REVISED STATUTES, SEVENTH EDITION, PENAL CODE, PAGE 62, SECTION 292.Certain employments of children forbidden. (a)

This section is not unconstitutional as an infringement of the parent's rights, or the rights of the child, but is a valid police regulation. (Supreme Court, 1892, People v. Ewer, 8 N. Y. Criminal Reports, 383.)

REVISED STATUTES, SEVENTH EDITION, PENAL CODE, PAGE 141, SECTION 653.Coercion. (b)

Any orderly body of men have the legal right to meet and discuss any question concerning their social or pecuniary welfare and take any action in respect thereto which they deem beneficial, so long as it does not involve or tend to create a breach of the peace. A workman has a legal right to decline to work for his employer unless the wages demanded are paid, and he has a right to accost others in the street or elsewhere and invite them to follow his example or join his union. But if these rights are enforced in an illegal manner, either alone or in company with others, by the use of threats or violence, a police officer is justified in arresting the party to prevent a breach of the peace, and is not liable for an assault and battery. (New York City Court, Trial Term, 1884, Zeiger v. Nolan, 1 City Court Supplement, 54.)

[See case of People v. Lenhardt, page 1309, ante.]

ACTS OF 1886, CHAPTER 409.-Factories and workshops-Employment of women and children, etc. (c)

Under this chapter as amended the owner of a manufacturing establishment is under no absolute duty to his employees to inclose an elevator shaft until the discretion of the factory inspector to direct such inclosure has been exercised. (Court of Common Pleas, General Term, 1892, Boehm v. Mace, 28 Abbott's New Cases, 138.)

The absence of the guards required to be placed upon all gearing and belting, in a factory in which women and children are employed, by section 8 of this chapter, imposes no liability upon the employer in a case where an infant employee, knowing of their absence, voluntarily meddles with the machinery and is injured. (Court of Appeals, 1892, White v. Wittemann Lithographic Company, 131 N. Y., 631.)

Although an employer may be negligent in failing to maintain automatic fasteners for the doors of an elevator, in accordance with the provisions of section 8 of this chapter, still, when his employee knows of the condition of the doors and the kind of fastenings provided therefor, it becomes the duty of the employee to guard against any accident which may be liable to occur in the absence of such automatic fasteners. If he fails to do so he is guilty of contributory negligence and can not recover. (Supreme Court, 1893, Dieboldt v. The United States Baking Company, 72 Hun, 403; 1894, Same v. Same, 81 Hun, 195.)

A safe landing place is an essential part of the fire escapes with which factory operators are required by statute to supply their factories; and an employee who is injured in escaping from a burning factory, by dropping from the lower rung of the fire escape into a chute leading into an area way 20 feet below, is entitled to recover damages from his employer. A certificate of the factory inspector, approv ing the fire escape, does not relieve the employer from liability for his negligence in not providing a safe landing place. (Supreme Court, 1893, Johnson v. The Steam Gauge and Lantern Company, 72 Hun, 535.)

Chapter 398 of the laws of 1890 [amending chapter 409, above] does not make the proprietor of a factory an insurer of the safety of his employees, nor does it require him to guard against extraordinary accidents which a careful and prudent man could not foresee or anticipate as liable to occur. His duty is fully performed when he furnishes a cover or guard for machinery sufficient to protect his employees against accident which may reasonably be apprehended as likely to occur. (Supreme Court, 1894, Cobb v. Welcher et al., 75 Hun, 283.)

Chapter 398 of the laws of 1890 [amending chapter 409, above] gives additional safeguards to employees in factories, and casts upon the employer the duty of guarding machinery that is dangerous, and the failure on the part of an owner of a factory to perform a duty imposed thereby, where, as a consequence, an injury a See Law, page 732.

b See Law, page 734.

c See Law,

page 755.

results to another, is evidence of his neglect. By the provisions of this chapter, in reference to the supplying of belt shifters to the machinery by the owner of a manufacturing establishment, the necessity of supplying the same is left to the discretion of the factory inspector, but the provisions thereof in reference to guarding machinery are mandatory. (Supreme Court, 1894, Knestey v. Pratt, 75 Hun, 323.)

Although parties may waive statutory provisions enacted for their benefit, and may even make laws for themselves which the courts are bound to administer, provided there is no question of public policy involved, yet, when there is a statutory enactment that certain safeguards shall be provided for the security of employees in a factory, and the failure to provide such safeguards is criminal, the employee, by continuing to work, knowing that the machinery is not guarded as prescribed by statute, does not waive the provisions of the statute, nor does he assume such obvious risks as are incident to the use of machinery without the required safeguards. (Supreme Court, 1894, Simpson v. New York Rubber Company, 80 Hun, 415.)

This chapter is a public statute, of which judicial notice will be taken, and is properly presented and considered as evidence upon the trial of an action, although not specifically set forth in the complaint. It is not the absolute duty of the owner, agent or lessee of a manufacturing establishment to provide the safeguards directed by the statute to be furnished in regard to elevators running in such establishments, but the omission to provide such safeguards is evidence for the jury on the question of negligence. (Supreme Court, 1894, Dieboldt v. The United States Baking Company, 81 Hun, 195.)

ACTS OF 1887, CHAPTER 529.-Hours of labor-Surface and elevated railroads. (a)

It is not a legal ground of forfeiture of a corporate charter that the corporation has exacted, in violation of this chapter, more than ten hours' labor a day from its employees. This statute by its terms imposes no duty upon the corporations described in it. In its first section it prescribes what shall constitute a day's labor, and by its second section it makes it a misdemeanor for any officer or agent of such corporation to exact from any of its employees more than the specified labor. Both the prohibition and the punishment are explicitly put upon the officers and agents as individuals, and not upon the company acting in its corporate capacity. The remedy for a violation of this statute is adequate and effectual since the corporation can only act through officers and agents, and they are at once liable to punishment if the law is violated. (Court of Appeals, 1891, People v. Atlantic Avenue Railway Company, 125 N. Y., 513.)

ACTS OF 1890, CHAPTER 388.-Payment of wages. (b)

Under the provisions of this chapter, the word "employee" when read in connection with the word "wages" used in the chapter, is limited in its scope to laborers and workmen engaged in manual labor. (Supreme Court, 1890, People v. City of Buffalo, 57 Hun, 577.)

66

The term "wages," used in this chapter, does not include salary, and the term wages earned" is an apt expression in regard to laborers who are only entitled to pay for services actually rendered, but is entirely inappropriate when used concerning public officers or clerks who receive annual salaries, which are not due until the end of the year, and who are entitled to be paid so long as they hold their offices without regard to the services rendered. The property clerk and assistant paymaster of the department of public parks of the city of New York is not deemed an "employee" of the city earning wages within the meaning of this chapter. (Supreme Court, 1890, People ex rel. Van Valkenburg v. Myers, 25 Abbott's New Cases, 368.)

ACTS OF 1890, CHAPTER 565, SECTION 49.-Safety appliances on railroads. (c)

[The following decision was rendered in a case arising under chapter 439 of the acts of 1884, which was repealed by chapter 565 of the acts of 1890; section 49 of said chapter 565 corresponds substantially with said repealed chapter 439, and the principles involved in this decision apply to the present law:]

Plaintiff, a brakeman in defendant's employ, while standing on top of a freight car on a moving train, was struck by a low bridge and injured. In an action to

a See Law, page 763. 2352- -83

b See Law, page 772.

c See Law, page 776.

recover damages these facts appeared: It was the plaintiff's duty to be on top of the cars, among other things for the purpose of keeping watch to see that the train did not part. There were 54 cars in the train, and two brakemen upon it; at the time of the accident the train was at a place where there was a reverse curve in the road, and more than ordinary risk of its breaking. Plaintiff was standing with his face to the rear of the train in a position most effectually to discharge his duty; he had been in defendant's employ for several weeks, and knew of the existence of the bridge, but was not at the time aware that he was approaching it, and had no warning of the danger. Defendant had, in compliance with the statute, erected warning signals called "telltales" to warn brakemen on top of cars of their approach to bridges. The one at this bridge was out of order so that it gave no warning. Held, that the plaintiff was not as a matter of law chargeable under the circumstances with contributory negligence because he did not take notice of the fact that he was approaching the bridge; also, that the defendant was guilty of negligence in not keeping the telltale in order; also that it was competent for the plaintiff to prove that the telltale was placed too near the bridge to answer the purpose of the statute, and upon that point it was proper to show the custom in this respect. (Court of Appeals, 1893, Wallace v. The Central Vermont Railroad Company, 138 N. Y., 302.)

ACTS OF 1891, CHAPTER 105, SECTION 504.-Hours of labor, etc., in Buffalo—Public works. (a)

This section, which forbids contractors for city work in the city of Buffalo to accept more than eight hours for a day's work, except in cases of necessity, does not "abridge the privileges of citizens [Const. U. S., Art. XIV, sec. 1], or deprive any citizen of his rights or privileges" [Const. N. Y., art. 1, sec. 1]. (Superior Court of Buffalo, People v. Beck, 30 N. Y. Supplement, 473.)

On appeal from the superior court of Buffalo, the court of appeals held, in the above case, that "in the view we take of this appeal, it is unnecessary to consider the constitutional question sought to be presented. The clause in the charter of the city of Buffalo now under examination is found near the close of a lengthy act under the heading of 'General provisions,' and is wholly administrative in its nature, and directs in detail the manner in which contracts shall be drawn relating to any work required to be done by the city. It is not penal in character, nor does it impose upon anyone entering into a contract with the city any duty or obligation whatsoever; it simply deals with the general subject of contracts, and prescribes certain provisions to be inserted by the city in any contract. When the city of Buffalo entered into the contract with the Barber Asphalt Company which is the basis of this proceeding, it inserted therein the provisions required by this clause of the charter. We are not called upon at this time to decide the legal effect of the alleged violation of these provisions by the Barber Asphalt Company. We do hold, however, that this clause does not apply in any way to the relator [the superintendent of the company], and that his arrest, trial, and conviction were without jurisdiction, and void. We are also of opinion that this clause can not be the basis for the criminal indictment of any person for a misdemeanor." (Court of Appeals, 1894, People v. Beck, 39 Northeastern Reporter, 80.)

ACTS OF 1892, CHAPTER 602.-Registration, licensing, etc., of plumbers. (b)

The legislature can not, under the guise of the police power, enact measures which restrain the citizen in the free pursuit of a lawful occupation; but, in passing on the validity of such a statute, the courts should always assume that the legislature intended by its enactment to protect the public health and serve the public comfort and safety; and, if the act admits of two constructions, that should be given to it which sustains it and makes it applicable in furtherance of the public interests. This law which creates a board for the examination of plumbers. and which forbids any person from exercising the calling of a master plumber without passing an examination before said board, is a valid exercise of the police power, since the work of plumbing is essential to the comfort and health of the inhabitants of cities. The act is not void as restraining individuals from working as plumbers, since it applies only to master or employing plumbers. The fact that the act applies only to master and employing plumbers, and that two of the five members of which the examining board is composed are required to be employing plumbers, does not render the act void, as creating a monopoly. The fact that b See Law, page 780.

a See Law, page 778.

the board acts unfairly or oppressively in the examination of applicants is no ground for assailing the validity of the statute itself, since it provides for the appointment of an impartial board. (Court of Appeals, 1895, People ex rel. Nechamcus v. Warden of City Prison, 39 Northeastern Reporter, 686.)

ACTS OF 1892, CHAPTER 711.-Hours of labor—Railroads. (a)

The provisions of sections 2 and 3 of this act are not penal in their scope, but are applicable to an adjustment of the contractual relations of the parties, when the contract for hire of an employee omits to prescribe the duration of a day's service.

Section 4 of the act, declaring a violation of its provisions to be a misdemeanor, applies only to the prohibition in section 1, against permitting or requiring the employees, charged with responsibility for the movement of trains, who have worked continuously for twenty-four hours, from going on duty again until after eight hours' rest.

On demurrer to an indictment against the superintendent of a railroad, which charged him with employing the complainant as a train man at a fixed price per day, requiring him to work as and for his day's work fourteen and a half hours continuously, refusing to pay him for the extra time over the ten hours fixed by the act as a day's work, and discharging him on his refusal to accept the price per day agreed upon in full for his labor, Held, that the indictment did not charge an offense under the act, and that an order overruling the demurrer was error. (Court of Appeals, 1893, People v. Phyfe, 136 N. Y., 554.)

ACTS OF 1893, CHAPTER 219.-Trade-marks of trades unions, etc. (a)

This law, making it an offense to use any counterfeit or colorable imitation of a label adopted to designate the product of the labor of the members of a labor union, does not make knowledge or intent an ingredient of the offense. (Superior Court of Buffalo, Bulena . Newman, 31 N. Y. Supplement, 473.)

ACTS OF 1894, CHAPTER 698.-Marking of convict-made goods. (b)

This act is unconstitutional, as depriving persons of property, etc., without due process of law, since it applies to goods purchased before its enactment; and as it requires goods made by convict labor in another State to be labeled as such when exposed for sale in New York, it is repugnant to the interstate-commerce clause of the Federal Constitution. (Court of Öyer and Terminer, People v. Hawkins, 31 N. Y. Supplement, 115.)

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

An indictment for extortion charged, and the evidence on trial showed that defendant, as the head of a labor organization, with branches throughout the country, threatened to and did put into operation a scheme termed a "boycott," for lessening and damaging the business of a firm of manufacturers because they failed to obey his commands in reference to the number of apprentices they should employ, and when they submitted to his dictation, demanded and received money as the price of abandoning the scheme and ending the mischief. Held, that the defendant was properly convicted of the crime charged. (Court of Appeals, 1893, People v. Hughes, 137 N. Y., 29.)

NORTH CAROLINA.

CODE OF 1883, VOLUME I, CHAPTER 49, SECTION 1942.-Liability of railroad companies for wages of employees of contractors. (c)

A laborer who seeks to subject a railroad company to the payment of wages due him by a contractor in the construction of such company's road, as provided in this section, must show a substantial compliance with the requirements of the section as regards notice. After complying with the requirements of the section, a laborer can assign his claim and the assignee can sue upon it. The privilege conferred by the section is restricted to laborers, and for work done for thirty days or less, in constructing a road, and the company can in no event be held liable for payment of accounts due by the contractors for materials. (Supreme Court, 1893, Moore v. Railway Company, 112 N. C., 236.)

a See Law, page 784. b See Law, page 787.

c See Law, page 794.

CODE OF 1883, VOLUME II, CHAPTER 44, SECTIONS 3431, 3433, 3448, AND 3449.Convict labor. (a)

The statutes authorizing the working of persons convicted of criminal offenses upon the public roads, under the supervision of the county authorities, are not unconstitutional. (Supreme Court, 1887, State v. Weathers, 98 N. C., 685.)

ACTS OF 1889, CHAPTER 280.-Payment of wages-Use of nontransferable scrip prohibited. (b)

This act does not authorize the assignee of a ticket or scrip payable in merchandise to demand and receive payment in money instead of in merchandise. The "value" of a thing is its general power of purchasing, the command which its possession gives over purchasable commodities in general, and "face value" is the value expressed on the face of the writing in the commodity in which it is payable. Statutes restricting or disabling persons capable of contracting in the making of contracts, being in derogation of common right, and especially those penal in their nature, must be strictly construed. (Supreme Court, 1893, Marriner v. Roper Company, 112 N. C., 164.)

ACTS OF 1891, CHAPTER 75.-Emigrant agents. (c)

Uniformity, in its legal and proper sense, is inseparately incident to the power of taxation, whether applied to taxes on property or to those imposed on trades, professions, etc.; therefore, this chapter is, if considered as an exercise of the taxing power of the legislature, in contravention of the constitution, article V, section 3, authorizing the legislature to tax trades, professions, franchises, etc., and is void for want of uniformity. The occupation of an "emigrant agent," as defined in this chapter, does not belong to that class of trades or occupations which are so inherently harmful or dangerous to the public that they may, either directly or indirectly, be restricted or prohibited. Since the act does not prescribe any regulation as to how the business shall be carried on, nor any police supervision, and since it exacts a very large license fee, it is restrictive and prohibitory of the business mentioned therein, and, if considered as an exercise of police power, is void for that reason. There being no regulation of such occupation, and therefore no expense in supervising it, or any expense whatever beyond the amount necessary to defray the cost of issuing the license, the act, if considered an exercise of police power, is also void for the unreasonableness of the license fee. The constitutionality of this chapter is incapable of being sustained in any point of view. (Supreme Court, 1893, State v. Moore, 113 N. C., 697.)

NORTH DAKOTA.

REVISED CODES OF 1895, CIVIL CODE, CHAPTER 50, SECTIONS 4095 TO 4097.Obligations of the employer. (d)

An employer is not liable to those in his employ for injuries resulting from the negligence, carelessness or misconduct of a fellow-servant engaged in the same general business, and performing services for the same general purposes; but to this rule there are well-defined exceptions. One, and perhaps the most important of these exceptions, arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master. It is implied in the contract between the parties that the servant risks the dangers which ordinarily attend, or are incident to, the business in which he voluntarily engages for compensation. But it is equally implied in the same contract, that the master shall supply the physical means and agencies for the conduct of his business; and in selecting such means, machinery and appliances, and in preserving and maintaining them in a suitable condition, he shall not be wanting in proper care. His negligence in that regard renders him liable to an employee who sustains damage in consequence of such neglect. Sections 1130 [4096] and 1131 [4097] of the Civil Code is an enactment of the common law on that subject and does not change the rule. (Supreme Court, 1882, Herbert v. Northern Pacific Railroad Company, 3 Dakota, 38.)

On an appeal to the Supreme Court of the United States the decision in the above case was affirmed and it was held that an employer is not liable for injuries to his

a See Law, page 795.
b See Law, page 797.

c See Law, page 798.
d See Law, page 808.