-< ^IIIBRARYQ^ A^ILIBRARY(9/^ '^^OJIlVJJO'f^ ^OJIIVJ-JO"^ ^WEUNIVER57/, <rji30NV.S01^'^ i3V\V -< ^OFCAIIFOM^ ^OfCAllFO/?^ ^■^OMm\n^ ^<?Aaviiaii-i^^'^ . ^ME UNIVERS/A o % s i^imims//-. o ^lOSANCElfx^ %a3AINn-3WV^ ^vM-LIBRARYO^ ^1 ^^mwrn-i^ 1# ,^WE■UNIVERS■/A o v>;lOSANCELfx^ o "^aaAiNA-awv .A,OFCAilFO% ^^Aiivaan'^'^^ "% 13WV > so ^^ILlBRARYOc ^^l•llBRARYO/^ 3WV^ '^«i/0JnV3J0'^ ^OJIIVJ-JO"^ "^^JAavaaiH^ "^CAavaan-^^ ^WE-UNIVERy/A. ^Xil30NVS01^ ^OFCALIFO/?^ ^OFCALIFOfti^ ^\ME UNIVERi"/^ <ril30NVS01^ ^^tllBRARYQ/r ^^t■LIBRARYQ<;^ '^<i/0dllV3JO'^ '^<i/0JllV3J0'>^ ^WEUNIVERVa ^lOSANCElfx. <rii33NVS01^'" %a3AINn]WN ^OFCALIFO/?^ ^...,^_^ .^OKAilFO/?^^ ^WEUNIVERSy/) vvlOSANGElfj". ^J^ilJONVSOl^^ %a3AiNa-3WV AWEUNIVERi/A ,>:lOSANCElfj> 3 <r?l30NVS01^ hmiw ^lUBRARYOr ^^tllBRARYQ- ^<!/odnvojo>^ %0dllV3J0^ ,\WEUNIVERy/4 vvlOSANCEl% o %a3AiNa]UV ^0FCA1IF0% ^OFCAIIFO^^ ^<?AavaaiiA^ ^^illBRARYQ^ ^HIBRARYd?/r .^,.._., _,^ ^dllVDJO^" '%0JnVJJO>' \\^EUNIVER% o %a3AINn-3WV H:OFCAIIFO% .^,OF•CALIFO% , \WE UNIVERSy/i ^OAJjvaaii-^^ ^<?AavaaiH'^ <ril30NVS01^ vKlOSANCElfx. %a3AiNn]WV w 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 HANDBOOK TO THE LABOR LAW puB 'uauib^ 'aaw joj sAiBi iBpaag ti o C o ; <o C09 4; 4$ a5 M ' a fl 3 s s •nappiqjo^ 9{ najpjtqo jo iu3ui q3iq.u M0[3q 9^v '9auo)3«^ m naap -nqO 10} iva JoqBi 00 X O lO «> O 00 ■*"' 2 °^ 21 •saiJoqoB^ ut aiBjv Joj AB(j joq -B7 ijos[ndaioo ''ill illllil^ • o o o : a a a Sod 00 05 °1'Xi s a a;::iS a a- • 0'-:2Qdo<:NXco-»* o o a?:a •S3IJOJ -DBj ui aSy -lapnn U8mOA\ JOJ ^Bd JoqaT Xiosindmoo c <5oo S CD ^ O ^ O i5-= — -a -a ^ ^ 00 SSsS S £, 2 00 ^-HrHod CO 00 Ol O) 91 i-H ^ tH 81 II 'p3Avo[iB ataij -iaAQ JOJ sioBjjaoo JI) -sauopBii ni naino \^' n^ Joj ivd aoqB7 ijos[udaioo •joqB7 onqnj JO •(oTjgaraod p n B iBJnj[norjSv qdaoxa) peajnoo JO aoaaaqv aq) ni ^8Q JoqBi iBJaaaf) I ;2 2 ■■=> g -s • >.'a ^ a? OS 5 «^ ■ S 00 Tr a ■^"^ K . a -S .SI o . sigs "g = -^ sl ZlsSo 5 = S ^3 ai OF THE UNITED STATES 75 ;u a .0 Si a Q; Qj QJ ^ q5 ^ C g p p"-! p p p o o o • o o o P P P.Q R P p .2 '^ |1 .2 5 (iiEiq S 9 1^ 9 =" « P o 9 «.2 .■o5o „ : o 2 Q 72 — ■-53 ^^^•^ois.p^ U <U '^ ^ 'ii « o ■3 s 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 my Blind, the best presentation of the subject yet published. I shall use it at once in my class studying the labor question." vViLLARD Fisher, Professor of Economics and Social Science in Wesleyan University. — " It is an extremely interesting little volume, very readable and very clear." J. W. Jenks, Professor of Political Economy and Civil and Social Institutions in Cornell University. — "I had the pleasure of listening to some of the lectures as they were given last summer, and recognize the value of the material as well as the clean-cut style in which the lectures are written." John Bascom, Professor of Political Economy in Williams College. — " It is in a high degree opportune. The facts are exactly what we need to know, and they are presented in a most kindly way. The discussion is stimulating and instructive. I gladly recommend the book." Philadelphia Call. — " Adopting a deliberate temper and 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." Boston Daily Advertiser. — "The questions discussed are 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." UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. -fttClT T 29 iDUf^Q m jut 15 198^ [ NOV i u. >ECD CD URC urv 2 [) 1991 #^f>n? i-URl ■ OCT 01 15190 SEPO 7 WD 41584 »'/\UIUUll i' 'J13jnY"3Ul ' ''jaj/\iniijn»- UNIVERS/A vvlOSANCElfj> -n <-> ^HIBRARYQ^ ^M-LIBRARYQ.;^ 3DWS01^ %a3AINn3WV^ "^.I/OJIIVDJO^ '%0JnV3J0'^ ^ «i? ^«!/0JllV3JO>" 5? ^OFCAIIF0% ^ ^^Ahvaan-^^ 3 1158 00714 <rii30NVS01^ "^^AaHAINfl 3WV -< 6995 r^ oe vvlOSANCElfjv. %ll3AINfl]WV ^ILIBRARYQ^ ^tllBRARYQc >* <i4:^ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 001 101 345 5 ^lOSANCElfx> ^OFCALIFOi?^ ^OfCALirGftji^ "^/^ajAiNfi-^wv^ ^>&Aavaaii# '^<?Aavaaii# >- ^ '^<i/OJIlV0JO'^ ,^\\E•ll[liVER£^/, .vWSANGFlfj> <rii30Nvsoi^ "^/saaAiNnauv ^^;OFCAllF0ff4^ ^MEUNIVERS-//, ^vWSANCElfX;^ ^OAMvaan-^^^ "<rii33Kvsoi^ '^/ia]AiNn]WV ^ ■^AaiMNajwv .•',1llBRARY6'/r <^111BRARYQ^ "^.l/OJnVJJO^ '^<!/OJIlVDJO'^ <^'