 
 
 Strikes by Persons under Contract. — We con- 
 clude, therefore, that at least except in cases 
 where a strike is specially and primarily aimed 
 at interfering with interstate commerce, it is per- 
 fectly legal, or gives rise to no criminal nor civil 
 liability, and may not be prohibited by injunc- 
 tion. No w, is the matter made different j vrhen 
 t he person striking comn ii^^s i?^ so (\l\^^\a-s*Jhirf^r\^ 
 of an express contra ct ; or, still more, when the 
 defendants are members of a combination to in- 
 duce others to strike who are working under a 
 
 " See also U. S. v. Kane, 23 F. K., 748 ; In re Doolittle, 
 23 F. R., 544 ; In re Higgins, 27 F. R., 443 ; Secor v. R. R. 
 Co., 7 Biss., 513.
 
 200 HANDBOOK TO THE LABOR LAW 
 
 time contract ? It -Gamiot— be^ s t a t e d th at the 
 la w is definitely se ttled on this point. It hxis 
 not yet been fully co nsidered^ Under the defi- 
 nition of conspiracy given above, the breaking 
 of a contract, if not illegal, is at least an immoral 
 act, and a conspiracy to obtain persons to break 
 their contracts is certainly a conspiracy having for 
 its object the injury of a third person. The near- 
 est recent case to the subject is that of Queen v. 
 Bunn,^* where it was held that servants of a gas 
 company working under a contract of service, 
 who agreed together to quit the service o f their 
 emp loyers without notice, and in breach of th eir 
 co ntracts, were guilty of conspir a cy under _the 
 common law/ and might be enjoined ; but the 
 case is not a clear authority on the point for two 
 reasons : first, that it appeared the object of the 
 conspiracy was to force the company against its 
 will to employ a man it objected to employ, and 
 the breaking of their contracts to labor by the 
 defendants was the means employed and not the 
 end ; secondly, because in England, under the 
 Masters and Servants Act of 1867, the breaking 
 of a contract of employment by servants, factory 
 employees, etc., was made a penal ofi'ence. . The 
 employer could complain to a magistrate, who 
 
 «' 12 Cox C. C, 316. The court expressly overruled this 
 case with Reg. v. Druit, in Gibson v. Lawson : 17 Cox C. C, 
 354; but the new statute of 1875 (see below) was quite suffi- 
 cient ground for the decision ; the rest was but a dictum.
 
 OF THE UNITED STATES 207 
 
 was given by the statute authority to direct ful- 
 filment of the contract of service under penalty 
 of fine or imprisonment. Now, in this country, 
 with the exception of the few southern states 
 whose statutes to the contrary effect were cited 
 in § 49, it is not criminal or penal to break a 
 contract. Therefore it is possible that the doc- 
 trine of this case would not apply in the United 
 States.^ It is noteworthy, however, that Judge 
 Oliver W. Holmes, of the Supreme Court of 
 Massachusetts, in rendering a most important 
 decision when refusing an injunction against 
 certain employees from refusing to work and per- 
 suading others not to work, expressly noted that 
 the employees were not under any time contract, 
 were therefore at liberty to cease work at any 
 time, and were therefore not, in combining to 
 persuade others not to go on working, seeking 
 to have them break an express contract with the 
 plaintiff. It was implied in Judge Holmes's de- 
 cision that the conspiracy or combination might 
 have been unlawful if such had been the case.-*" 
 
 There is a recent English statute, passed in 
 1875, concerning conspiracy, which declares that 
 an agreement or combination of two or more 
 persons to do or procure to be done any act in 
 
 " But see Angle v. Ry. Co., 151 U. S., 1 ; Arthur v. Oakes, 
 63 F. R., 310. 
 
 =' This case is unreported, but can be found in full in the 
 Massachusetts Labor Annual for 1895.
 
 208 HANDBOOK TO THE LAIlOIi LAW 
 
 contemplation or furtherance of a trade dispute 
 between employers and workmen, shall not be 
 indictable as a conspiracy if such act committed 
 by one person would not be punishable as a 
 crime. With the exception of Marylaud,^' this 
 act has not been copied in any of the United 
 States. Of course these provisions are conclu- 
 sive, and undoubtedly do away with the whole 
 common law of conspiracy in labor disputes ; '* 
 and it is probable that the labor interests will 
 make strong efforts during the next few years to 
 secure their general adoption in this country ; 
 but until such a statute has been passed chang- 
 ing the common law, we can only conclude that a 
 conspiracy of persons, whether employed or not, 
 to induce each other, or to induce third persons, 
 to cease labor, when such ceasing would be a 
 definite breach of contract, is an unlaAvful con- 
 spiracy at the common law ; probably subjecting 
 participators in it to criminal process, and cer- 
 tainly making them liable in damages to the 
 employer injured, and a proper case for an in- 
 junction from a court of equity. 
 
 Synipathetic Strikes, or Strikes aimed pi^i- 
 marily at the injury of the employer or other per- 
 sons. — If the reader will carefully follow our 
 line of reasoning at the beginning of this sec- 
 
 ^' See § 59 for this and similar statutes. 
 ^' So held in Gibson v. Lawson and Curran v. Treleaven, 
 17 Cox C. C, 354.
 
 OF THE UNITED STATES 209 
 
 tion, lie will see that, w hile employees have a. 
 lega Xright to strike for their own hpnt-M^ in rm's ft 
 th eir own wages, or seek improved condition s 
 of emploYment, there will still be a question 
 whgt her the yjiave a right to strike for no such 
 di rp.ct pnrpos p/h"t inm-Rly ont, of mn.lirift ngninst 
 the employer, or still more as a simple act of in- 
 dustrial warfare for the purpose of inducing 
 some employer not their own, or the general 
 class of employers, to yield to the demands of 
 some other person or persons, or of some dif- 
 ferent strike. A st rike of this sort part akes 
 at ongf^ mnrp: of ihp, nature of the boycott th an 
 of -the strike, i nasmuch as it is a conspiracy 
 to do certain acts (that is to strike) not 
 for the purpose of raising the strikers' wages, 
 etc., but to oppress or injure the business of 
 another person. There i s a case in Nebra ska,_-^ 
 which goes very far toward holding that the 
 combining to leave work in such a way as to 
 maliciously injure the employer, even with the 
 motive of a personal interest or a demand of the 
 strikers, is g^ n unlawful conspiracy^ and the Debs 
 case, and the similar recent cases arising at the 
 time of the Pullman strike, are full of authority 
 on the proposition that any sympathetic strike 
 is illegal. The history of the case involving the 
 Northern Pacific liailroad strike is also very in- 
 structive on this point, and particularly the 
 manner in which the injunction was finally 
 14
 
 i?10 HAXDHOOK TO THE LABOR LAW 
 
 amended by the decision of the Court of Ap- 
 peals, In the Nebr aska case,^ eighteen tailors 
 agreed to strike oiiacertain March 31st, and to 
 return all jobs uniinished that had been given 
 out to them after the cloth was cut out. It 
 does not ap[)ear that they were under contract 
 to work for a definite time, but the c ourt seem s 
 to have held that it did app ear that the object 
 of a _strike in that manner must be thf> mn.lir.i nna 
 in jury of the employ er^ a nd he was given dam- 
 age.s__against them. This case, therefore, can 
 only be sustained under the moral distinction 
 that we have endeavored to make clear in this 
 section, namely /ch at although the ceasing to 
 work was legal in itseK, or even the combining 
 to cease from work, yet it became illegal when 
 t he object of such legal actions was a de finite 
 injury_t(iJihe_plaintiff. In the Northern Pacific 
 Railroad case,^ the facts were a general strike 
 among the employees of a railroad in the hands 
 of a receiver appointed by the United States 
 court. The receiver, Oakes, secured an injunc- 
 tion against Ai-thur and many others, not pro- 
 hibiting the employees from quitting work, but 
 prohibiting them from so combining to quit work 
 as to cripple (he employers' business — the employ- 
 ers' business being in part interstate transporta- 
 
 " Mapstrick v. Ramge, 9 Neb., 390. 
 
 "> Arthur v. Oakes, 63 F. R., 310, 317, 321 ; Farmers' Trust 
 Co. V. N. P. R. R., 60 F. R., 803.
 
 OF THE UNITED STATES 211 
 
 tion. It is impossible to say how far this fact, 
 and that the receiver was an officer of the court, 
 influenced the court in rendering its decision, 
 and whether it would have granted the same in- 
 jimction in a case where there was no interstate 
 question, and no possible contempt of a court 
 officer involved. It is possible, however, that 
 the decision would have been the same ; that_is, 
 that wliile_a strike is legal, it cannot be so con- 
 du cted as to intentionally, malicrouslv inju re the 
 employe r. The amendment of the injunction by 
 the Circuit Court of Appeals is very instructive. 
 The first injunction prohibited the defendants 
 from intimidating others (which was proper 
 enough), and also even from advising others to 
 strike. By the Circuit Court of Appeals the 
 last clause of the injunction was stricken out, 
 and the employees Avere left free both to leave 
 employment themselves and advise others to 
 leave, provided they used no intimidation and 
 did not maliciously seek in so doing to cripple 
 the employers' business. 
 
 Of course the Av hole difficulty wilL lie here. 
 E mployees h a ving an u ndoubted right to strike, 
 it _will_j ii many cas es be impossible to tell 
 w hether thej^trike simply for the purpose of 
 in creasin g their own wages ( which th e court de- 
 cis lon expre ssly authoiizad), or whether they 
 str ike in order to injure the employer . All 
 strikes injure the employer somewhat, and em-
 
 212 1IAXDI500K TO THE LABOi: LAW 
 
 ploy ees Avill naturally a nd very properly choose 
 a time when press of business or otiier rea- 
 sonsjaake a strike peciiliarly iuconvenient to 
 tlie_eiiiployer. In the writer's o])inion, this 
 doc trine of malicious intent should, in the case 
 of strikes, be very carefully restricte d ; wIipvp. it 
 is c lear that ihf. str ik^vsi A\f] ^ay*^ » legitim ate 
 oI4ect^|_ all, such as the increasing their own 
 wag es, it does not see m the co urt should go into 
 the analysis of possible other motives. Tn the 
 case of boycotts it is otherwise. 
 
 But the most difficult case of all to decide is 
 that of a strike carried on by employees with a 
 motive of benefiting themselves in some way, 
 but where the immediate object is to force the 
 employer to adopt some definite line of action, 
 either toward them or in the conduct of his own 
 business, or toward third persons. In the first 
 case, whe n the object desired is merely to alter 
 hi s treatmf^nt of tlip striking ^ vrrrpl rtjA^Q fliftiYi- 
 sel ves. it is clear that the object is «. benefit to 
 t hem, or deemed by them to be a benefit^ an d it 
 i s conse quPTT^'ly lawful The second case is 
 more doubtful. If there be no element of a 
 boycott in the case, but still the strikers desire 
 to molest the employer or control his action in 
 some way, the end in view is, under the decision 
 in State v. Stewart (see § 58), unlawful. Take, 
 for instance, the case of a conspiracy to strike 
 unless the employer manufactured one kind of
 
 OF THE UNITED STATES 213 
 
 goods rather than another. Here there is no 
 element of injuiy to third persons, and it would 
 seem, perhaps, hard to say that the employees 
 might not agree to leave their employment in a 
 kind of work which they did not prefer. As the 
 law now stands, however, we have to call such a 
 strike a combination technically unlawful, though 
 it may be doubted whether an American court 
 would ever go so far in an actual case. But the 
 third case, where the strikers seek to control the 
 employer in his action concerning third persons, 
 and to their injury, presents no doubt. The best 
 possible illustration of this is a strike against an 
 employer to force him not to employ non-union 
 men. There can be no doubt that in the ab- 
 sence of statutes such as have been recently 
 passed in England, such a strike, if evidenced 
 by any letter or communication threatening the 
 employer with the strike in case he did not cease 
 to employ non-union men, would be a criminal 
 conspiracy.-" Of course, if tlie strikers simply 
 left.j without making any threat or giving any 
 re ason, it might be impossible to get evidence 
 th at such j wastheir object. The threat of a 
 strike may well be unlawful when the strike i 
 itself is not. 
 
 On the other hand, laborers may justly refuse 
 to work with persons who have not been duly 
 
 •" See § 52, Notes 5 and 7,
 
 214 HANDBOOK TO THE LABOK LAW 
 
 educated and brought up to the trade ; and are 
 not subject to indictment for conspiring to do 
 so, or even to damages at suit of the person so 
 discriminated against. They may strike against 
 such persons, although not, say the court, mere- 
 ly "to make others conform to tlieir peculiar 
 views." ^ 
 
 Conspiracies to Persuade Others to Strike. — It 
 will be seen from the above line of argument 
 that where a combination is made, not by em- 
 ployees with a grievance, but by other parties, 
 to persuade employees to strike, it partakes 
 more of the nature of a boycott, and may there- 
 fore become a criminal or unlawful conspiracy. 
 This matter will be fully discussed in §§ 57-59 ; 
 but it has frequently been held that a combination 
 of persons to procure employees to strike to the 
 injury of their employer's business is a criminal 
 conspiracy or such an unlawful conspiracy as 
 will give the employer a right to damages and 
 an injunction against the persons in the com- 
 bination. And this is probably law to-day as 
 to such persons as are not themselves striking 
 employees.^ 
 
 ^"^ Denny's Case, Lewis Crim. Law, 625. 
 
 " See Walker v. Cronin, 107 Mass., 555 ; Sherry v. Per- 
 kins, 147 Mass., 212 ; Thomas v. R. R. Co. re Phelan, 62 
 r. R., 803 ; Pettibone v. U. S., 148 U. S., 197. 
 
 Contra^ Johnson Harvester Co. v. Meinhardt, 60 How. Pr., 
 168, where an injunction was refused against members of a
 
 OF THE UNITED STATES 215 
 
 But as in England by statute, so here the ten- 
 dency of the courts is to refuse to consider as 
 unlawful a combination of persons, though not 
 employees of the plaintiff, which merely seeks 
 to persuade these to leave work, if not in breach 
 of any definite contract ; at least when such 
 action is motived by some general labor dispute 
 and not expressly or solely in order to injure 
 the plaintift'. There are plenty of decisions the 
 other way beside those quoted above ; ^ but the 
 
 labor union not employees of the plaintiff, from persuading 
 these latter to strike. 
 
 In Arthur v. Oakes, 63 F. R., 310, the injunction was re- 
 fused against defendants from persuading others to strike, 
 except as to striking in such a manner as to cripple the plain- 
 tiff's business. 
 
 In Com, V. Sheriff, 38 Leg. Int., 412, it was held that under 
 the Pennsylvania statute (see below) members of a trade 
 union who engage in a strike and notify other members, al- 
 though in other factories, to strike, and although defendants 
 are not employees of the plaintiff, are not guilty of criminal 
 conspiracy in the absence of force or intimidation. 
 
 And this was followed by Newman v. Commonwealth, 34 
 P. L. J., 313, which made the same interpretation of the 
 Pennsylvania statute, but held that certain of the facts here 
 showed intimidation, such as the presence of men with fire- 
 arms and large bands of music, arriving at night and waking 
 the employees, all attended with some destruction of prop- 
 erty. So in Wick China Co. v. Brown (in 1894), 30 Atl., 261, 
 an injunction was granted against members of a labor union 
 in New Jersey from combining to prevent by force, threats, 
 following, or ridicule the plaintiff's employees from working. 
 
 '* Thus in Carew v. Rutherford, 106 Mass., 1, damages 
 were awarded a stone-cutter whose workmen were persuaded
 
 216 HANDBOOK TO TIIK LABOU LAW 
 
 writer ventures to predict that such will be the 
 ultimate position of American courts on this 
 point, in the absence of any complication of a 
 receivership or federal statute. (See §§ 65, 66.) 
 Sfafutes ReJating to Strikes. — In England, by 
 Chapter 31 of 3-i and 35 Victoria, " the purposes 
 of any trade union shall not by reason merely 
 that they are in restraint of trade be deemed 
 unlawful so as to render any member liable to 
 criminal prosecution for conspiracy or other- 
 wise." It was held in the case of Queen v. Bunn, 
 above discussed, that this statute did not in 
 other respects affect the old common law of 
 conspiracy, but only applied to combinations 
 for purposes in restraint of trade. Accordingly 
 the act of 1875 (38 and 39 Yict., C. 86) was 
 passed declaring that " any agreement or combi- 
 nation of two or more persons to do or procure 
 to be done any act in contemplation or fiu'ther- 
 
 to leave for the purpose of forcing him to pay a fine levied 
 by the labor association for employing non-union men. In 
 Commonwealth v. Curran (1869), 3 Pittsburgh Rep., 143, the 
 defendant was convicted for conspiring to force the plaintiff 
 to employ the defendant himself in his colliery by causing 
 the other workmen to strike or leave work; an exceptional 
 state of facts which makes the case a peculiarly interesting 
 one. The motive of benefit to the defendant was here most 
 clear ; logically, therefore, the case would now be wrong ; and 
 yet it is certain that such combinations to control the action 
 of another to one's so evidently selfish interest can hardly be 
 permitted.
 
 OF THE UNITED STATES 217 
 
 ance of a trade dispute between employers and 
 workmen shall not be indictable as a conspiracy 
 if such act committed by one person would not 
 be punishable as a crime." ^ This statute is 
 
 ^5 " The Conspiracy and Protection of Property Act, 
 1875." 
 
 § 3. " An agreement or combination by two or more persons 
 to do or procure to be done any act in contemplation or fur- 
 therance of a trade dispute between employers and workmen 
 shall not be indictable as a conspiracy if such act committed 
 by one person would not be punishable as a crime. 
 Nothing in this section shall affect the law relating to riot, 
 unlawful assembly, breach of the peace, or sedition, or any 
 offence against the state or the sovereign. ... A crime for 
 the purpose of this section means an offence punishable on 
 indictment, or an offence which is punishable on summary 
 conviction. . . . Where a person is convicted of any 
 such agreement or combination as aforesaid to do or procure 
 to be done an act wliich is punishable only on summary con- 
 viction, and is sentenced to imprisonment, the imprisonment 
 shall not exceed three months, or such longer time, if any, 
 as may have been prescribed by the statiite for the punish- 
 ment of the said act when committed by one person. . . 
 
 § 5. " Where any person wilfully and maliciously breaks a 
 contract of service or of luring, knowing or having reasonable 
 cause to believe that the probable consequences of his so 
 doing, either alone or in combination with others, will be to 
 endanger human life, or cause serious bodily injury, or to ex- 
 pose valuable property whether real or personal to destruction 
 or serious injury, he shall ... be liable either to pay a 
 penalty not exceeding twenty pounds, or to be imprisoned for 
 a term not exceeding three months, with or without hard 
 labour." 
 
 § 7. " Every person who, with a view to compel any other 
 person to abstain from doing or to do any act which such other 
 
 I
 
 218 iiAxnnooK to tiik lahou law 
 
 very sweeping, aud would almost seem to do 
 away with the law of conspiracy in trade dis- 
 putes. Nevertheless the act appears ambigiious 
 in one particular : suppose a conspiracy not to 
 perform some definite act, but to ruin the trade 
 of a pei*son with whom the strikers are at en- 
 mity. Such a conspiracy would undoubtedly 
 
 person haj? a legal right to do or abstain from doing, wrong- 
 fully and without legal authority — 
 
 1. Uses violence to or intimidates such other person or 
 
 his wife or children, or injures his property ; or, 
 
 2. Persistently follows such other person about from 
 
 place to place ; or, 
 
 3. Hides any tools, clothes, or other property owned or 
 
 used by such other person, or deprives him of or 
 hinders him in the use thereof ; or, 
 
 4. Watches or besets the house or other place where 
 
 such other person resides, or works, or carries on 
 business, or happens to be, or the approach to such 
 house or place, or 
 
 5. Follows such other person with two or more other 
 
 persons in a disorderly manner in or through any 
 street or road, shall, on conviction thereof by a 
 court of summary jurisdiction, or on indictment as 
 hereinafter mentioned, be liable either to pay a pen- 
 alty not exceeding twenty pounds, or to be im- 
 prisoned for a term not exceeding three months, 
 with or without hard labour. 
 Attending at or near the house or place where a person 
 resides, or works, or carries on business, or happens 
 to be, or the approach to such house or place, in 
 order merely to obtain or communicate information, 
 shall not be deemed a watching or besetting within 
 the meaning of this section."
 
 OF THE UNITED STATES 219 
 
 be unlawful at common law, and still does not 
 appear to be covered by the words of the statute. 
 Mr. Gladstone in a speech of December 10, 1891, 
 at the opening of the National Liberal Federa- 
 tion Conference, urged the total abolition of the 
 common law against conspiracy and stated : 
 " Nothing must be a crime which relates to the 
 prosecution of labor interests, or because it is 
 done by a combination of men, unless it is an 
 oifence against the letter and spirit of the law," 
 And this is a correct statement of the tendency 
 of legislation in England. In this country the 
 legislatures have not gone so far. In Maryland 
 alone has the English statute been precisely 
 copied in the following words (Art. 27, § 31) : 
 " An agreement or combination by two or more 
 persons, to do, or procure to be done, any act in 
 contemplation or fiu'therance of a trade dispute 
 between employers and workmen, shall not be 
 indictable as a conspiracy, if such act, committed 
 by one person, would not be punishable as an 
 offence ; nothing in this section shall affect the 
 law relating to riot, uula^vful assembly, breach of 
 the peace, or any offence against any person or 
 against property." 
 
 But in Montana, also Minnesota (6423), the 
 law of criminal conspiracy is strictly limited by 
 statute (see § 58), the common law of the sub- 
 ject repealed, and it is further expressly enacted 
 in Montana that its provisions shall " not apply
 
 2:20 HANDBOOK TO THE LABOR LAW 
 
 to any arrangement, agreement or combination 
 between laborers made -with the object of lessen- 
 ing their hours of work or increasing wages, nor 
 to persons engaged in agriculture or horticulture 
 with a view of embracing the price of their 
 products." (Mon. P. C, 325.) 
 
 So in Minnesota and Oklahoma, the common 
 law of conspiracy appears to be repealed ; and 
 even in the conspiracies still recognized by 
 statute some overt act is necessary. (Minn., 
 6425; Okla., 1893, 2063.) 
 
 The New York statute rather implies that cer- 
 tain strikes may be illegal ; ^® and for other 
 similar statutes, see § 58, notes. 
 
 ^* " A person who wilfully and maliciously, either alone or 
 in combination with others, breaks a contract of service or 
 hiring, knowing or having reasonable cause to believe that 
 the probable consequence of his so doing will be to endanger 
 human life, or to cause grievous bodily injury, or to expose 
 valuable property to destruction or serious injury, is guilty of 
 a misdemeanor, . . . but nothing in this code contained 
 shall be so construed as to prevent any person from demand- 
 ing an increase of wages, or from assembling and using all 
 lawful means to induce employers to pay such wages to all 
 persons employed by them, as shall be a just and fair com- 
 pensation for services rendered." N. Y. P. C, 673, 675. 
 
 In Pennsylvania any laborers or employees acting either as 
 individuals or as members of any union may refuse to work 
 for any person whenever in their opinion the Avages paid are 
 insufficient or the treatment unjust or offensive, or the con- 
 tinued labor by them would be contrary to the rules of any 
 union, etc., without subjecting such persons to prosecution for 
 criminal conspiracy : Provided that this shall not prevent the
 
 OF THE UNITED STATES 221 
 
 § 56. Lockouts — A lockout is the general dis- 
 ckar ge of bis labor ers by an^ em pl oyer, and i s 
 consequently the opposite of a st rike. As lock- 
 outs are of rare occurrence, being commonly 
 provoked only by strikes, and as they are not 
 attended with disorder, intimidation or other 
 objectionable and usual consequences, there are 
 very few cases on the subject and no statutes. Of 
 course an employer hiring his laborers for no 
 definite time has an absolute right to discharge 
 them at any time without notice in the same 
 manner that the laborers have a right to leave. 
 (For statutes requiring mutual notice, etc., see 
 § 22 above.) T he only point on which the law 
 co ncerning locko uts needs discussion is whether aT 
 combination of employers to lockout, o r a s ym- 
 pa thetic locknnt, having for its object them ^nry 
 of t he emp l oyees of one or more of them, would 
 b e an unlawful con spiracy. If sympathetic 
 strikes are held to be unlawful, the same rule 
 should doubtless be applied to lockouts. There- 
 is no such combination, as a rule, among em- 
 ployers in labor disputes as there is among em- 
 ployees ; being in competition with each other, 
 they are commonly ready enough to profit by 
 
 prosecution under any law other than conspiracy of any per- 
 son who shall by the use of force, threats, or menace of harm 
 to person or property hinder persons who desire to labor 
 from so doing, or conspire to commit a felony. Pa. Dig., p. 
 2019.
 
 222 HANDBOOK TO TTIK LABOR LAW 
 
 a strike directed against one of their number. 
 Nevertheless, if it should happen, the same rule 
 must be applied to employers that is applied to 
 employees. Consequently if the sympathetic 
 strike is held unlawful, the sympathetic lockout 
 is to Jbe held unlawful also. 
 
 In the last section we have attempted to set 
 forth the reasons for believing that ultimately 
 the courts will refuse to consider even sympa- 
 thetic strikes unlawful conspiracies, except when 
 the case is complicated by the peculiar provi- 
 sions of some statutes like the Anti-Trust law 
 or the Interstate Commerce law. And so, under 
 these there is no doubt that if, in the Chicago 
 strike of 1894, the railroads had combined to 
 discharge all their workmen in order to bring 
 the striking employees to terms, and thereby 
 stop the running of their roads, they would have 
 been liable criminally and to process of injunc- 
 tion in the same manner that the striking em- 
 ployees were liable. In fact this Avas directly 
 set forth in Judges Woods's and Grosscup's 
 charges to the grand jury.^ 
 
 § 57. Boycotting. — The subject of unlawful 
 conspiracies has been so far discussed already in 
 the sections upon trades unions and strikes 
 (sections 51, 54, 55), that the ground is largely 
 
 ' U. S. V. Debs, 64 F. R., 725 ; 62 F. R., 832.
 
 OF THE UNITED STATES 223 
 
 cleared for a discussion of this difficult subject. 
 The reader will remember the definition of un- 
 lawful conspiracies given in § 55, from which it 
 appeared that this is a matter wherein the intent 
 becomes of importance, that a combination pri- 
 marily to injure a definite person or class of 
 persons is an unlawful conspiracy, though none 
 of the acts committed in carrying it out are 
 unlawful in themselves ; still more, of course, 
 when the acts in themselves are unlawful. The 
 prime question in the law of boycott is that of 
 intent. Was the intent primarily to injure 
 another person, to molest him, or to control him 
 in his lawful rights and liberties ; or was it a 
 combination, by doing acts which the persons 
 combining had lawful right to do, primarily to 
 better their own condition by getting the em- 
 ployer to alter his conduct in relation to the 
 persons combining themselves ? It may _be said 
 in t he beginning that, just as simple ■&trike» are 
 near ly' always lawful, so boycotts are nearly^ al- 
 w ays unlawful . It is_di flicult to co nceive of a 
 boyc ptt condncipxl solely by lawful a nts, and wjth 
 the sole object of benefiting the persons actual- 
 ly J;aMng_^iaji,JbiMbhe_^eason_JlmiLja^^ the 
 only l awful act the persons combining can do 
 which has relation to their employers solely, is 
 to refuse to work for him. And this falls at once 
 under the head of strike. So, when they peace- 
 ably persuade others not to work for him, and
 
 '224: HAXDBOOK TO THE LABOR LAW 
 
 establish a reasonable patrol or picket about his 
 place of employmeut in so doing, this falls under 
 the technical head of picketing (see § 60), which 
 is one of the usiial ~a^^micts of a^strike. But 
 boycotts, or unlawful conspiracies, commonly 
 entitle persons actually injui-ed to damages ; 
 they may be restrained by injunction, and they 
 subject the members thereof to criminal liabil- 
 ity, whether any act be done or any injury ac- 
 tually result to the public or not. 
 
 The word " boycott " itself is of recent discov- 
 ery, but the thing has existed from time imme- 
 morial.^ As is well remembered, the word arose 
 from the efforts of certain Irish tenants to ex- 
 clude Captain Boycott from all intercourse with 
 his neighbors, because he endeavored lawfully 
 to collect his rents, and is thus defined in the later 
 similar case,"^ "threatening to cut off from all 
 social intercourse and connection, intercourse and 
 dealings in the way of business, and to shun as 
 if affected with a loathsome disease and hold up 
 to public hatred and contempt, and to subject to 
 annoyance, injur}-, and loss in the pursuit of his 
 lawful occupation and industry, any tenant," 
 etc., who would pay his rent. This it will be 
 seen was a conspiracy unlawful under both 
 branches of the definition given in § 55 ; for it 
 
 ' See below, p. 246, the Abbot of Lilleshall's case. 
 5 Reg. V. Parnell, 14 Cox C. C, 508.
 
 OF THE UNITED STATES 225 
 
 was both a conspiracy with an unlawful pui*pose, 
 to wit, to prevent certain third persons from ful- 
 filling a contract, and carried on by unlawful 
 means, to wit, intimidation ; but either one of 
 these elements of illegality would have been 
 sufficient. 
 
 We use the word " boycott " as meaning exclu- 
 sively an unlaicful conspiracy, and it may be well 
 to enumerate some of the combination which 
 have been held as such. Such are : 
 
 A combination to compel, by preventing his 
 obtaining employment, a member of a labor 
 union to pay a fine assessed against him for 
 working in a mill where steam machinery was 
 used, against the rules of the society of the de- 
 fendants known as "The Philanthropic Society 
 of Coopers." ^ In this case the fine could not 
 have been collected at law, so the purpose was 
 illegal, and also the means, which were, general- 
 ly, intimidation. 
 
 A combination to molest or obstruct an em- 
 ployer or other person in the conduct of his 
 business or afikirs ; * and the law is the same 
 although the combination is not by laborers and 
 no labor question is involved. The words "mo- 
 lest " or " obstruct " are the words of the English 
 statute existing at the time which prevented such 
 
 '^ Reg. V. Hewitt, 5 Cox C. C, 162. 
 
 ^Reg. V. Druitt, 10 Cox C. C, 592; People v. Petheram, 
 64 Mich., 252. 
 
 15
 
 "J^Q HANDBOOK TO THE LABOR LAW 
 
 combinations, but in this particular the statute 
 merely declares the common law; thus, Lord 
 Bramwell, in deciding the case, speaks as fol- 
 lows : " Having made those general remarks, he 
 would make another, which was also familiar to 
 all Englishmen — namely, that there was no right 
 in this country under our laws so sacred as the 
 right of personal liberty. No right of property 
 or capital, about which there had been so much 
 declamation, was so sacred or so carefully 
 guarded by the law of this land as that of per- 
 sonal liberty, . . . But that liberty was not 
 liberty of the body only. It was also a liberty 
 of the mind and will ; and the liberty of a man's 
 mind and will, to say how he should bestow 
 liimseK and his means, his talents, and his in- 
 dustry, was as much a subject of the law's pro- 
 tection as was that of his body. Generalh' 
 speaking, the way in which people had endeav- 
 ored to control the operation of the minds of 
 men was by putting restraints on their bodies, 
 and therefore we had not so many instances in 
 which the liberty of the mind was vindicated as 
 was that of the body. Still, if any set of men 
 agree among themselves to coerce that liberty of 
 mind and thought by compulsion and restraint, 
 they would be guilty of a criminal offence, 
 namely, that of conspiring against the liberty of 
 mind and freedom of will of those toward whom 
 they so conducted themselves. He was referring
 
 OF THE UNITED STATES 227 
 
 to coercion or compulsion — something that was 
 unpleasant and annoying to the mind operated 
 upon ; and he laid it down as clear and un- 
 doubted law, that if two or more persons agreed 
 that they would by such means co-operate to- 
 gether against that liberty, they would be guilty 
 of an indictable offence. The public had an 
 interest in the way in which a man disposed of 
 his industry and his capital ; and if two or more 
 persons conspired by threats, intimidation, or 
 molestation to deter or influence him in the way 
 in which he should employ his industry, his 
 talents, or his capital, they would be guilty of a 
 criminal offence. That was the common law of 
 the land." 
 
 These words of Lord Bram well's are the best 
 expression of the English law to be found in the 
 cases, and may be well compared with the deci- 
 sion of Judge Taft in the Cincinnati Superior 
 Court, in a recent case which has already been 
 much quoted in this country.^ In that case it 
 was decided that a combination by a trades union 
 to coerce an employer to conduct his business, 
 with reference to apprentices and the employ- 
 ment of delinquent members of the union, accord- 
 ing to the demand of the union, by injuring his 
 business through notices sent to his customers 
 
 » Moores & Co. v. Bricklayers' Union, 23 Wkly. L. B. (O.), 
 48.
 
 228 HANDBOOK TO THE LABOR LAW 
 
 and material men, stating that any dealings with 
 him would be followed by similar measm-es 
 against them, was an unlawful conspiracy. The 
 judge in the lower court made the following 
 charge : 
 
 " The defendant union claims to be an organ- 
 ization composed of journeyman bricklayers, one 
 of whose objects is the bettering of their con- 
 dition by united action on the subject of wages, 
 and the admission of apprentices into their craft. 
 It becomes necessary to define what action they 
 may legally take to carry out such purposes. 
 They may, by mutual agreement, provide for 
 and impose penalties for the failure of any of 
 their members to comply with such regulations 
 in respect of these purjDOses as their association 
 makes. They may unite in withdrawing from 
 the employ of any persons whose terms of em- 
 ployment may not be satisfactory to them, or 
 whose actions with regard to apprentices are not 
 to their liking. Beyond this they cannot go, to 
 compel their employers to come to their terms. 
 If, in addition to withdrawing from his employ- 
 ment, they combine together to coerce their em- 
 ployer to come to their terms, and so interfere 
 with his business by frightening persons from 
 selling to him, or buying from him, or contract- 
 ing with him, by threats of a withdrawal of union 
 workmen from the employment of such persons, 
 i.e., by boycotting him, they become engaged in
 
 OF THE UNITED STATES 229 
 
 an unlawful conspiracy, and are liable to the em- 
 ployers for any injury arising therefrom. . . ." 
 The argument for the defendant was as follows : 
 " A conspiracy is a combination of two or more 
 persons to do an unlawful act or a lawful act by 
 unlawful means. It follows that there is no con- 
 spiracy unless, either in its end or in its course, 
 the combination is to do an unlawful act. Every 
 man may dispose of his labor by such contract 
 and to such persons as he pleases. He may 
 refuse to contract with any man or class of men. 
 If he chooses not to work for any person using 
 materials of a certain dealer, that is his right. 
 What he may lawfully do he may lawfully an- 
 nounce his intention of doing. Therefore, he 
 may notify his possible employers of his inten- 
 tion not to work for any man using material of 
 such dealer. As these are acts all within his 
 right and laAvful, he may combine with others to 
 do them, and such combination being only to do 
 lawful acts, is not a conspiracy and is not action- 
 able." But Judge Taft in his opinion went on 
 to say : "If this argument is sound, the charge 
 was erroneous. ... It assumes two propo- 
 sitions : first, that no act generally lawful can 
 become unlawful or actionable by reason of the 
 motive or intent with which it is done ; and 
 second, that nothing which is not actionable when 
 done by one person, can be actionable or unlaw- 
 ful when done by a combination of persons. In
 
 230 HANDBOOK TO THE LABOR LAW 
 
 our opinion botli of these propositions are 
 erroneous. 
 
 " We are dealing in this case with common 
 rights. Every man, be he capitalist, merchant, 
 employer, laborer, or professional man, is en- 
 titled to invest his capital, to carry on his busi- 
 ness, to bestow his labor, or to exercise his 
 calling, if within the law, according to his pleas- 
 ure. Generally speaking, if, in the exercise of 
 such a right by one, another suffers a loss, he 
 has no ground of action. Thus, if two mer- 
 chants are in the same business in the same 
 place, and the business of the one is injured 
 by the competition, the loss is caused by the 
 other's pursuing his lawful right to carry on 
 business as seems best to him. In this legiti- 
 mate clash of common rights, the loss which is 
 suffered, is damnum absque injuria. 
 
 " But on this common ground of common 
 rights where everyone is lawfully struggling for 
 the mastery, and where losses suffered must be 
 borne, there are losses wilfully caused to one 
 by another in the exercise of what otherwise 
 would be a lawful right, from simple motives 
 of malice. . . . 
 
 "In the exercise of common rights, like the 
 pursuits of a business, or a trade, which result 
 in a mutual interference and loss, such loss is 
 a legal injury, or not, according to the intent 
 with which it has been caused, and the pres-
 
 OF THE UNITED STATES 231 
 
 ence or absence of malice in the person caus- 
 ing it. . . . 
 
 " The immediate motive of defendants here 
 was to show to the building world what punish- 
 ment and disaster necessarily followed a defi- 
 ance of their demands. The remote motive of 
 wishing to better their condition by the power 
 so acquired, will not, as we think we have 
 shown, make any legal justification for de- 
 fendants' acts. 
 
 "The discussion up to this point has ignored 
 the element of combination in the acts of the 
 defendants. But such cases can rarely, if ever, 
 arise, because the power of a single individual 
 to put into operation such a chain of causes as 
 are necessary to inflict loss is hardly to be 
 conceived. The combination of individuals to 
 efi'ect such a purpose is generally indispensable 
 to its success. In the Mogul Steamship Com- 
 pany V. Macgregor,^ supra, Bowen, Lord Jus- 
 tice, says, ' of the general proposition that cer- 
 tain kinds of conduct, not criminal in any one- 
 individual, may become criminal if done by 
 combination among several, there can be no 
 doubt. The distinction is based on sound rea- 
 son, for a combination may make oppressive 
 or dangerous that which, if it proceeded only 
 from a single person, would be otherwise ; and 
 
 •L. R. 23, Q. B. D., 598 ; 66 L. T., 1.
 
 232 HANDBOOK TO THE LABOR LAW 
 
 the very fact of the combination may show 
 that the object is simply to do harm, and not 
 to exercise one's own just rights.' In Gregory 
 V. Duke of Brunswick,' Coltman, J., says, 'It 
 is to be borne in mind that the act of hissing in 
 a public theatre is prima facie a lawful act, and 
 even if it should be conceded that such an act, 
 though done without concert with others, if done 
 from a malicious motive, might furnish a ground 
 of action, yet it would be difficult to infer such 
 a motive from the isolated acts of one person 
 unconnected wdth others.' It is thus apparent 
 that in determining whether a concerted act, or 
 series of acts, like those at bar, are actionable, 
 the combination is material in two ways : first, in 
 giving the act a different character from a similar 
 act of an individual by reason of its greater, 
 more dangerous, and oppressive effect ; and sec- 
 ond, in being strong evidence of the malice with 
 •which the act is done." 
 
 Another leading case is that of State v. Stew- 
 • art,* decided in 1887. This was an indictment 
 for conspiracy against certain persons, granite 
 cutters, but not in the employ of the Ryegate 
 Granite Works, for conspiring to prevent the 
 Ryegate Granite Works from retaining, or tak- 
 ing into its employment, one James O'Rourke 
 and others, also granite cutters, to the damage 
 
 1(5 Man. and Gr., 953. «59 Vt., 273.
 
 OF THE UNITED STATES 233 
 
 of the Ryegate Granite Works, and of said 
 O'Rourke and others. The purpose was to 
 coerce the Ryegate Granite Works to conform 
 to the rules of the National Stone Cutters' 
 Union. The method charged was intimidation 
 of O'Roui'ke and the others, who were then in 
 the employ of the Ryegate Granite Works, by 
 threats that the works would be declared by 
 them to be " scab " works, and that they 
 (O'Rourke and the others) would be published 
 in the Granite Cutters Journal as " scabs." The 
 court said in their opinion : " It is clear to a 
 demonstration that a combination of the charac- 
 ter set forth in these counts was a conspiracy 
 at the common law ; and, further, that the sub- 
 ject-matter of the offence being the same in this 
 country as in England, namely, an interference 
 with the property rights of third persons, and 
 a restraint upon tlie lawful prosecution of their 
 industries, as well as an unlawfiil control over 
 the free use and employment by workmen of 
 their own personal skill and labor, at such times, 
 for such prices, and for such persons as they 
 please, the common law of England is ' appli- 
 cable to our local situation and circumstances 
 in this behalf,' and is, therefore, the common 
 law of Vermont. . . . 
 
 " Suppose the members of a Bar Association 
 in Caledonia County should combine and de- 
 clare that the respondents should employ no
 
 234 IIAXDBOOK TO THE LABOR LAW 
 
 attorney, not a member of such association, to 
 assist them in their defence in this case, under 
 the penalty of being dubbed a " scab," and hav- 
 ing his name paraded in the public press as 
 unworthy of recognition among his brethren, 
 and himself brought into hatred, envy, and con- 
 tempt, would the respondents look upon this as 
 an innocent intermeddling with their rights 
 under the law ? . . . 
 
 " Such combinations are equally illegal 
 whether they promote objects or adopt means 
 that are per se indictable ; or promote objects or 
 adopt means that are j^er se oppressive, immoral, 
 or wrongfully prejudicial to the rights of others. 
 
 " If they seek to restrain trade, or tend to 
 the destniction of the material prosperity of 
 the country, they work injury to the whole pub- 
 lic. . . . 
 
 " The principle upon which the cases, English 
 and American, proceed is, that every man has 
 the right to employ his talents, industry, and 
 capital as he pleases, free from the dictation of 
 others ; and if two or more persons combine to 
 coerce his choice in this behalf, it is a criminal 
 conspiracy. The labor and skill of the work- 
 man, be it of high or low degree, the plant of 
 the manufacturer, the equipment of the farmer, 
 the investments of commerce, are all in equal 
 sense property. . . . And while such con- 
 spiracies may give to the individual directly
 
 OF THE UNITED STATES 235 
 
 affected by them a private right of action for 
 damages, they at the same time lay a basis for 
 an indictment on the ground that the state it- 
 self is directly concerned in the promotion of 
 all legitimate industries and the development of 
 all its resources, and owes the duty of protection 
 to its citizens engaged in the exercise of their 
 callings. The good order, peace, and general 
 prosperity of the state are directly involved in 
 the question." 
 
 These may be considered the leading modern 
 cases on the boycott, but other instances where 
 the English courts have held that there was a 
 boycott, and granted civil or criminal redress, 
 will be found, arranged for the most part chrono- 
 logically, in the note.* 
 
 9 An indictment was sustained both under the statute of 6 
 George IV., c. 129, referred to above, and for common law- 
 conspiracy, against the defendants, all members of a society 
 called Philanthropic Society of Coopers. One Charles 
 Evans, a member of the society, having done four days' 
 work in a yard where steam machinery was employed, waa 
 fined by the society ten pounds under their rules for so doing. 
 He refused to pay ; and the other men in the yard then left 
 their work and refused to return while Evans was employed. 
 He was in consequence thrown out of work. Each man who 
 left the yard on account of Evans was paid nine shillings for 
 his loss of time by the society, in accordance with its rules. 
 The court held that these rules were unlawful, and the funds 
 of the society illegally diverted for that purpose ; that the 
 fine against Evans was also unlawful, and that the general 
 action of the defendants amounted to an unlawful conspiracy 
 to keep Evans out of work ; in other words, what we are now
 
 23(5 HANDBOOK TO THE LABOR LAW 
 
 The English common hiw of boycotting has 
 been rather hmited than extended in recent 
 
 calling a boycott, and the defendants were sentenced by Lord 
 Campbell to various terms of imprisonment. Reg. v. Hew- 
 itt, 5 CoiC. C, 102 (1851). 
 
 A combination of workmen to induce other men, although 
 not under contract, to leave their work for the purpose of 
 compelling the master to raise their own wages, as well as a 
 combination to persuade those under contract to leave ser- 
 vice, and a combination to induce workmen to leave by mak- 
 ing them drunk, by threats, and other unlawful means, was 
 held a criminal conspiracy (Reg. v. Duffield, 5 Cox Cr. C, 
 404). The head-note of this case is a very clear statement of 
 the law, at least as it existed in England during the time the 
 statute 6 George IV. was in force. It is as follows : 
 
 " 1st. It is a clearly established rule of law that workmen 
 have a right, while they are perfectly free from engagement 
 and have the option of entering into employment or not, to 
 agree among themselves that they will not go into any em- 
 ployment unless they can get a certain rate of wages, and 
 each man, for himself, may say, ' I will not go into an}' em- 
 ploy unless I can get a certain rate of wages ; ' and all of 
 them may say, ' we will agree with one another that in our 
 trade, as able-bodied workmen, we will not take employment 
 unless the employers agree to give a certain rate of wages.' 
 
 "2d. But workmen have no right to combine together to 
 persuade men already hired by and in the employ of other 
 masters to leave that employment for the purpose of com- 
 pelling those masters to raise their wages. 
 
 "3d. Therefore, a conspiracy to obstruct a manufacturer in 
 carrying on his business by inducing and persuading work- 
 men who had been hired by him to leave his service, in or- 
 der to force him to raise his rate of wages, or to make an 
 alteration in the mode of conducting and carrying on his 
 trade, is an indictable offence ; and an agreement to induce 
 and persuade workmen under contracts of servitude for a
 
 OF THE UNITED STATES 237 
 
 times by statute, so that probably all the cases 
 iu the note would be authorities for an Ameri- 
 
 time certain, to absent themselves from such service, is an 
 indictable offence, although no threats or intimidation be 
 proved, or any ulterior object averred. 
 
 " 4th. Workmen who agree that none of those who make 
 the agreement will go into employment unless for a certain rate 
 of wages, have no right to agree to molest, or intimidate, or 
 annoy other workmen in the same line of business who re- 
 fuse to enter into the agreement, and who choose to work for 
 employers at a lower rate of wages ; and, semble^ such agree- 
 ment to molest or intimidate is an indictable conspiracy, as 
 well in relation to workmen willing to be hired and em- 
 ployed, as to those alreadj- liired and employed. 
 
 " 8th. If persons conspire together to take away the work- 
 men of a manufacturer, that constitutes such an obstruction 
 and molestation of hira as to support that part of a count 
 which alleges a conspiracy by molesting and obstructing him." 
 
 A combination of persons not workmen, but delegates of a 
 trade association, combining to persuade workmen not under 
 contract to leave their employment, and giving money to 
 those who were thus rendered idle to support them, was held 
 a criminal conspiracy. Reg. v. Rowlands, 5 Cox C. C, p. 
 436. 
 
 This case grew out of the same transaction as the previous 
 case of Reg. v. Duffield, and was decided on the same day. 
 It is noteworthy for the distinction expressly taken between 
 conspiracies by the employees themselves and those of other 
 persons. The prosecutors, Messrs. Perry & Co., tin-plate 
 manufacturers at Wolverhampton, being in a prosperous con- 
 dition and in harmony with all their workmen, received on 
 the 2d of April a letter from the " National Society of United 
 Trades," announcing that there were dissensions among their 
 workmen, and certain delegates proposed to wait upon them 
 for the purpose of arranging the dissensions which existed 
 between them and their men. Messrs. Perry & Co. were
 
 238 HANDBOOK TO THE LABOII LAW 
 
 can court to follow ; for, though a few of them 
 rest on the precise words of the recent English 
 
 very nmch surprised at receiving such a letter, knowing that 
 there had beeu no complaint witii regard to the empknment 
 or tiie rate of remuneration given. They began to make 
 some inquiries, and found tliat, with the exception of one 
 person, all of the men in their employ had seemed to agree 
 with their masters ; but this person (one Preston) was ob- 
 served to go from bench to bench throughout the workshop 
 and hold communications with the men relative to some se- 
 cret matters, whereupon Messrs. Perry discharged him. Af- 
 ter that they were waited upon by the delegates, who wished 
 to know, in the first instance, why Mr. Preston had been dis- 
 charged, and informed Messrs. Perry that unless they restored 
 lum to work thej' would take every man out of the manufac- 
 tory ; and further, that they had means of carrying out that 
 object, unless Perry & Co. submitted to the scale of prices 
 which they then proposed. After much negotiation, the dele- 
 gates were informed that Messrs. Perry would not submit to be 
 controlled by any association whatever, and the strike took 
 place. The court ruled that, while workmen had a right to 
 combine for their own protection and obtain such wages as 
 they chose to agree to demand, other persons not workmen 
 could only combine with them to assist in that purpose in so 
 far as it was a direct benefit to the parties combining ; and 
 moreover, that any combination to control a man in the con- 
 duct of his business, and threaten him with ruin if he did not 
 abide by conditions, would be a criminal conspiracy. This 
 case also proceeded under the statute of George IV. 
 
 A combination of all the colliers in a colliery except seven, 
 sending a letter to their employer that all workmen would 
 strike in fourteen days unless the seven men were discharged, 
 signed " By order of the Board of Directors for the body of 
 coal-miners," was held unlawful under the statute of George 
 IV. Rex. V. Bykerdike, 1 Moody and R., 179 (1832). 
 
 Perham's case (5 H. & N., 30) was not a case of conspiracy,
 
 OF, THE UNITED STATP^S 239 
 
 statutes, such as " to molest," " to obstruct," or 
 "to persistently follow," the English courts 
 
 as it was an indictment under the statute of George IV. 
 against Perham alone, at the prosecution of one of the work- 
 men of Messrs Piper & Son, for saying to him and fifteen 
 other of Messrs. Pipers' workmen, " If you dare work we 
 shall consider you as blacks, and when we go in we shall 
 strike against you, and strike against you all over London ; " 
 but it is interesting as showing that the threat of a strike was 
 held sufficient intimidation under the English statute. 
 
 In the same way the case of Wood v. Bowron (L. R., 2 Q. 
 B., 21) is instructive. Bowron charged the defendants, two 
 bricklayers, with using threats under the statute to force the 
 respondent to limit the number of his apprentices. The evi- 
 dence was that all his workmen except two stopped work, 
 they not being under contract, whereupon Bowron wrote to 
 the defendant Barrow, the secretary of the Bricklayers' 
 Union, a letter asking him to inform him what was the reason 
 that his men were taken away. Barrow answered, by order 
 of the society, that it had been voted at a meeting of the or- 
 der of bricklayers that none of them would work for Bowron 
 until such time as he parted with all but two apprentices. 
 The court held that this was a statement of the reason of the 
 strike contained in an answer to a letter, and consequently 
 not a threat under the statute. This decision has been much 
 criticised, but is interesting as showing the necessary refine- 
 ment of the law on this point. 
 
 The next English case is that of Walsby v. Anley (7 Jurist 
 N. S., 465), and this did not depend entirely upon the statute (6 
 George IV., Chapter 129, § 3), Judge Crompton holding that 
 a combination of workmen to coerce a master to discharge 
 fellow-workmen was illegal at the common law, and such 
 combinations were not specifically allowed by the exceptions 
 set forth in the statute. The facts were that the plaintiff, a 
 builder, had in his employment men working under a " dec- 
 laration " pledging them not to join in strikes ; that the de-
 
 24:0 HANDROOK TO THE LABOR LAW 
 
 themselves have lalecl that this statute but ex- 
 pressed the common law ; and those sections of 
 
 fendant, one of his workmen, brouglit to him a paper signed 
 by him and other workmen saying that the plaintiff " be given 
 to understand that unless the men who were working under 
 the declaration he discharged, and we have a definite answer 
 by dinner time to that effect, we cease working immediately." 
 This was held an illegal combination against the workmen 
 under the declaration, and not saved by the statute — what we 
 should now call a boycott. 
 
 Judge Crorapton in this case reannounced the rule of law 
 so often referred to in the text (see § .55) in these words : 
 " It is a well-known rule of law that one man may do what 
 may not be done by a number of persons combined, when it 
 tends to injure another." 
 
 The next case was that of Shelbourne t\ Oliver (13 L. T. 
 R., N. S., 630), but rested solely under the statute. The de- 
 fendant was not him.self in the employ of the plaintiff, but 
 was a member of a trades union, and had told him that unless 
 one James, who was the only man who had stiiyed to help the 
 plaintiff with some special orders he had on hand when the 
 strike was initiated, was discharged, the others would not re- 
 turn to work. Although the court based their decision solely 
 on the statute, for the reason that the action was brought 
 against one defendant (Walsby v. Anley, ut supra), it is 
 perfectly clear that the combination was an illegal conspiracy 
 under the common law. 
 
 The next case was that of Skinner v. Kitch (10 Cox C. C, 
 493), also against a single defendant. It was held that the 
 following letter was an endeavor by threats to force a manu- 
 facturer to limit the number of his workmen, etc., witliin 
 the meaning of the statute : 
 
 " Mr. William Kitch, 
 
 " Sir : I am requested by the committee of carpenters and 
 joiners to give the men in your employ notice to come out on
 
 OF THE UXITP:D STATES 241 
 
 the English statutes which are intended to pro- 
 tect organized labor have usually not been cop- 
 strike against James Jordan, unless he become a member of 
 the above society, not being any way disrespectful to you or 
 him, but being compelled by the union and laws. This 
 notice will be carried out after the 27th inst., unless settled 
 in accordance with the society's laws. 
 
 " I remain, yours most respectfully, 
 
 " Thomas Skinner, Secretary." 
 
 This case is interesting as an authority for the principle 
 that a combination to compel an employer not to employ non- 
 union men is an unlawful conspiracy, at least under the Eng- 
 lish statute. See § 52. 
 
 The next case, occurring the same year, is that of the 
 Queen v. Druit, already discussed above ; and this casedeparts 
 from the statute of George IV., for at that time the statute of 
 22 Victoria, Chapter 34, had been passed, § 1 of which enacts 
 that " no workman or other person, etc., by reason merely of 
 his entering into an agreement with any workmen, etc., or 
 by reason merely of his endeavoring peaceably and in a rea- 
 sonable manner, and without threat or intimidation, direct or 
 indirect, to persuade others to cease or abstain from work, 
 etc., shall be deemed or taken to be guilty of ' molestation ' 
 or ' obstruction ' within the meaning of the said act." And 
 it was held that the act of Victoria did not alter the common 
 law. The case was sent to the jury, and the defendants found 
 guilty of unlawful conspiracy, but not under the statute. 
 This case is also one of the first authorities on picketing, and 
 will be further discussed in that connection (see § 60), with 
 the following cases of Reg. v. Shepard, and Reg. v. Bauld. 
 
 The next case, that of Reg. v. Bunn (12 Cox C. C, 316; 
 see § 55), has been fully discussed already, and was rather 
 a case of strike than boycott. 
 
 But the case of Queen v. Parnell (14 Cox C. C, 508) de- 
 serves attention, both from its historic interest and because 
 16
 
 242 HANDBOOK TO THE LABOR LAW 
 
 ied in this country (see § 59). Enough cases 
 have been cited to show both the principles of 
 
 it reiinnounced, at so late a date as 1881, the law of criminal 
 conspiracy iis applied to the hoycott, set forth in § 55 and 
 above in this section. It wa-s an indictment against Parnell 
 and otliers for conspiring to solicit tenants not to pay rents 
 for which tliey were liable under their own contracts, which 
 is a case quite indistinguishable from the case of laborers or 
 labor unions conspiring to persuade employees to break their 
 employment contracts, as in Reg. v. Bunn, above referred to, 
 except, of course, so far as the law of such labor combina- 
 tions has been modified by recent English statute. It was 
 also a conspiracy to incite tenants to retake possession of 
 their farms by force ; but this, being itself a criminal offence 
 at common law, is not so material. The court based their 
 decision probably on the O'Connell case, which occurred in 
 1844, and the definition of conspiracy given by the celebrated 
 commission headed by Lord Chief Justice Cockburn. They 
 also approved the decision of Justice Willes in the Mulcahy 
 Fenian case (L. R., 3 H. L., 306), that '^ A conspiracy con- 
 sists in the agreement of two or more to do an unlawful act, 
 or to do a lawful act by unlawful means ; " and go on to say, 
 " By the terms ' illegal and unlawful ' it is not intended to 
 confine the definition to an act that would in itself be a crime 
 or an offence, but that law extends to and may embrace 
 many cases in which the purposes of a conspiracy, if done by 
 one only, would not be a criminal act, as for instance, if sev- 
 eral combined to violate a private right, the violation of 
 which would be wrongful if done by one. though not m itself 
 criminal. If, for instance, a tenant withholds his rent ; that 
 is a violation of the right of his landlord to receive it : but it 
 would not be a criminal act in the tenant, though it would be 
 the violation of a right ; but if two or more incite him to do 
 that act, their agreement so to incite him is bj* the law of the 
 land an offence. Conspiracy has been aptly described as 
 divisible under three heads^where the end to be attained is
 
 OF THE UNITED STATES 243 
 
 the common law, and the usual practical condi- 
 tions and consequences of a boycotting conspir- 
 
 in itself a crime ; where the object is lawful, but the means 
 to be resorted to are unlawful ; and where the object is to do 
 injury to a third party or to a class, though if the wrong were 
 effected by a single individual it would be a wrong but not a 
 crime. I think under these three heads every class of con- 
 spiracy ranks. And, gentlemen, I have to declare to you 
 that it is a criminal act where two or more agree to have a 
 crime committed ; where two or more agree to effectuate their 
 object by unlawful means ; or where two or more agree to do 
 an injury to a third party or to a class, though that injury, if 
 done by any one alone, of his own motion, would not be in 
 him a crime or an offence, but would be simply an injury, 
 carrying with it a right to civil remedy. The court also say, 
 " This law of conspiracy is not an invention of modern times. 
 It is part of our common law ; it has existed from time imme- 
 morial." And Justice Barry meets the frequent contention 
 that an act or purpose should not make several persons guilty 
 of criminal conspiracy when it would not be criminal if done 
 or attempted by one person only, in the following words : 
 
 " The third and last case is where, with a malicious design 
 to do an injury, the purpose is to effect a wrong, though not 
 such a wrong as, when perpetrated by a single individual, 
 would amount to an offence under the criminal law. Thus an 
 attempt to destroy a man's credit, and effect liis ruin by 
 spreading reports of his insolvency, would be a wrongful 
 act which would entitle the party whose credit was thus at- 
 tacked to bring an action as for a civil wrong, but it would 
 not be an indictable offence. If it be asked on what prin- 
 ciple a combination of several to effect the like wrongful 
 purpose becomes an offence, the answer is, upon the same 
 principle that any other civil wrong, when it assumes a more 
 aggravated and formidable character, is constituted an of- 
 fence, and becomes tranferred from the domain of the civil 
 to that of the criminal law. . . . Thus the dividing line
 
 '244 irANDBOOK TO THE LABOR LAW 
 
 acy ; and, finally, to show the extreme antiquity 
 of this law, we may quote in terms a case 
 
 between private wrorifrs, as entitling the party injured to civil 
 remedies, and private wrongs tlnis converted into pul)lic 
 wrongs, in other words into offences and crimes, is to be 
 found in the more aggravated and formidable character which 
 the violation of individual riglits under given circumstances 
 assumes. It is upon this principle that the law of conspir- 
 acy by which the violation of private right, which if done by 
 one, would only be the subject of civil remedy, when done by 
 several is constituted a crime, can be vindicated as necessary 
 and just. It is obvious that a wrongful violation of another 
 man's right committed by many assumes a far more formid- 
 able and offensive character than when commited by a single 
 individual. The party assailed may be able, by resource to 
 the ordinary civil remedies, to defend himself against the 
 attacks of one. It becomes a very different thing when he 
 has to defend himself against many combined to do him in- 
 jury." 
 
 These words would appear to contain the best and most 
 comprehensive statement of the reason of the subject. 
 
 The next case, that of Mogul Steamship Co. v. McGregor 
 (66 L. T. R., N. S., 1 ; L. R., 23, Q. B. D., 598), is the more 
 instructive because it is a case where the decision went the 
 other way, and the alleged boycott was sustamed as lawful ; 
 and moreover, it was a decision of the court of ultimate ap- 
 peal, the House of Lords. The defendants were firms of 
 shipowners trading between China and Europe, and with a 
 view to obtaining a monopoly of the homeward trade, and 
 thereby keeping up the rate of their own freight, they 
 formed themselves into an association, and offered very 
 favorable terms to merchants in China who would ship their 
 goods exclusively in their vessels. The plaintiffs, also 
 owners of ships in the China trade, were excluded from the 
 association, and their business suffered in consequence ; but 
 there was no evidence of an obstruction of or interfeience
 
 OF THE UNITED STATES 245 
 
 which, although decided in the year 1221, slept 
 in the Latin manuscripts of the English Plea 
 
 with them or their business directly. The court held that the 
 association being formed for the benefit of the defendants, 
 and not with any desire to injure the plaintiffs specifically, 
 was not an unlawful conspiracy. The case is certainly very 
 close to the line, and is most interesting because it turned 
 solely on the point for which we have so often contended, 
 that the legality of a trade combination may become a purely 
 moral question, and the same series of acts will be legal or il- 
 legal according as their direct intent is to benefit the persons 
 combining, or to work injury to the business of others, or 
 hamper them in the exercise of their usual rights. The 
 court in their opinion differ from the case of Hilton v. Eck- 
 ersley (6 Ellis and Blackstone, 47) ; but it may be questioned 
 whether the two cases are not reconcilable. It is interesting 
 to note that in their decision they also cited many American 
 cases, notably State v. Buchanan (5 Har. & J., 317, noted 
 above), and Morris Coal Co. v. Barclay Coal Co. (68 Penn. 
 St., 173), which we have elsewhere discussed. 
 
 Perhaps the most recent case in England is that of Tem- 
 perton v. Russell, occurring 1893 (69 L. T. R., N. S., 78). 
 In this case the defendants were members and officers of 
 certain trades-unions connected with the building trade, 
 which unions adopted certain rules in relation to building 
 operations. A firm of builders having refused to observe 
 these rules, the union, in order to compel them to do so, en- 
 deavored to prevent other persons from supplying them with 
 materials. The plaintiff, who supplied materials to that 
 firm, refused to comply with this request of the unions, 
 whereupon the defendants induced certain persons who had 
 made contracts with him not to carry them out, and not to 
 deal in the future with the plaintiff, by threatening to withdraw 
 the union workmen who were employed by them, whereby 
 the plaintiff suffered damage. The reader who has gone 
 through our discussion of the subject should have little diffi-
 
 246 HANDBOOK TO THE LABOU LAW 
 
 Kolls until set forth in modern printed English 
 by the zeal of the Seldou Society in 1887. It is 
 as follows : 
 
 "The Abbot of Lilleshall complains that the 
 bailiffs of Shrewsbury do him many injuries 
 against his liberty, and that they have caused 
 proclamation to be made in the town that none 
 be so bold as to sell any merchandise to the 
 Abbot or his men upon pain of forfeiting ten 
 shilHngs, and that Richard Peche, the bedell of 
 the said to^Ti, made this proclamation by their 
 orders. And the bailiffs defend all of it, and 
 Richard likewise defends all of it and that he 
 never heard any such proclamation made by 
 anyone. It is considered that he do defend 
 himself twelve-handed (with eleven compurga- 
 tors), and do come on Saturday with his law." 
 
 This is a remarkable report, for in twelve 
 lines (ten lines of the law Latin) we have here 
 set forth all the important principles of the law 
 of boycott. The Abbot complains that the 
 Shrewsbury people do him many injuries 
 "against his liberty" i.e., the Abbot claims a 
 constitutional right to freely conduct his own 
 business ; then we have the recognition of the 
 threat of a boycott as a pai-ticularly illegal act : 
 
 culty in making up his mind that this -was a conspiracy which 
 rendered the defendants liable to damages at suit of the plain- 
 tiff, and the court so held ; and there is no doubt that it was 
 a criminal conspiracy also.
 
 OF THE UNITED STATES 247 
 
 "They have caused proclamation to be made 
 that none sell merchandise to the Abbot." The 
 defendants admit the illegality of their conspir- 
 acy, because they deny ib as a fact ; and the 
 bedell likewise denies that he ever made such 
 proclamation or threat, whereupon (the plaintiff 
 being a man of the Church) they are set to trial 
 by wager of law instead of by actual battle, nei- 
 ther party nor the court making any question of 
 the illegality both of the conspiracy and of the 
 act complained of. 
 
 § 58. The American Decisions — The English 
 common law of conspiracy was recognized by 
 early decisions as existing in this country despite 
 the Revolution, and despite the adoption of com- 
 plete criminal codes. Thus, in Massachusetts, 
 in 1807, a conspiracy to manufacture spurious 
 indigo with a fraudulent intent to sell the same 
 was held an indictable offence, although they 
 did not in fact make any such sale.' It would 
 be unnecessary to multiply citations on this 
 point. The principal actual cases of boycotts 
 which have been considered by the courts and 
 held illegal are as follows : 
 
 Commonwealth v. Hunt (1842) ^ was an in- 
 dictment against journeymen boot-makers for 
 entering into an agreement that they would not 
 
 ' Com. V. Judd, 2 Mass., 329. ' 4 Metcalf, 111.
 
 248 HANDBOOK TO THE LABOR LAW 
 
 Wink for any master who should emph)y any 
 workman not a member of their society, after 
 notice p;iven him to discharge such workmen. 
 The indictment also alleged that by means of 
 such conspiracy they did compel one Wait to 
 turn out of his employment one Home, because 
 Home would not pay a sum of money due said 
 society for a penalty under some one of its by- 
 laws. The third count charged directly a con- 
 spiracy to impoverish Home and hinder him 
 from following his trade as journeyman boot- 
 maker; and the fourth and fifth counts were 
 similar. The court held that the English com- 
 mon law of conspiracy was in force in Mas- 
 sachusetts, but the very elaborate opinion of 
 Chief Justice Shaw succeeds in finding imper- 
 fections in the form of each count of the in- 
 dictment, the court seeming to admit that the 
 confederacy set forth in the constitution of 
 the defendants, the Boston Journeymen Boot- 
 makers, was an unlaAvful conspiracy, but failing 
 to find in the indictment any allegation of a 
 conspiracy for any other purpose than to bene- 
 fit the industrial condition of the defendants 
 themselves. The case is now probably valuable 
 as establishing clearly that persons have a legal 
 right to " form themselves into a society and 
 agree not to work for any person who should 
 employ any journeyman or other person not a 
 member of such society, after notice given him to
 
 OF THE UNITED STATES 249 
 
 discharge siich workmen.'' The first part of this 
 is law to-day, but the italicized portion might 
 well be questioned. Such a notice or threat 
 would be very likely to amount to intimidation 
 or a boycott against the obnoxious workmen. 
 However, the first and second counts of this in- 
 dictment were undoubtedly bad. But it is more 
 difficult to follow the court in its desire to de- 
 stroy the third count also ; and it may well be 
 doubted whether, if the case had arisen in the 
 form of a civil action by Home against the per- 
 sons combining to prevent his getting employ- 
 ment, the court would have so decided. 
 
 The Supreme Court of New Jersey in the next 
 important case following,^ which seems to pre- 
 sent circumstances practically similar, have very 
 little doubt of the law, but are at some trouble 
 not to expressly differ from Commonwealth v. 
 Hunt. The indictment in the New Jersey case 
 was doubtless much better drawn, as it alleged 
 that the defendants, being journeymen workmen 
 employed by Ward and others, in making patent 
 leather, maliciously to control, injure, terrify and 
 impoverish their employers, and force them to 
 dismiss from their employment certam persons, 
 to wit, Charles Beggan and William Prendegast, 
 and to injure said Charles and William, unlaw- 
 fully did conspire, etc. The court held that it 
 
 * State V. Donaldson, 32 N. J. Law, 151.
 
 250 HANDBOOK TO TIIK LABOR LAW 
 
 did not come within the express language of the 
 New Jersey statute aimed at conspiracies to the 
 injuiy of trade, but that the couspii'acy was 
 criminal under the common law, as an unwar- 
 rantable attempt to control the plaintiff in his 
 business, and to the oppression of the obnoxious 
 workmen. From this time (1867) there appears 
 no more conflict in the American decisions than 
 there is in the English. 
 
 In the same year, the Supreme Court of Massa- 
 chusetts,* following Com. v. Hunt, refused to sus- 
 tain an action in tort for damages by a shipping 
 master against a union of sailors' boarding-house 
 keepers, whose articles of association provided 
 that " we will use our best endeavors to prevent 
 our boarders shipping in any vessel where any 
 of the crew shipped are from boarding-houses 
 that are not in good standing with the associa- 
 tion." The court held that the gist of the 
 action was not the conspiracy, but the damage 
 done the plaintiff by certain illegal acts of the 
 defendants, and that in order to be good the dec- 
 laration must allege the commission of illegal 
 acts, which last proposition is certainly not the 
 law. It appeared that the defendants not only 
 took their men out of shops because the plain- 
 tiff's men were in the same, and refused to fur- 
 nish men to him, but " did prevent men from 
 
 * Bowen v. Matheson, 14 Allen, 499.
 
 OF THE UNITED STATES 251 
 
 shipping with him," for " it did notify the pub- 
 lic that they had laid him on the shelf," and 
 " did publicly notify his customers and theirs 
 that he could not ship seamen for them." So 
 far as the case can be sustained, it is in line 
 with McGregor v. Mogul S. S. Co., but the deci- 
 sion cites no case except Com. v. Hunt, and con- 
 siders each act of the combination solely as to 
 the question whether it is illegal as a single act, 
 tortious, or slanderous. Except in Massachu- 
 setts, the case must be considered of no au- 
 thority. 
 
 Indeed, the next Massachusetts case is really 
 inconsistent with it.' This case held that " A 
 conspiracy to obtain from a master mechanic, 
 whose business requires the employment of 
 workmen, money which he is under no legal 
 liability to pay, by inducing or threatening 
 workmen to leave his employment, and deter- 
 ring or threatening to deter others from entering 
 it, so as to rendering him reasonably apprehen- 
 sive that he cannot carry on business without 
 making the payment, is illegal ; and in an ac- 
 tion of tort he may recover the sum so paid, and 
 damages for the injury of his business by the acts 
 of the conspirators." In this case the articles 
 of association were far less objectionable than 
 in the two preceding Massachusetts cases; 
 
 * Carew v. Rutherford, 106 Mass., 1.
 
 2^)2 HANDBOOK TO THE LABOR LAW 
 
 perhaps the most questionable one being that 
 "Any emplojer Avho shall be known to depre- 
 ciate our trade shall be firndy discountenanced 
 by this association, and such measures shall be 
 adopted toward him as are not inimical to the 
 laws of this republic, nor to the rights of said 
 eraploj^er as a citizen of this republic." The 
 facts were that the defendants extorted from the 
 plaintiff a fine of five hundred dollars for em- 
 ploying workmen in New York, although he w^as 
 imable to procure workmen to do that particular 
 work in Boston ; and he was compelled to pay 
 the fine because, after the withdrawal of the de- 
 fendants, he could not procure other stone-cut- 
 ters not members of their association who had 
 sufficient skill to caiTy out the contract in hand. 
 The case was decided by Judge Chapman, who 
 also wrote the opinion in Bowen v. Matheson, 
 and it would seem as if the peculiar hardship of 
 this case had enlightened the learned justice on 
 the law. 
 
 This case was soon followed (in 1871) by 
 Walker v. Cronin,* where an action of tort for 
 dapiages was sustained for a conspiracy of the 
 defendants to induce the plaintiff's emi3loyees, 
 shoe-makers, to leave his employment, some of 
 them being under contract, and to prevent others 
 from entering it. This case goes rather far in 
 
 * 107 Mass., 555.
 
 OF THE UNITED STATES 253 
 
 the other direction, as the action was sustained 
 on all counts, including the one which did not 
 set forth that the workmen persuaded to leave 
 were under any contract to stay. It would ap- 
 pear, however, that the defendants were not 
 themselves in the employ of the plaintiff — a 
 fact of which the court took no special notice, 
 but which, as we have shown above, is very ma- 
 terial ; and indeed it is probably only for this 
 reason that the case would now be followed. As 
 showing how little the law of boycotting had 
 been developed only twenty-five years ago, it is 
 interesting to note that the court have more 
 doubt about the count which alleges the per- 
 suading of employees not under contract to leave 
 than they have about the others. 
 
 The case of State v. Glidden," decided in 1886, 
 is the first reported American case in which the 
 word "boycott" is used. Here the indictment 
 set forth that the defendants, who were printers 
 belonging to a union, conspired to compel a 
 newspaper publishing company to discharge cer- 
 tain workmen, who were, of course, non-union 
 men, and to employ the defendants, with the 
 usual counts alleging an intent to injure the 
 complaining company and the boycotting em- 
 ployees. The Connecticut statute of 1878, 
 providing that every person who should intirai- 
 
 ■"SSCt., 4G.
 
 254 HANDBOOK TO THE LABOll LAW 
 
 date another, or compel suph other to do or ab- 
 stain from doing any act which he has a legal 
 right to do, or persistently follow such person, 
 etc., was clearly in point, aud made the combi- 
 nation unlawful, both iu its purpose and in its 
 means ; but the court went on to say, with the 
 greatest particularity, that the conspiracy was 
 criminal upon authority ; that is, upon common 
 law gi'ounds ; saying : 
 
 " If Ave were to attempt to give a mle appli- 
 cable to this branch of the subject, we should 
 say that it is a criminal offence for two or more 
 persons corruptly or maliciously to confederate 
 and agree together to deprive another of his 
 liberty or property. Such a rule is proxi- 
 mately correct and practically just." 
 
 This boycott was attended with the ordinary 
 incidents of endeavoring to injure the complain- 
 ant's trade ; a circular was dropped about the 
 streets containing the words, " A word to the 
 wise is sufficient. Boycott the Journal and 
 Courier" and was admitted in evidence, as was 
 also the testimony of one Bertha Palm, to the 
 effect that she overheard five or six union prin- 
 ters, among whom was one of the defendants, 
 say that they were pacing fifty cents a week 
 apiece for the expenses of the Courier boycott, 
 and that " it would be paid for by the Courier^ 
 In the same year an indictment was sustained 
 where the defendants, members of trades unions
 
 OF THE UNITED STATES 255 
 
 in the city of Eichmond, combined to make 
 threats to certain customers of Baughmann 
 Brothers, printers, among them H. J. Meyers, 
 that if they thereafter bought anything from 
 Baughmann Brothers, or employed them in 
 their business, they — the defendants — would do 
 all in their power to break up the business of 
 said H. J. Meyers, or other customers of Baugh- 
 mann Brotliers. The court held that it amounted 
 to a conspiracy at common law in Virginia ; that 
 the English law of conspiracy was in force there, 
 and that " any conspiracy formed and intended 
 directly or indirectly to prevent the carrying on 
 of any lawful business, or to injure the business 
 of anyone, by wrongfully preventing those who 
 would be customers from buying anything from, 
 or employing the representatives of, said busi- 
 ness, by threats, intimidation, or other forcible 
 means, is unlawful," and said, " An act may be 
 immoral, for instance, without being indictable, 
 but when immoral acts are committed by num- 
 bers in furtherance of a common object, and 
 with the advantages and strength which deter- 
 mination and union impart to them, they assume 
 the grave importance of a conspiracy. . . ." 
 " By ' unlawful ' it is not intended to mean 
 that the acts agi'eed to be done must be crimi- 
 nal ; it is enough if they are wrongful and with 
 an improper or evil intent ; thus it has been 
 held that threats, intimidation, or any forcible
 
 25G HANDBOOK TO THE LABOR LAW 
 
 means, other tliau lawful competition, are un- 
 lawful. 
 
 " The intent with Aviiich au act is done must 
 always be taken into consideration in arriving 
 at the legality of a transaction. And in this 
 connection I call attention to the fact that the 
 law looks at the intent rather than the motive. 
 The intent is the immediate purpose w ith which 
 the act is done, w^hile the motive is the desire 
 in the mind to attain some ultimate object. 
 Thus the man who sets fire to his neighbor's 
 grain to prevent it being manufactured into 
 liquor, might be said, possibly, to be actuated 
 by a good motive ; but the specific intent of that 
 act w^ould be to destroy his neighbor's property, 
 and that intent the law brands as evil, and it 
 refuses to inquire further into the motive (May's 
 Crim. L., § 6). When a man does the thing for- 
 bidden by. law% moved by the intent prohibited, 
 it is of no avail for him that he also intends an 
 ultimate good."^ 
 
 In Old Dominion S. S. Co. v. McKenna (1887),9 
 the principle is at last clearly announced that 
 the procurement of workmen to quit in a body 
 for the purpose of inflicting damage upon the 
 employer, by persons who are not in his employ, 
 and until he should accede to demands of such 
 
 « 11 Va. L. J., 324, Com. t: Shelton (1887). 
 »30F. R.. 48.
 
 OF THE UNITED STATES 257 
 
 outside persons, which he is under no obligation 
 to grant, constitutes an unlawful conspirac)'. 
 The case was an ordinary boycott of the steam- 
 ship company for not paying southern negroes 
 the same wages as New York longshoremen. 
 The defendants, who called themselves " The 
 Executive Board of the Ocean Association of 
 Longshoremen's Union," were not in the plain- 
 tiff's employ ; and after persuading his workmen 
 to quit, declared a boycott against him in the 
 ordinary way, by sending notices and messen- 
 gers to steamship agents, wharfingers, and ware- 
 housemen. The word " boj'cott " is used in the 
 opinion. 
 
 In the year preceding, the leading case of 
 People V. Wilzig '° was decided in New York. 
 This was the well-known boycott of Theiss's 
 saloon on East Fourteenth Street, New York, 
 and was based on a demand that he should dis- 
 charge his orchestra and employ only members 
 of a certain musical union at their union prices ; 
 and also discharge his waiters and employ only 
 union waiters ; that he should abolish the per- 
 centage system, and not exact deposits for their 
 badges or utensils. Two other defendants de- 
 manded that he should discharge all his bar- 
 tenders and employ only members of that imion 
 at their price. Mr. Theiss replied that his 
 
 '« 4 N. Y. Crim. Rep., 403. 
 17
 
 "2^8 HANDBOOK TO THE LABOR LAW 
 
 brother-in-law was liis head bartender, his son 
 was his head waiter, his wife was cashier, and 
 the leader of his orchestra — Mr. Eschert — a man 
 whom he had known for ten years, and who had 
 been associated with him in business, and that 
 all his fortune was invested in the business. 
 The defendants, representing the Knights of 
 Labor and the Central Labor Union, replied 
 that they had merely come there to make their 
 demands, and unless they were complied with 
 in less than twenty-four hours a boycott would 
 be placed upon his business, which was duly or- 
 dered. The boycott consisted in a body of men 
 walking up and down in front of his saloon, 
 wearing old and dilapidated pants pasted over 
 ■«dth circulars headed " Boycott," libellous in 
 their character, announcing that Theiss was a 
 foe of organized labor, and calling upon all 
 people to abstain from visiting his place. This 
 circular was signed by the Boycott Committee 
 of the Central Labor Union. A crowd of five 
 hundred people collected and obstructed Mr, 
 Theiss's business for fifteen days. They went 
 also to the man who sold Mr. Theiss mineral 
 water, and the brewer who supplied him with 
 beer and held a mortgage on his property, and 
 asked the one to cease selling him mineral water, 
 and the other to foreclose his mortgage. The 
 efforts of the boycotters prevailed, and Mr. 
 Theiss finally acceded to their demands, and,
 
 OF THE UNITED STATES 259 
 
 moreover, gave them a check of one thousand 
 dollars for their expenses in carrying on the boy- 
 cott. The defendants were indicted for criminal 
 conspiracy and extortion under the New York 
 code, and it is needless to say the indictment 
 was sustained ; the defendants were all convicted 
 by a jury and sentenced for terms varying from 
 three years and eight months to one year and 
 six months. 
 
 In the same year, and by the same judge, 
 there was a case of a boycott against Mrs. Land- 
 graff, proprietress of a small bakery, where the 
 facts showed intimidation, the distribution of 
 circulars, etc. Many of the " requests to charge," 
 prof erred by Mr. Goff, now recorder in New 
 York City, and their rejection by the court, in 
 this case are very instructive. The defendants 
 were sentenced for terms ranging from ten to 
 thirty days." 
 
 Both these cases arose under the New York 
 Penal Code, the former under §§ 552 and 553 
 for extortion, the latter under 168, Subdivision 
 5, and 653, Subdivision 3, for conspiracy. But 
 in both cases the court substantially consider 
 and state the common law. 
 
 Then arose the case of the People exrel. Gill v. 
 Smith, very interesting in its facts, but singularly 
 unsatisfactory in the opinion. The facts in this 
 
 1' People r. Kostka, 4 N. Y. Crim. Rep., 429.
 
 200 HANDBOOK TO THE LABOR LAW 
 
 case, and iu People ex rel. Gill v. Walsh, under 
 which name the case was appealed,'^ were that 
 Gardner & Estes were owners of a shoe factory, 
 of which Hartt, the complainant, was foreman ; 
 that said Hartt caused the discharge of one Pot- 
 ter, an employee, on suspicion of swindling the 
 firm by altering checks and coupons, and there- 
 by securing payment for labor not performed. 
 The shop was what was known as a " union " 
 shop ; and when Hartt was first employed as fore- 
 man, the defendant Gill, Avho was an officer of a 
 shoemakers' trades union known as " District 
 Assembly No. 91 of the Knights of Labor," and 
 was also employed in the manufactory of Gard- 
 ner & Estes, went, with others of the employees, 
 to the firm and objected to working under Hartt 
 for the reason that he was an " old-time scab," 
 who would try to reduce wages. At the request 
 of the firm, the employees agreed to lay the mat- 
 ter over for a month " to see whether Hartt 
 w^ould attempt to undermine the organization." 
 At the end of the month, nothing having occuiTed 
 to excite their suspicion, they postponed con- 
 sideration of the subject for two months longer, 
 and before the expiration of that period Hartt had 
 discharged the foreman Potter for swindling. The 
 crew, that is the employees of the shop, demanded 
 Potter's reinstatement, and upon their demands 
 
 '5 1 N. Y. Crim., 292 ; 5 N. Y. Crim., 509.
 
 OF THE UNITED STATES 261 
 
 Potter was reinstated peudiug tbe return of Mr. 
 Gardner from the South. But when Mr. Gard- 
 ner returned, having investigated the circum- 
 stances, he directed Potter to be discharged 
 by Hartt, whereupon a lockout or strike — it 
 does not clearly appear which — occurred, and 
 the firm's business was stopped. The relator 
 Gill and his co-defendant, constituted an execu- 
 tive committee in District Assembly 91 K. of L., 
 then called upon the firm and demanded the 
 discharge, not only of Hartt, but of two other 
 foremen, and also that Potter should be rein- 
 stated. The firm refused to comply, and several 
 conversations took place, at which the union 
 committee refused to listen to any proposition 
 except on condition that Hartt should be finally 
 discharged. They were asked whether in that 
 case they would in any way endeavor to prevent 
 Hartt obtaining employment elsewhere, and in 
 answer they declared that Hartt should not there- 
 after obtain any employment within the jurisdic- 
 tion of District Assembly No. 91, which includes 
 the city of New York and the surrounding 
 country for fifty miles. Gardner & Estes were 
 at last compelled to yield to the demands of the 
 strikers, and cease their efforts to protect Hartt. 
 They informed him that he must resign or be 
 discharged, whereupon Hartt ceased work under 
 protest. The Court held that Avhile a peaceable 
 strike for the purpose of obtaining an advance
 
 2G2 HANDBOOK TO THE LABOR LAW 
 
 iu the rate of wages, or maiiitaiuing siicli rate, 
 was not an offence against the provisions of the 
 New York Penal Code (§ 170), yet a combination 
 to strike, or a strike for uuhiwful purposes, there 
 being no relation between the strike and the 
 wages of the striking employees, was a criminal 
 conspiracy, and that the effort to prevent Hartt 
 from obtaining employment or keeping his pres- 
 ent position was such an unlawful purpose. It 
 appears from the second case that both cases 
 proceeded under the common law as well as 
 under §§ 169, 170 of the New York Penal Code, 
 though neither counsel seem to have had any 
 particular sense of the legal doctrines they 
 were invoking, or the chain of decisions by which 
 their case was really governed. But the facts 
 of this case are most interesting as clearly show- 
 ing the precise definition that, while a strike to 
 raise wages is law^ful enough, a strike, or threat 
 to strike, for the purpose of boycotting another 
 person is a criminal conspiracy. 
 
 About the same time (1888) we find a decision 
 of the United States Supreme Court '^ which 
 fully recognizes the English law of conspiracy 
 and boycotting, and the principle that it is in- 
 dictable for two or more to confederate and com- 
 bine together even against the liberty of an indi- 
 vidual ; and a conviction of the District of 
 
 '3 Callan v. Wilson, 127 U. S., 540.
 
 OF THE UNITED STATES 263 
 
 Columbia court of certain musicians, members 
 of the Knights of Labor, for boycotting members 
 of the local association for refusing to pay a fine, 
 was sustained. 
 
 And in the same year occurred the leading 
 American case on picketing, the Massachusetts 
 case of Sherry v. Perkins,'^ where an injunction 
 was granted to prevent a lasters' union from 
 parading in front of the plaintiffs works with 
 banners and inscriptions, to the effect that 
 " Lasters are requested to keep away from P. P. 
 Sherry's. Per order L. P. U." It will be noted 
 that it does not appear in the case that the de- 
 fendants were employees of the plaintiff, which 
 is a material point, and that the carrying of 
 banners was held to overstep the limit of reason- 
 able persuasion ; but the bill also alleged intim- 
 idation, and the case, as reported, so found. 
 Moreover, there was a Massachusetts statute to 
 the effect that " whoever by intimidation or 
 force prevents or seeks to prevent a person from 
 entering into or continuing in the employment 
 of another shall be punished by fine, etc." The 
 court well finished what remained of Bowen v. 
 Matheson when they say that the wrong did not 
 consist in a libel on the plaintiffs' business, but 
 in the combination ; and the injunction was 
 granted on the ground that the injury was con- 
 
 '*147 Mass., 212.
 
 264 HANDBOOK TO THE LABOU LAW 
 
 tiiiuous, and an adequate remedy could not be 
 given by damages in a suit at law. But we must 
 admit that if there was no other intimidation 
 than the carrying of banners asking employees 
 not to work, the case is ver}' near the line. 
 
 In the same year Baughmaun's case, cited 
 above, from the original judgment of the hustings 
 court of Richmond came up on appeal in the Su- 
 preme Com-t of Virginia, and the court affirmed 
 the principle that a conspiracy to injure the busi- 
 ness of an individual is unlawful ; and that in such 
 case it is not necessary to show that the means 
 used were unlawful, although such charges were 
 in fact made ; and boycotting was expressly de- 
 clared contrary to the common law of Vii'ginia.^^ 
 
 And in the same month arose the Pennsylva- 
 nia leading case of Brace v. Evans. ^^ The plain- 
 tiffs were operating a steam laundry, employing 
 one hundred and thirty-nine persons, about 
 ninety of whom were girls. Having discharged 
 eleven of the latter, who afterward jDersuaded 
 some others also to leave their employment, they 
 were waited upon by representatives of the 
 Knights of Labor and Trades Assembly, demand- 
 ing their reinstatement. Afterward circulars 
 were issued alleging abusive treatment, and pla- 
 cards with the words "Boycott Brace Brothers," 
 
 '« Cramp V. Com., 84 Va., 927. 
 '«3R. feCorp'. L. J., 561.
 
 OF THE UNITED STATES 265 
 
 carried by men who followed the plaintiflfs' 
 wagons, took down the names of their customers, 
 and afterward visited them, endeavoring to per- 
 suade them from further patronizing the plain- 
 tiffs. A civil action was first brought, but these 
 acts continuing, the prayer for the injunction 
 was made; and it is, perhaps, needless to say 
 that the court granted it, noting particularly that 
 the defendants were not employees of the plain- 
 tiffs ; the court saying that whether the plain- 
 tiffs compelled their employees to work too long 
 hours or not, the defendants had no right to 
 pass judgment upon them and organize for the 
 punishment of their supposed offence. If this 
 were so, the plaintiffs might resolve that the 
 conduct of the girls who were discharged justi- 
 fied them in preventing their employment else- 
 where. It is in this case that the celebrated 
 catch-phrase seems to have originated, " the use 
 of the word boycott is in itself a threat." 
 
 We then find a series of decisions in the Fed- 
 eral Circuit courts ; the leading one is Casey v. 
 Cincinnati Typogi-aphical Union." This was a 
 combination of members of a trades union, a 
 duly organized corporation, but not employees of 
 the plaintiff newspaper, to boycott it for refusing 
 to employ only union labor in its office. The 
 methods adopted were the circulation of hand- 
 
 " 45 F. R., 135.
 
 266 HANDBOOK TO THE LABOK LAW 
 
 bills to working men, asking them to withdraw 
 their patronage, a demand upon news agents to 
 give up the agency of the plaintiff's newspaper, 
 saying " if you do not do so, we will have to 
 consider you an enemy to organized labor ; " 
 and circulars asking working men not to patron- 
 ize merchants who advertised in his newspaper, 
 and circulars requesting merchants not to adver- 
 tise in it. The combination was declared a boy- 
 cott, and a preliminary iujunction granted. 
 
 In 1893 arose the first important case of a boy- 
 cott, not of an employer by his employees or 
 their sympathizers, but of one merchant by an- 
 other. The Dueber Watchcase Manufacturing 
 Company brought suit against the Howard 
 Company '^ for damages resulting from an illegal 
 conspiracy to destroy the plaintiff's trade, alleg- 
 ing that the defendants mutually agreed and 
 notified all watch dealers throughout the United 
 States that they would not thereafter sell any 
 cases manufactured by them to any person who 
 should buy or sell any goods manufactured by 
 the Dueber Company ; whereupon a large num- 
 ber of dealers withdrew their patronage from the 
 latter company, and ceased to deal in these 
 goods ; that prior to November 16, 1887, the de- 
 fendants had agreed that they would maintain 
 an arbitrary fixed price for their goods ; and 
 
 '• 55 F. R., 851.
 
 OF THE UNITED STATES 267 
 
 the agreement complained of was for the sole 
 purpose of compelling plaintiff to join with the 
 defendants in maintaining such arbitrary price 
 — the purpose being to establish a monopoly in 
 watchcases, crush competition, and drive the 
 plaintiff from business unless he joined them. 
 The bill also charged that after the passage of 
 the Anti-Trust Act of 1890 the defendants rati- 
 fied and continued such agreement in violation 
 thereof, and treble damages were demanded 
 under § 7 of the Act. This action, however, 
 failed because it was not alleged that defendants 
 were engaged in interstate commerce, and the 
 contract was held not to be one in restraint of 
 trade under the common law. But the court 
 (Judge Coxe) do not seem to have had the law 
 of boycott much in mind, as none of the author- 
 ities on this point are cited, and when the case 
 came up on appeal the decision was affirmed. 
 The complaint was amended, but still appeared 
 to be brought under the Interstate Commerce 
 Act ; but this was probably done for the pur- 
 pose of giving the federal courts jurisdiction, 
 and the decision of the majority went on the 
 ground that it was not shown to be a monopoly 
 of interstate trade. The case, therefore, while 
 piesenting an interesting case of the ordinary 
 boycott, went off on the sole question whether 
 it came under the Interstate Commerce Act, and 
 is of no value as an authority.
 
 268 HANDBOOK TO THE LABOR LAW 
 
 But the same case arose in the courts of New 
 York state, in the form of an action for con- 
 spiracy, in which the Dueber Compan}^ claimed 
 that the Howard Company, engaged in a busi- 
 ness similar to the plaintiffs, agreed, in further- 
 ance of a conspiracy to iiiin the plaintiff, not to 
 sell any of their goods to any person who should 
 deal in the plaintiff"s goods ; and it was held by 
 Judge Paterson that this declaration was good 
 on demurrer, and even that no specific damage 
 resulting from defendant's conspiracy need be 
 alleged, but that the general charge that the de- 
 fendants intended to ruin the plaintiff's business 
 was sufficient.'^ 
 
 And the next year, the decision of the Circuit 
 Court in Hagan v. Blindell ^ w^as sustained at 
 common law, though denied under the Interstate 
 Commerce Act, under which a suit for an in- 
 junction could only be brought by the govern- 
 ment. The facts were that the plaintiffs, owners 
 of a steamship, were prevented by the com- 
 bination of the defendants from shipping a 
 crew. It does not appear, in the very imperfect 
 report, who the defendants were, but it is prob- 
 able that they were not themselves members of 
 the crew, but were some sailors' union or combi- 
 nation of sailors' agencies. 
 
 '» 24 N. Y. Sup., 647. 
 
 '"54 F. R., 40; 56 F. R.. 696.
 
 OF THE UNITED STATES 269 
 
 In 1893 the case of Van Horn v. Van Horn was 
 decided in New Jersey/' which was a case w^here 
 Emma Van Horn and her husband brought suit 
 against Araos Van Horn and another for con- 
 spiring to injure Emma in her business of selling 
 fancy goods, both parties being engaged in the 
 furniture business in neighboring streets. The 
 point of the decision Avas that the plaintiffs, hav- 
 ing failed to prove the conspiracy, might never- 
 theless recover against one defendant for false 
 representations by which they were injured, and 
 the case is principally noteworthy for the follow- 
 ing passage in the opinion : 
 
 " While a trader may lawfully engage in the 
 sharpest competition with those in a like busi- 
 ness, by holding out extraordinary inducements, 
 by representing his own wares to be better and 
 cheaper than those of others, yet when he over- 
 steps that line and commits an act with the 
 malicious intent of inflicting injury upon his 
 rival's business, his conduct is illegal, and if 
 damage results from it the injured party is en- 
 titled to redress. Nor does it matter whether 
 the wrongdoer effects his object by persuasion 
 or by false representation." 
 
 Pettibone v. United States " is a very inter- 
 esting case, and is so near the line of criminal 
 conspiracy that the decision must be considered 
 
 «' 56 N. J. Law, 318. " 148 U. S., 197.
 
 270 HANDBOOK TO TUK LABOK LAW 
 
 of tloiibtful authority, i>avticulai'ly as Justices 
 Brewer and Brown dissented. There was a 
 strike in the mine of Northern Idaho, .and Petti- 
 boue, with others, was indicted under U. S. R. S. 
 5399, 5440 for inijieding by tlireats the adminis- 
 tration of justice in the United States com'ts, 
 and for conspiring to do so. A writ of injunc- 
 tion had been issued by the Circuit Court, on a 
 bill brought by the Bunker Hill Mining Com- 
 pany against the Miners' Union, against the 
 plaintiffs in error, and many others, from inter- 
 fering with the mining company', or by force, or 
 threats, or otherwise, making any attempts to 
 intimidate an employee, or any other person 
 from taking service with the plaintiff company, 
 etc. The indictment averred that the defend- 
 ants conspired to intimidate the employees and 
 others from so working ; but was clearly de- 
 fective in not averring that the defendants had 
 conspired to cause the parties served to disobey 
 the injunction, although it did set forth in gen- 
 eral terms that they conspired to impede the 
 administration of justice in the United States 
 Circuit Court. The court affirmed the old rule 
 of pleading set forth in Commonwealth v. Huut,^ 
 that an indictment for criminal conspiracy must 
 set forth the purpose, if the purpose be criminal or 
 illegal, and the means, if the means be so, when 
 
 "4 Met., 111. See above.
 
 OF THE UNITED .sTATES 271 
 
 the purpose is not in itself unlawful, and quashed 
 the indictment for the defect we have noted. 
 But the case seems to us not in consonance with 
 the best authorities on another jjoint : It was a 
 criminal offence, under the statutes of Idaho, to 
 conspire by intimidation to compel employees 
 to leave work, and, although the defendants 
 could not have been tried in the United States 
 Court directl}' for violation of this Idaho statute, 
 it seems that its existence would be sufficient to 
 make the purpose of the combination illegal 
 within the accepted definition of the word in 
 the law of conspiracy. Of course, if the intimi- 
 dation could be considered to be merely malum 
 prohibitum and not malum in se, the pi*ohibition 
 of the Idaho statute would not have the effect 
 of making a combination to break it criminal in 
 the federal court ; but one can hardly take this 
 view of the facts. And in 1893 it was held by 
 the Supreme Court of Pennsylvania,'^^ that " a 
 court of equity will enjoin discharged employees 
 or members of a union " (or, it would seem, 
 other persons) " fi*om gathering about the plain- 
 tiff's place of business, and from following his 
 employees to and from work, and gathering 
 about their boarding-places, and from any and 
 all manner of threats, intimidation, ridicule, and 
 nuisance." 
 
 '^Murdock v. Walker, 152 Pa., 595.
 
 272 HANDBOOK TO THE LABOi: LAW 
 
 Wo have now come down to the boycott cases 
 occurring in consequence of the Pullman strike 
 in 189-4. Most of these will better be considered 
 under ^^5$ 05 and 66, as the decision commonly 
 turned either upon the Anti-Trust or Inter-state 
 Commerce Law, or upon the fact that the acts 
 were committed against railroads in the hands of 
 receivers ; but it was repeatedly held that a 
 combination to injure the owner of cars (the 
 Pullman Co.) operated by railroad companies 
 under contracts with it, by compelling them 
 to give up using its cars in violation of their 
 contracts or otherwise, and on their refusal to 
 incite railroad employees to quit work, was a 
 boycott and unlawful conspiracy. A good ex- 
 ample of a case so holding is Thomas v. Cin- 
 cinnati, N. O. & T. P. R. Co.,^' in which decision 
 Judge Taft also notes as an important point, 
 that the conspiracy had no effect, and was meant 
 to have no effect, on the character or reward of 
 services of the employees actually combining ; 
 and also that a conspiracy to compel an employer 
 (the Pullman Co.) to pay its employees more 
 wages, by inciting the employees of all the rail- 
 roads of the country to strike, was an unlawful 
 conspiracy by reason of its purpose, even when 
 the means were such as would usually be lawful. 
 This case arose on the petition of the receiver of 
 
 "26 F. R.. 803.
 
 OF THE UNITED STATES 273 
 
 the railroad for the commitment of one Phelan 
 for contempt, lie, with Debs, having been enjoined 
 from taking part in the boycott ; and the legality 
 of defendants' acts only came into the case by the 
 court's considering whether the injunction issued 
 was a proper one. Phelan was' sentenced to jail 
 for six months. 
 
 The principal case is, of course, that of U. S. 
 V. Debs,'* but this case was expressly based on 
 the Anti-Trust Act, and the only question left 
 to the Supreme Court on habeas corpus (158 
 U. S.) was whether the Circuit Court had jui'is- 
 diction of the case sitting as a court of equity 
 under the Anti-Trust Act or otherwise. The 
 case is more fully discussed in §§ 66, 67, 
 
 The most recent boycott case in any state 
 court occurred in Oregon, in December, 1894.^ 
 Here the court refused on the facts to grant the 
 injunction, and sustained the demurrer to the 
 bill, which set forth that the defendants were all 
 printers, members of a printers' union, with by- 
 laws which expressly provided for boycotting in 
 certain cases ; that the plaintiff refused to sub- 
 mit to the regulations of the union, and for this 
 reason, and because he would not discharge a 
 certain messenger boy, they ordered a strike, 
 which w^as effective, and printed advertisements 
 in the newspapers urging persons " intending to 
 
 »«64F. R., 724. 
 
 "' Longshore Printing Co. v. Howell, 26 Ore., 527. 
 18
 
 "^I'i HAxnnooK 'lo the labor law 
 
 have job priuting tlono to bear iu mini} that the 
 Longshore establishment was a non-imion of- 
 fice," visited niimerous customers of the plain- 
 tiff, and held out the threat to them that if they 
 did not "withdraw their business from the plain- 
 tift* the union and their friends would withdraw 
 their business from them ; that the plaintiff put 
 in a bid to the Common Council of the city of 
 Portland for the city printing for the year, which 
 was the lowest bid, but the defendants threatened 
 the members of the city council with injury to 
 their private business interests if they accepted 
 it, and for that reason alone they refused it, and 
 otherwise persistently visited and harassed the 
 patrons of plaintiff with demands that they cease 
 to give their work to it, closing with the usual 
 allegations that it was a conspiracy to destroy the 
 plaintiff's business. The court quotes a great 
 deal of excellent law, but it certainly is difficult 
 to see why the allegations in the bill did not set 
 forth a pretty substantial boycott. 
 
 There is a still more recent case to the same 
 effect, where an injunction was refused against a 
 labor union from parading the streets with 
 placards calling attention to the fact that plain- 
 tiff was an enemy of organized labor; but the 
 opinion is of httle authority.^ 
 
 The latest case of authority is that of the 
 
 ^* De Pear v. The Cooks' Union, District Court of Colorado, 
 27 Chicago Legal News, 387.
 
 OF THE UNITED STATES 27.~ 
 
 Uuited states v. Cassidy,"^ which was a raih'oad 
 case in the District Court of California, growing 
 out of the Pullman strike. Defendants were in- 
 dicted for conspiracy, and Judge Morrow in 
 charging the jury repeats the old rule that, Avhile 
 employees may combine and form unions for 
 their own benefit and protection, they cannot 
 combine and quit work for the purpose of com- 
 pelling their employer to join in a boycott against 
 a third party. 
 
 There are a few other decisions on the trade 
 boycott. Thus, in Bohn Mfg. Co. v. Hollis,=» a 
 large number of retail lumber dealers had formed 
 a voluntary association by which they mutually 
 agreed that they would not deal with any manu- 
 facturer or wholesale dealer who should sell 
 lumber directly to consumers at any point where 
 a member of the association was carrying on a 
 retail 3^ard, and provided in their by-laws that 
 whenever any dealer made such a sale their 
 secretary should notify all the members of the 
 fact. The plaintiff having made such a sale, the 
 secretary (Hollis) threatened to give notice ac- 
 cordingly ; and an injunction restraining him 
 from so doing was denied. It would seem this 
 decision can be sustained on a ground not ad- 
 verted to in the opinion, that the dealers' union 
 
 «» 67 F. R., 700. 
 
 »» 54 Minn., 223; 55 N. W., 1119,
 
 27G HANDBOOK TO THE LABOR LAW 
 
 being legul (see § 54), he was a member of it, 
 and hence had voUmtarily assented to whatever 
 boycotting might result ; moreover (as the couii 
 observe) they were not proposing to send the 
 notice to any but other members of the associ- 
 ation. 
 
 This is certainly the only ground upon which 
 Olive V. Van Patten ^' can be distinguished, de- 
 cided the same year by the Texas Court of Ap- 
 peals. This was a case where a petition was 
 brought by the proprietor of a saw-mill against 
 the defendants, who had entered into a lumber 
 dealers' association of which, however, the plain- 
 tiff was not a member, with a by-law to the 
 same effect, that when any manufacturer or 
 wholesale dealer should sell to any person not a 
 dealer, at a jDoint where there was no dealer, such 
 sales should be reported to the secretary, who 
 should thereupon notify the members of the as- 
 sociation, whereupon it should be their duty to 
 discontinue their patronage of such wholesale 
 dealer. In this case the circular had been actu- 
 ally sent by the secretary to the members of the 
 association, and the plaintiff therefore claimed 
 damages, as well as an injunction restraining de- 
 fendants from " further perpetration and continu- 
 ation of their wrongful acts " — i.e., from com- 
 bining not to buy of the plaintiff. The court 
 
 " 25 S. W., 428.
 
 OF THE UNITED STATES 277 
 
 below had sustained a general demurrer to the 
 petition, and its judgment was reversed upon 
 the authority of Delz v. Winfree.^" Tliis latter 
 was a case where defendants had agreed not to 
 sell to the plaintiff, who was a butcher, any live 
 animals or slaughtered meat, and induced others 
 not to sell to him also ; and it was decided that 
 while a person has the right to refuse to have 
 business relations with another, whether the re- 
 fusal is based upon reason, whim, prejudice, or 
 mahce, " the privilege is limited to the individ- 
 ual action of the party who asserts the right. 
 It is not equally true that one person may from 
 such motives influence another person to do the 
 same thing." 
 
 It will be seen that both these cases are di- 
 rectly contrary to Bohn v. Hollis, unless the fact 
 that in neither was the plaintiff a member of the 
 dealers' association makes a difference ; and, of 
 course, the legality of such associations, as be- 
 tween themselves and their members, depends 
 not upon the law of boycotting, but upon the 
 sole question whether they are in restraint of 
 trade, which has been fully discussed in § 54 
 above. 
 
 But Bohn V. Hollis was expressly dissented 
 from in Jackson v. Stanfield (1894),^^ one of the 
 
 ^'^ 80 Texas, 400; IG S. W., 111. 
 "36 N. E., 345.
 
 278 HANDBOOK TO TIIK LABOR LAW 
 
 most instructive and recent cases on tlie trade 
 boycott. The Retail Lumber Dealers' Associa- 
 tion of Indiana, by its by-laws, gave an active 
 member a claim against a wholesaler for selling 
 to a person not a regular dealer in such mem- 
 ber's community, provided for a hearing of the 
 claim by a committee, and required members to 
 refuse to patronize a wholesaler who ignored the 
 committee's decision. The plaintiff, who was 
 not a regular dealer, underbid the defendant on 
 a contract, but the wholesalers refused to sell to 
 him, and he was obliged to abandon the contract 
 because the defendant, an active member of the 
 association, had previously enforced a claim 
 against the wholesaler who had sold to the 
 plaintiff, and expressed an intention of continu- 
 ing to enforce such claims. The court granted 
 a perpetual injunction against the defendant 
 from making any claim under the by-laAvs of the 
 association against any person, though a mem- 
 ber of it, who sold to the plaintiff, thereby prac- 
 tically annulling the association's by-law ; and, 
 moreover, allowed damages against the defend- 
 ant for the amount which the plaintiff had lost 
 by abandoning his contract. In this case will 
 be found a full discussion of all the recent cases. 
 The case of Cote v. Murphy,^ decided in 1894, 
 is particularly interesting in that it justifies a 
 
 3* 28 Atlantic, 100 : 159 Pa. St , 420.
 
 OB' THE UNITED STATES 279 
 
 boycott, or combination of employers, when 
 made solely in defence to a combination of em- 
 ployees to raise wages, although the latter com- 
 bination was expressly legalized by the Pennsyl- 
 vania statute, which, however, did not include 
 employers within its provisions. Incidentally 
 the court raise a query whether the statute is 
 not unconstitutional as being class legislation, 
 and that the legalizing such combinations in 
 labor disputes ought to extend to both parties to 
 the contract, which is substantially the case in 
 the English statute. 
 
 A still later case is that of Barr v. the Essex 
 Trades Council,'^ where the proprietor of a 
 newspaper brought a bill in equity against 
 eighteen labor unions in the city of Newark, 
 one of which was incorporated, upon the follow- 
 ing complicated but interesting state of facts : 
 These labor unions had established an elaborate 
 system, under the name of Essex Trades Council, 
 a voluntary association composed of delegates 
 from each union, by which, upon reports of the 
 individual members of the unions dealing with 
 any shop or place of business, made upon blank 
 slips, to the central body, cards were issued by 
 the Essex Trades Council, to be displayed in 
 shops, stating that the establishments so favored 
 were " especially deserving the patronage of or- 
 
 3530 Atlantic, 881.
 
 280 HANDBOOK TO THE LA BO 11 LAW 
 
 gauized fair consumers." A failure by any 
 union to report upon a shop with Avhich its 
 members dealt for two consecutive mouths, 
 placed its products under the ban of organized 
 labor as represented by the Essex Trades Coun- 
 cil. The next step was an agreement in writ- 
 ing purporting to be made between the Essex 
 Trades Council and a tradesman, by which the 
 latter, " in return for the patronage of united 
 fair consumers," promises and agrees to buy as 
 a consumer, engage as employer, keep as dealer, 
 as exclusively as he can, such labor and goods 
 as may be announced as " fair " by a particular 
 union and endorsed by the Essex Trades Coun- 
 cil. The cards then issued, certifying that the 
 person so favored is a "fair consuming dealer," 
 were of such size, color, and appearance that if 
 publicly displayed in stores or places of business 
 would attract attention ; and there was also a 
 small pamphlet published by the Essex Trades 
 Council, called " The Fair List of Newark, N. J.," 
 announced to be " for the information of peoj)le 
 who buy service or product, and who have en- 
 terprise enough to seek to place their money 
 where it will do the most good," containing 
 names and addresses of tradesmen, persons in 
 business, lawyers, and others iu Newark. This 
 is perhaps the most elaborate system of at- 
 tempted labor union for all purposes of trade 
 or dealings, including a combination system of
 
 OF THE UNITED STATES 281 
 
 general boycott upon all the world not so fa- 
 vored, which has jet come to the notice of the 
 courts. 
 
 Upon this state of facts the complainant had 
 made a contract to employ what is called "plate 
 matter " — that is, made of stereotyped plates for 
 certain sheets of newspaper, which plates were 
 manufactured in Ncav York, and were used gen- 
 erally throughout the state of New Jersey by 
 newspapers, except one in the city of Newark, 
 without complaints by the typographical unions. 
 All his employees were, however, members of 
 the local typographical union, which had declared 
 against the use of such plate matter in the city 
 of Newark, as the plaintiff knew. He sought to 
 have this resolution relaxed in favor of his pa- 
 per; but, on its refusal so to do, nevertheless 
 informed his foreman that he would use plate 
 matter on and after March 13, 1894, but that 
 the union scale of wages would be maintained, 
 and that he would gladly retain the services of 
 such as might be willing to stay. Some of his 
 employees remained, but others left ; and the 
 union withdrew its endorsement of the news- 
 paper, and informed the Essex Trades Council 
 of the fact, whereupon the Council issued a cir- 
 cular in the following words : " Friends, one and 
 all ! Leave this council - boycotting Newark 
 Times alone. Cease buying it ! Cease handling 
 it ! Cease advertising in it ! Keep the money
 
 282 HANDBOOK TO THE LABOR LAW 
 
 of fair men inoviug only among fair men. Boy- 
 cott the boycotter of organized fair labor." This 
 circular was distributed in the city of Newark ; 
 various other sm;iller circulars were issued, and 
 the bill alleged that in ccmsequence many deal- 
 ers in and purchasers of the complainant's pa- 
 per, and advertisers therein, had been intimidated 
 from continuing to buy and advertise therein. 
 The court found that an injury had thereby 
 been done the complainant's business, and, with- 
 out deciding that the action of the defendants 
 constituted a criminal conspiracy, the statute of 
 New Jersey now requiring an overt act, held that 
 they had clearly combined to injure the plain- 
 tiffs property and freedom in disposing of his 
 own capital and managing his own business ; 
 that they were, therefore, liable for damages, 
 and that, although the boycott was not con- 
 ducted with violence or physical intimidation, 
 the moral intimidation caused by the complain- 
 ant's fear of loss of business was sufficient to 
 make the combination unlawiiul, and an injunc- 
 tion was granted prohibiting defendants " from 
 distributing or circulating any circulars, printed 
 resolutions, bulletins, or other publications con- 
 taining appeals or threats against the NeAvark 
 Times, and from making any threats or using 
 any intimidation to the dealers or advertisers in 
 such newspapers." 
 
 Finally, the last reported case on the subject
 
 OF THE UNITED STATES 5383 
 
 of boycotting ^ goes back to the criminal law, 
 and, like almost the first American case on the 
 subject, occui'red in Yermont. Defendants were 
 indicted for conspiracy to prevent one McClm-e 
 from working for the Wetmore & Morse Granite 
 Co., by threats and intimidation, and for coercing 
 granite cutters to join the National Stone Cutters' 
 Union, and preventing other granite cutters from 
 obtaining work or entering the emiDloyment of 
 the complainant, by threatening McClure that, if 
 he did not join the union, they would organize a 
 strike both against him and the complainant 
 company. The conviction of the defendants was 
 sustained, and the case of State v. Stewart re- 
 affirmed. 
 
 § 59. American Statutes on Boycotting Such 
 
 being the court decisions on boycotting at com- 
 mon law and under the English statute, we are 
 now in a position to understand the meaning and 
 effect of th^ several statutes which have been 
 passed in the states of the Union upon this sub- 
 ject ; and in the first place, it may be well to 
 remind the reader of the ordinary statutes 
 against intimidation by one person, or by indi- 
 viduals acting in combination, which were set 
 forth in § 5 above. Of course, in the states 
 which have such statutes applying to interference 
 
 ^« State V. Dyer, 32 Atlantic Rep., 814.
 
 284 HANDBOOK TO THE LABOlt LAW 
 
 with or intimidation of employees or employers 
 by individuals, and rendering such acts criminal 
 or penal, a combination of two or more jDersons 
 to perform any such act, or to attain any end to 
 which the commission of such acts is a necessary 
 means, would become by the very force of such 
 statutes a boycott or unlawful conspiracy. In 
 this section, therefore, we have only left to con- 
 sider such statutes as exclusively apply to com- 
 binations ; and they are as follows : 
 
 It is forbidden by statute, or. made criminal or 
 penal, to conspire for the following purposes 
 respectively in the states named. Thus, 
 
 (1) In Wisconsin, for the purpose of prevent- 
 ing any person from j)rocuring work, 
 
 (2) for the purpose of procuring the discharge 
 of any workman, 
 
 (3) or for the employer to attempt to prevent 
 any person from obtaining employment whom 
 he has discharged.^ 
 
 (4) To conspire to wilfully injurfe or destroy 
 or obstruct the use of the property of another, 
 or to obstruct him in the prosecution of his law- 
 ful business or pursuits.^ This is substantially 
 
 > Wis., 1895, 240, 1, 2. 
 
 •^R. I., 242,40; Me. R. S., 1883, 126, 18; Wis., 1887, 287; 
 R. S., 446 a. But for much the most drastic law of this sort 
 see the laws of Illinois, Michigan, and Kansas, printed in full 
 in the note to § 62, which, although primarily applying to 
 railways, seem equally to apply to all other corporations, per- 
 sons, or occupations.
 
 OF THE UNITED STATES 285 
 
 the common law of boycotts as laid clown in the 
 leading English and American cases, and in the 
 English statute of 1875. 
 
 (5) It is made a criminal offence for any one 
 or more persons to persistently follow a person 
 in a disorderly manner, or injui*e, or threaten to 
 injure, his property with intent to intimidate 
 him.^ This is substantially similar to the Rhode 
 Island statute above, with the exception that, 
 following the English statute, it adds the offence 
 of picketing, and seems to prohibit it even by 
 one or two persons, at least when done in a dis- 
 orderly manner. The special subject of picket- 
 ing will be discussed in the next section. 
 
 (6) A combination " to commit any act in- 
 jurious to trade or commerce."^ This would 
 appear to be an omnibus clause which might let 
 in almost anything, not only ordinary boycotts, 
 but agreements or trusts tending to monopoly, 
 or in general restraint of trade. This, of course, 
 was the common law, but it will be remembered 
 that in England, by recent statutes, combinations 
 are no longer criminal so far as they are simply 
 in restraint of trade. The tendency in this 
 country through the Anti-Trust Act has been in 
 the other direction, and it is probable that the 
 effect of that statute will be to make many a 
 combination criminal, as in restraint of trade or 
 
 'Ct., 1518. <N. Y. P. C, 168.
 
 286 HANDBOOK TO THE LABOK LAW 
 
 interstate commerce, which would not otherwise 
 have been so. (Compare § 66 below.) 
 
 The efforts of the labor unions in England 
 have recently been directed to confining intimi- 
 dation to threats of actual injury to person or 
 property, but so far they have not been success- 
 ful, unless indeed the recent general statute be 
 held to cover such cases, and upon this there is 
 as yet no decision. 
 
 There are, however, more elaborate statutes 
 in the states of New York, Illinois, Michigan, 
 Minnesota, Tennessee, and Texas, but as they 
 establish no new principle in the law of boycott, 
 want of space precludes setting them forth at 
 length in the text. They will be found copied 
 below. ^ 
 
 * If two or more persons conspire, either 
 
 (1) To prevent another from exercising a lawful trade or 
 calling, or doing any lawful act, by force, threats, intimida- 
 tion, or by interfering or threatening to interfere with tools, 
 implements, or property belonging to or used by another, or 
 with the use or employment thereof ; or, 
 
 (2) To commit any act injurious to the public health, to 
 public morals, or to trade or commerce, or for the perversion 
 or obstruction of justice, or of the due administration of the 
 laws ; 
 
 Each of them is guilty of a misdemeanor. N. Y. P. E., 
 168; Minn., 6423. 
 
 If any two or more persons conspire and agree together [or 
 the officers or executive committee of any society, or organi- 
 zation, or corporation shall issue or utter any circular or edict 
 as the action of or instruction to its members, or any other 
 persons, societies, organizations, or corporations, for the pur-
 
 OF THE UNITED STATES 287 
 
 On the other hand, a few states are beginning 
 to pass statutes enlarging the liberty of laboring 
 
 pose of establishing a so-called boycott or black list ; or shall 
 post or distribute any written or printed notice in any place] 
 with the fraudulent or malicious intent wrongfully and 
 wickedly to injure the person, character, business, or employ- 
 ment, or property of another, . . . or to do any illegal 
 act injurious to the public trade, health, morals, police, or ad- 
 ministration of public justice, or to prevent competition in 
 the letting of any contract by the state or the authorities of 
 any county, city, town, or village, or to induce any person 
 not to enter into such competition, . . . they shall be 
 deemed guilty of a conspiracy, shall be imprisoned in the 
 penitentiary not exceeding three years, or fined not exceed- 
 ing $2,000. 111., 38,73. (The part in brackets, as it is inter- 
 esting to note, has been repealed.) 
 
 If any two or more persons shall combine for the purpose 
 of depriving the owner or possessor of property of its lawful 
 use and management, or of preventing, by threats, sugges- 
 tions of danger, or any unlawful means, any person from be- 
 ing employed by or obtaining employment from any such 
 owner or possessor of property on such terms as the parties 
 concerned may agree upon, such persons so offending shall 
 be fined not exceeding $500, or confined in the county jail 
 not exceeding six months. 111., 38, 206. 
 
 It is unlawful for corporations, their officers or agents to 
 " threaten to discharge any such employee or employees for 
 trading or dealing, or for not trading or dealing, as a customer 
 or patron with any particular merchant or other person or 
 class of persons in any business calling, or to notify any em- 
 ployee or employees, either by general or special notice, 
 directly or indirectly, secretly or openly given, not to trade 
 or deal as customer or patron with any particular merchant or 
 person or class of persons, in any business or calling, under 
 penalty of being discharged from the service of such corpo*
 
 288 HANDROOK TO THE LABOR LAW 
 
 men to form offensive and defensive combina- 
 tions, and narrowing the common law of boy- 
 ration doing business in this state as aforesaid." Tenn., 1887, 
 208, 1. 
 
 If any two or more persons shall associate themselves to- 
 gether in any society or organization whatever, with intent 
 and for the purpose of preventing, in any manner whatever, 
 any person or persons whomsoever from apprenticing himself 
 or themselves to learn and practise any trade, craft, vocation, 
 or calling whatsoever, or for the purpose of inducing, by 
 persuasion, threats, fraud, or any other means, any appren- 
 tice or apprentices to any such trade, craft, vocation, or call- 
 ing, to leave the employment of their employer or employers, 
 or for the purpose, by any means whatever, of preventing or 
 deterring any person or persons whomsoever, from learning 
 or practising any such trade, craft, vocation, or calling what- 
 soever; every such person so associating himself in such 
 society or organization shall be deemed guilty of a misde- 
 meanor, and, upon conviction thereof, shall be punished as 
 prescribed in § 4310 of this code. Ga., 4498. 
 
 An " unlawful assembly " is the meeting of three or more 
 persons, with intent to aid each other by violence, or in any 
 other manner, either to commit an offence or illegally to de- 
 prive any person of any right, or to disturb him in the enjoy- 
 ment thereof. 
 
 If the purpose of the unlawful assembly be to prevent any 
 person from pursuing any labor, occupation, or employment, 
 or to intimidate any person from following his daily avoca- 
 tion, or to interfere in any manner with the labor or employ- 
 ment of another, the punishment shall be by fine not exceed- 
 ing §500. 
 
 If the persons unlawfully assembled together do, or at- 
 tempt to do, any illegal act, all those engaged in such illegal 
 act are guilty of riot. 
 
 If any person, by engaging in a riot, shall prevent any other 
 person from pursuing any labor, occupation, or employment,
 
 OF THE UNITED STATES 289 
 
 cotting.^ (Compare also statutes set forth in 
 §§ 51, 52, 55.) 
 
 or intimidate any other person from following his daily avo- 
 cation, or interfere in any manner with the labor or employ- 
 ment of another, he shall be punished by confinement in the 
 county jail not less than six months nor more than one year. 
 Tex. P. C, 279, 289, 295, and 304. 
 
 The legislature of Louisiana, by a resolution July 12, 1894, 
 condemned the efforts of foreign emissaries to disturb the 
 public peace by fomenting discord between employers and 
 employees at a time " when there is no cause for discontent, 
 and no grievances to be redressed," and commended the rail- 
 road operatives of the state for repulsing the overtures of 
 such agitators and refusing to join in the Chicago strike. 
 La., 1894, 149. 
 
 * The orderly and peaceable assembling or co-operation of 
 persons employed in anj' calling, trade, or handicraft, for the 
 purpose of obtaining an advance in the rate of wages or com- 
 pensation, or of maintaining such rate, is not a conspiracy. 
 N. Y. P. C, 170; Minn., 6424. 
 
 And no conspiracy is punishable criminally unless it is one 
 of those specifically enumerated (crime, felony, to commit 
 or charge; and see note 5). Minn., 6423; Mon. P. C, 322 
 (see § 55). 
 
 No agreement except to commit a felony upon the person 
 of another, or to commit arson or burglary, amounts to a 
 conspiracy, unless some act beside such agreement be done 
 to effect the object thereof, by one or more of the parties to 
 such agreement. N.J. Rev., p. 261, § 191; Minn., 6425; 
 Mon. P. C, 323. 
 
 In New Jersey persons lawfully and peacefully persuading, 
 advising, or encouraging other persons to enter into any com- 
 bination for or against leaving or entering into the employ- 
 ment of other persons, are by the express statute declared not 
 conspirators. N. J., p. 1296, § 9. 
 
 See also § 55 for Maryland and Montana laws. 
 19
 
 290 HANDBOOK TO THE LABOU LAW 
 
 § 60. Picketing — Patrolling or picketing may 
 be defined to be the besetting of the works or 
 place of business of an employer for the purpose 
 of persuading or preventing men from taking 
 work or customers to deal with him, or the fol- 
 lowing of his employees in the street for the 
 purpose of inducing them to leave their employ- 
 ment ; " picketing " being the usual English 
 word, and " patrolling " the American for the 
 same thing. It may be done by combination, so 
 as to amount to a conspiracy or boycott, or con- 
 sist merely in the individual cases, in which 
 case the only question will be whether it 
 amounts to illegal intimidation ; and we may 
 state at once that the law, both English and 
 American, is pretty well settled down to the 
 view that picketing, for the purpose of mere per- 
 suasion of workmen not to take emploj^ment, 
 and not attended with any disorder or physical 
 or moral intimidation, is now held legal ; at 
 least when conducted in a reasonable manner 
 and with not too great a crowd. Indeed, the re- 
 cent English decisions have gone so far as al- 
 most to prescribe that the picket of two persons, 
 which may be relieved by others, like a guard, 
 is about the extent to which the law will allow 
 it ; and these two persons must, of course, not 
 be guilty of intimidation as above defined ; but 
 we must note that the law will be much more 
 strict when the persons picketing are not in the
 
 OF THE UNITED STATES 291 
 
 employ of the persons against whom they are 
 acting ; and, consequently, can have no direct 
 personal object of bettering their own condition ; 
 and we may further venture to assert, though 
 there is yet no reported case which makes the 
 distinction, that a picket conducted for the pur- 
 pose of preventing persons from trading with the 
 employer is at least more likely to be illegal (if 
 indeed it is not always illegal) than a picket es- 
 tablished merely to see that other workmen do 
 not take employment, or to persuade those who 
 are still in the employment to leave. 
 
 There are quite a number of reported deci- 
 sions on the precise point of picketing. Perhaps 
 the first English case was that of Keg. v. Druitt, 
 which we have more fully discussed in another • 
 connection.^ It arose under the statute of 6 
 George IV., p. 129, and also 22 Victoria, chapter 
 34, section 1, of which enacted that " No workman 
 or other person, etc., by reason merely of his 
 entering into an agreement with any workman, 
 etc., or by reason merely of his endeavoring 
 peaceably and in a reasonable manner and with- 
 out threat or intimidation, direct or indirect, to 
 persuade others to cease or abstain from work, 
 etc., shall be deemed or taken to be guilty of 
 * molestation ' or ' obstruction ' within the mean- 
 ing of the said act." But in spite of the statute 
 of Victoria, it was held that if the picketing 
 ' 10 Cox C. C, 592. See §§ 55 and 57.
 
 292 HANDBOOK TO THE LABOR LAW 
 
 amouuted to a conspiracy to molest the employer 
 in carrying on his business, it was an offence at 
 common law, and also that the use of insulting 
 expressions and gestures by the pickets to the 
 non-union work-people amounted to intimida- 
 tion, molestation, or obstniction, as these words 
 were used in the statutes mentioned. 
 
 " ' Picketing ' done in a way to excite no rea- 
 sonable alarm, and not to coerce or annoy those 
 who were subject to it, would not be an offence. 
 It was lawful for the defendants to endeavor to 
 persuade persons who had not joined the union 
 to do so, provided that persuasion did not take 
 the shape of coercion and intimidation. But 
 even if abusive language and gestures were not 
 used, if the pickets were so placed or so acted, 
 by watching the movements of the work-people 
 and masters, or by black looks, or by any other 
 annoyance, as in the judgment of the jury would 
 be likely to have a deterring effect in the minds 
 of ordinary persons, it would be ' molestation ' 
 and ' obstruction ' against this statute." 
 
 It is noteworthy that in this case all the de- 
 fendants were employees of the complainant, or 
 at least w^ere themselves employees of master- 
 tailors in London, the complainant being the 
 well-known tailor, Poole ; and that other mas- 
 ter-tailors in the same vicinity had been picketed 
 by the same combination under the same trade 
 dispute.
 
 OF THE UNITED STATES 293 
 
 The next case was that of Reg. v. Shepherd.^ 
 There was no evidence whatever of any intimi- 
 dation, or of anything done by the defendants, 
 who were journeymen shoemakers, other than 
 walking about the street in front of the com- 
 plainant's factory and advising people not to take 
 employment there, in a civil manner. This was 
 clearly a case of la^v^ul picketing, and the court 
 so held. 
 
 In Reg. V. Hibbert,^ on the other hand, where 
 there was evidence that a large number of per- 
 sons waylaid the workmen and warned them not 
 to take employment, using opprobrious epithets, 
 etc., the picketing was held unlawful. 
 
 Then came the case of Reg. v. Bauld,^ which 
 was an indictment against the defendants, not 
 apparently employees of the complainant, to 
 persuade his employees to quit work and to pre- 
 vent others from taking employment. Baron 
 Huddlestone, who was not, as it seems, familiar 
 with the growth of the law upon the subject, in 
 his charge to the jury, denied that picketing was 
 lawful except for the purpose of obtaining infor- 
 mation simply, or finding out whether the men 
 on strike were secretly working, and not for the 
 purpose of besetting the employer or persuading 
 others not to work, and incidentally expressed 
 
 Ml Cox C. C, 325. M3 Cox C. C, 82. 
 
 * 13 Cox C. C, 283.
 
 294 HANDBOOK TO THE LABOR LAW 
 
 strong disapproval of picketing in general, hint- 
 ing that it would almost certainly become illegal. 
 This case, however, arose under the statute of 
 Victoria of 1875,'' which had a proviso that, " At- 
 tending at or near the house or place where a 
 person resides, or works, or carries on business, 
 or happens to be, or the approach to such house 
 or place in order merely to obtain or communi- 
 cate information, shall not be deemed a watching 
 or besetting within the meaning of this section." 
 There is unquestionably a pretty clear inference 
 that any other kind of watching or besetting 
 would be illegal under the act, but there is no 
 similar statute in any of the American states. 
 
 Then, under the same act, the case of Judge v. 
 Bennett ^ arose, which is interesting as justifying 
 what we said in discussing the law on strikes 
 (§ 55), that a threat to do a thing may be illegal, 
 the doing of which is legal enough. It was a 
 case where the defendant, the secretary of a 
 iinion of boot and shoe operatives, wrote a let- 
 ter to the complainant, stating that unless she 
 started all her shops, her shop would be picketed. 
 All the picketing done was that of two men pa- 
 rading in turns before the front of the shop for 
 three days in an orderly manner, and not per- 
 sonally interfering with the work-people. The 
 court admitted that such picketing might be 
 
 '38 and 39 Vic, Chap. 86, § 7. « 36 W- R., 103.
 
 OF THE UNITED STATES 295 
 
 legal enough, but sustained a conviction of the 
 defendant on the ground that the threat to picket, 
 given in such terms as to make the employer 
 afraid, "svas of itseK a criminal offence. 
 
 The next English case on the subject of pick- 
 eting is that of Eeg. v. McKenzie, which oc- 
 curred in 1892/ In this case the conviction was 
 not sustained, on the ground that the indictment 
 did not set out, as the statute required, "the 
 acts with a view to compel the prosecutor to 
 abstain from doing which the defendant followed 
 the prosecutor," which is better law than gram- 
 mar. The case is therefore only interesting 
 from its facts. The complainant Avas the agent 
 of a shipping federation, and the defendant an 
 officer of a seamen's union, who led a large 
 crowd of persons in a disorderly manner through 
 the street. The court held that under the stat- 
 ute (38 & 39 Vic, C. 86) it was not an offence 
 merely to follow a person through the street, al- 
 though in a disorderly manner, but only to do 
 so for the purpose of controlling his action in 
 some unlawful riot. 
 
 But finally the cases of Gibson v. Lawson and 
 Currau v. Treleaven seem to have licensed pick- 
 eting generally ; but they arose under the latest 
 English statute,' which, as we have said, goes 
 farther than the statutes as yet passed in this 
 country. 
 
 1 67 L. T. R., N. S., 201. 8 17 Cox C. C, 354 et seq.
 
 296 HANDBOOK TO THE LABOR LAW 
 
 lu this country there have been several im- 
 portant decisions on picketinp;, and the law may 
 be said to be generally now where it was in 
 England before the recent cases last mentioned. 
 That is, the following or besetting workmen, or 
 the picketing of factories or places of business, 
 when accompanied by any violence or intimida- 
 tion, or conducted in an unreasonable and tur- 
 bulent manner, is unlawful, and will be enjoined ; 
 and it appears that such intimidation may be 
 moral, as by the use of opprobrious epithets or 
 ridicule.^ In Sherry v. Perkins, decided in 1887, 
 a bill was brought by Patrick Sherry, engaged 
 in the shoe manufacturing business in Lynn, 
 alleging that the Lasters' Protective Union, of 
 which the defendants were president and secre- 
 tary, respectively, called upon him on January 
 5th to inquire as to the wages he paid ; that on 
 January 8th certain lasters left the plaintiff's 
 employment, giving as a reason therefor that they 
 did not dare work for him further on account 
 of the defendants ; that in order to intimidate 
 others from taking their places, and to prevent 
 those who had left from going back, the defend- 
 ants, with the assent of the association and out 
 of its moneys, caused to be carried in front of 
 
 •State V. Stewart, 59 Vt., 272; Sheny v. Perkins, 147 
 Mass., 212; People v. Wilzig, 4 N. Y. Crim., 403; Holmes's 
 Decision, Supreme Court of Massachusetts, reported Mass. 
 Labor Annual, 1895; Murdock v. Walker, 152 Pa. St., 595.
 
 OF THE UNITED STATES 297 
 
 Sherry's factory, by a boy hired for that pur- 
 pose, a banner bearing the follo^Ning inscrip- 
 tion : " Lasters are requested to keep away from 
 P. P. Sherry's, per order L. P. U." The biU 
 further alleged threats to the lasters if they con- 
 tinued in the plaintiff's employment, and gen- 
 eral intimidation, and prayed that the defend- 
 ants might be restrained from making such 
 banners and causing them to be carried, and for 
 further relief. The court held that such con- 
 duct was illegal at common law, and that it was 
 a proper case for an injunction, being such a 
 nuisance as a coui-t of equity would grant relief 
 against. 
 
 In Wilzig's case (see also § 58), the plaintiff 
 was proprietor of a large saloon upon Fourteenth 
 Street, New York, and members of certain labor 
 unions desired him to discharge many workmen 
 who had been long in his employ, they not be- 
 ing members of the union, and to pay wages at 
 the union scale. Plaintiff refusing to do so, the 
 defendants caused extensive picketing in front 
 of plaintiff's shop, so that a crowd collected in 
 the street. Opprobrious epithets, signs, and ban- 
 ners were used, and the plaintiff's business in- 
 terfered with, though there was no actual phys- 
 ical violence. In this case the court held clearly 
 that intimidation might consist in mere ridicule 
 or disorder, or any such conduct as would pre- 
 vent the weak or gentle from trading with the
 
 298 HANDBOOK TO THE LABOR LAW 
 
 plaintiff, and defendants were convicted in a 
 criminal action for conspiracy. 
 
 The case decided by Mr. Justice Holmes in 
 Massachusetts, in the spring of 1895 (reported in 
 Mass. Labor Annual, 1895), is somewhat similar 
 to this on the facts, so that the line between 
 legal and illegal picketing must be clearly drawn 
 between those two cases. In the Boston case, 
 while several of the defendants paraded the 
 street in front of the plaintiff's shop, it did not 
 appear that they interfered in any way with the 
 plaintiff's customers, and they were, in fact, 
 themselves the previous employees of the plain- 
 tiff, but had struck for higher wages. In neither 
 case was there any physical violence. The cases 
 are, therefore, instructive, as tending to establish 
 the principle we have contended for in § 57 
 above, that a conspiracy or combination of the 
 plaintiffs employees, having a legitimate mo- 
 tive, may be lawful when a conspiracy of out- 
 siders is not ; and also, that a combination of 
 workmen merely to persuade other employees of 
 the plaintiff not to work, or not to take work 
 with them, may be sustained, when a conspiracy 
 to persuade the plaintiff's customers not to deal 
 with him will not be, the latter being more evi- 
 dently a case of boycott. 
 
 With the exception of this unreported case, the 
 latest American case on picketing is the Penn- 
 sylvania case of Miudock r. Walker, where the
 
 OF THE UNITED STATES 299 
 
 facts consisted in the following of plaintiff's em- 
 ployees to their homes, and the besetting both 
 the factory and their lodging-places. There was 
 no physical violence or actual threats, but some 
 ridicule and opprobrious epithets were used. 
 The opinion of the court announces clearly the 
 principle that a court of equity will enjoin even 
 discharged employees — they were, in fact, mem- 
 bers of the labor union — from gathering about 
 the plaintiff's place of business, and from follow- 
 ing his employees to and from work, and from 
 gathering about their boarding-places, and from 
 any and all manner of threats, intimidation, 
 ridicule, and annoyance ; and to the same effect 
 see the case of the Wick China Co. v. Brown, '° 
 decided in New Jersey in 1894, where an injunc- 
 tion was granted against members of a union 
 from combining to prevent, by threats, following, 
 and ridicule, the plaintiff's employees from work- 
 ing. 
 
 We conclude that in the United States to-day 
 only the most reasonable and peaceable picket- 
 ing, for mere purposes of information and ob- 
 servation, is lawful, and only quiet and peaceable 
 persuasion, by workmen of Avorkmen, and con- 
 ducted in such a way as not to amount to an 
 elaborate conspiracy to prevent the plaintiff 
 from getting help ; though it is not probably 
 
 '^SO Atl., 261.
 
 300 HANDBOOK TO THE LABOR LAW 
 
 necessary to render such action lawful that 
 the persons doing it should be actually em- 
 plo3'ees of the plaintiff ; if they are members of 
 the labor union concerned or engaged in the 
 trade, so as to have a solidarity of interest, that 
 will be sufficient ; but picketing for the purpose 
 of interfering with the plaintiff's trade, as by 
 driving away his customers, is never lawful. 
 
 § 61. Blacklisting. The blacklisting of em- 
 ployees does not, of course, mean the making a 
 list of employees, against whom the employer 
 has a complaint, for his personal and private 
 use ; but the exchanging of such lists with other 
 employers for the purpose of preventing them 
 from employing such employees ; or the advis- 
 ing them not to employ men who have been dis- 
 charged by the person giving the advice. It is 
 possible that blacklisting might be carried to 
 such an extent as to be an unlawful combination 
 under the common law ; but it is doubtful 
 whether the facts would ever sufficiently sustain 
 an indictment for combining to injure any defi- 
 nite person. So-called " characters " given to em- 
 ployees and servants are usually held privileged 
 communications when unfavorable, miless, of 
 course, they are false or malicious, in which case 
 they fall under the head of libel. But a few 
 states have recent!}^ passed statutes forbidding 
 blacklisting. Thus, in North Dakota, the ex-
 
 OF THE UNITED STATES 301 
 
 change of blacklists between corporations is pro- 
 hibited by the constitution,' aud statutes of 
 Iowa, Indiana, Wisconsin, Alabama, Virginia, 
 Montana, and Georgia (in Georgia the law ap- 
 plies only to corporations) make it a penal 
 offence wilfully to prevent discharged employ- 
 ees from obtaining a new situation,^ and the 
 employee is to be furnished with the cause of 
 his discharge ; ^ but a truthful statement of the 
 reason for such discharge may be furnished 
 other employers ; ^ while in Iowa, Missouri, 
 Montana, Georgia, and Colorado blacklists are 
 specially prohibited eo nomine.^ So, in Indiana, 
 Georgia, and Montana there is a law requiring an 
 employer discharging an employee to furnish 
 him with a written statement of the cause, fail- 
 ing which he may not blacklist the employee ; 
 provided, that such statement shall not, in Geor- 
 gia and in Indiana, be used as the cause for an 
 action of slander or libel. In Wisconsin, com- 
 binations of employers to prevent any person 
 from obtaining employment, either by threats, 
 promises, or by circulating blacklists, or by any 
 
 ' 1 N. D. Const., § 212. 
 
 2 Ind., 7076; Iowa, 1888, 57; Mon. Pol. C, 3390; Wis., 
 1895, 240, 246; Ga., 1891, p. 183; 1895, 321; Col., 1887, p. 
 58; Va., 1892; Ala., 1895, 321. 
 
 * Ind., Mon., Ga. Thi.s latter part of the statute was de- 
 clared unconstitutional in Georgia. See note 9 below. 
 
 ^Ind., lo.. Wis., Va. ; Mon. Pol. C. 3392. 
 
 * Mo., 1891, p. 122; lo., Mon., Col., Ga., ib.
 
 ^02 nAXDBOOK TO THE LAHOR LAW 
 
 means whatsoever, or for the purpose of so pro- 
 curing his discharge, are made a misdemeanor. 
 And corporations or partnerships allowing black- 
 listing by their agents or otherwise are some- 
 times made liable to the employee in exemplaiy 
 damages,^ and railroads in treble damages." 
 
 There is a very early reported case, disclosing 
 a blacklist, in Massachusetts,** though its legality 
 was not decided. It was a case where one em- 
 ployer sued another in tort for enticing work- 
 men from his service, and an agreement of 
 several employers, including the plaintiff and 
 defendant, not to employ workmen Avhile in the 
 service of either of the others, unless such work- 
 men first procured a written discharge, and that 
 each party should keep the others advised of the 
 names of the workmen in his employment, was of- 
 fered in evidence. This was, of course, a typical 
 blacklist. The defendants objected to it on the 
 ground that it was a contract and not evidence of 
 any act of the defendants in an action of tort, and 
 the document was excluded ; but neither court nor 
 counsel say anything in doubt of its validity. 
 
 But the statute itself, when applying only to 
 corporations, has been held unconstitutional in 
 one state.^ 
 
 « Ind., 1895, 110, 7076; Mon., 3391; Ga., ib. 
 
 ■■ lo., Ga., ib. 
 
 * Boston Glass Manufactory v. Binney, 4 Pick., 425. 
 
 » Wallace v. Georgia C. & N. Ry. Co., 22 S E., 579. This
 
 OF THE UNITED STATES 303 
 
 § 62. Special Laws Concerning Railroad Em- 
 ployees, etc. — Many states liave recent statutes 
 
 was an action based on Georgia Statutes, 1891, p. 188, declar- 
 ing tliat defendant liad employed plaintiff as car inspector, 
 July 9, 1892, and discharged him on August 12th ; that on 
 August 18th he made a written request of tlie company to 
 give him a specific statement in writing of the reasons which 
 had caused liis discharge ; that he had waited for more than 
 twenty days, during which time defendant had refused or 
 failed so to do, whereupon it became liable to him in the sum 
 of $5,000, under the statute referred to. The city court of At- 
 lanta gave judgment dismissing the action. The opinion of 
 the Supreme Court of Georgia appears in two words : " Judg- 
 ment affirmed." But the Reporter prints the head note 
 called a " Syllabus by the Court " in the following words : 
 
 ''1. The public, whether as many or one, whether as a mul- 
 titude or a sovereignty, has no interest to be protected or pro- 
 moted by a correspondence between discharged agents or 
 employees and their late employers, designed, not for public 
 but for private information, as to the reasons for discharges, 
 and as to the import and authorship of all complaints or 
 communications which produced or suggested them. A 
 statute which undertakes to make it the duty of incorpo- 
 rated railroads, express, and telegraph companies to engage in 
 correspondence of this sort with their discharged agents and 
 employees, and which subjects them in each case to a heavy 
 forfeiture, under the name of damages, for failing or refus- 
 ing to do so, is violative of the general private right of silence 
 enjoyed in this state by all persons, natural or artificial, from 
 time immemorial, and is utterly void and of no effect. Lib- 
 erty of speech and of writing is secured by the constitution, 
 and incident thereto is the correlative liberty of silence, not 
 less important nor less sacred. Statements or communica- 
 tions, oral or written, wanted for private information, cannot 
 be coerced l)y mere legislative mandate at the will of one of 
 the parties and against the will of the other. Compulsory
 
 304 HAXDBOOK TO THE LABOE LAW 
 
 expressly forbidding, or limiting, strikes upon 
 railroads.' 
 
 private discover^', even from corporations, enforced, not by 
 suit or action, but by statutory terror, is not allowable where 
 rights are under the guardianship of due process of law. 
 
 " 2. It follows from the foregoing that the act of October 
 21, 1891, entitled 'An act to require certain corporations to give 
 to their discharged employees or agents the cause of their re- 
 moval or discharge, when discharged or removed,' is uncon- 
 stitutional, and that an action founded thereon for the recov- 
 ery of 85,000 as penalty or arbitrary damages fixed by the 
 statute for non-compliance with its mandate cannot be sup- 
 ported." 
 
 ' In Maine and New Jersey : Any employee of a railroad 
 corporation who. in pursuance of an agreement or combina- 
 tion by two or more persons to do, or procure to be done, 
 any act in contemplation or furtherance of a dispute be- 
 tween such corporation and its employees, unlawfully, or 
 in violation of his duty or contract, stops, or unnecessarily 
 delays, or abandons, or in any way injures, a locomotive, or 
 any car, or train of cars on the railway track of such corpora- 
 tion, or in any way hinders, or obstructs the use of any loco- 
 motive, .car, or train of cars on the railroad of such corpora- 
 tion, shall be punished by a fine not exceeding five hundred 
 dollars, or imprisonment in the state prison, or in jail, not ex- 
 ceeding one year (Me., 123, 6). So sub.stantially in New 
 Jersey, the penalty being 8500, or six months (N. J. Rev., 
 1877, p. 946, § 173, 175). 
 
 Whoever by any unlawful act, or wilful omission or neg- 
 lect, obstructs or causes to be obstructed any engine, or car, or 
 aids therein, or who, having charge of any locomotive . 
 or car, wilfully stops, leaves, or abandons it, or renders, or 
 aids in rendering it unfit for, or incapable of immediate use, 
 with intent thereby to hinder^ delay, obstruct, or injure the 
 management and operation of the railroad, or the business of
 
 OF THE UXITED STATES 305 
 
 § 63. Pinkerton Men, Etc — Bytliecoustitutiou 
 of Wyoming no armed police force or detective 
 
 the company, is liable to a fine of one thousand dollars, or 
 imprisonment for two years. Me., 123, 7. 
 
 So, substantially in Connecticut and New Jersey, the penal- 
 ty is $100 or six months, and $500 or six months, respectively 
 (Ct., 1517; N. J., i6., 174) ; and whoever, having any man- 
 agement of a railroad locomotive or car, while in use, is guilty 
 of gross negligence or neglect, or maliciously stops or de- 
 lays the same, or abstracts therefrom the tools or appliances, 
 may be punished by fine and imprisonment for three years 
 (Me., 123, 8). 
 
 Whoever, alone or in combination, does, or procures to be 
 done, any act, in contemplation or furtherance of a dispute 
 between a railroad, gas, or telegraph company and its em- 
 ployees, wrongfully and without legal authority, uses violence 
 toward, or intimidates any person with intent thereby to com- 
 pel such person to do, or abstain from doing, any lawful act, 
 or who, on the premises of the corporation, by bribery or in 
 any manner induces, or tries to induce, such person to leave 
 the employment with intent thereby to further the objects of 
 such combination, or in any way interferes with such person 
 while in the performance of his duty, or threatens, or per- 
 sistently follows such person in a disorderly manner, or in- 
 jures, or threatens to injure his property, with either of said 
 intents, is punishable by fine of three hundred dollars, or im- 
 prisonment for three months. Me., 123, 9. 
 
 Any employee of a railroad who, in furtherance of the in- 
 terests of either party to a dispute between another railroad 
 and its employees, refuses to aid in moving the cars of such 
 other railroad or trains, in whole or in part made up of such 
 cars, over the tracks of the corporation employing him ; or 
 refuses to aid in loading or discharging such cars, is punished 
 by imprisonment for one year, or fine of five hundred dollars. 
 Me., 123, 10. 
 
 20
 
 nOO HANDP.OOK TO TIIK LABOR LAW 
 
 agency, armed body or unarmed body of men, 
 shall ever be brought into this state for the 
 
 And in New Jersey, if any person in aid or furtherance of 
 the oi)jects of any strike ohstruct any railroad track, or in- 
 jure or destroy rolling stock, or other property of the rail- 
 road, or take possession of, or remove it, or prevent or 
 attempt to prevent the use thereof hy the company or its 
 employees, or by offer of recompense induce any employee 
 to leave the service of the railroad while in transit, such per- 
 son is guilty of a misdemeanor, and punishable by fine of 
 five hundred dollars and imprisonment for one year. N. J. 
 Rev., 1877, page 946, s. 176. 
 
 And in Pennsylvania, Delaware, Illinois, and Kansas : 
 If any engineer or railroad emploj-ee engaged in a strike, 
 or with a view to incite others to such strike, or in further- 
 ance of any combination or preconcerted arrangement with 
 any other person to bring about a strike, abandons the engine 
 in his charge attached to either a passenger or freight train, 
 at any other place than its destination, or refuses or neglects 
 to proceed to its destination with the train, he is guilty of a 
 misdemeanor — penalty five hundred dollars or six months (Pa. 
 Dig., p. 533, § 35; Del., Vol. 15, 481, 1) ; one hundred dol- 
 lars or ninety days (111., 114, 108 ; Kan., 2480). 
 
 So, if such engineer or employee, for the purpose of 
 furthering the object of, or lending aid to, any strike organ- 
 ized or attempted on any other road, refuses or neglects to 
 remove cars, etc., of such road, or interferes with, molests, 
 or obstructs any engineer or employee in the discharge of 
 his duty, or obstructs any track, or injures or destroys roll- 
 ing stock, or other property of a railroad, or takes possession 
 of or removes such property, or prevents or attempts to pre- 
 vent its use by the railway. Del., i6., 2-4 ; Pa. Dig., p. 533, 
 §§ 358-360 ; Del., Vol. 15, 481, 2 and 5. 
 
 In Illinois, Michigan, and Kansas, if any person or per- 
 sons shall wilfully and maliciously, by any act, or by means 
 of intimidation, impede or obstruct, except by due process
 
 OF THE UNITED STATES 307 
 
 suppression of domestic violence, except upon 
 the application of the legislature, or executive 
 
 of law, the regular operation and conduct of the business of 
 any railroad company, or other corporation^ firm^ or individ- 
 ual in this State, or of the regular running of any locomotive 
 engine, freight or passenger train of any such company, or 
 the tabor arid business of any such corporation, firm, or in- 
 dividual, he or they shall, on conviction thereof, be punished 
 by a fine of not less than twenty dollars, nor less (more) than 
 two hundred dollars, and confined in the county jail not more 
 (less) than twenty days, nor more than ninety days, etc. 111., 
 114, 109 ; Kan., 2481 ; Mich., 9274. 
 
 If two or more persons shall wilfully and maliciously com- 
 bine, or conspire together to obstruct, or impede by any act, 
 or by means of intimidation, the regular operation and con- 
 duct of the business of any railroad company or any other 
 corporation, firm, or individual in this State, or to impede, 
 hinder, or obstruct, except by due process of law, the regular 
 running of any locomotive engine, freight or passenger train, 
 on any railroad, or the labor, or business of any such corpora- 
 tion, firm, or individual, such person shall, on conviction 
 thereof, be punished by fine not less than twenty dollars, nor 
 more than two hundred dollars, and confined in the county 
 jail not less than twenty days, nor more than ninety days, etc. 
 (111., 114, 110 ; Kan., 2482); Mich., 927.'). 
 
 This act shall not be construed to apply to cases of persons 
 voluntarily quitting the employment of any railroad company, 
 or such other corporation, firm, or individual, whether by 
 concert of action or otherwise, except as is above provided. 
 111., 114, 111 ; Mich., 927t) ; Kan., 248.5. 
 
 In Wisconsin, any per.-ion who shall individually, or in as- 
 sociation with others, wilfully injure or remove any part of a 
 railroad car, locomotive, or of any stationary engine, or other 
 implement or machinery, for the purpose of destroying it, or 
 preventing its useful operation, or who shall in any other way 
 interfere with the running or operation of any locomotive
 
 308 TIAXDBOOK TO THE LABOR LAW 
 
 when the legiskituie cannot be convened.' It 
 may be queried it" this provision is consistent 
 "vvith the national constitution. In Missouri, 
 also, there is a new statute on the subject ; and 
 it is " unlawful for any person or persons, com- 
 pany, association, or corporation to bring or im- 
 port into this state any person or persons, or 
 association of persons, for the purpose of dis- 
 charging the duties devolving upon the police 
 
 or machinery, shall be punished by fine up to one thousand 
 dollars, or imprisonment for two jears, or both. Wis., 1887, 
 427, 2. 
 
 In Texas any person or persons who shall, by force, 
 threats, or intimidation of any kind whatever, against any 
 railroad engineer or engineers, or any conductor, brakeman, 
 or other oflScer or employee employed or engaged in run- 
 ning any passenger train, freight train, or construction train, 
 running upon any railroad in this State, prevent the moving 
 or running of said passenger, freight, or construction train, 
 shall be deemed guilty of an offence, etc. Tex., 1887, 92, 1. 
 
 In Louisiana, anj' person who may ship upon a steamboat 
 in the customary manner, to do service on said boat, either by 
 the month or voyage, in the capacity of an officer, engineer, 
 pilot, clerk, mate, carpenter, cook, steward, cabin-boy, watch- 
 man, fireman, deck-hand, or laborer, who may abandon the 
 boat before having fulfilled liis engagements, or who may re- 
 fuse to do his duty in the capacity for which he shipped or 
 engaged to perform, before the completion of the voyage, or 
 the term of his engagement, without lawful cause, shall, be- 
 sides forfeiting all claims to the wages due for such service, 
 be liable to the owner or owners of said steamer for any 
 damages which they may sustain by said abandonment or re- 
 fusal to do duty. La. R. L., 945. 
 
 ' Wy. Const., Art. 19, 1.
 
 OF THE UNITED STATES 309 
 
 officers, sheriffs, or constables, in the protection 
 or preservation of public or private property. 
 
 "Hereafter no sheriff in this state shall ap- 
 point any under sheriff or deputy sheriff, except 
 the person so appointed shall be, at the time of 
 his appointment, a hona-fide resident of the state. 
 
 " The mayor, chief of police, and members of 
 the board of police commissioners of any city 
 in this state shall be governed by the same re- 
 strictions and subject to the same penalties as a 
 sheriff of any county, under the provisions of 
 this article. 
 
 " Any person or persons violating any of these 
 provisions shall be punished by imprisonment 
 in the penitentiary for not less than two years 
 nor more than five years ; and if any company, 
 association, or corporation shall be guilty of vio- 
 lating this article, said company, association, or 
 corporation shall be punished by a fine of not 
 less than one thousand dollars."'^ 
 
 » Mo., 3772-3776.
 
 310 HANDBOOK TO THE LABOR LAW 
 
 CHAPTER IX 
 
 EQLTTY PROCESS AND INJUNCTIONS — THE ANTI- 
 TRUST LAW, AND THE INTERSTATE COMMERCE 
 LAW 
 
 § 64. Remedies by Injunction — AVe have 
 sliowTi in Chapter YIII, that a strike may occa- 
 sionally be an unla^'ful conspiracy or a criminal 
 conspiracy, while a boycott is so generally. It 
 may be questioned Avhether there is, logically, 
 any difference between an unlawful conspiracy, 
 or one which subjects its members to liability 
 to damages at suit of persons actually injured, 
 and a criminal conspiracy. The act of an indi- 
 vidual to the prejudice of a third person will very 
 frequently render him liable to damages without 
 being criminal, as, for instance, in the amusing 
 case of Tarleton v. McGawley," where the master 
 of a ship was held liable in damages to the OAvner 
 of another ship, both being traders off the coast 
 
 ' Peak N. P. C, 270. See § 5 abore. So in the recent 
 case of Graham v. St. Charles Street Ry. Co. and Newman, 
 it was held that damages might be recovered of Newman per- 
 sonally, the foreman of the Street Railway Company, for 
 instructing his men not to frequent the plaintiff's store under 
 penalty of discharge, etc. 47 La. Ann., 214; 27 L. R. A.^ 
 416.
 
 OF THE UNITED STATES 311 
 
 of Africa, for purposely firing a cannon and so 
 scaring the negroes on the beach that they ran 
 away and did not trade Avith the other vessel. 
 Obviously there was nothing criminal about this 
 act, but it will be remembered (see § 55) that 
 a combination of many for the specific purpose 
 of injuring a third person is a criminal conspir- 
 acy, the reason of it being that the confedera- 
 tion of many becomes so dangerous to the state 
 that it is a public wrong, i.e., a crime. Never- 
 theless, there is no doubt the courts have been 
 more strict in applying the doctrines of conspir- 
 acy upon an indictment than in a civil suit 
 brought by a person injured to recover damages. 
 Logically, every combination which is so unlaw- 
 ful as to make the parties liable for damages 
 for the combination itself, and not for the acts 
 they commit, is necessarily a criminal conspir- 
 acy ; but, practically, the courts, and particu- 
 larly the juries, will require much more definite 
 evidence of an unlaAvful pui-pose in the first 
 place, and of acts more seriously unlawful in the 
 second place, if the parties to it are brought 
 before the court for punishment as crimi- 
 nals. 
 
 In the ordinary cases, therefore, it is more 
 difficult for persons injured by a boycott, black- 
 list, or conspiracy, whether employers or em- 
 ployees, to get redress in the criminal courts, 
 while it very frequently happens that the de-
 
 81:? HANDBOOK TO TIIK LAliOi: J.AW 
 
 feudants are not responsible for any damages, 
 as a judgment conld not be collected against 
 them. Moreover, in nearly all these cases, an 
 action for damages against any one or more per- 
 sons would be wholly inadequate, partly because 
 the fraction of the wrong done by any particu- 
 lar person would be trifling, but more because 
 the action of trade or industrial conspiracies, 
 disorderly strikes, and boycotts is to work a 
 damage which is irreparable after it has hap- 
 pened, besides being threatened or committed 
 by such an indefinite number of persons that 
 remedies by suits at law are quite useless. 
 
 This brings us to the third remedy against 
 unlawful combinations, which has become hj 
 far the most important of all, the most efi"ective 
 in execution, and the most liable to abuse. This 
 is the remedy given in courts of equity by in- 
 junction ; for under the procedure of equity 
 courts a person apprehending injury by such 
 combinations may bring a bill against one or 
 more persons, and obtain at once, without wait- 
 ing for any hearing or answer by the defendant, 
 a preliminary injunction, addressed against not 
 only the defendants named,' but all their agents, 
 servants, and subordinates named or unnamed ; 
 and, finally, against any person whatever 
 throughout the Morld who may have knowledge 
 
 ' Ex parte Lennon, 64 F. R., 320.
 
 OF THE UNITED STATP:S 313 
 
 that such injunction has been granted ; so that 
 by widely publishing such injunction orders, 
 posting them on fences, in workrooms and fac- 
 tories, or on railroad cars, it becomes not a dif- 
 ficult matter to render all the world liable to the 
 summary jurisdiction of contempt if they inter- 
 fere Avith the property or rights protected by tlie 
 injmiction. Such a preliminary injunction if 
 not vacated may be confirmed after hearing on 
 the merits, and made permanent, with the same 
 permanent results. Moreover, the process which 
 courts of equity have of enforcing their judg- 
 ments or decrees is far more effective than any 
 known to the common-law courts. The common- 
 law courts can only mulct a man in damages, 
 and, if he refuse to pay, may, under certain 
 strict limitations, and with very great trouble and 
 delay, occasionally, in rare instances, imprison 
 a man for the debt ; but when a decree is ren- 
 dered in a court of equity, any party to the suit, 
 or when an injunction is granted, any party who 
 may have notice of the injunction, is liable to 
 contempt process, if he do or suffer to be done 
 any act against the decree or the injunction 
 only ; and contempt process is a very effective 
 one, consisting as it does in the immediate and 
 summary punishment of the offender by fine, or 
 more usually by imprisonment until he obey the 
 orders of the court. It is unquestioned law that 
 the offender in cases of contempt is entitled to
 
 314 IIANDHOOK TO THE LABOIl LAAV 
 
 no jury trial.' It is also law generally unques- 
 tioned that from an order in contempt there is 
 no appeal from the court issuing it to an}- higher 
 court,' although in a few jurisdictions it has been 
 held that there is an appeal in cases where the in- 
 junction was issued in reality to protect private 
 interests and not the public ; ^ but even this ap- 
 peal only goes so far as to give the appeal court 
 the right to investigate and see whether the court 
 below had jurisdiction of the subject matter.® 
 The moment this is found to be the case, the 
 appeal court even cannot go into the rights and 
 wrongs of the injunction or the reasonableness of 
 the punishment. In Montana and one or two 
 other states, by statute, the person in contempt 
 process may take the matter up by writ of cer- 
 tiorari,^ but it is doubtful whether this right 
 goes further than to test the jurisdiction of the 
 court; and in the same way perhaps the person 
 committed for contempt may have a right of 
 habeas corpus, but with the same result, as was 
 decided recently hy the United States Supreme 
 Court in the Debs case, where, although the 
 
 3 Bellows V. Bellows, 58 X. H., 60: Garrigus v. State, 93 
 Ind., 239; McDonnell v. Henderson, 38 N. W., 562; Eillen- 
 becker v. Plymouth Co., 134 U. S., 31. 
 
 * Campbell v. Shotwell, 8 Wkly. L. B., 433; Williamstown 
 V. Darge, 71 Wis., 643. 
 
 ' Dodd V. Una, 13 Stew. (N. J.), 672. 
 
 « Re Wood, 82 Mich., 75. 
 
 ' State z). 4th Jud. Dist. Court, 34 Pac R., 39.
 
 OF THE UNITED STATES 315 
 
 court in their opinion intentionally took a some- 
 Tvhat broader ground, the real reason of their 
 decision was but the fact that the Federal Circuit 
 Court, which issued the original injunction, had 
 jurisdiction and authority to do so under ordi- 
 nary equity doctrines. 
 
 It is frequently said that this use of the in- 
 junction to prevent conspiracies or combinations 
 of organized labor, rights, or injuries to property 
 or personal rights by masses of men is of modern 
 application, and it is traced back to the leading 
 case of Springhead Spinning Co. v. Riley ,^ which 
 was decided as late as 1868. This is not, how- 
 ever, a new doctrine, but rather the revival of a 
 very old one. In the fourteenth century, at the 
 time of the civil wars and great disorders in 
 England, Edward III. found it necessary to 
 adopt some more effectual measures of police 
 than those which already existed. For this pur- 
 pose justices of the peace were first instituted 
 throughout the country with power to take se- 
 curity for the peace and bind over parties who 
 threatened offence. Fifty years later, in the 
 reign of Richard II., it was found necessary to 
 provide further measures for repressing forcible 
 entries on lands, the lawless spirit of the times 
 making it necessary, and thereupon the king's 
 chancellor began to exercise his authority in 
 
 «L. R. 6 Eq., 551.
 
 31C HANDBOOK TO THE LABOR LAW 
 
 repressing disorderly obstructions to the course 
 of law, and in affording civil remedy in cases of 
 outrage, "which for any reason could not be effect- 
 ually redressed through the ordinary tribunals. 
 The Court of Star Chamber had the same juris- 
 diction, and Coke particularly mentions as part 
 of it the suppression of those who spread false 
 and dangerous rumors of frauds, deceits, con- 
 spiracies, and of great and horrible riots, routs 
 and unlawful assemblies, leaving ordinary offences 
 to the couiis of law, and speaks of it complain- 
 ingly as " a court of criminal equity."' 
 
 All equity jurisdiction was adopted and rec- 
 ognized with great reluctance in the original 
 states of this country. In Massachusetts it took 
 a succession of statutes, after repeated opposi- 
 tion, to establish the present system of equity 
 jurisdiction ; and there are many states in which 
 the equity jurisdiction is not yet as full as that 
 of the English Court of Chancery, although 
 in the federal courts it is made expressly the 
 same. Nevertheless, in view of the great re- 
 cent criticism of the use of this jurisdiction 
 by federal courts in the issue of injunctions in 
 cases of labor troubles, it is a striking fact that 
 the very first case decided by the United States 
 
 ' Spence, Eq. Jurisdiction, pp. 342-344 ; Charles Claflin 
 Allen, article on " Injunction and Organized Labor," 17 Amer. 
 Bar Assn. Rep., 299; Pol. Sci. Quarterly, Vol. 10, No. 2: 
 "The Modern Use of Injunctions," by F. J. Stimson, p. 189.
 
 OF THE UNITED STATES 317 
 
 Supreme Court was an equity case in which 
 an injunction was granted."* The case of the- 
 Springhead Spinning Co., mentioned above, was, 
 perhaps, the first case of the use of the injunction 
 in a modern labor dispute. In that case the 
 defendants Avere officers of a trades-union, and 
 they gave notice to workmen, by placards, etc., 
 that they were not to take work with the plain- 
 tiff, and the bill alleged that this intimidated the 
 workmen and injured the value of the plaintiffs 
 property. On demurrer it was held that al- 
 though the acts of the defendant as alleged 
 amounted to a crime (under the then existing 
 statute), the court would interfere by injvinction 
 to restrain such acts, inasmuch as they Avere also 
 an infringement of property rights. Malins, 
 V.-C, reaffirmed the doctrine that a court of 
 chancery would not enjoin the commission of 
 crimes as such, and that the function of equity 
 is to protect the civil right of property ; and 
 quoted the case of the Emperor of Austria i\ 
 Kossuth," in which case the injunction against 
 the manufacture of counterfeit Austrian money 
 by Kossuth in England was granted on the 
 ground that it was an invasion of property rights 
 of the Emperor of Austria, but expressly not 
 granted in so far as such counterfeiting consti- 
 
 " Georgia «. Brailsford, 2 Dallas, 402. 
 " 3 De G. F. & J., pp. 232-258.
 
 318 HANDBOOK TO THE LABOR LAW 
 
 tuted a crime in the English law ; and also 
 quoted Lord Eldon," "A court of equity has 
 no criminal jurisdiction, but it lends its assist- 
 ance to a man who has, in view of the law, a right 
 of property, and who makes out that an action at 
 law will not be a sufficient remedy and protection 
 against intruding upon his possession."" So 
 Vice-Chancellor Malins concluded that while the 
 "jurisdiction of a court of equity is to protect 
 property, it will interfere by injunction to stay 
 any proceedings, whether connected with crime 
 or not, which go to the immediate or tend to the 
 ultimate destmction of property, or make it less 
 valuable or comfortable for use or occupation." 
 There were in England comparatively few other 
 
 '^Macauley f. Shackell, 1 Bligh, X. S., 96, 127. 
 
 '•^ In Sparhawk v. Union Passenger R.R., Pa. St. Rep., 
 the bill was brought by citizens to prevent defendant from 
 running its cars on Sunday in violation of a penal statute ; 
 and the court held that it was incumbent upon plaintiffs to 
 show that the illegal acts of defendants interfered injuriously 
 with their property rights. A court of equity " will not en- 
 force a penalty or enjoin against the commission of a crime 
 when it is merely a crime, and not also an injury to private 
 rights of property. When an act is both a public offence and 
 a private wrong it may be enjoined against, but not otherwise. 
 'If an act be illegal.' said Vice-Chancellor Kindesley, in 
 Solteau V. De Held, 2 Sim & Stew, 153, ' I am not to grant 
 an injunction to restrain an illegal act merely because it is 
 illegal. I cannot grant an injunction to restrain a man from 
 smuggling, which is an illegal act,' nor could he for any 
 merely criminal or penal offence."
 
 OF THE UNITED STATES 319 
 
 cases of injunctions sought in labor disputes 
 until recent years, the remedy followed being 
 commonly that of indictment of the persons 
 offending. But the case of the Mogul Steamship 
 Co., discussed in § 57, while refusing to consider 
 the combination an unlawful boycott, recognized 
 that an injunction Avould have been a proper 
 remedy had it been so. And in the United 
 States the peculiar remedy of process for con- 
 tempt in labor disputes was first used in cases of 
 actions against receivers, which will be discussed 
 in the next section. 
 
 In Walker v. Cronin, discussed in § 58 above, 
 and decided in 1871, although the remedy sought 
 was an action for tort, it appears probable that 
 an injunction would have been awarded had it 
 been applied for; and the same may be said of 
 Old Dominion .Steamship Co. v. McKenna, de- 
 cided in 1887. 
 
 But apparently the first American case where 
 an injunction was granted to prevent anything 
 resembling a boycott is the Massachusetts case 
 of Sherry v. Perkins, decided in 1888, and the 
 Pennsylvania case of Brace v. Evans, decided 
 independently in the same month, both fully dis- 
 cussed in §§ 58, 60, above. In both these cases 
 an injunction was granted. Other important 
 cases of injunctions rapidly followed, the first 
 in a federal court being that of Casey v. Cincin- 
 nati Typographical Union, where an injunction
 
 3t?0 HAXDHOOK TO TIIIC LAHOR LAW 
 
 was granted upon a state of facts resembling 
 that of the Springhead case.'^ Several other 
 cases, which are fully discussed in §§ 58, 65, 66, 
 rapidly followed.'"' 
 
 In the Toledo Railway case a bill in equity 
 was brought by the plaintiff railroad against the 
 Pennsj'lvania Railroad and others to enjoin the 
 receivers from refusing to extend to complainant 
 the same equal facilities as to others for the ex- 
 change of interstate traffic. The injunction was 
 issued, served upon the Lake Shore Railroad, 
 and brought to the notice of its employees by 
 publication, and certain of its employees were 
 attached for contempt for violating the injunc- 
 tion, among them one Lennou, an engineer, who 
 was on his run from Detroit to Air Line Jrmc- 
 tion, where he Avas ordered to take an empty car 
 from the Ann Arbor " Y." This was one of the 
 boycotted cars, and he refused to switch the car 
 into the train,, and held it there for five hours, 
 until he received a message from the chairman 
 of the strikers which read, " You can come along 
 and handle Ann Arbor cars." Although he said 
 in the morning " I quit," he brought his train 
 to its destination, which the court held to be 
 
 ■M5 F. R., 135. See § 58. 
 
 '^Blindell r. Hagan, 5-t F. R., 40 (see § 66); Toledo Ry. 
 Co. V. Penn. Ry. Co., 54 F. R., 746; United States v. Work- 
 ingmen's Amalgamated Council of Xew Orlean,s, 54 F. R., 
 994.
 
 OF THE UNITED STATES 321 
 
 satisfactory evidence that lie did not quit in 
 good faith, but intended to continue in the 
 company's service, and that his conduct was a 
 trick to avoid obeying the order of the court. 
 Leiinon was accordingly fined fifty dollars. (For 
 a fuller report of this case see also § 66 below.) 
 
 In the United States v. Workingmen's Coun- 
 cil of New Orleans (see § 58) it appeared that a 
 difference had sprung up between the ware- 
 housemen and their employees, and the prin- 
 cipal draymen and their subordinates, and with 
 a view of compelling an acquiescence on the 
 part of the employers, it was brought about by 
 the unemployed that all union men should dis- 
 continue business, with the usual consequence of 
 disorder and cessation of business. The case 
 was based on the Interstate Commerce Law, 
 but an injunction was granted, the terms of 
 which do not appear in the report, except that 
 it restrained the defendants from interfering 
 with interstate commerce. 
 
 So, in Pettibone v. United States,'' an injunc- 
 tion was granted against defendants for interfer- 
 ing with a mining company, or by force or 
 threats, or otherwise making an attempt to in- 
 timidate an employee or any other person from 
 taking service with the companj' . Shortly be- 
 fore this a similar case had been decided — that 
 
 '« 148 U. S., 197. See §g 55, 58 above. 
 21
 
 822 HANDBOOK TO THE LABOR LAW 
 
 of Coenr d'Alene Mining Co. v. Miners' Union 
 of "NVardner." In this case it appeared that the 
 defendants, members of miners' unions, com- 
 bined for the purpose of not only controlling 
 and dictating the "wages to be paid them, but 
 also to prevent sill persons not members of such 
 unions from working for the complainant. That 
 they adopted a systematic course of intimida- 
 tion against the complainant and any miners 
 desiring to work for it who were not members 
 of such unions ; that they notified the complain- 
 ant that it must employ none but those who 
 belonged to such unions, and that they entered 
 complainant's mines and by force removed there- 
 from its employees, and by reason of the prem- 
 ises the complainant was compelled to cease 
 work ; that one hundred men, headed by defend- 
 ant, John Tobin, went to complainant's mine 
 and forcibly ejected certain persons from work, 
 and then took them to the Union Hall at Burke, 
 where it was demanded they should join the 
 union or leave the camp ; and upon their refusal 
 to do so it was ordered by the meeting that they 
 be marched out of the state, whereupon they 
 were escorted in the direction of Thompson 
 Falls, Montana, by two hundred men, who beat 
 oil-cans in imitation of drums ; that they were 
 called " scabs," and coarse indignities heaped 
 
 " 51 F. R., 260. See also in g 65.
 
 OF THE UNITED STATES 328 
 
 upon them ; they were denied the privilege of 
 purchasing food, and for two days were with- 
 out any food and exposed to the inclemency 
 of the weather in crossing a snowy range of 
 mountains. (It does not appear in the report, 
 but this was in fact followed by the massacre of 
 many of these non-union miners, well described 
 by Mary Hallock Foote in her novel.) The 
 court fully considered the argument that equity 
 would not interfere to prevent the commission 
 of a crime, and admitted that the court would 
 not interfere merely to prevent a libel ; but 
 " when the attempt to injure consists of acts or 
 words which will operate to intimidate and pre- 
 vent the customers of a party from dealing with 
 him, or laborers from working for him, the 
 courts have, with nearly equal unanimity, inter- 
 posed by injunction." It appeared that the in- 
 junction was served upon two proprietors of 
 newspapers, and, while upholding the freedom 
 of the press, the court held that if they were 
 engaged in doing the acts complained of, or 
 threatened to commit them by the use of their 
 columns to incite the lawless or thoughtless to 
 acts of violence or crime, the injunction against 
 them also was well granted.'* 
 
 '* A New York court has held otherwise on similar facts : 
 Rogers v. Evarts, 17 N. Y. Sup., 266. There is, of course, 
 no doubt that fair comment, even sympathetic editorials, is
 
 :>2-4 HANDBOOK TO THE LABOi: LAW 
 
 The Northern Pacific Raihoad Company cases 
 were fully discussed in §^ 55 and 58 above.'' 
 The petition was brought by the receiver of a rail- 
 road, and the court granted an injunction against 
 employees and others from intimidating or per- 
 suading other employees to strike, or from com- 
 bining to strike themselves, in such a manner as 
 to cripple the railroad. This injunction was 
 afterward modified on appeal, so that the in- 
 junction against persuading others, and the in- 
 junction against so leaving employment them- 
 selves as to cripple the railroad, were omitted. 
 
 In Lake Erie and Western Railroad Co. v. 
 Bailey,^ a railway not in the hands of a receiver 
 filed its bill against defendant employees and 
 members of unions to restrain them from ob- 
 structing and interfering with the movements of 
 its trains, and the injunction was granted against 
 all force and intimidation, reserving to the labor- 
 ers only the right to quit work themselves, or to 
 organize for the purpose of quitting work if they 
 so chose. 
 
 In 1894 the case of Lennon, mentioned above, 
 came before the Circuit Court of Appeals on his 
 application for a liahcas corpus. The court 
 
 permissible to newspapers, provided they do not actually 
 counsel a boycott or illegal acts of intimidation, etc. 
 
 " Farmers' Loan & Trust Co. v. Northern Pacific R. R. 
 Co., 60 F. R., 803; Arthur v. Oakes, 63 F. R., 310. 
 
 '" 61 F. R., 494.
 
 OF THE UNITED STATES 325 
 
 found tliat habeas corpus does not perform the 
 office of a writ of error or an appeal in respect 
 to the proceedings complained of, and that noth- 
 ing is open to the court considering it but the 
 jurisdiction of the court below, whether it had 
 proper jurisdiction of the subject-matter and of 
 the person. They also held, specifically, that it 
 is not necessary, in order that a person should be 
 bound to obey an injunction restraining a party 
 to a suit, his agents, etc., from doing any act, 
 that such person should himself be a party to 
 the suit, or should be served with a copy of the 
 injunction order, but that it is sufficient, if being 
 such agent, he has actual notice that the order is 
 being made."^^ 
 
 The same thing has recently been held by the 
 Supreme Court of the United States on appeal 
 from the Debs case," decided in the Circuit Court 
 in December, 1894, and this case is the leading 
 recent authority for the old position, that though 
 the same act constitute a contempt and a crime, 
 the contempt may be tried and punished by a 
 court of equity without regard to the criminal 
 remedy ; and it has often been held that al- 
 though an act has been specially made a crime, 
 or misdemeanor, or public nuisance, the fact 
 that it is also an injury to private rights or prop- 
 
 Ex parte Lennon, 64 F. R., 320. 
 
 U. S. V. Debs, 64 F. R., 724; \->S U. S., 564.
 
 326 HANDBOOK TO THE LABOR LAW 
 
 erty, or a private uuisance, will enable the per- 
 son iujured to bring a bill against the parties 
 committing it, or threatening to commit it, for an 
 injunction. 
 
 § 65. Strikes against Receivers. — Under the 
 established doctrine of courts of equity a receiv- 
 er appointed to take charge of property or pre- 
 vent waste is the officer of the court. It follows 
 that any interference with his possession is an 
 interference with the possession of the court, 
 and hence a contempt ; and it will be a con- 
 tempt independent of any injunction or any ex- 
 press words of the order appointing the receiver ; 
 although it is veiy common, particularly in 
 modem times, to couple with the order appoint- 
 ing a receiver an injunction against all persons 
 (or at least against all parties to the suit, their 
 agents and privies) from interfering with the 
 property in suit or with the possession of the 
 receiver. 
 
 This doctrine has become very important in~ 
 recent years, owing to the great extension of re- 
 ceivership jurisdiction by courts of equity over 
 insolvent corporations, particularly railroads ; 
 and as nearly all railroads are situated in more 
 than one state (or at least present in cases of 
 insolvency an opportunity for invoking the juris- 
 diction of the federal courts owing to the differ- 
 ent citizenship of the parties), the greatest ex-
 
 OF THE UNITED STATES 327 
 
 tension of the control of railroads by courts of 
 equity has occurred in the federal courts. In 
 recent years more than one-third of the entire 
 railroad mileage of the United States has been 
 in the hands of receivers, nearly always ap- 
 pointed by the federal courts — that is, they have 
 been run by receivers as officers of the courts — 
 and any interference with their possession, or 
 even with the traffic and management of the 
 railway has rendered the guilty parties liable to 
 the injunctions or contempt process of the court 
 appointing the receiver. This, perhaps, has 
 been the principal cause of what has become to 
 be known as government by injunction ; that is, 
 the management of the railway interests of the 
 country by officers of the federal courts under 
 the control of equity process with its affirmative 
 remedies before adverted to, which make it pos- 
 sible, by simple court order, to require all rail- 
 road employees, and even labor organizations 
 affiliated with them, to perform the duties of 
 their service in full under penalty of contempt. 
 
 Many such cases have been discussed in the 
 last section and in § 55, Strikes, and §§ 57, 58, 
 Boycotts ; and it remains but to mention a few 
 of the decisions on simple cases of strikes 
 against receivers to show the nature and extent 
 of the jurisdiction. Thus, in re Doolittle and 
 another, strikers,' the Wabash Railway being in 
 
 ' 23 F. R., 544. See also § 55.
 
 328 HANDBOOK TO THE LABOK LAW 
 
 the hands of receivers, the United States Mar- 
 shal reported to the court that at Hannibal, Mo., 
 he found the possession and use of the property 
 interfered with by bodies of men, who spiked and 
 blocked the tracks, drew water from the engines, 
 and incited the agents and employees of the re- 
 ceivers to quit work ; and that, in particular, 
 Doolittle had prevented a train-master from tak- 
 ing out of a round-house a number of engines in 
 the custody of the receivers, whereupon he had 
 caused him to be arrested, and also arrested one 
 Schanbacher for holding an engine upon and for 
 the purpose of blocking the main track. As a 
 result the movement of the engine and about 
 one hundred freight-cars was delayed some 
 hours, and the two prisoners were attached for 
 contempt. It appeared that the strikers were 
 engaged in a strike not against the Wabash, but 
 against the Union Pacific Railroad, and Justice 
 Brewer (now of the Supreme Court) ruled that 
 although the defendants did not set out to ob- 
 struct the receivers of the Wabash Railroad, 
 yet they did set out to obstruct some persons in 
 the exercise of their legal rights, and intei-fered 
 with other persons working, and prevented the 
 owners of raih'oad trains from moving them ; and 
 the defendants were accordingly sentenced to 
 sixty days' imprisonment. 
 
 In the same year (1885) four persons were at- 
 tached for interfering with the receivers in pos-
 
 OF THE UNITED STATES 329 
 
 session of a railroad in Colorado, and three of 
 them were sentenced by Justice Brewer to im- 
 prisonment for ten days, thirty days, and four 
 months respectively.' The facts do not clearly 
 appear from the report, but there was a strike in 
 progress and a large and excited crowd bent on 
 stopping the movement of the trains, although 
 they did not seek to destroy property ; but 
 they made the demonstrations with an attempt 
 to overawe the engineers and their trainmen. 
 Murphy, not being a leader in the disturbance, 
 was sentenced to only ten days ; Tyler, who had 
 talked more freely, to thirty days ; and Orr, who 
 was proved to have made definite threats, to 
 four months. 
 
 The next case was that of the Wabash Rail- 
 way Co.,^ in which it appeared that one Berry 
 sent letters to the foreman of one of the railway 
 shops, dated " Office of Local Committee," and 
 saying : " You are requested to stay away from 
 the shop until the present difficulty is settled. 
 Your compliance with this will command the 
 protection of the Wabash employees, but in no 
 case are you to consider this an intimidation. 
 C. M. Berry, Chairman." The railway was in 
 the hands of a receiver, and the object of the 
 strikers was to resist a reduction of wages ; and 
 
 « U. S. V. Kane, 23 F. R., 748. See also in § 55. 
 '24 F. R.. 217.
 
 330 HANDBOOK TO THE LABOR LAW 
 
 it appeared that in consequence of these letters 
 the men engaged in the shops quitted work. 
 One of the locomotive engineers also testified 
 that three partially masked men approached him 
 on his engine and used violent and threatening 
 language. It was held that BeiTj was guilty of 
 interference with the operation of the railroad, 
 and, on the sole ground that it was in the hands 
 of a receiver, was guilty of contempt of court. 
 He was accordingly sentenced to imprisonment 
 for two months. 
 
 In the case of Higgins,^ decided by Judge 
 Pardee, in Texas, in 1886, first appears (besides 
 the ordinary proposition that whoever interferes 
 with property in the possession of a receiver is 
 guilty of contempt) the proposition, destined to 
 awake still wider discussion (see the Northern 
 Pacific Railway case discussed in § 55), that while 
 the employees of receivers, although pro hac vice 
 officers of the court, may quit their employment, 
 as can employees of private parties, they cannot 
 so quit as intentionally thereby to disable the 
 property, nor combine nor conspire to quit with 
 or without notice with the object and intent 
 of crippling the property and its operation. 
 Orders had been issued from a secret organiza- 
 tion to all their employees to quit work, whereby 
 they did quit, and delayed the operation of the 
 
 *27F. R., 443.
 
 OF THE UNITED STATES 331 
 
 railway, and this action was declared a gross 
 contempt of court. Judge Pardee found that 
 the real reason of the strike was to compel recog- 
 nition of the secret labor organization as an ex- 
 isting power, so that its . officers shall be con- 
 sulted in the operation of a railroad of which 
 they "were not even employees; and declared 
 " that this intolerable conduct goes beyond crim- 
 inal contempt of court, into the domain of fe- 
 lonious crimes." "It may not be generally 
 known," adds the judge, "but the power of the 
 court, under the law, in punishing such cases is 
 unlimited in imposing fines or imprisonment," 
 and the persons charged were sentenced as fol- 
 lows: The defendant Higgins, for threatening 
 and cursing the employees, fifteen days' impris- 
 onment ; Gordon, for intimidating the employees 
 and throwing stones at them, severely injm'ing 
 one Roberts, ninety days ; Wilson, for displac- 
 ing a switch and derailing an engine, five 
 months ; several others, for taking forcible pos- 
 session of a switch and track, resisting officers, 
 and threatening the employees, three months. 
 
 We have shown above, in § 55, that it is 
 doubtful whether that part of this decision which 
 holds a strike an unlawful conspiracy, merely 
 because made by simultaneous concert, for the 
 purpose of crippling a railroad or its operation, 
 is now law ; but, undoubtedly, if the court found 
 that the main object was not to redi'ess a fair
 
 332 HANDBOOK TO THE LABOR LAW 
 
 grievance of the strikers themselves, but to con- 
 trol the railway mauagcrs in their actions, and 
 force recognition of a labor organization, many 
 of whose members were not even employees of 
 the railway itself, the case is still law ; although 
 the extreme difficulty of distinguishing such mo- 
 tives has been fully pointed out before. 
 
 The Coeur d'Alene case, already discussed by 
 us in § 64,^ was also a case where the mining 
 company, plaintiff, was in the hands of a re- 
 ceiver ; and the defendants, although claiming 
 to be lawful labor unions, were in fact inter- 
 fering with the possession and working of the 
 plaintiffs property, and the injunction previ- 
 ously granted was continued. It appears in 
 the opinion that service of the injunction order 
 had been made iipon the proprietors of two 
 newspapers, which had led to the report that 
 the public press was muzzled. The court held 
 that such service was not intended to restrain 
 publication of the neAvspapers. " The courts, 
 with good reason, expect the public press to be 
 conservators of the peace ; and whether or not 
 they agree with the law, either as enacted or as 
 construed, that they will in good faith advise its 
 observance until amended or reversed." 
 
 In Farmers' Trust Co. v. Northern Pacific Rail- 
 way Co.,® more fully discussed in §§ 55, 58, 64, 
 
 *51F. R., 260. •60F. R., 803.
 
 OF THE UNITED STATES 333 
 
 Judge Jenkins granted the famous order against 
 the employees of the receiver from so combicing 
 and conspiring to quit their service as to cripple 
 the projDert}^ or prevent or hinder the operation 
 of the railroad ; and against other defendants 
 not employees, but officers of labor organizations, 
 from conspiring to cause a strike upon the rail- 
 road, and from ordering or advising others to 
 quit its service. So far as this case was modi- 
 fied by the Circuit Court of Appeals,'' it would 
 appear that such part of the injunction as for- 
 bade employees from striking so as to cripple 
 the railway, etc., and which forbade members of 
 labor organizations not employees from advis- 
 ing them so to do, was annulled. Remembering 
 that the employees were — as Judge Pardee said 
 — pro hac vice officers of the court, it may be 
 questioned whether the ruling that a combina- 
 tion of labor organizations, not employees, to 
 persuade them to strike — that is to cease to per- 
 form such duties — was a lawful conspiracy, even 
 though the employees themselves might simul- 
 taneously leave work or even advise each other 
 to do so. This is, however, both the leading 
 and the latest case upon strikes against receiv- 
 ers, and its elaborate opinion and the volumi- 
 nous injunction order must be taken to-day to ex- 
 press the law. There is no doubt, however, that 
 
 ' Arthur vl Oakes, 63 F. R., 310.
 
 3;"}4 HANDBOOK TO THE LABOII LAW 
 
 where the property of a railroad or other corpo- 
 ration is being administered by a receiver, it is 
 competent for the court appointing him to ad- 
 just difficulties between such receiver and his 
 employees which in the absence of such adjust- 
 ment would tend to injure the property and de- 
 feat the purpose of the receivership ; and this 
 principle imquestionably gives the coiu't some- 
 what greater power in enforcing the contracts of 
 the employees than exists in ordinary cases or 
 with private employers of labor.** 
 
 So, in Booth v. Brown,* where the employees 
 of receivers of a railroad have joined in a gen- 
 eral strike, without grievance of their own, for 
 the purpose of compelling, by obstruction of 
 travel, parties to one side of a pending contro- 
 versy to yield actual or supposed rights, Judge 
 Hauford refused to order the reinstatement of 
 such striking employees by the receivers. 
 
 § 66. Labor Combinations made Unlawful under 
 Recent Federal Statutes. — In § 64 we discussed 
 the history of remedies by injunction and con- 
 tempt process, and noted that an injunction 
 could not be granted solely as against a crime 
 unless there were some property or contract 
 right involved. In § 65 we noted the fact of the 
 increased modern practice of putting corpora- 
 
 8 Waterhouse v. Comer, 55 F. R.,' 149. ' 62 F. R., 794.
 
 OF THE UNITED STATES 335 
 
 tions, and particularly railroads, in the hands of 
 receivers appointed bv tlie federal courts, with 
 the consequence that any interference with the 
 possession or management of the receiver be- 
 comes a matter for which contempt process may 
 lie. It remains in this section to note the great 
 extension of equity jurisdiction caused by the 
 recent federal statutes concerning interstate 
 commerce and trusts or combinations. Before 
 these statutes— although undoubtedly the owners 
 of a railway had a property right which would jus- 
 tify the interference of courts of equity in labor 
 disputes in all proper cases — such remedies were 
 not very often sought ; and the government as 
 government, and the courts as courts, could 
 not intervene except by the ordinary processes 
 of ci'iminal law, by the police, or, in case of ex- 
 treme disorder, by militia or troops. The Inter- 
 state Commerce act, passed, first, February 4, 
 1887,1 and amended March 2, 1889,^ applied to 
 any common carrier engaged in the transporta- 
 tion of passengers or property, wholly or partly 
 by railroad, to or from one state or territory of 
 the United States to any other state or country ; 
 or from any place in the United States through 
 a foreign country to any other place in the 
 United States. In short, it applied to all possi- 
 
 ' U. S. Stats., 1887, Chap. 104. 
 2 Ibid., 188y, Chap. 382.
 
 o.lO IIAXDROOK TO THE LABOR LAW 
 
 ble transportatious of passengers or property 
 except such as ^vere received, transported, and 
 delivered entirely within one state or territory. 
 The object of the statute was, of coui'se, to regu- 
 late charges and forbid unreasonable advantages 
 or preferences to special places or persons, and 
 to forbid the pooling of earnings, and to create 
 a permanent national commission for the en- 
 forcement of the provisions of the statute. But 
 it had two very important consequences. Sec- 
 tion 10 made it a misdemeanor for any person 
 employed to do or suffer any interference with 
 such interstate transportation, and while it was 
 probably intended to apply only to interference 
 by improper exactions, charges, or combinations 
 among the railroad companies, it in fact applied 
 equally to interferences by the railroad em- 
 ployees with the actual transportation or its ma- 
 chinery, and such interference being thereby 
 made criminal, any combination to effect it be- 
 came, of course, criminal also (see above, §§ 51, 
 55), Secondly, it put all matters of interstate 
 transportation so expressly under the protection 
 of the United States government as to make pos- 
 sible the application by the courts of equity of the 
 theory that the government itself had a property 
 right in goods the subject of such transportation, 
 which would justify them in granting to it the 
 affirmative protection of the powerful arm of the 
 courts of equity.
 
 OF THE UNITED STATES 337 
 
 But a far more momentous statute in extend- 
 ing the powers of the federal government over 
 labor disputes was the Anti-Trust Act of 
 Julj 2, 1890.^ Section 1 of this act expressly 
 provided that " Every contract, combination in 
 the form of trust or otherwise, or conspiracy, in 
 restraint of trade or commerce among the several 
 states, or with foreign nations, is hereby declared 
 to be illegal." 
 
 It is probable that Congress, when it passed 
 this statute, also had in mind only such combi- 
 nations among employers or purchasers ; but the 
 statute made no such limitation, and very prob- 
 ably would not have been held constitutional had 
 it done so. Consequently the words of this sec- 
 tion apply equally to all " combinations . . . 
 in restraint of . . . commerce among the 
 several states ; " and it is easy to see how the 
 courts were forced to hold that these words 
 would include combinations by laboring men 
 intended to impede or prevent transportation of 
 interstate freight or passengers, especially when 
 read in connection with the words of the Inter- 
 state Commerce Act itself. But more. Section 4 
 provided that " the several circuit courts of the 
 United States are hereby invested with juris- 
 diction to prevent and restrain violations of this 
 act ; and it shall be the duty of the several dis- 
 
 ^U. S. State. 5l8t Cong., 1st Sees., Chap. 647. 
 22
 
 lirJS TIANDHOOK TO THE LAP.Oi: LAW 
 
 trict attoruej's of the XTnited States, in their 
 respective districts uuder the direction of the 
 Attorney-General, to institute proceedings in 
 equity to prevent and restrain such viola- 
 tions." 
 
 " Such proceedings may be by way of petition 
 setting forth the case and praying that such 
 violation shall be enjoined or otherwise pro- 
 hibited." 
 
 If there had been any previous doubt, under 
 the Interstate Commerce Act, that the federal 
 government had such a property right in goods 
 the subject of interstate transportation that they 
 could invoke equity jurisdiction to secure the 
 same, such doubt is wholly removed by this 
 section. The circuit courts are especially in- 
 vested with jurisdiction to prevent any and all 
 violations of the act ; and the district attorneys 
 of the United States are expressly charged with 
 the duty of instituting proceedings in equity to 
 prevent and restrain such ; and, moreover, the 
 statute is precise enough to point out how 
 exactly it may be done, viz., that such proceed- 
 ings may be by the way of petition setting forth 
 the case and praying that such violation shall be 
 enjoined. And now, the injimction once issued, 
 as the statute requires, the ordinary remedies of 
 contempt process, etc., follow as a matter of 
 course, and there can be no question of their 
 legality, pro^dded only the court had jurisdiction
 
 OF THE UXITED STATES 339 
 
 of the parties, and the Supreme Court of the 
 United States has so decided.^ 
 
 That case of Blindell v. Hagan,^ decided in 
 1893, granted the injunction against the defend- 
 ants — a combination of persons who were pre- 
 venting the plaintiffs ship from getting a crew — 
 upon ordinary equity grounds ; but not upon the 
 Anti-Trust Act, holding that this statute does not 
 authorize the bringing of injunction suits in 
 equity by any parties except the government. 
 But the Toledo Railway case •> held that the third 
 section of the Interstate Commerce Act — provid- 
 ing that it should be unlawful for any common car- 
 rier subject to the act to make or give any undue 
 or unreasonable preference, etc., to any particular 
 person or corporation — did justify an injunction 
 against persons so interfering with the business 
 of a private corporation ; and that this jurisdiction 
 attaches because of the subject-matter, and with- 
 out regard to the citizenship of the parties. The 
 same case ^ contains Judge Taft's celebrated de- 
 cision, in which he awarded an injunction against 
 P. M. Arthur from ordering the engineers to 
 carry out Rule 12 of the Brotherhood of Loco- 
 motive Engineers, which rule provided that 
 " when an issue has been sustained by the grand 
 
 « In re Debs, 64 F. R., 724; 158 U. S., 564. 
 
 ' 54 F. R., 40. See §§ 55, 58, 64. 
 
 « Toledo Ry. Co. v. Pennsylvania Co., 54 F. R., 746. 
 
 ' 54 F. R., 730.
 
 340 IIAXDBOOK TO THE LABOR LAW 
 
 chief ... it shall be recognized as a violation 
 of obligation for a member of the Brotherhood 
 . who may be employed on a railroad run- 
 uiug in connection with . . . said road, to 
 handle the property belonging to said railroad 
 or system in any way that may benefit said com- 
 pany in which the B. L. E. is at issue imtil the 
 grievance is settled." The case also decided 
 that railroad employees engaging in such a boy- 
 cott of another railroad were guilty of a con- 
 spiracy to commit the misdemeanor described 
 in Sec. 10 of the Interstate Commerce Act ; 
 and hence if any person engaged in it does an 
 act in furtherance thereof, all combining for the 
 purpose are guilty of criminal conspiracy, as 
 defined by Sec. 5440 Revised Statutes. Both 
 cases held that such mandatory injunctions were 
 binding upon all officers and employees of the 
 defendant having proper notice thereof, whether 
 they were made parties to the bill or not. And 
 the second case goes rather far in holding that 
 employees might be enjoined from quitting ser- 
 vice in such a manner as to cause peril to life or 
 injury to property, or to subject the raikoad to 
 legal penalties, or to cause irremediable injuries 
 to their employers and the public, and from 
 enforcing rules of labor unions which so result, 
 such as those requiring an arbitrary strike with- 
 out cause, merely to enforce a boycott against a 
 connecting line. (See § 55.)
 
 OF THE UNITED STATES 341 
 
 In the same year came the case of the United 
 States V. Workingmen's Amalgamated Council,^ 
 in which the Circuit Com-t for Louisiana awarded 
 an injunction against interference with interstate 
 commerce by a combination of draymen and 
 longshoremen, and held that such rights could 
 be enforced under the Anti-Trust Act, which was 
 definitely held to apply to combinations of 
 laborers as well as capitalists. In the meantime 
 the case of United States v. Patterson ^ had been 
 decided to the contrary by the Circuit Court for 
 Massachusetts. Judge Putnam said (and events 
 have since shown that he was correct) : " If the 
 proposition made by the United States is taken 
 with its full force, the inevitable result will be 
 that the federal courts will be compelled to ap- 
 ply this statute to all attempts to restrain com- 
 merce among the states, or commerce with for- 
 eign nations, by strikes or boycotts, and by 
 every method of interference by way of vio- 
 lence or intimidation. It is not to be presumed 
 that Congress intended thus to extend the juris- 
 diction of the courts of the United States with- 
 out very clear language. Such language I do 
 not find in the statute." These anticipations 
 have been more than realized and the conserva- 
 tive ground taken in United States v. Patterson 
 has long since been abandoned. 
 
 «54F. R.,904. •55F. R., 605.
 
 342 HANDBOOK TO THE LABOR LAW 
 
 In Southern California Railway Co. v. Ruther- 
 ford '° jurisdiction was taken on the ground of 
 the Interstate Commerce Act, and the interfer- 
 ence of the defendants, employees of a railroad 
 company, with interstate commerce and the 
 transmission of mails ; and an injunction was 
 issued requiring the employees " to perform all 
 of their regular and accustomed duties so long 
 as they remain in the employment of the com- 
 pany." This case has been already criticised. 
 (See § 6.) Judge Taft, in thfe Toledo Railroad 
 cases above noted, specially observed that a court 
 of equity could not enforce by mandatory injunc- 
 tion the performance of the labor contract, and 
 if such an injunction as that in this case is now 
 justifiable upon equity principles, it must be only 
 in consequence of the peculiar provisions of the 
 Anti-Trust Law, and is, perhaps, the most strik- 
 ing example of its far-reaching effect. So, in 
 United States v. Elliot," Judge Thayer held, in 
 the Missouri Circuit Court, that while it is not 
 ordinarily lawful or expedient for a court of 
 equity to award an injunction to prevent the 
 doing of acts that are in themselves crimes, by 
 Sec. 4 of the Anti-Trust Act the court was ex- 
 pressly given such jurisdiction in cases of a com- 
 bination to restrain or interfere with interstate 
 commerce ; that a combination whose professed 
 
 62 F. R., 796. n 62 F. R., 801.
 
 OF THE UNITED STATES 343 
 
 object was to arrest the operation of railroads 
 running between states was necessarily such an 
 unlawful conspiracy ; and an injunction was 
 granted against the defendants both against 
 doing the acts as threatened, to wit, inducing 
 persons in the employment of said railroad to 
 leave its service, and against preventing them 
 from procuring other operatives, and against 
 issuing orders to the persons in the employ 
 of the several railroad companies to cease from 
 operating their trains ; and the latter principle 
 was reaffirmed, and United States v. Patterson 
 expressly disapproved, in Thomas v. Cincinnati 
 Railway Co.^'- 
 
 The principles announced by Judge Ross were 
 further developed by him in a charge to the 
 grand jury a few weeks later,'^ and he also 
 held that a railroad is not obhged under its 
 charter to move trains when the employees re- 
 fuse to move them because Pullman cars are 
 attached ; nor to leave all such cars and run the 
 rest of the train ; and where the regular passen- 
 ger trains have been designated for carrying mail, 
 the failure of a railroad to run other mail trains 
 is not a violation of the statute against obstruc- 
 tion of the mails ; that a conspiracy to obstruct 
 
 "« 62 F. R., 803. See also §§ 55, 58 for further discussion 
 of this case. 
 
 '3 June 29, 1894- See In re Grand Jury, 62 F. R., 834.
 
 344 HANDBOOK TO THE LABOR LAW 
 
 the mail is an offence against United States law, 
 and that persons inciting rebellion or insurrec- 
 tion against the authority of the United States 
 or the laws thereof may be punished criminally 
 under U. S. R. S. 5334 ; and he specially called 
 the attention of the grand jur}' to a report in the 
 newspapers of a speech made by one Doctor 
 Ravlin at a public meeting held on a previous 
 night. This charge is i:)articularly interesting 
 because it covers not only the point of the 
 criminal liability of the laborers, but of the rail- 
 way company as well, and even of persons who 
 belong to neither, but are engaged in fomenting 
 the disorder. 
 
 The case of United States v. Agler " further 
 reinforces the general interpretation of the Anti- 
 Trust Act, and holds that the injunction issued 
 is binding as against a person not even named 
 in the bill nor served with a subpoena as " one 
 of the unknown defendants referred to in the 
 bill," w^henever the injunction order is served 
 upon them. By Baker, J. : " Prior to the Act of 
 1890, the United States had no power by petition 
 or bill to go into its com-ts of equity and invoke 
 their aid to prevent interference with the car- 
 riage of mails or interstate commerce ; prior to 
 that time the sole remedy was on the criminal 
 side of the court. . . . This act enlarged 
 
 >* fi2 F. R., 824.
 
 OF THE UNITED STATES 345 
 
 the jurisdiction of the federal courts aud au- 
 thorized them to apply their restraining power 
 for the purpose of checking or arresting all law- 
 less interference with the peaceable aud ordi- 
 nary carriage of mails and conduct of raih'oad 
 business between the states." 
 
 Another instructive charge was that made by 
 Judge Grosscup, in the District Court of Illinois, 
 July 10, 1894'^ While not so far reaching as 
 that of Judge Ross, it holds that the open and 
 active opposition of a number of persons to the 
 execution of the laws of the United States, of 
 so formidable a nature as to defy for the time 
 being the authority of the government, consti- 
 tutes an insurrection, even though not accom- 
 panied by bloodshed ; and charges also what is 
 criminal conspiracy : "A corrupt or wrongful 
 agreement between two or more persons, that 
 the employees of railroads carrying the mails 
 and conducting interstate commerce should quit, 
 and that all others should, by threats or vio- 
 lence, be prevented from taking their ]3laces," 
 and that two or more leaders of a labor associa- 
 tion insisting on demanding such quitting of 
 employment are guilty of criminal conspiracy. 
 
 Judge Morrow, in his charge to the grand 
 jury, delivered July 30, 1894," while reaffirming 
 
 " In re Charge to Grand Jury, 62 F. R., 828 
 >« 62 F. R., 840.
 
 346 HANDBOOK TO THE LABOR LAW 
 
 the principle as to conspiracy of employees 
 apjainst the Anti-Trust Act, seems to difter from 
 Juilgo Ross in holding that the railroad com- 
 pany corporation must keep its line open, and 
 this without regard to the make-up of regular 
 trains ; in other words, that they cannot insist 
 upon moving Pullman, mail cars, etc., with them. 
 
 The case of Lennon, discussed more fully in 
 § 65, was a case where one railway company sued 
 another for refusing to interchange business and 
 cars with it in consequence of a strike or boycott 
 against it, in the course of which litigation the 
 injunction was issued under which Lennon Avas 
 held for contempt, and filed his petition for 
 habeas corpus ; and the court again held that 
 such suits between railroad companies engaged 
 in interstate commerce involved a federal ques- 
 tion, without regard to the citizenship of the 
 parties. 
 
 The elaborate charge of Judge Woods in the 
 famous case of United States v. Debs," reaffirmed 
 the dissent from United States v. Patterson, and 
 held that the Anti-Ti'ust Act is not limited by 
 its title, "an act to protect trade and commerce 
 against unlawful restraints and monopolies," to 
 combinations of capital merely, or of a contrac- 
 tual nature ; but the words " contract, combina- 
 tion in the form of trust or otherwise, or conspir- 
 
 >■ 64 r. R., 724.
 
 OF THE UNITED STATES 347 
 
 acy," include any combination in restraint of 
 trade or commerce, whether by employers, em- 
 ployees, or other persons. This charge contains, 
 perhaps, the most full and elaborate interpreta- 
 tion of this part of the Anti-Trust Act and con- 
 sideration of authorities, and has been reviewed 
 by the United States Supreme Court ; '® and 
 the more recent decisions seem to add no new 
 principles.'" 
 
 The last case is that of United States v. Cas- 
 sidy," which was an indictment, under Revised 
 Statutes 5440, of some of the strikers in the Cali- 
 fornia Pullman strike of 1894, for conspiracy 
 under the Anti-Trust Act. The charge is most 
 voluminous, covering eighty-two pages of the re- 
 port, and very interesting for its full discussion 
 of the facts. 
 
 '« 158 U. S., 564. 
 
 ■» United States v. Debs, 65 F. R., 210. This was the 
 charge given by Judge Grosscup, the case in o-t F. R. be- 
 ing the charge upon contempt process. For other charges, 
 see 62 F. R., 828 ; 63 F. R., 436. The latter was a charge 
 against the employers, it having been alleged that some of the 
 railroads fomented the disorder and disturbance of trains, 
 even perhaps the destruction of property, in order to create 
 public sympathy with them against the strike ; and this, also, 
 was held to be a conspiracy on their part within the meaning 
 of the interstate law . 
 
 ""STFR., 698.
 
 348 HANDBOOK TO THE LAUOK LAW 
 
 CHAPTER X 
 
 REMEDIES BY AKBITRATION 
 
 § 67. State Boards of Arbitration. — State 
 boards of arbitration have been provided in 
 nearly half the states, up to the time of this 
 writing, for the adjustment of grievances and 
 disputes between employers and employees by 
 conciKation or arbitration.' There is also a 
 federal statute (see U. S. Laws, 1888, Oh. 
 1063) applying, however, to railroad and trans- 
 portation companies only. It was under this 
 statute (§ 6) that President Cleveland appointed 
 the commissioners to investigate the Chicago 
 riots of 1894 
 
 There are three general types of these statutes 
 providing for arbitration of labor disputes by a 
 state board (for private or local boards, see § 68). 
 The prevailing type, judging by the number of 
 states adopting it, is that of the New York law, 
 
 'Mass., 1886, 263; 1887,269; 1890,385; Ct., 1895, 239; 
 N. Y., 1887, 63, 5; N. J., 1892, 187, 6; Pa. Dig., pp. 133, 
 134; Ohio, 1893, p. 83; Mich., 1889, 238; 111., 1895, Special 
 Session; Iowa, 1886, 20, 1; "Wis., 1895, 364; Kansas, 1886, 
 28; Cal, 1891, 51; Idaho Con., Art. 13, 7; Wy. Con., Art. 
 5, 28; 19, 2; Mon. Pol. C, 3330; La., 1894, 139.
 
 OF THE UNITED STATES 349 
 
 though the Massachusetts statute, which is em- 
 bodied principally in the Ohio, Illinois, Wiscon- 
 sin, Montana, California, and Louisiana laws, 
 seems to work better in practice. The Pennsyl- 
 vania method is more peculiar, and is followed 
 only in Iowa and Kansas. 
 
 The state board is, in nearly all the states, ap- 
 pointed by the governor, and (except in Wiscon- 
 sin) confirmed by the Senate, or, in Massachu- 
 setts, the Council.^ In all these states, with the 
 exception of Louisiana, the board consists of 
 three persons. In New York and Connecticut 
 one must be selected from each of the two par- 
 ties casting the greatest number of votes at the 
 last election for governor, and a third from a 
 hona-Jide labor organization. But in Massachu- 
 setts, Wisconsin, Ohio, California, and Montana 
 no reference is made to poHtics ; but one must 
 be an employer selected from some association 
 representing employers, and one from some la- 
 bor organization not an employer, and the third 
 to be appointed upon recommendation of the 
 other two, or, if they fail to agree, by the gov- 
 ernor. The Louisiana law is the same, except 
 that there are five arbitrators. In Illinois only 
 one must be an employer, and only one other 
 a member of a labor organization, and not more 
 
 «Mas8., 1886,203, 1; Ct., N. Y., O. ; Mich., Wis., 111., 
 Mon., La., ib.
 
 350 HANDBOOK TO THE LABOR LAW 
 
 than two of the same poHtical party. In Mich- 
 igan the governor may appoint any "compe- 
 tent " persons ; in New Jersey one must belong 
 to a labor organization. In Pennsylvania the 
 hoards of arbitration are practically local — 
 that is, the presiding judges of the Courts of 
 Common Pleas may issue a license for the estab- 
 lishment of such boards within their respective 
 districts ; and this is followed in Iowa and Kan- 
 sas. The board holds office for three years.^ 
 They may appoint a secretary, who shall keep 
 full records of their proceedings and all docu- 
 ments and testimony forwarded by the local 
 boards of arbitration.* Such board or secretary 
 has the power to issue subpoenas, administer 
 oaths, call for and examine books and papers as 
 far as is possessed by courts of record (see also 
 below) ; ^ the arbitrators and clerk must take and 
 subscribe an oath of office.^ In other states 
 they appoint one of their own number chairman 
 and one secretary.'' They must generally estab- 
 lish rules of procedure ; ^ and in some states such 
 rules must be approved by the governor and at- 
 torney-general or council.^ 
 
 3N. Y., Mich., Mass., O., 111. One year: Cal. Two 
 years : Ct., Mon., Wis. Fours years : La. Five years : N. J. 
 ♦Mass., 1888, 261; N. Y., N. J., Ct., Mich., 111., Mon. 
 'N. Y., Mich, N. J. 
 
 • N. Y., Ct., Wis., N. J. ' O., La., Wis. 
 
 s Mass, 0., 111., Mon., La., Wis. » Mass., O., Mon., Wia.
 
 OF THE UNITED STATES 351 
 
 But in a few states the functions of the state 
 board of arbitration are filled only by the labor 
 commissioner, '° and in others there is permission 
 only for private or local arbitration (§ 68). 
 
 The usual provision for setting the machinery 
 of the state board of arbitration in motion is set 
 forth in the note." 
 
 "Mo., 6354; Col., 1887, 62; N. D., 1890, 46. 
 
 " (1) By the Massachusetts method : " Whenever any contro- 
 versy or difference not involving questions which may be the 
 subject of a suit at law or bill in equity exists between an 
 employer, whether an individual or corporation, and his em- 
 ployees, if at the time he employs not less than twenty-five 
 persons (20 in Mon., La.) in the same general line of business 
 in any city or town in the state, the board shall, upon the appli- 
 cation of the employer, or of a majority of his employees in 
 the department in which the controversy exists, or their duly 
 authorized agent, or by both parties, containing a concise state- 
 ment of the grievances complained of, and a promise to 
 continue on in business or at work without any lockout or 
 strike until the decision of said board, which shall be made 
 within three weeks (four weeks in Mon., Wis. ; ten days in 
 O., La.) from the date of filing said application, as soon as 
 practicable visit the locality of the dispute and make careful 
 inquiry into the cause thereof, hear all persons interested, 
 and advise the respective parties what, if anything, ought to 
 be done or submitted to by either or both to adjust said dis- 
 pute." Mass., ii., 3 and 4; 1887, 269; O., ib., 4-7; Mon. 
 Pol. C, 3333-4; 111., 1895, Spec, §§2-3; AVis., 1895, 364, 
 3-4; CaL, 1891, 51, 2-3; La., li., 4, 6, and 7. 
 
 And when such agent claims to represent a majority of the 
 employees, the board shall satisfy itself that such agent is 
 duly authorized in writing to represent such employees, but 
 the names of the employees giving authority shall be kept
 
 352 IIAXDBOOK TO THE LABOR LAW 
 
 It is too soon as yet to pass judgment on 
 these statutes ; and they have of couise given 
 
 secret by the board. Mass., ib., 4; O., ih., G; Mon. Pol. 
 C, 3334 ; La., ib., (!. 
 
 Upon receipt of said application the board shall cause 
 public notice of hearing, except, when both parties join in the 
 application, such notice is not necessary if the parties so 
 desire, though the board may at any stage order public notice. 
 Mass., ib., 4; O., ib., 8; Mon., ib.; 111., ib.; La., ib., 8; 
 Wis., ib., 4; Cal., ib., 2. 
 
 In Louisiana, when such mediation has failed to bring 
 about an adjustment of differences, or in Massachusetts, Wis- 
 consin, Illinois, California, and Montana, whenever such de- 
 cision has been made, it shall at once be made public and 
 recorded upon the books of record of the board, and a short 
 statement thereof published in their annual report. Mass., 
 ib., 3; O., ib., 5; Mon., ib., 3335; 111., ib., 2; La., ib., 5; 
 Wis., ib., 5; Cal., ib., 2. 
 
 Should the petitioner or petitioners fail to perform the 
 terms made in their application, the board shall suspend pro- 
 ceedings. O., ib., 8; Mon., ib.; La., ib., 8; Wis., ib., 4; 
 Cal., ib., 3. 
 
 The board has power to summon as witnesses any operative 
 in the department of business affected, and any person who 
 keeps the record of wages earned therein, and examine such 
 witnesses under oath, and require production of books and 
 papers. O., ib., 9, 1894, p. 373; Mon., ib.; 111., ib., 3; 
 La., ib., 9 ; Wis., ib., 4. 
 
 And the board seems to have a general power to compel 
 the attendance of witnesses or the production of papers. O., 
 ib., 9 ; La., ib., 9 ; Wis., ib., 4. 
 
 In several states both parties may nominate a person to act 
 as expert for the special investigation, who shall be sworn 
 and paid for his services. Mass., 1890, 385; Mon. Pol. 
 C, 3334; Wis., ii., 4. 
 
 In Wisconsin, Ohio, Montana, and Louisiana the mayor of
 
 OF THE UNITED STATES 353 
 
 rise to no reported case at law ; their very object 
 being partly to avoid the bonds of legal pre- 
 
 any city, or, in Wisconsin, the board of a town or village, or 
 judge of any district (probate, O.) court in a parish (La.), 
 or two county commissioners (Mon.), to whom it is made to 
 appear that a strike or lockout is soon to occur, or has actu- 
 ally occurred, shall at once notify the state board of the fact ; 
 and whenever it comes to the knowledge of the state board 
 that such lockout has occurred, it shall act at its own motion. 
 O., lb., 13, 1894, p. 374; Mon., ib., 3337; La., ib., 10; 
 Wis., ib., 8, 9. 
 
 Except as above, in Ohio and Louisiana, it does not appear 
 that the board has any power beyond making this written de- 
 cision public, though it is generally declared to be the duty of 
 the state board to endeavor, by mediation or conciliation, to 
 effect an amicable settlement before a strike or lockout, and 
 to induce the parties to submit the matters in dispute to the 
 state board, in which case it would seem that the board's de- 
 cision might have the same legal effect as that of an ordinary 
 arbitrament under the law. O., ib., 4; La., t'i., 11. 
 
 But in the other states such decision is binding, when both 
 parties join in the application, for six months, or until either 
 party has given the other notice in writing of his intention 
 not to be bound by the same at the expiration of sixty days 
 from such notice. Said notice may be given to the employees 
 by posting in the shop or factory. Mass., ib., G; 111., ib., 
 5; Mon., ib., 3336; Wis., ib., 6; Cal., ib., 4. 
 
 There is generally a provision for an annual report to the 
 legislature, which, in Ohio and Louisiana, shall include sug- 
 gestions as to legislation, and statement of the actual work- 
 ings of the board. 
 
 (2) By the New York method, whenever a strike or lockout 
 shall occur, or be threatened, and come to the knowledge of 
 the board, it shall proceed at once to the locality, communi- 
 cate with the parties, and endeavor to affect an amicable 
 iettlement, and may inquire into the cause of the controversy 
 23
 
 354 HANDBOOK TO TIIK LABOR LAW 
 
 cedent. The state boards have been far more 
 successful as boards of mediation or conciliation 
 
 with all the ordinary powers. N. Y., 1887, 63, 9 ; N. J., 
 1892, 137, 10; Ct., 1895, 239, 4; Mich., 1889, 238, 5; Mo., 
 6354 ; see also above for similar provisions in the other 
 states. 
 
 Any grievance or di.spute may be submitted by the volun- 
 tary action of both parties directly to the state board in the 
 first instance. 
 
 Such board shall then proceed to the locality and inquire 
 into the cause of the dispute, both parties submitting to it in 
 writing their complaints, and severally agreeing in writing to 
 submit to the decision of the board, and promising to continue 
 work without a lockout or strike until such decision, provided 
 it be rendered within ten days after the completion of the in- 
 vestigation. 
 
 After the matter has been fully heard, the board, or a ma- 
 jority, shall within ten days render a written decision, stating 
 such details as will show its nature and the points disposed 
 of. N. Y., lb., 7-8; Ct., ib., 2-3; Mich., ib., 3-4; N. J., 
 *6., 8-9. 
 
 Decisions may be rendered by a majority of the board, and 
 a majority shall constitute a quorum. N. Y., ib., 6; N. J., 
 t6., 7. 
 
 State Board as Appellate from Local Boards. — In New 
 York and New Jersey the state board holds appeals from deci- 
 sions in local boards, and its decision is final, the submis- 
 sion to arbitration having in the first instance, of course, been 
 voluntary by both parties. 
 
 (3) By the Pennsylvania method the presiding judges of 
 the courts of common pleas (district court in Iowa and Kan- 
 sas), upon petition, or agreement of the parties, shall issue a 
 license for the establishment within their respective distncts 
 (counties, lo.) of tribunals for the settlement of disputes be- 
 tween employers and employees in the iron, steel, glass, 
 textile fabrics, and coal trades, or each of them (in me-
 
 OF THE UNITED STATES 355 
 
 than in arbitrating disputes already well under 
 way, or strikes. Indeed, to their actual arbitra- 
 
 chanical, manufacturing, and mining industries, in Iowa and 
 Kansas). Pa. Dig., p. 133, 67; lo., 1886, 20, 1; Kan., 332. 
 
 Such petition must be signed by fifty (twenty in Iowa, five 
 in Kansas) emploj^ees, employed by five separate firms (four in 
 Iowa, two in Kansas), or at least by five (four in Iowa) em- 
 ployers, each one employing at least ten (five in Iowa) work- 
 men (this clause omitted in Kansas), or by the representatives 
 of the firm (omitted in Kansas), individual, or corporation 
 employing not less than seventy-five men. And the agree- 
 ment shall be signed by both of said specified numbers and 
 persons : Provided that (if a dispute exists at the time the 
 petition is presented, and a suspension of work has happened, 
 or is probable, in Pennsylvania) the judge must require testi- 
 mony to be taken as to the representative character of said 
 petitioners, and whether they represent the will of at least 
 one-half, or a majoritj', of each party to the dispute. If not, 
 the license may be denied. Pa., t6., 68 ; lo., t6., 2 ; Kan., 333. 
 
 The workmen signing the petition must each have been a 
 resident of the judicial district for one year, and engaged in 
 the trade they profess to represent for two years, and be 
 United States citizens. The persons signing as employers 
 must be United States citizens engaged in some branch of the 
 trades before mentioned within such district for at least one 
 year, and employing therein at least ten workmen, each of the 
 class hereinbefore described, and may be a firm, individual, 
 or corporation, and the petition may be verified by the oaths 
 of at least two of the signers, attesting the truth of the facts 
 stated therein, and the qualifications of the signers thereto. 
 Pa., ib.^ 69. 
 
 The umpire shall make his award in writing to the tribunal, 
 Slating distinctly his decisions on the subject-matter sub- 
 mitted, and when the award is for a specific sum of money, 
 the umpire shall forward a copy of the same to the clerk of 
 the proper court, lo., i6., 13; Kan., 340.
 
 3i56 HANDBOOK TO THE LABOR LAW 
 
 tion both parties will rarely submit. To com- 
 pulsory arbitration, as is known, the labor organ- 
 
 If the petition is signed by the requisite number of both par- 
 ties in proper form, and contains the names of the persons to 
 compose the tribunal, being an equal number on each side 
 (and of the umpire mutually chosen — Pa.), the judge shall 
 forthwith issue the license authorizing the existence of 
 such tribunal, and fixing the time and place for the first 
 meeting thereof, which shall be made a record in such judge's 
 court. (Pa., ib., 70 ; lo., ib., 3 ; Kan., ib., 3.) If the petition 
 be signed by the requisite number of either party, but not by 
 both, the judge issues his license, conditioned upon the as- 
 sent of the necessary number of that side which has not 
 signed the petition, which assent shall be in writing, and con- 
 tain the names of the members of the tribunal and the um- 
 pire. But if no such assent is obtained within sixty days 
 from the date of the conditional license, the petition is dis- 
 missed. (Pa., lb., 71.) 
 
 One such tribunal may be created for each trade above 
 named in each judicial district. They shall continue in ex- 
 istence for one year from date of the license, and may take 
 jurisdiction of any dispute between employers and workmen 
 who shall have petitioned for the tribunal, or have been rep- 
 resented in the petition therefor, or who may submit their 
 disputes in writing to such tribunal for its decision. Vacan- 
 cies occurring shall be filled by the judge out of the three 
 names presented to him by the members of the tribunal re- 
 maining of that class in which the vacancies occur. . . . 
 Disputes occurring in one county may be referred to a tri- 
 bunal already existing in an adjoining county. The place 
 of umpire shall only be filled by the mutual choice of the 
 whole of the representatives of both employers and workmen 
 constituting the tribunal, and the umpire is only called upon 
 to act after the disagreement in the tribunal by failure during 
 three meetings held and full discussion had. His award is final 
 and conclusive upon such matters only as are submitted to
 
 OF THE UNITED STATES 357 
 
 Izations are opposed. The main function of the 
 state board is to advise and direct public 
 
 him in writing and signed by the whole of the members of the 
 tribunal, or by parties submitting the same (Pa., VS., 72; lo., 
 i7)., 4; Kan., 335), and upon questions affecting the prices 
 of labor. It shall in no case be binding upon either employer 
 or workman, save as they may acquiesce or concur therein 
 after such award. (Pa., ib.^ 72.) 
 
 The tribunal must not consist of less than two employers, 
 or their representatives, and two workmen. The exact num- 
 ber is always inserted in the petition or agreement. They 
 appoint a chairman and secretary by a majority, or by lot, 
 as they prefer. They receive no compensation (§2 a 
 day in Kansas.) The umpire has authority to procure wit- 
 nesses, etc. Attorneys at law may not (in Pennsylvania and 
 Iowa) appear or take part in any of the proceedings. (Pa., 
 i'fi., 73, 75 ; lo., t6., 5-7 ; Kan., 334, 336, 337.) Before the um- 
 pire shall proceed to act, the questions in dispute shall be de- 
 fined in writing and signed bj' the members of the tribunal, or 
 a majority of each class thereof, or the parties submitting the 
 same, and such writing shall contain the submission of the 
 decision to the umpire by name, and provide that it shall be 
 final. The umpire is sworn, and must make his award within 
 five or ten days, which award may be made a matter of rec- 
 ord in the court, and judgment be entered thereon. (Pa., t6., 
 75 and 76; lo., ib.^ 9; Kan., 340.) 
 
 (4) In Colorado and North Dakota : If any difference shall 
 arise between any corporation, or person, employing twenty- 
 five or more employees, threatening to result, or resulting, 
 in a strike on the part of such employees, or a lockout on the 
 part of such employer, it shall be the duty of the commis- 
 sioner, when requested so to do by fifteen or more of said 
 employees, or by the employers, to visit the place of such 
 disturbance, and diligently seek to mediate between such em- 
 ployer and employees. Col., 1887, 62, 9; N. D., 1890, 46, 7. 
 
 (5) In Missouri : If a mediation cannot be effected, the
 
 358 HANDBOOK TO THE LABOR LAW 
 
 opinion ; for actual arbitration, local or private 
 (see § 68), or still better, voluntar}- boards, created 
 for each emergency, are best. 
 
 commissioner may at his discretion direct the formation of a 
 board of arbitration, to be comi)osed of two employers and 
 two employees engaged in a similar occupation to the one in 
 which the dispute exists, but who are not parties to the dis- 
 pute, and the commissioner of labor statistics and inspection, 
 who shall be president of the board. The board shall have 
 power to summon and examine witnesses, and hear the mat- 
 ter in dispute, and, within three days after the investigation, 
 render a decision thereon, which shall be published, a copy of 
 which shall be furnished each party in dispute, and shall be 
 final, unless objections are made by either party within five 
 days thereafter: Provided^ that the only effect of the investi- 
 gation herein provided for shall be to give the facts leading 
 to such dispute to the public through an unbiased channel. 
 
 In no case shall a board of arbitration be formed when 
 work has been discontinued, either by action of the employer 
 or the employees ; should, however, a lockout or strike have 
 occurred before the commissioner of labor statistics could be 
 notified, he may order the formation of a board of arbitration 
 upon the resumption of work. Mo., 6355-6358. 
 
 (6) Idaho and Wyoming have constitutional provisions. 
 Thus, " the legislature may establish boards of arbitration, 
 whose duty it shall be to hear and determine all differences 
 and controversies between laborers and their employers which 
 may be submitted to them in writing by all the parties. Such 
 boards of arbitration shall possess all the powers and author- 
 ity', in respect to administering oaths, subpoenaing witnesses, 
 and compelling their attendance, preserving order during the 
 sittings of the board, punishing for contempt, and requiring 
 the production of papers and writings, and all other powers 
 and privileges, in their nature applicable, conferred by law 
 on justices of the peace." Ida. Const., Art. 13, 7. 
 
 " The legislature shall establish courts of arbitration, whose
 
 OF THE UNITED STATES 359 
 
 § 68. Creation of Private Boards of Arbitra- 
 tion. — (For state boards of arbitration see § 67.) 
 In a few states statutes have already been passed 
 providing for tlie creation of private boards of 
 arbitration to settle differences between employ- 
 ers and employees. They are appointed, usually, 
 
 (1) One by the employees, or a labor union 
 (if represented, in New York), one by the em- 
 ployers, and they to choose a third. ^ 
 
 (2) By any judge or justice of the peace.'^ 
 
 (3) Five arbitrators, by mutual consent, two 
 by the employees or their labor organizations, 
 two by the employers, the four to choose a chair- 
 man, or the district court if they fail to agree.^ 
 
 (4) They consist, in Maryland, of not less than 
 two nor more than four, one half from each side, 
 and the judge, etc., appointing them. Such 
 board must further be approved by the county 
 judge. ^ 
 
 duty it shall be to hear and determine all differences and 
 controversies between organizations or associations of labor- 
 ers and their employers, which shall be submitted to them in 
 such manner as the legislature may provide. 
 
 "Appeals from decisions of compulsory boards of arbitra- 
 tion shall be allowed to the Supreme Court of the state, and 
 the manuer of taking such appeals shall be prescribed by law." 
 Wy. Const., 19, 2; 5, 30. 
 
 'N. Y., 1887, 63, 1; O., 1893, p. 85, 10; N. J., 1892, 
 137, 1 ; Cal., 1891, 81, 1 ; Con. Pol. C, 3337. 
 
 "Md., 73. 
 
 » Tex., 1895, 61, 1 ; N. J., 1892, 137, 1. * N. J., Tex
 
 ;iOO HANDBOOK TO TIIK LABOR LAW 
 
 (5) The jiarties to any controversy, as pro- 
 vided in Section 3 of the act (see § 67) may agree 
 upon a board of arbitration, who shall have all 
 the powers which the state board has, and their 
 jurisdiction is exclusive, except that they may 
 ask advice from the state board. Their report 
 shall be filed with the city or town clerk, and a 
 copy forwarded to the state board.^ 
 
 The grievance or matter of dispute must be 
 stated in writing, and signed by the parties to 
 the arbitration." 
 
 Pending arbitration, the existing status must 
 not be changed.' 
 
 The arbitrators shall sign a consent to act, and 
 shall be sworn, shall elect a secretary, and give 
 notice of the time and place of hearing." 
 
 The chairman of the arbitrators has power to 
 administer oaths, and issue subpoenas for the 
 production of books and papers, and for the 
 attendance of witnesses to the same extent as 
 courts of record.^ 
 
 After the matter has been fully heard, the 
 arbitrators, or a majority of them^ shall, within 
 ten days, render a written decision, giving such 
 
 *Mass., 1886, 263, 7; O., 1893, p. 85,10-11; Mon. Pol. C, 
 3337-8; Wis., 1895, 364, 7; CaL, 1891, 51. 
 • N. Y., N. J., ib., 2 ; Tex., ib., 4. 
 ■> Tex., ib., 4. 
 
 8 N. Y., ib., 2 ; N. J., ib., 8 ; Tex., ib., 5. 
 •N. Y., N. J., ib., 3; Tex. ib., 6.
 
 OF THE UNITED STATES 361 
 
 details as will clearly show the nature of the 
 decision and the points disposed of.^" 
 
 And thereupon the powers of such board cease 
 unless similar grievances between the same 
 classes of persons then exist and are referred 
 to it.ii 
 
 Such decision is a settlement of the matter 
 referred/^ unless an appeal is taken within ten 
 days to the state board of arbitration.'^ The 
 court may, in Texas, enforce it in equity. 
 
 But in all cases, if the parties mutually agree 
 that the dispute shall be arbitrated in a mode 
 different from that herein described, such agree- 
 ment is valid, and the award by either mode of 
 arbitration is final and conclusive.'^ 
 
 The determination of the dispute, as above 
 provided, is given as a judgment of the court 
 over which the judge or justice who is a member 
 of the arbitration presides, and execution fol- 
 lows.'^ 
 
 "N. Y., t6., 3; N. J., t6., 4. 
 
 "N. Y., t6., 4; N. J., li., 5; Tex., t6., 7. 
 
 ""N. Y., N. J., Tex. i6., 4. 
 
 "N. Y., t6., 6; N. J., t6., 4 and 7. 
 
 >^Md., ib., 4. 
 
 '* Md., ti., 6. " During the pendency of arbitration under 
 this act it shall not be lawful for the employer or receiver 
 party to such arbitration, nor his agent, to discharge the 
 employees parties thereto, except for inefficiency, violation of 
 law, or neglect of duty, or where reduction of force is neces- 
 sary, nor for the organization representing such employees to
 
 362 IIAXDHOOK TO TIIK LABOR LAW 
 
 § 69. State Labor Bureaus or Commissioners. — 
 There is in luuiiy states also a bureau of labor 
 statistics, or a com uiissi oner or officer whose 
 duty shall be to collect industrial statistics for 
 the state. ^ 
 
 In Nebraska the governor is made such com- 
 missioner, and in Washington the secretary of 
 state,^ 
 
 anite in, aid, or abet strikes or boycotts against such employer 
 or receiver." Texas, ib., 7, 8. 
 
 " At the expiration of ten days from the decision of the 
 district court upon exceptions taken to said award as afore- 
 said, judgment shall be entered in accordance with said 
 decision, unless during the said ten days either party shall 
 appeal therefrom to the Court of Civil Appeals holding juris- 
 diction thereof. In such case only such portion of the record 
 shall be transmitted to the appellate court as is necessary to 
 the proper understanding and consideration of the questions 
 of law presented by said exceptions and to be decided. The 
 determination of said Court of Civil Appeals upon said 
 questions shall be final, and being certified by the clerk of 
 said Court of Civil Appeals, judgment pursuant thereto shall 
 thereupon be entered by said district court." Texas, ib., IL 
 
 • N. H., 1893, 48; Ky., 1893, 16: Me., 1887,69; R. I., 
 1887,621; Ct., 2944; X. Y., 1883, 356 ; Mass., 31, 13; Pa. 
 Dig., p. 1907; Md., 89, 1; O., Vol. 87, p. 150; Ind., 
 7758; 111., 79 a, 1, 2; Mich., 1883, 156: 1891, 68; Wis., 
 1021b; Minn., 1887, 115; lo., 2439; Kan., 5963; Neb., 
 39 b, 1; W. Va., 1889, 15; N. C, 1887, 113; Tenn., 299, 
 1891, 157; Mo., 8215; Cal., 1889, 6, Sup., p. 543; Col., 
 1887, p. 62; 1893, 37; Ida. Const., 13, 1; Wash. Const., 
 2, 34; 1895, 85; Utah, 1890, 43, 6; N. D., 123-126; S. D., 
 1890, 33; Mon. Const., 18, 1; Pol. C, 760. 
 
 'Neb., 39 b, 1: Wash., 1895, 85.
 
 OP THE UNITED STATES 363 
 
 The commissioner of immigration, labor, and 
 statistics shall perform such duties and receive 
 such compensation as may be prescribed by 
 law. ^ 
 
 It is the duty of the bureau of labor statistics, 
 or labor commissioner, also to keep advised gen- 
 erally on the protective industries of the state, 
 make an annual report to the governor, etc., and 
 to inquire into the causes of strikes, lockups, or 
 other disturbances of the relations between em- 
 ployers and employees/ 
 
 The commissioner is generally given full ac- 
 cess to all factories or workshops, mines, or 
 other pieces where workmen are employed.^ 
 
 The commissioner is generally given power 
 to " send for persons and papers " or to take 
 and preserve evidence and examine witnesses 
 under oath.^ 
 
 A commission or bureau on the unemployed 
 has also been created in Massachusetts.^ And 
 in some states, frfee state bureaus of employment 
 (see § 47). 
 
 3 Ida. Const., Art. 13, 8. 
 
 ■• Mich., Me., Ind., Minn., lo., Kan., Neb., N. C, Mo., 
 Col., Cal., Ida., Utah, N. D., S. D., Mon. 
 
 « Me., N. Y., Mich., Wis., Minn., Kan., Neb., Tenn., 
 W. Va., Mo., Cal., Col., Mon., N. D., S. D. 
 
 • Me. ; Mass., 31, 14 ; Pa. ; N. Y. ; Ind. ; Mich. ; O., 309 ; 
 Wis.; Minn.; lo., 2444; Neb.; Kan.; Tenn.; W. Va. ; 
 Mo. ; Cal. ; Col. ; N. D. ; S. D. ; Mon. 
 
 ' Mass., 1894, 238 ; compare Utah, 1894, 10.
 
 364 HANDBOOK TO THE LABOR LAW 
 
 The powers of such boards are purely investi- 
 gatory. There is as yet no effort by law for cre- 
 ating a permanent state organism with the func- 
 tion of artificially creating a demand for labor. 
 See § 70. 
 
 § 70. State Aid to the Unemployed — Legisla- 
 tion with the aim of giving direct aid or em- 
 ployment by or through the agency of the state, 
 being in its nature purely socialistic, has not yet 
 been attempted by any of om* states. Massa- 
 chusetts, by a law of 1894 ^ appointed a com- 
 mission on the unemployed, with large powers of 
 inquiry and investigation and a substantial ap- 
 propriation ; and among their recommendations 
 was one that cities or other municipal corpora- 
 tions should anticipate public work in times of 
 distress. The nearest statute to direct appro- 
 priation that we find is that of Utah (1894, Ch. 
 10), which was called " An Act to aid needy 
 laborers," and appropriated $^,000 to be spent 
 by a board of relief specially appointed for that 
 appropriation in labor on capitol grounds. This 
 sum was expended, as appears by a later act of 
 the same year (Ch. 82), which ordered that such 
 $2,000 should be paid by the state treasurer 
 " without regard to other warrants registered 
 in advance ; " that is, a preference was given to 
 
 » Mass., 1894, 238.
 
 OF THE UNITED STATES 365 
 
 this debt over all other debts of the state. Al- 
 though the amount was small, the principle was 
 a dangerous one and not likely to be followed 
 in the older states. The principles of state so- 
 cialism have not yet been applied in the law of 
 any American state, unless it be in the South 
 Carolina liquor statute, which, giving the state a 
 monopoly of tliat business, " nationalizing " the 
 liquor traffic, was for that reason declared un- 
 constitutional by the Supreme Court of that 
 state. ^ 
 
 " McCullough V. Brown, 41 S. C, 220 (see § 2). This de- 
 cision was afterward differed from in a later case, the court 
 having been in the meantime reconstituted (State v. Aiken, 
 42 S. C, 223^, but only on the ground of police regulation 
 
 (see § 4).
 
 INDEX 
 
 A 
 
 Abducting children out of State, 64. 
 
 Accidents to employees, to be reported, 150. 
 
 Acts of Parliament, omnipotent (see Statutes), 2. 
 
 Adulteration, laws against, 22. 
 
 Age of employment of children (see Children). 
 
 Agricultural labor (see Farm Labor), exempted from laws 
 
 against trusts, 187. 
 Alien labor, employment of, forbidden, 119, 123. 
 American colonists, inherited knights of, 3. 
 Anarchist combinations, necessarily criminal in Illinois, 197. 
 Anti-truck acts, anti-trust laws, etc. (see Truck, Triists^ 
 
 etc.). 
 Apprenticeships, 17, 138, 139. 
 Arbitrary power, exists in no government (see Natural 
 
 Rights, etc.), 11, note. 
 Arbitrary statutes, benefiting or injuring special persons or 
 
 classes, etc., void, 5. 
 Arbitration, State Boards for, created, 348, 362. 
 
 private or local boards established by law, 359, 361. 
 
 State Boards may hear appeals from local, 354, note. 
 
 Assignment of debts to persons out of State, forbidden in 
 
 Wyoming, 12G. 
 Assignments of wages must be recorded, etc., 125. 
 Attachment, no property exempt from for labor debts, 126, 
 
 127. 
 may not be made unless wage debts settled, 129. 
 of wages, forbidden or limited, 124, 125.
 
 368 INDEX 
 
 Attorney8-at-law, may not buy promissory notes, 14. 
 special fees allowed in labor cases, 133. 
 
 Begging (see Children). 
 
 Bells and whistles rung in cities for convenience of oper- 
 atives, 149. 
 Benefit societies, money due from, not attachable, 132. 
 Bill of Rights, in State Constitutions, 5, 7-15. 
 Blacklisting, cases of, 37, 300, 301. 
 
 statutes forbidding, 301, 302. 
 Blackstone, on rights of American settlers, natural rights, 
 
 etc., 3, 15. 
 Bodies of coal miners, may be recovered by mandamus, 
 
 150. 
 Bond for costs, not required in labor suits, etc., 133. 
 Bonds from employees, exaction of regulated, in New Mex- 
 ico, 113. 
 Boycott, Captain's case, 224. 
 Boycotts, Boycotting, 175, 222, 289. 
 
 are generally unlawful, 223. 
 
 subject offenders to damages, injunction, and criminal 
 process, 224, 310-312. 
 
 examples of, 225-289. 
 
 Parnell's case, 242, note. 
 
 by producers or employers of each other, 266, 267, 
 
 see Restraint of Trade. 
 
 American statutes relating to, 283-289, 303, 304, 
 Brickyards, labor in, 69. 
 Breach of labor contract, forbidden, 33, 34. 
 
 enticement to, unlawful, 28, note. 
 British Constitution, 1-3. 
 Building laws, subject to police power, 21. 
 Business, right to engage in, etc., 13. 
 
 unlawful for employees to coerce alteration in, 24. 
 By-laws, municipal, must be reasonable, etc., 41,
 
 INDEX 369 
 
 Cattle, killing by railways, laws against, 14-. 
 Certificates of child's age in factories, 62. 
 
 health of children, 77. 
 Checks, wages may be paid by, 103. 
 Charitable Funds (see Relief Societies)^ 114, 116. 
 Child labor, forbidden generally (see Factories^ Hours of 
 
 Lahoi\ Children)^ 61-63. 
 Children (see Hours of Labor), general laws regulating labor 
 of, 63, 64. 
 general laws regulating labor of, are constitutional, 64. 
 employment of, in begging, circuses, etc., 77, 78. 
 further statutory restrictions upon employment of, 76- 
 
 78. 
 hours of labor of, in factories, etc. , 58-64. 
 hours of labor in special occupations, 71-72. 
 labor of, not to interfere with education, etc., 61-63, 73. 
 Chinese, Mongolians, etc., employment of, forbidden, 119- 
 
 121. 
 Cities and towns, may fix price of public labor, 40, 41. 
 hours of labor for, fixed by law, 52-55. 
 may not fix price of labor when charter delimitates 
 
 hours, 42. 
 may hire by the day only, in California, 42. 
 Citizens of the several States, entitled to all privileges, etc., 
 
 11. 
 Civil Service Laws, soldiers, etc., exempt from, 123. 
 Class legislation, meaning of, etc., 13, 14, 44, 47, 50, 51, 70, 
 90-93. 
 in case of eight-hour laws, 44, 47-48. 
 in case of truck laws, 106. 
 true principle of, 49, 50. 
 Coal mines, raining, etc. (see Mines, Screen Laws, etc.), 25, 
 
 110, 111. 
 " Collective bargaining," 100, 101. 
 
 34
 
 370 INDEX 
 
 Combinations (eee Conspiracies, Trade Unions, etc.), 231, 
 232. 
 
 to strike (see Conspiracy), 35, 236, note, 252, 256. 
 Commerce (see Interstate Commerce). 
 Commissioner of labor, created in many States, 3G2. 
 Company stores not to be kept, or wages paid by orders, 
 credits, etc., 13, 107-110. 
 
 physicians, forbidden in Tennessee, 116. 
 Conscience, rights of (see Natural Rights). 
 Conspiracies in restraint of trade (see Trusts, Restraint of 
 
 Trade), 178-180, 186, 190-192. 
 Conspiracy, what is, in labor disputes, 23, 174, 176-180, 195- 
 220, 228-289, 345. 
 
 to control employer or third persons, unlawful, 175, 208- 
 216, 225, 226, 239, note, 240, 249. 
 
 to fix rate of wages now lawful, 189. 
 Constables, special, employment of, forbidden in Missouri, 
 
 etc., 305-309. 
 Constitution, State (see State Constitutions'), 3, 5, 10. 
 
 United States or Federal (see U. S. Constitution), 11, 
 12-15. 
 
 unwritten or implied, 1-10, 70, note. 
 Constitutional law (eee also several titles), 1-22. 
 
 as to fixing hours of labor,43-73. 
 
 as to fixing hours of public labor, 52-55. 
 
 as to fixing hours of special occupations, 69-71. 
 
 as to fixing rate of wages, 40-43. 
 
 as to fixing time of wage payments, 88-96. 
 
 as to special occupations, 69-71. 
 
 as to laws giving labor special privileges, 130. 
 
 concerning labor of minors, 64. 
 
 concerning labor of minors in special occupations, 69-71- 
 
 concerning labor of women, 43, 51, 64, 65. 
 
 concerning sweatshops, 153. 
 
 concerning truck acts, 101-105, 108, 109. 
 Conciliation, Boards of (see Arbitration). 
 Contempt, interference with receiver is, 205, 313, 326,
 
 INDEX 371 
 
 Contempt process (see Equity)^ no appeal from, nor jury trial, 
 313-315. 
 sentences for, in actual cases, 328-331. 
 Contract, freedom of (see Employmetii Contract)^ 1-15. 
 by express constitutional revisions, 10-15. 
 some may be prohibited by statute, 2, 3, 6, 7, 13, 165. 
 Control of employer by employees (see Conspiracy, Intimi- 
 dation), 23, 24. 
 " Contracting out " of masters' liability, forbidden, etc., 162- 
 
 166. 
 Convict labor, regulated by statute, 133-139. 
 may not be hired out, etc., 135, 136. 
 no contracts may be made for, 135, 136. 
 to be regulated so as not to compete with outside indus- 
 tries, etc., 137, 138. 
 Co-operative associations, 140, 141. 
 
 Corporations, special statutes applying to, 71, 84, 87, 88, 90, 
 92, 95, 102. 
 stockholders personally liable for labor debts, etc., 130, 131. 
 Cotton and woollen manufactories, hours of labor in, 56, 66, 
 67, note, 72. 
 must give employees tickets with each warp, etc., 85. 
 Courts, powers of, to set aside statutes, 5, 20. 
 Crimes and criminal offences in labor disputes (see Conspir- 
 acy, Intimidation, etc.), 23. 
 by employing overtime, 53, note, 
 by employing child labor, 58-64. 
 by breach of employment-contract act, 34. 
 by breach of employment-contract act may lie in some 
 States, 113. 
 Croppers, labor upon shares, etc., 113. 
 Customers, intimidation of, unlawful, 172. 
 
 D 
 
 Damage to materials, tools, etc., by employees, 13, 86. 
 Damages, employees liable to, in case of breach of contract, 34.
 
 372 indp:x 
 
 Damages recoverable for intiniiilation, etc , 23. 
 
 employer liable to when employee is improperly dis- 
 charged, '66. 
 Dangerous occupations, children not to be employed in, 76. 
 Day, labor by the, eight-hour laws apply to only, 46. 
 Day's labor (see Hours of Labor), from sunrise to sunset, in 
 
 Georgia, 56. 
 Death of employee, actions for damages against employer, 
 
 163-166. 
 Discharge of employees, 35-38. 
 not to be for voting, etc., 117. 
 reasons to be furnished, etc., 37. 
 when justifiable, 37. 
 by corporations, railroads, etc., 37. 
 for fault of employee, etc., 161. 
 Domestic labor, 14, 36, 50. 
 
 eight-hour laws do not apply to, 46, note, 47, 49. 
 Drainage laws, allowable under police power, 21. 
 Due process of law (see Law of the Land, Fourteenth 
 Amendment), 5, note, 12, 93. 
 phrase is sometimes expressive of the " Unwritten Con- 
 stitution," 5. 
 Dust in factories, law requiring removal, etc., 147. 
 
 E 
 
 Education, labor laws having regard to, 61, 63, 72, 73, 138, 
 
 139. 
 Eight-hour laws (see Hours of Labor), 14, 43-53. 
 
 of some states held unconstitutional, 43-45. 
 
 some of these decisions criticised, 49-51, 
 Election day, a holiday, time for voting, etc., 118, 119. 
 Elections, interference with by employers forbidden, 117-119. 
 Elevators, running by children, regulated, 76, 77, 147. 
 Employees, associations, etc., 140, 148. 
 
 discharge of, by employer, 35-38.
 
 INDEX 373 
 
 Employees, duties of, 38, 39. 
 
 notice of discharge, of quitting work, 22, 38, 39. 
 Employers, combinations of (see Conspiracy, Restraint of 
 
 Trade), 18.",, 193, 222, 275, 283, 344, 347. 
 Employment agencies (see Intelligence Office, Labor Bureau). 
 Employment contract, the, 15, 19, 35, 51. 
 
 breach of, persuading to make, 27, 28, 31. 
 
 breach of, not criminal, 34. 
 
 breach of, may give claim for damages, 38. 
 
 breach of, summary remedy in England, 34. 
 
 defined by Western codes, etc., 18, note, 33. 
 
 freedom of, under the Constitution, 15-18, 21, 46. 
 
 freedom of, is a property right, 15, 95-97. 
 
 enforcement of, 29. 
 
 enforcement of, not in equity, 29. 
 
 interference with (see Intimidation), is forbidden, 
 22-34. 
 
 termination by the employer, 35-38. 
 Employment, freedom to obtain, etc., 25. 
 
 long-time contracts not legal, 38. 
 Enticement of laborers, etc., 26, note. 
 
 Enumeration of rights in Constitutions, not exclusive, 8, 12. 
 Equity rights, process, jurisdiction, etc. (see Contempt, In- 
 junctions), 7, note, 31-33, 310, 326. 
 
 jurisdiction enlarged by anti-trust act, 344. 
 Ex post facto laws, of municipal ordinances, void, 41. 
 Exclusive privileges, etc. (see Class Legislation). 
 Extra pay (see Overtime). 
 
 Factories and workshops (see Hours of Labor, etc.), 143-151. 
 what are (see Sweatshops), 60, 149, 150. 
 child labor in, 58-64, 72. 
 cotton and woollen, special laws, 56. 
 eight-hour law in, held unconstitutional in Illinois, 
 etc., 47.
 
 374 INDEX 
 
 Factories, hours of labor in, 14, 21, 55-73. 
 
 laws regulating labor in, not class legislation, 50. 
 
 time of wage payments in, 87. 
 Farm labor, 14, 2(J, 2S, notes, 50, 102. 
 
 eight-hour law does not apply to, 46, 47, 49. 
 Farmers' Alliance, statutes authorizing incorporation, 169-171. 
 Federal Constitution (see United States). 
 Fellow-servants, doctrine of, abolished or modified, 164, 165. 
 Fines by employers, forbidden, law held unconstitutional, 
 
 etc., 6, 7, note, 13, 81-86, 100, 235, 251. 
 Fourteenth Amendment to United States Constitution, 12, 
 
 91-93. 
 Franklin, Benjamin, on constitutional rights of American 
 
 Colonists, 3. 
 Free government, principles of, 4. 
 Freedom of contract (see Employment Contract). 
 
 principle limited by police power of, 1-15, 84. 
 
 legislatures, 19-22. 
 
 principle violated by eight-hour law, etc., 43-49, Si- 
 Fraud, laws regulating contracts, to prevent, 22. 
 Frogs, on railways, to be blocked, etc., 148 
 
 G 
 
 General laws, where applicable, no special to be passed, 48. 
 
 Gladstone, W. E., on conspiracy law, 219. 
 
 Government, rights and powers of, 4, 11, notes. 
 
 " Government by injunction " (see Equity, etc.), 31-33. 
 
 " Granger Laws," 21. 
 
 Grand Army of the Eepublic, preference of soldiers, etc., 
 
 in public employment, 123, 124. 
 Guards before bridges on railways required, 148. 
 
 H 
 
 Health laws, under police power, etc., 21. 
 
 occupations dangerous to, children not to be employed, 
 
 76, 77.
 
 INDEX 375 
 
 Highway labor, taxes to be expended within township, in 
 
 Michigan, 42, 43. 
 Holidays (see Sunday Laws), 81. 
 Hours of labor (see Eight-Ffour Laws, etc.), 43-73. 
 
 statutes concerning, 12-14, 17. 
 
 of adults may not be fixed by law, 13, 43, 44. 
 
 may be defined by law in absence of express contract, 45, 
 47, 51, 52. 
 
 may be implied from wage, 45, 46, 51. 
 
 in special occupations, 65-73. 
 
 of women and children, 55-73. 
 
 less than full day may be accepted, 52. 
 
 agreements for more than ten hours must be in writing, 
 in Florida, 45. 
 
 fixed by United States statute, 53. 
 
 general table of, for all States, 74-75. 
 
 Immoral contracts (see Freedom of Contract) . 
 
 Immoral occupations, children not to be employed, 77. 
 
 Imperfect work, fines for (see Fines by Employers). 
 
 Inalienable rights (see Natural Rights). 
 
 Industrial education, 138, 139. 
 
 Industrial occupations (see Factories, etc.). 
 
 Injunctions (see Equity), 205, 310-326. 
 
 against unions from enticing workmen to leave, 183, 
 317. 
 
 against picketing, intimidation, etc., 317, 319, 321-324. 
 
 against strikes, boycotts, etc., 324, 326-334. 
 
 against interfering with interstate commerce, 321, 334- 
 343. 
 
 against railways for refusing traffic, 320. 
 
 against employees from working for others, 30. 
 
 in favor of receivers, 326-334. 
 
 requiring employees to perform service, 32.
 
 376 INDEX 
 
 Injunctions, partios bound bv, notice, etc., 310-312, 324, 345. 
 Injuries to persons, etc. (see Inlimidaiion). 
 Insolvencies, preference of labor debts in, 128-130. 
 Inspection of factories, sweatsbops, etc. (see those titles). 
 Insurance policies free from claims of creditors, 132. 
 Insurrection, what is, under Federal statutes, 345. 
 Intelligence offices, laws regulating, etc., 21, 153-155. 
 Interference with laborers, etc., 22. 
 Interstate commerce, 268, 321. 
 
 Act of 1887, 31, 204, 2G8, 334-344. 
 Intimidation, interference with laborers, etc., 22-34, 215. 
 
 statutes prohibiting, 23-29, 173-174, 241, 270. 
 Intoxicating liquors (see Liquor Laws), 150. 
 Irish Land Acts, 2. 
 
 K 
 
 Kidnapping children, etc., 64. 
 
 Knights of Labor, statutes authorizing incorporation of, 169- 
 171. 
 
 Labor (see Hours of Labor, Weekly Payment Laws, Domestic 
 
 Labor, Farm Labor, Croppers, Employment Contract, 
 
 Wages, etc.). 
 Bureaus, State (see Commissio7iers of Labor). 
 as property, 15. 
 
 claims for specially protected, 22, 125-130. 
 Day, first Monday in September, 81. 
 liens, 22. 
 local or special laws concerning, forbidden in some States, 
 
 49. 
 payment of (see Wages), 13. 
 payment of, not in goods or orders, 13, 101-110. 
 unions (see Trades Unions, etc.). 
 right to, guaranteed by the Constitution, 15, 16, 18, 
 
 note, 95-97.
 
 INDEX 377 
 
 Laborers, enticing <5r procuring to leave, 25. 
 political rights of, 117-133. 
 statute of, Hi. 
 Land Act, of Ireland, 2. 
 Laws (see Statutes). 
 Law of the land (see Natural Rights^ Due Process of Law), 
 
 5, 12, 94. 
 Lectures, free, for working-people, 139. 
 Legislative powers of Government, 7, note. 
 Legislative powers to make laws, etc., 7, note, 9, 13-14 (see 
 
 Police Power., Statutes., Constitutional Law, etc.). 
 Libel, by newspapers, statutes specially regulating, 13. 
 
 by newspapers, statutes specially unconstitutional, etc., 
 
 50, note. 
 Liberty of contract (see Freedom of), 1-15, 51, 94. 
 Lien given laborers on property of insolvent companies, 128. 
 Life, liberty, and property (see Natural Rights), 5, 9, 11, 
 
 note, 12, 15, 94. 
 Liquor laws, constitutional, 21. 
 
 Liquor shops, employment of women in, forbidden, 79-80. 
 employment of women in, whether constitutional, 80. 
 Living wage, the, 40-43. 
 Local or special laws, forbidden by the Constitutions of 
 
 many States, 47, 48. 
 interpretation of this provision, 48, 49. 
 Lockouts, 221, 222. 
 
 Logging, lumber camps, hours of labor in, 66. 
 Lotteries (see Prizes). 
 
 M 
 
 Machinery, time lost by repairing, etc., 58, 66, note. 
 
 cleaning of, by children, 71, 76. 
 Mails, combinations to interfere with, criminal, 205. 
 Maine Constitution, gives Legislature full powers, 7, note. 
 Majority, powers of, 11, note. 
 Mandamus, to recover membership in labor union, 171.
 
 378 IXDEX 
 
 Mamifaotiirinc: ostalilishnionts (see Factories). 
 
 lal)or, liours of. ri'gulati'd by statute, 45-47 ; G8. 
 Massachusetts Constitution, excoptiunal ])rovisions, 3, 4, 6, 
 
 20. 
 Master and servant (see Labor ^ Employment Contract)^ etc. 
 
 liability of, to tliird persons, 156. 
 
 liability of master to servant, 161-164. 
 
 liability of servant to master, 157-159. 
 Meal times, must be allowed in factories, 56, 57. 
 Mechanical business (see Factories) . 
 Mechanical labor, covered b}- eight-hour laws, 45, 46. 
 Mercantile establishment, hours of labor in, 55, note. 
 Mills (see Factories). 
 Mines and miners, 21, 87, 102, 148, 149. 
 Mines, laws for protection of employees, etc., 148, 149. 
 Mining, hours of labor in, 67. 
 
 hours of labor law, unconstitutional in Ohio, 70-71. 
 
 hours of labor, by women and children, 71, 72. 
 Minors (see Children)., entitled to wages free of parents' 
 
 claims, 78. 
 Misdemeanors (see Crimes). 
 
 " Molesting and Obstructing" labor, 22-34, 236-242. 
 Money, wages to be paid in, only (see Truck)., 107. 
 Monopolies, may be regulated by law, 21. 
 
 combinations to control necessaries of life illegal, 187, 
 190, 192. 
 Monthly hiring, eight-hour laws do not apply to, 46, note. 
 Mortgages on railroads, etc., labor debts not subject to, 
 
 129, 130. 
 Municipal corporations (see Cities and Towns). 
 Municipal by-laws, must be reasonable, etc., 41, 42. 
 
 N 
 
 " Nationalism " (see Socialism). 
 
 Natural rights (see Personal Liberty, etc.), 4, 5, 8, 9, 15, 
 70, 71, 228-231.
 
 INDEX 379 
 
 Natural rights include life, liberty, and property, 0, 10, 12. 
 
 right of contract results from, 10. 
 
 involve right to labor, 15. 
 
 to trade or business, 2, 13. 
 Negligence (see Master- and Servant), of fellow-employees, 
 
 163-166. 
 New Hampshire, powers of Legislature in, 7, note. 
 Newspaper (see Libel), rights of, to interfere in labor dis- 
 putes, 323, 332. 
 Ninth Amendment (see United StaAes Constitidion), 12. 
 Non-union employees, laws affecting employment of, 13, 
 24, 181-183. 
 
 statutes discriminating against, unconstitutional, 50, note. 
 
 strikes against, unlawful, 213, 214, 265. 
 Notice of discharge by employer must be same, etc., 22, 98- 
 101. 
 
 of discharge, term required, 36, 100. 
 
 of quitting work, in personal service, 39, 98-101. 
 Noxious trades, may be regulated, 21. 
 Nuisances, laws may define, 21. 
 
 O 
 
 " Obligation of contracts," meaning of phrase, 15. 
 
 Oleomargarine, laws against, 22. 
 
 Operatives (see Factories), law for comfort of, etc., 143-151. 
 
 Ordinances (see By-Laws). 
 
 Overtime, for extra compensation, etc., 43, 47, 51, 52. 
 
 exaction of, a misdemeanor, 46. 
 
 express contracts for, 46, 47, 52. 
 
 express contracts not necessary where usage, etc., 51. 
 
 factory contracts fj»r, 56. 
 
 factory contracts declared void in Georgia, etc., 67, note. 
 
 Nebraska statute requiring double pay, held unconstitu- 
 tional, 47. 
 
 on railroads, 69.
 
 380 IXDEX 
 
 p 
 
 Parliament, powers of, as to legislation, 1, 2. 
 
 Patrolling (see Picketing). 
 
 Pay envelopes printed with political arguments forbidden, 
 
 117, 118. 
 Pedlars, law unconstitutional limiting licenses for, to only 
 
 lame persons, 50, note. 
 Pennsylvania Museum and School of Industrial Art, 39. 
 Perisiiahle products, hours of labor in manufacturing, 58. 
 Personal liberty (see Life, etc.), 17, 20, 94, 226-235. 
 
 compulsion of any act forbidden, 24. 
 Personal service, contracts for, may not be for long time, 
 
 38, 39. 
 Physicians, dictation as to, forbidden employer, in Tennessee, 
 
 116. 
 Picketing, cases of, 257-259, 263, 290-300. 
 Piece-work, payment for, forbidden in mines, 110-111. 
 '• Pinkerton Men," employment of, forbidden, 305-309. 
 Police power of Legislature (see Constitutional Law), 14-22. 
 power is not above the Constitution, 20. 
 power is subject to the scrutiny of the Courts, 20. 
 Political rights of laborers, 117-132. 
 Preference or priority of wage debts, 127-130. 
 Prison labor (see Convict Labor), regulated by statute, 133- 
 
 139. 
 Privacy, right to, 11. 
 
 Prize packages, given with purchases, etc., 13. 
 Profit-sharing by employees, etc., 144-145. 
 Property, constitutional right to, 9-10, 12. 
 
 constitutional right to contract results therefrom, 11, 
 84, 94. 
 Public interest, employments affected with, may be regulated 
 
 by statute, 21. 
 Public labor, changes in, 21. 
 
 prices may be fixed by statute, etc., 40-41, 54.
 
 INDEX 381 
 
 Public labor must be at current rates, ^a- diem, in Kansas, 43. 
 
 laws regulating hours of, whether constitutional, 52, 
 53-55. 
 
 may not be by contract, in California, 54-55. 
 Public policy as to freedom of contract, 1, 84, notes. 
 Pullman cars, may be moved with mail trains, 343, 346. 
 Punishment of employees forbidden, 61. 
 
 R 
 
 Railroads, hours of labor upon, 67-69. 
 
 hours of law held unconstitutional in Ohio, 47. 
 
 time of wage payments upon, 87. 
 
 time of wage law held unconstitutional in Texas, 90. 
 
 strikes upon, made illegal without notice, etc., 326-334. 
 
 laws for protection of safety of employees, etc., 148. 
 
 street, hours of labor upon, 68. 
 Reasonableness of statutes, courts are to judge of, 6, 20, 84. 
 Reasonableness of powers of legislatures, 7, note, 8. 
 Receivers (see EqvAty, Injunctions), may be appointed of 
 manufacturing companies failing to pay wages weekly, 
 in Maryland 88, 89. 
 
 must prefer labor debts, 127-130. 
 
 powers of, strikes against, etc., 326-334. 
 Relief Societies, upon railroads, compulsory, forbidden, 114- 
 116. 
 
 payment of benefit by, no defence, 114-116. 
 
 legalized in Massachusetts, 116. 
 Repairs to machinery, time deducted for, in factories, 58. 
 Restraint of trade (see Freedom of Contracts, Trusts, Con- 
 spiracies), 2, 178-180, 185-193, 234, 266-268, 275-279. 
 Restraint, contracts or charters effecting it, void, 2. 
 Rhode Island Constitution, effect of, 8, note. 
 Right to labor (see Employment, Contract), 228-231. 
 Rights (see Bill of Rights, Natu)xil Rights, etc.). . 
 Road.'*, .itreet.s, and higliways, regulation of, 21.
 
 382 indp:x 
 
 s 
 
 Sailors, laws protecting contracts of, 21. 
 Saw-mills, etc., lionrs of labor in Michigan, 66. 
 " Scabs " (see Non-Union Etnp/oijees), 233, 234. 
 Screen-laws, in coal mines, 13, 22, 110-112. 
 Seats for women in factories, shops, etc., 80. 
 Servants (see Master and Ser'vant), enticing to leave, 2'>. 
 Slavery, enforcement of contract for personal service, 31. 
 Sobriety of operatives, law providing for, 150. 
 Socialism, State, no experiment yet made, 13, 3G4-3G5. 
 Soldiers, etc., preferred in the civil service, 123-124. 
 Special privileges or immunities (see Class Legislation). 
 " Special stock" in trading corporations, etc., 142, 144. 
 Special private or local laws, forbidden, 48. 
 Specific performance of labor contract, 29, 32. 
 Star Chamber, court of, early jurisdiction, 315-316. 
 State Bureau of Labor (see Commissioner of Labor, Unem- 
 ployed). 
 State constitutions (see Constitution., etc.), of New England 
 
 States peculiar, 6, 7, note. 
 State Socialism (see Socialism), 13, 364, 365. 
 Stationary engines, labor upon, 69, 76. 
 Statute of laborers, trusts, etc. (see various titles). 
 Statutes, what are void in England, 2. 
 
 what are void in the United States, 5, 13. 
 Stay of suits, not granted in labor claims, 127. 
 Stevedores, strikes of, 31. 
 
 Stockholders, individually liable for labor debts, 130-132. 
 Stores (see Company Stores). 
 Street railways (see Railroads). 
 
 Strikes (see also Conspiracies, Boycotts, Trades Unions), 
 194-220. 
 
 are generally lawful, 194. 
 
 unlawful if made without a grievance to control em- 
 ployer's actions, 214-216.
 
 INDEX 383 
 
 Strikes committed in breach of contract may be illegal, 35, 
 205, 208. 
 
 early English doctrine (see Boycotts^ etc.), 195-202. 
 
 American doctrine, 17, 177-179, 202-205. 
 
 conspiracies to persuade others to, possibly still ualaw- 
 ful, 214, 216, 237. 
 
 " sympathetic," occasionally unlawful, 208, 214, 237, 272. 
 
 statutes concerning, 31, 35, 216-220, 303, 304. 
 Suits for wages, privileged in some States, 132, 133. 
 Sunday Laws (see Holidays)^ 21, 81. 
 Sweatshops, regulation of, 151-153. 
 Switches, on railways, to be in good condition, 148. 
 
 Tenement-made goods (see Sweatshops), 151-153, 
 Ten-hour laws, etc. (see Eight-Hour Laws), 55-73. 
 Theatres, children under a certain age not to be employed in, 
 
 77, 78. 
 Threats in labor disputes (see Intimidation), 22-34, 239. 
 
 to strike, maj' be unlawful, 238, note. 
 Time of payment of wages (see Weekly Payment). 
 Tools or property, carrying away, etc., 24. 
 Towns (see Cities). 
 Trade (see Restraint of), interference with, etc., 23, 
 
 laws regulating, under police power, 21. 
 Trades unions (see Unions), 14, 167-185. 
 
 anciently unlawful in England, now not, 167, 172-174. 
 
 but always lawful here, 168, 174-176, 248. 
 
 may generally be incorporated under express statutes, 
 169-171. 
 
 by employers, commonly held in restraint of trade, by 
 the courts, 178-180, 185-193. 
 
 discharge for membership is forbidden by statute, 181- 
 183. 
 
 such statutes held unconstitutional, 182, 183. 
 
 rights and remedies of members of. 171. 172.
 
 384 INDEX 
 
 Tramps, may be set at labor for one iiijiht, in Maine, 135. 
 Truck Acts (see Company Stores), 13, 101-105, 107-110. 
 Trusts, by employees, etc., 178, 179, 185-1'J3. 
 
 Sherman Act of 1887, 31, 204, 334-337. 
 
 Sherman Act, effect of, in labor disputes, 344-347. 
 Tyler, Wat, If.. 
 
 U 
 
 "Unalienable rights " (see Natural Rights). 
 Unemployed, state aid to, 364, 3G5. 
 
 Unions, labor unions (see Trades Unions^ Non-union Em- 
 ployees, etc.), 13, 14, 167-185. 
 discharge for membership in, 37. 
 
 statutes favoring union labor unconstitutional, 50, note, 
 laws permitting, by employers only, unconstitutional, 14. 
 of employers (see Trusts.^ Restraint of Trade), 14, 178- 
 180. 
 Union labels, protection of, by law, 184, 185. 
 United States Constitution (see Fourieetith Amendment, Ninth 
 
 Amendment, etc.), 11, 12, 15. 
 Unwritten constitution, the, 1-10, 70, 71, note, 83. 
 Usury laws, allowable, 21. 
 
 Vacations, of child employees, etc., 61-63. 
 Violence against employers, etc. (see Intimidation). 
 Voting, interference with, by employers forbidden, 117-120. 
 time for, must be allowed employees, 118. 
 
 W 
 
 Wages, payment of, weekly or monthly, 13, 87-98. 
 amount may not be regulated by law, 18, 40, 167. 
 so regulated in England in early times, 16, 167, 172. 
 attempts by employees to increase rate of (see Strikes), 
 24.
 
 INDEX 385 
 
 Wages, laws requiring to be paid in money, etc. (see Trade 
 Acts, Weekly Payment Laws). 
 
 to be protected by law in Wyoming, 48. 
 
 not to be measured by screened coal, 13. 
 
 withheld for imperfect work (see Fines by Employers), 
 13. 
 
 withheld for quitting work, 39. 
 
 attachments and assignments of, 124, 125. 
 
 paid to minors, not parents, 78. 
 
 special protection of claims for, 22. 
 
 preference or priority of claims for, 127-130. 
 
 suits for, specially privileged in some States, 132, 133. 
 Walking delegates may not enter factories, etc., 25, note. 
 Weavers' fines (see Fines by Employers), 7, 82. 
 Webster, Daniel, on the unwritten constitution, 4. 
 Weekly payment laws, etc. (see Wages, etc.), 13, 87-98. 
 Wharfs or levees, laws regulating, 21. 
 Women and children (see Hours of Labor), 55-73. 
 
 laws regulating hours of, 55-73. 
 
 laws regulating, whether constitutional, 64, 65. 
 
 laws regulating, special occupations, 71, 72. 
 
 laws regulating further statutory restrictions, 78. 
 Women's rights, 78, 79. 
 
 Woollen and cotton factories, hours in, 55-66, 67, 72. 
 Workshops, hours in (see Eight-Hour Laws, Sweatshops).
 
 LABOR IN ITS RELATIONS 
 TO LAW. 
 
 Four Lectures delivered at the Plymouth School 
 of Ethics, July, i8gj. 
 
 By F. J. STIMSON, 
 
 Author of " American Statute Law," " Hand-book to the Labor Law of the 
 
 United States;' Secretary of the National Conference of State 
 
 Commissions upon Uniformity of Law, etc., etc. 
 
 lOtno, 75 cents net. 
 
 Mr. Stimson is well known by his two important volumes 
 on American Statute Law, and as an authority upon statutes 
 and constitutional questions arising therefrom. Of these four 
 lectures, the first is upon the History of the Law of Labor, 
 the second upon the Employment Contract, the third upon 
 Strikes and Boycotts and Injunctions, and the fourth is de- 
 voted to a Forecast of the Future with a reasonable statement 
 of the position of both sides, a consideration of impossible 
 claims and the way to a possible solution. The book is of 
 exceptional general interest just now, because of the growing 
 power and influence of labor organizations in regulating 
 •business interests and shaping legislation. 
 
 Another distinct field where the book may be found of 
 great value is among schools and colleges in which political 
 and social science is now receiving such prominent attention. 
 Instructors are therefore requested to examine it. 
 
 Senl, post-paid, at the given price, or may be ordered through 
 any bookseller. 
 
 CHARLES SCRIBNER'S SONS, 
 
 133-157 Fifth Avenue, New York
 
 CRITICAL AND PRESS OPINIONS. 
 
 Hknry C. Adams, Professor of Political Economy and Finance 
 in the University of Michigan. — " I knew of this book before it was 
 published, and am glad ih.-it you have it out at this time. It is, to 
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 shall use it at once in my class studying the labor question." 
 
 vViLLARD Fisher, Professor of Economics and Social Science 
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 volume, very readable and very clear." 
 
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 Social Institutions in Cornell University. — "I had the pleasure of 
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 style in which the lectures are written." 
 
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 what we need to know, and they are presented in a most kindly 
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 recommend the book." 
 
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 arguing from the stand-point of labor, Mr. Slimson presents facts, 
 figures, and force of logic to his subject that cannot fail to be gen- 
 erally appreciated." 
 
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 vital, and they are discussed thoughtfully, ably, and decisively." 
 
 The Gazette, Boston. — " The sound and sensible views ex- 
 pressed are worthy the attention of both capitalist and wage 
 worker. Mr. Stimson expresses himself with great clearness and 
 cogency, and shows an intimate historical and legal knowledge of 
 his subject. The subdivisions are admirable and helpful."
 
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