THE LAW OF STRIKES.

So much attention was attracted by Judge Jenkins' injunction forbidding the employees of the Northern Pacific Railroad to strike last December, that the recent review of that proceeding by the United States Circuit Court of Appeals will have careful reading by all those interested. The substance of the decision is this: Railway employees have a legal right to leave the service of the company either as individuals or by concerted action, provided it is a question of wages or the like, and if no intent to cripple the road can be proven against them. If the result of such action is to embarrass the receivers, it must be taken as incidental unless specially so intended.

clearly than has been done that the strikes intended to be restrained were those designed to physically cripple the trust property, or to interfere with their employees who do not wish to quit, or to prevent by intimidation or other wrongful modes the employment of others to take the place of those quitting." If our Courts and troops, both State and National, may use their whole power to restrain violence, no strike will easily succeed unless it has such a basis in business justice as to enlist for it the hearty support of public opinion. Surely, to have this position clearly established is a great gain.

It was not to be supposed that our Courts would infringe in any way upon the general principle of freedom of service. If railway employment is by its nature a special pursuit which should be governed by special rules in the interest of the public, then it is a question whether such special contracts should not be passed upon first by Congress rather than by our Courts. It is therefore not at all clear, as the Railway Review intimates, that this recent decision has only added to our complexity. On the contrary, the practical effect of the Court's argument is to render a stoppage of railway commerce a thing of great difficulty. Lest it be thought that one other branch of the subject was neglected in the decision, it is well to quote the following: "It may be assumed for the purpose of this discussion that he (the striking employee) would be liable in like manner (that is, perhaps even to criminal prosecution), where the contract of service, by necessary implication arising out of the nature or the circumstances of the employment, required him not to quit the service of his employer suddenly and without reasonable notice of his intention to do so."

It would seem at first as if this decision gave up the whole case. The Railway Review (Chicago) remarks that there is a theoretical but not a practical difference between the two actious, so that under such hair-splitting no strike can be enjoined. "Some additional legislation is imperative. Men engaged in transportation should be engaged for a specific period, or, in case of a continuing service, a sufficient notice should be given or required from either party." But, pending the solution of the problem of contracts or of a reasonable notice of leaving the company's employ, there is every probability that we have really taken a step forward. When Judge Jenkins gave his famous description of a strike on a railwav as 'essentially a conspiracy to extort by violence," and said that "the wit of man could not devise a legal strike, because compulsion is the leading idea of it," he no doubt, as the Appellate Court finds, overstepped the bounds of legal definition. In the eyes of the law it is possible for employees to enter upon a "peaceful" strike. But if we take Judge Jenkins' language as expressing a business truth confirmed by Certainly this latter quotation goes as far as our industrial history, and a correct statement any unbiased student of the problem could ask. of strikes as they actually occur, his words ac- Of course it leaves open the question whether curately describe the situation. Every railway a striker's employment forbade his quitting man knows that a peaceful strike would be a suddenly, but in any case that would be for the flat failure. To succeed, the strikers must sur-lower Court to consider. A peaceful strike is prise the company so as to guard against any efforts towards collecting men beforehand to take their places, and next, must prevent by violence the running of trains, by outside labor. We need go no further back than the Debs strike last summer for an illustration. That wretched attempt would have failed at the outset had not employees and ruffians combined to stop the trains; and it did fail the moment the United States troops gave adequate protection to the new men. There was nothing of

that strike but violence

In the light of this fact, that violence is the essence of a successful strike in practice, we are prepared to see how important is that part of the Appellate Court's decision which confirms everything that Judge Jenkins said regarding the illegality of "combining to quit with the object and intent of crippling the property or embarrassing the operation of said railroad." This condemnation is expressed several times in the opinion. After stating that the injunction should have described an unlawful strike more distinctly, the Court continues: The order should indicate more

often the only possible protest against a commercial wrong, and as such is safeguarded in this decision; but strikes which "extort by violence" have received no uncertain condemnation from this high tribunal. Then again there is nothing in the decision which looks towards favoring corporations. An opinion that strikes, under any and all circumstances, were to be forbidden would at once have been construed to mean that our Courts were the "slaves of capital," with the result that drastic legislation would have been asked for in the interests of labor. As the matter now stands, neither side can rightly complain of the general principles enunciated by the Appellate Judges. Those general principles may require some modification to fit them to the precise circumstances of each case-railway or otherbut that is a matter to be determined later. The situation has gained in clearness. There is no hard and fast rule by which we can solve the labor problem; commercially speaking, we can do little else as a matter of law and for the moment than to set limits to the combat.-N. Y. Evening Post.

SUPREME COURT PROCEEDINGS.

Tuesday, October 16, 1894.

General Docket.

No. 3631. The Board of Education of Marion Township, Fayette County, Ohio v. The State of Ohio ex rel. A. C. Lindsay. Error to the Circuit Court of Fayette County. BRADBURY, J.

1. Where no obligation, legal or moral, rests upon a board of education, to pay a claim as serted against it by a private individual, an act of the general assembly, procured by the claimant, commanding such board to levy a tax for its payment, is unconstitutional and void.

the room in which he was engaged in operating a machine in the mining of coal, which falling was due to insufficient support, and that, by reason of a custom prevailing at the mine, the work of posting and propping the roof was imposed on an employe called a filler," whose principal business was that of filling coal, and of subordination or subjection existing bewho had no control over the miner, no relation tween them, but both were under the orders of

a

common superior called "a mine boss." Held: (a.) Such a state of facts does not make a case where the appliance or place is furnished by the master for the work in which the employes are to be engaged, but a case where the furnishing and preparation is itself a part of the work which they are 2. In such case, if the board of education employed to perform in order to effect a disputes the facts asserted by the claimant as common object, viz. the digging of coal, the foundation of his claim, the general as- and the relation of the filler to the miner is sembly, while it may make inquiry to ascertain, that of a fellow-servant. (b.) In such case the in the first instance, the truth of the fact so as- liability of the master is governed by the law serted, yet is without authority to conclusively applicable to the relation of fellow-servant. find and recite in the act providing relief, the Hence, in order to attach liability to the comfacts in dispute, so as to estop the board of ed-pany for the negligence of the filler in not propucation from contesting them in a court of erly posting and propping the roof,the plaintiff justice where the act is sought to be enforced. must show that the company had knowledge, Judgment reversed and cause remanded for before the accident, of the incompetency of the further proceedings. filler to perform the duty of posting and propping, or by the exercise of due care, might have known it, and that he was himself ignorant of such incompetency, and could not, by it. (c). And where, by the plaintiff's evidence, it is shown that the deceased knew of the incompetency of his fellow-servant, if it existed, or, being an inexperienced miner, had equal opportunity with the company of knowing, and could, have known by the use of ordinary care, and was aware also of the danger of working in a room insufficiently propped, and continued his work without complaint, such a case of contributory negligence is shown as will prevent a recovery.

WILLIAMS, J., not sitting.

Error to the Cir

3799. The Consolidated Coal & Mining Co. the exercise of ordinary diligence, have learned v. Adm'r of George D. Clay. cuit Court of Hocking County. SPEAR, J.

1. Where, in the course of a jury trial, objection is made to the giving of one of a series of seven special charges by the court to the jury, a special exception should be made to the giving of the objectionable proposition. An exception to the giving of the entire series is too general to bring the objection before a reviewing court.

2. Section 6871, of the Revised Statutes, which provides that "any miner or other person, employed in any mine governed by the statute, who intentionally and wilfully neglects or refuses to securely prop the roof of any working place under his control," etc., shall be guilty of an offense, is intended, in connection with the other provisions of the act regulating coal mines and the working thereof, to protect, the lives and limbs of those engaged in a perilous business. It imposes an obligation to perform a duty to others, and anything which tends to operate in opposition to that obligation violates the policy of the statute. Hence a custom which imposes upon another employe the work of posting and propping the roof of a room in which coal is to be mined, cannot have the effect to exonerate the miner from the duty enjoined by the statute, nor to shift the risk undertaken by himself over upon the company.

3. In an action against a coal mining company to recover for death caused by the negligence of one of its employes, the result of his incompetency, it appeared by evidence of the plaintiff, that the deceased was killed by the falling upon him of a portion of the roof of

Judgment reversed.

4194. State ex rel. Fay v. Robert M. Archibald, sheriff of Hamilton county. Mandamus. BURKETT, J.

1. There is nothing in either the seventh or eighth section of the fourth article of the constitution of this state, to prevent the establishment of a court of insolvency under the act of May 21, 1894, entitled "An act to establish a court of insolvency in counties containing a city of the first grade of the first class, and for the relief of the probate court in such counties." 91 Ohio Laws, 844.

2. It does not appear on the face of said act, nor when read in connection with other acts in pari materia, that the date therein fixed for the election of the judge of the court of insolvency, is an error or mistake; neither does it appear that it was the intention of the legislature that such judge should be elected on the day of the general election in November, 1894.

3. The force and legal effect of a statute can not be altered or changed by averment in a pleading.

Demurrer sustained and petition dismissed.

idated Coal & Mining Co. v John M. Floyd,

adm'r.

3894. The City of Kenton, Ohio, et al. v. The State of Ohio, ex rel. C. D. Kelly, etc. Error to the Circuit Court of Hardin County. Judgment affirmed. Per curiam report.

3934. The Lake Shore & Michigan Southern Ry. Co. v. Kate L Fol, adm'x. Error to the Circuit Court of Cuyahoga County. Judgment affirmed. BURKET and SPEAR, JJ., dissent.

111

The recent decision of Judge Acheson against one of the numerous claims of Mr. Edison to be the only original inventor of everything, embodies a definition of public. policy in the encouragement and protection of invention that is not new, but is so often obscured that its reassertion is important. This policy is well explained in some observations of the Supreme Court quoted by Judge Acheson. The process of development manufactures creates a constant demand for new appliances which the skill of ordinary workmen and engineers is generally adequate to devise and which indeed are the natural and proper outgrowth of such deve.opment. Each step forward prepares the way for the next, and each is usually taken by spontaneous 2236. C. E. Beilhartz, adm'r v. The C., S. & trials and attempts in a hundred different H. Ry. Co. Motion by defendant to require places. "To grant a single party a monopoly plaintiff to elect between error of law and error of every slight advantage made, where the of fact in cause No. 4174, on the General Docket. exercise of invention somewhat above ordinary Oral argument requested by defendant. Mo-mechanical or engineering skill is distinctly tion overruled. Request for oral argument by shown, is unjust in principle and injurious in defendant noted. its consequences."

4222. The State of Ohio ex rel. A. C. Robeson v. Henry C. Jacobi, Sheriff of Darke County. Mandamus. Demurrer to answer sustained. Peremptory writ allowed. To be reported.

. Motion Docket.

2256. The State of Ohio ex rel. Att'y-Gen'l v. The P., C., C. & St. L. Ry. Co. Motion of the I. & E. Greenwald Co. and twenty-seven others to be made parties defendant in cause No. 3852, on the General Docket. Motion overruled.

2257. The Cleveland, Lorain & Wheeling R. R. Co. v. Carl Nehl. Motion by defendant to advance cause No. 4187, on the General Docket. Motion allowed.

It is not possible to define exactly by a general statute, "the creative work of that inventive faculty which it was the purpose of the Constitution and patent laws to encourage and reward." Even the officials of the Patent Office can not always discriminate between what is merely a step in general development and what is an absolute exercise of an invention. If an improvement such as can be exactly described and it is found on examination that it is not covered by a previous patent, pro

2258. Wm. McFarlin et al. ex'rs, etc., v. The Painesville National Bank et al. Motion by plaintiff to dispense with printing part of rec-tection is granted to it as a matter of form, ord in cause No. 4214, on the General Docket.

Motion allowed.

2259. The Sharon Boiler Works (Limited) v. Eugene McCarthy. Motion by defendant to advance cause No. 4162, on the General Docket. Motion allowed.

2260. David Henderson v. Charles C. James, Warden of the Ohio penitentiary. Motion by plaintiff to advance cause No. 4224, on the General Docket. Motion allowed.

2261. Samuel A. Hunter, Treas., v. Florence Newman. Motion by plaintiff to advance and hear with cause No. 3468, cause No. 3467, on the General Docket. Oral argument requested by defendant. Motion allowed. Request for oral argument by the defendant noted. Defendant to have three months from October 11, 1894, to file printed brief.

2262. Samuel A. Hunter, Treas., v. Nancy M. Emerson. Motion by plaintiff to advance and hear with cause No. 3467, cause No. 3468, on the General Docket. Oral argument requested by defendant. Motion allowed. Defendant's request for oral argument noted. Defendant to to have three months from October 11, 1894, to file printed brief.

2263. Isaac H. Jones v. James Tague. Motion by defendant to advance cause No. 4090, on the General Docket. Oral argument requested by plaintiff. Motion allowed. Request by plaintiff for oral argument noted.

2264. C. A. Beilhartz, adm'r, v. The C. S. & H. Ry. Co. Motion by plaintiff to dispense with printing record in cause No. 4174, on the General Docket. Motion allowed.

leaving to the patentee the task of defending or enforcing his right. Thus the actual interpretation of the patent laws, or rather the actual determination whether an invention is or is not such as the patent laws are intended to protect, necessarily falls upon the courts, and while the personal discretion of individual judges may lead to occasional contradictions, the general policy of the United States Courts is by this time fairly settled and complete.

A practical invention, an exercise of the creative faculty of actual service to mankind, the Courts will always protect, but they are less and less disposed to sanction the claims of professional inventors to common improvements and thus to grant to individuals a monopoly of that which belongs to the public.

Invention has become of late so much a matter of business that the patent laws, which were designed for the protection of the individual inventor, have been in countless cases distorted to the mere protection of corporate monopolies. Companies with large capital, controlling a great number of patents, are thus enabled not only to tax the public unreasonably, but actually to discourage and repress the exercise of the inventive faculty in those who are not subservient to them. This is a misuse of statutory protection for which the Courts are not entirely without responsibility, and it is, therefore, the more significant that they have lately shown a disposition to correct this evil' and to place the law of patents upon a more equitable basis of public policy.-Philadelphia Times.