the latter as a cause of action or defense; that such contract was not contrary to public policy; that the effect of such contract was not to enable the railroad company to exonerate itself by contract from liability for negligence of itself or servants; that the employee did not waive his right of action against the railroad company, in case he should be injured by its negligence, by the execution of the contract; that it is not the execution of the contract that estops the injured employee, but his acceptance of moneys from the relief department on account of his injury, after his cause of action against the railroad on account thereof arises. (Supreme Court, 1895, Chicago, Burlington and Quincy Railway Company v. Bell, 62 Northwestern Reporter, 314.)

NEW JERSEY.

REVISION OF 1877, PAGE 261, SECTION 191.-Conspiracy. (a)

It is an indictable conspiracy for several employees to combine and notify their employer, that unless he discharges certain enumerated persons, they will, in_a body, quit his employment. (Supreme Court, 1867, The State v. Donaldson et al., 32 N.J., 151.)

SUPPLEMENT OF 1886, PAGE 771, SECTIONS 7 TO 10.-Payment of wages in orders, etc. (b)

If a workman agree with his employer to take pay for his work in part in merchandise, such a bargain is in violation of the first section [section 7] of the above act to secure to workmen the payment of wages in lawful money. (Supreme Court, 1895, Cumberland Glass Manufacturing Company v. State, 33 Atlantic Reporter, 210.)

SUPPLEMENT of 1886, PAGE 774, SECTION 30.—Labor combinations not unlawful. (c)

This court has no jurisdiction to compel the admission of a person, not elected according to its rules and by-laws, to membership in a voluntary association. Courts do not exercise visitorial powers over voluntary associations or their proceedings, except to prevent the violation of some law of the State, or to protect or enforce some right already acquired. This court will not interfere by injunction to prevent the circulation of a slander or libel, even though it may tend to injure the person affected in his business or employment. This court will not interfere by injunction to restrain acts of an association, on the ground that they may be detrimental to trade or injurious to individual business, when it appears that the acts done or threatened are declared by statutes as not unlawful. Since the enactment of the above section it is not unlawful in this State for the members of an association to combine together for the purpose of securing the control of the work connected with their trade, and to endeavor to effect such purpose by peaceable means. (Court of Chancery, 1890, Mayer v. The Journeymen Stonecutters' Association et al., 47 Equity Reports, 519.)

[The following decision was not rendered under any law published in this volume, but, being of interest, is here included:]

A person's business is property, entitled, under the constitution, to protection from unlawful interference. Every person has a right, as between his fellowcitizens and himself, to carry on his business, within legal limits, according to his own discretion and choice, with any means which are safe and healthful, and to employ therein such persons as he may select; and every other person is subject to the correlative duty arising therefrom, to refrain from any obstruction of the fullest exercise of this right which can be made compatible with the exercise of similar rights by others. Malicious injury to a person's business is actionable. An injury to the business of another is malicious and actionable if done intentionally and without legal excuse. B., the proprietor of a daily newspaper, determined to use plate matter in the make-up of his paper, notwithstanding the interdictive resolution of the local typographical union, of which all his employees were, at the time, members. On this, some of them left his employment; others remained, and in consequence lost their said membership. The union thereupon

a See Law, page 669. b See Law, page 685. c See Law, page 687.

withdrew its indorsement of the paper, and reported the matter to the trades council, a representative association, in which it and other trades unions were affiliated, the whole comprising a body of operatives in the county of Essex of a purchasing capacity of $400,000 a week. After the publication, by each side, of its version of the difficulty, a circular was issued by the trades council calling on all friends to boycott the paper, and to cease buying and advertising in it. A boycott of a newspaper, started under these circumstances, in pursuance of which not only the members of the various societies were, by their rules, but the public was, by the circular, which was widely distributed, called on to cease buying or advertising therein, and personal application was made to actual advertisers, by the distribution of printed circulars and resolutions of the societies, suggesting that they discontinue their advertising therein, even if they had made contracts to so advertise, enforced by a threat, in the guise of a suggestion, that if they did continue to do so they would also incur the enmity and opposition of organized labor, followed by damage to the proprietor of the paper, from loss in circulation and advertising, is an actionable wrong. Even where there is a legal remedy, equity will interfere by injunction to prevent (1) an injury which threatens irreparable damage, and (2) a continuing injury, when the legal remedy therefor may involve a multiplicity of suits. The criterion of the application of this jurisdiction is the inadequacy of the legal remedy, depending on (1) whether the injury done or threatened is of such a nature that, when accomplished, the property can not be restored to its original condition, or can not be replaced by means of compensation in money; (2) whether full compensation for the entire wrong can be obtained without resort to a number of suits. The facts in this case warrant the issuing of an injunction to restrain the defendants from certain acts which threaten å continuing injury, and probable ruin of the complainant's business, the legal remedy for which is inadequate, and would involve a number of suits. (Court of Chancery, 1894, Barr v. Essex Trades Council et al., 30 Atlantic Reporter, 881.)

NEW YORK.

REVISED STATUTES, SEVENTH EDITION, PAGE 2354, SECTIONS 1 TO 4.-Hours of labor. (a)

An employer is not made liable, under and by the eight-hour law, to an employee hired by the day, for labor beyond the statutory time, unless it was provided for in the contract of employment. It seems, that a contract to pay for such labor may be implied from circumstances. Such an implication, however, arises only under circumstances authorizing an expectation of compensation, or the inference that the services would not otherwise have been rendered. The intent of the act was to place the control of the hours of labor within the discretion of the employee, giving him the privilege, at his option, to refuse to work beyond the eight hours, or to secure extra compensation for extra work by stipulation in the contract of employment. In the absence of any such stipulation the language of the act repels any inference of an intent to confer a right upon an employee to charge for more than one day's labor for services rendered in any calendar day; and for such services he may not demand any extra compensation. Plaintiff entered into defendant's employ as a scowman in the department of docks at an agreed price per day, with knowledge that the custom of the department and the nature of the services required ten hours' work each day. He continued in such employment two years, laboring ten hours, each working day and sometimes more; he received his wages at the agreed price at regular periods without objection or claim for extra compensation, giving receipts purporting to be in full up to date. In an action to recover compensation for the extra work over eight hours per calendar day, Held, the circumstance justified a finding that the extra services were rendered without any expectation or understanding, express or implied, that extra compensation was to be paid therefor, and that plaintiff was not entitled to recover. (Court of Appeals, 1884, McCarthy v. Mayor, etc., of New York, 96 N. Y., 1.)

REVISED STATUTES, SEVENTH EDITION, PENAL CODE, PAGE 34, SECTIONS 168 AND 170.-Conspiracy. (b)

The by-laws or pledge of an incorporated association of master workmen, subscribed by the defendant, provided that any member of the association found guilty by its committee of working for less prices than those fixed by the association, should forfeit to it 25 per cent of the price fixed for the same work, the

a See Law, page 719.

b See Law, page 731.

penalty to be collected in the name of the association by process of law; Held, on demurrer to the complaint, in an action by the association to collect such a penalty,

1. That such an association was not an unlawful combination to commit any act injurious to trade or commerce within the meaning of this section [168].

2. That such a by-law or pledge was not unlawful as made in restraint of trade. 3. That the by-law, being one which the association had power to make, it had also the power to attach to its violation a penalty, and an action might be maintained for its recovery.

4. That it is not unlawful for any number of journeymen or master workmen to agree on the one part that they will not work below certain rates, or on the other that they will not pay above certain prices; but any association or combination for the purpose of compelling journeymen or employers to conform to any rule, regulation, or agreement fixing the rate of wages to which they are not parties, by the imposition of penalties, by agreeing to quit the service of any employer who employs journeymen below certain rates, unless the journeyman pays the penalty imposed by the combination, or by menaces, threats, intimidations, violence, or other unlawful means, is a conspiracy for which the parties entering into it may be indicted. (Court of Common Pleas for the City and County of New York, 1867, The Master Stevedores' Association v. Walsh, 2 Daly, 1.)

Held, that the case of People v. Fisher (14 Wendell, 9) can no longer be deemed the law of the State since the passage of chapter 17, acts of 1870 [section 170 of the Penal Code], for the persons there indicted seem to have been guilty only of peaceable cooperation for the purpose of maintaining the rate of wages. An injunction should not be granted against a confederation of persons whose object is to entice away workmen from their employer's employ, in the absence of any sufficient evidence that violence, force, intimidation or coercion is intended against such workmen. The remedy is an action for damages. (Supreme Court, 1880, Johnston Harvester Company v. Meinhardt, 9 Abbott's New Cases, 393.)

An indictment charging conspiracy and coercion brought under section 168, subdivision 5, and section 653, subdivisions 1 and 3, contained the following counts in substance: That certain parties conspired, etc., by force, threats and intimidation to prevent and hinder a certain firm from exercising its lawful trade and calling; that in pursuance of said conspiracy attempted, and endeavored by threats, threatening notices, etc., to intimidate certain servants of the firm and to induce and constrain them against their own free will and good judgment to quit their said employment, and to refuse to do and perform the work, labor and duties thereof; that in further pursuance, etc., they did assault, beat and wound divers of said servants, etc., with intent to intimidate them and coerce and constrain them to quit their employment, etc.; that by force, threats, etc., they attempted to coerce and constrain the firm to dismiss and cease to employ said servants, etc.; that by watching and besetting the shop, by distributing handbills and printed circulars, by disorderly conduct, breaches of the peace, etc., they attempted to intimidate persons who desired to trade in the shop from so doing, etc. Held, on demurrer to the indictment, that the acts complained of constitute the crimes of conspiracy and coercion as charged in the indictment, and these acts, if established by the evidence to be given on the trial, are amply sufficient to sustain a conviction. (General Sessions, New York County, 1886, People v. Lenhardt, 4 N. Y. Criminal Reports, 317.)

It is against the criminal law for a number of men to band together for the purpose, through the power of combination, of injuring the business of another, by parading up and down before his door, by placarding themselves with the word "boycott,' by advising the passers-by not to patronize the establishment, by distributing printed circulars filled with accusation and justifying the so-called "boycott," and by other devices calculated to induce the public to keep away from the alleged wrong-doer, provided the persons so engaged use force, threats or intimidation. To constitute intimidation, it is not necessary that there should be any overt act of violence, or any direct threat by word of mouth. It is enougr if the attitude of those engaged in the overt act is intimidating; and this may be shown by their numbers, their methods, their placards, their circulars, and their devices. If the attitude, conduct, and method of these men is such as to deter any of complainant's customers, even the most weak and timid, from entering his place of business, or to inspire any part of the general public with the sense of danger in ignoring their appeals, there is intimidation within the meaning of this section. The procuring of money from another, with his consent, obtained by fear induced by a threat to do or continue an unlawful injury to his property, e. g., to continue a" boycott" as above described, constitutes the crime of extortion under sections

1

552 and 553, Penal Code. Every person present at the time the money, or the agree ment under which it was paid, was obtained by extortion, and who aided and abetted in the acts of extortion, either by personal participation or by silently acquiescing in the threats of his associates, speaking in their joint behalf, is liable as a principal. One who participates in the acts of extortion, in consequence of which the money was paid, is liable as a principal, though not present when the money or check was actually received. It is of no consequence as affecting the crime what is done with money so extorted, whether personally shared by defendants, or used to pay expenses of the “boycott." (Court of Oyer and Terminer of New York County, 1886, People v. Wilzig, 4 N. Y. Criminal Reports, 403.)

Where a number of men combine together to injure, and thereby to prevent the exercise of a lawful calling, by congregating near the doors of a person to be injured, by printing circulars descriptive of the supposed grievances, and by distributing the same near and about his doors to the customers and passers-by, and the effect of such overt acts is to intimidate and thereby warn off his customers and the general public who might otherwise patronize him, and to intimidate such person himself, those who so conspire and participate in the overt acts, are guilty of the crime of conspiracy under subdivision 5 of this section [168]. The jury may consider, upon the question of intimidation, the fact that the distribution of these circulars was not an isolated act, but was repeated three days in succession, each day with an increased number of distributors, amounting to fifteen on the last day. The jury may also consider the character of these circulars and the language used in them, and may see whether they contain appeals to passion, or are otherwise inflammatory in their character. They may also take into account testimony, that on the night before the commencement of the overt acts, the accused parties went to the complainant's place of business, where a dispute took place and threats were made and acts of violence committed by the accused; and the jury may consider the distribution of the circulars in the light of what then and there occurred. The mere fact that no violence was used in the street is not conclusive; nor is it necessary that there should have been a direct threat. If the jury believes that the attitude actually presented by the distributors of the circulars was one of intimidation, either to the passers-by or to the complainant (the proprietor of the business), considering all the circumstances, then all who participated, directly or indirectly, are within the meaning of the word "intimidation," as used in this section [168]. (Court of Oyer and Terminer of New York County, 1886, People v. Kostka, 4 N. Y. Criminal Reports, 429.)

Peaceable withdrawal from employment, commonly called a strike, however extensive, for the purpose of obtaining an advance in the rate of wages, or maintaining such rate, is not an offense against the provisions of these sections. Where there is no relation, direct or indirect, between the rate of wages and a strike, the combination which brings the latter about for unlawful purposes, is a criminal conspiracy under these sections. The unlawful purpose of a strike may be evidenced by force, threats or intimidation to prevent another from exercising a lawful trade or calling. Section 170 of the Penal Code does not authorize a combination of individuals to compel, by means condemned in section 168 of that code, workingmen to join the cooperating forces, or to punish those who are supposed to be inimical thereto. (Court of Oyer and Terminer of New York County, 1887, People ex rel. Gill v. Smith, 5 N. Y. Criminal Reports, 509.)

The above case was affirmed by the supreme court of New York and it was held, that a combination by workmen to drive out, and prevent from working in a certain district, an objectionable person, is a criminal conspiracy under these sections. (Supreme Court, First Department, 1888, People ex rel. Gill v. Walsh, 6 N. Y. Criminal Reports, 292.)

Affirmed by the New York court of appeals, no opinion being given. (Court of Appeals, 1888, People ex rel. Gill v. Walsh, 100 N. Y., 633.)

The procurement of workmen who are employed upon terms as to wages which are just and satisfactory to quit work in a body for the purpose of inflicting injury and damage upon the employer, by persons who are not in his employ, and until the employer should accede to demands of such outside persons, which he is under no obligation to grant, constitutes in law a malicious and illegal interference with the employer's business, which is actionable.

Declaring and attempting to enforce a boycott for the purpose of compelling an employer to pay such a rate of wages to his employees as the boycotters who are not in his employ might demand, are acts rendering the boycotters liable in damages, and are also misdemeanors at common law, as well as by section 168 of the New York Penal Code,

All combinations and associations designed to coerce workmen to become members of such combinations or associations, or to interfere with, obstruct, vex, or annoy them in working, or in obtaining work, because they are not members, or in order to induce them to become members; or designed to prevent employers from making a just discrimination in the rate of wages paid to the skillful and to the unskillful; to the diligent and to the lazy; to the efficient and to the inefficient; and all associations designed to interfere with the perfect freedom of employers in the management and control of their lawful business, or to dictate in any particular the terms upon which their business shall be conducted, by means of threats of injury or loss, by interference with their property or traffic, or with their lawful employment of other persons, or designed to abridge these rights, are pro tanto illegal combinations or associations; and all acts done in furtherance of such intentions by such means, and accompanied by damage, are actionable. (United States Circut Court, Southern District, 1887, Ŏld Dominion Steamship Company v. McKenna et al., 30 Federal Reporter, 48.)

This section [170] does not affect the right of the employer to maintain an action to restrain handicraftsmen, combining for the purpose of obtaining an advance in wages, from persuading his employees to leave his service. An injunction will not lie to restrain handicraftsmen from combining, and peaceably and without intimidation persuading their fellow-workmen to leave the service of their employers, in order to compel an advance in wages, on the ground that such persuasion invades the constitutional right of the employer to prosecute his business free from unlawful obstruction. A body of handicraftsmen, combining for the purpose of peaceably and without intimidation persuading their fellow-craftsmen to leave their employment in order to obtain an advance in wages, may lawfully pay the expenses of those who leave, and post in their place of assembly the names of such persons as have contributed to the fund for the support of those who have surrendered their wages. (Supreme Court, 1891, Rogers v. Evarts, 17 New York Supplement, 264.)

There is no law which prevents combinations of individuals, either for the assertion of rights or protection against wrongs, as long as the acts of such associations do not infringe upon the provisions of law. A combination of manufacturers has the right to lock out all operatives connected with an association of employees, because of demands which it considers unjust made by such association of employees upon a member of the combination of manufacturers, and such association of employees has an equal right to endeavor to persuade those who have been accustomed to deal with the members of the manufacturers' combination to discontinue their trade. (Supreme Court, 1894, Sinsheimer et al., respondents, v. The United Garment Workers of America et al., appellants, 77 Hun, 215.)

An employer is not entitled to an injunction against striking employees for inducing others, by entreaty and persuasion, to leave his employment, where no intimidation is used. A final injunction against striking employees for conspiring to entice others to leave the employment is properly refused where, before the trial, the strike had long ceased. (Court of Appeals, 1894, Reynolds v. Everett, 39 Northeastern Reporter, 72.)

REVISED STATUTES, SEVENTH EDITION, PENAL CODE, SECTION 171a, ADDED BY CHAPTER 688, ACTS OF 1887.-Protection of employees as members of trades unions. (a)

In an action for conspiracy it appeared that the defendants represented certain labor organizations in the city of Rochester, and that plaintiff was in the employ of a brewing company which was a member of the Ale Brewers' Association of that city. There was an agreement between the latter and the local assembly, of which defendant Galen was president, that no brewery belonging to the association was to employ any person not a member of defendant's organization nor to retain in its employ any person who declined to join said organization. Plaintiff was not a member of the local assembly, and upon being solicited to join the same declined. Defendants thereupon notified his employers of the fact and he was discharged from their employ. Held, that the means employed by the defendants to accomplish the objects of their organization not only contravened one of the fundamental principles of our free institutions, by making plaintiff's refusal to join their organization a pretext for interfering with his personal liberty by depriving him of his right to labor, but it likewise violated the spirit, if not the letter of this section [171a]. (Supreme Court, 1893, Curran v. Galen et al., 2 N. Y. Miscellaneous Reports, 553.)

a See Law, page 732.