consequence of neglect or mismanagement on the part of other employees, etc.1

The fellow-servant" doctrine is, moreover, specially limited in a few states in peculiar ways, as, for instance, in Colorado, where fellow-servants or employees can recover compensation for injuries resulting from the negligence of a coemployee to the extent of five thousand dollars.5

Principals, vice-principals, and fellow-servants are in a few states defined and made into separate 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 already 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 employees, 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 employees of any other branch or department

4

Io., 1307; Kan., 1251; Ga., 3036; Fla., 2346; Mon. Civ. C., 905; Minn., 1887, 13.

who have no power to direct or control in their own branch."7

Contracting Out.-And the provisions enumerated above are very generally enforced by a law providing that any contract, releasing the employers from their liability to employees 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, however, seems to go to the full extent of the common 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, company, or corporation to require of its servants or employees as a condition of their employment, or otherwise, any contract or agreement whereby such person, company, or corporation shall be released or discharged from liability or responsibility, on account of personal injuries received by such servants or employees, while in service

४

7 O., 1890, p. 149, §3.

O., 1890, p. 149; Ind., 7083; Tex., 1891, 24; Wy. Const., 10, 4, 1891, 28; Fla., 2346; but in Ohio the statute applies to railroads only.

9 Mass., 1894, 508, 6; Ala., 2590; Minn., 1887, 13.

of such person, company, or corporation, by reason of the negligence of such person, company, or corporation, or the agents or employees thereof, and such contracts shall be absolutely null and void." 10

10 Col. Const., 15, 15; Mon. Const., 15, 16; P. C., 923; Wy. Const., Art. XIX., Labor Contracts.

CHAPTER VII

TRADES UNIONS

§ 51. Trades Unions Legalized. Under the common law of England there was an impression, possibly justified, that any trades union or labor combination was 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 aristocracies 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,

elevation, and protection, was perfectly legal.' While the general corporation acts did not expressly 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 expressly taken the opportunity to authorize such associations to incorporate themselves under the general corporation acts, whereby each member is relieved, or partially relieved, from individual liability. Such corporations are usually organized under the general head of corporations not for profit, and

1 This matter will be more fully discussed under section 55 and below. There were three early cases in 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 reviews all the decisions, that such is not the case in this country. See Commonwealth v. Carlisle, Brightley's Rep., 36; Commonwealth v. Hunt, 4 Met., 111; Stevedore's Association v. 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 employ certain workmen (see § 57). See also below in this section.