action for damages therefor. It is not a mere passive, let-alone policy, a withdrawal of all business relations, intercourse, and fellowship, that creates the liability, but the threats and intimidation shown in the com. plaint.

CONSTITUTIONAL LAW-EXECUTIVE POWERS -MANDAMUS TO GOVERNOR.-Const. Mo. art. 3, divides the power of government into three departments, legislative, executive, and judicial, and declares that no persons in charge of one department shall exercise any powers properly belonging to either of the others, except where permitted by the constitution. Article 5, §§ 1, 4, 5, vest the supreme executive power in the governor, require him to see that the laws are faithfully executed, and to perform such duties as are prescribed by law. Article 14, § 6, provides that he shall take an oath to demean himself faithfully in office. It was held by the Supreme Court of Missouri in State v. Stone, 25 S. W. Rep. 276, that mandamus will not lie to compel him to perform any duty pertaining to his office, ministerial or political, and whether commanded by the constitution or by some law passed on the subject. Sherwood, J.,

says:

Under these plain and comprehensive provisions, it must be apparent that any duty "prescribed by law" for the governor to perform is as much part and parcel of his executive duties as though made so by the most solemn language of the constitution itself. Conceding the validity of any given law, the fact that the duties which it prescribes are merely ministerial cannot take them out of the domain of executive duties, nor make them any the less those which "properly belong" to the executive department of the government. And should we, by our process, be able to compel the performance by the governor of such duties, we would, in effect, and to all intents and purposes, be performing those duties ourselves; for there can be no substantial distinction drawn between our assumption of duties pertaining to another department of the gov ernment, and our intervention resulting in the compulsory performance of such duties. "Qui facit per alium," etc. Nor does the fact that any duty which the law prescribes for the governor to perform might have been assigned to some other officer, who would have been amenable to the process of this court, alter the conclusion to be reached, or vary the result; for the fact would still remain that the act required to be done was nevertheless an official one, assigned by the legislative department of the government to be performed by the executive department, eo nomine,-by the governor, and by him alone,-and therefore, if he is not bound to obey the law in question as governor, he is not bound to act at all, since he only assumed to obey the laws in his gubernatorial capacity, and not otherwise or elsewhere. See Rice v. Austin, 19 Minn. 103 (Gil. 74). So that we should manifestly be trenching on the exclusive powers of two separate magistracies of the government, should we assume to exercise jurisdiction in this ease.

Abundant authority establishes the position here taken that mandamus will not issue to the governor to compel the performance of any duty pertaining to his office, whether political or merely ministerial; whether commanded by the constitution or by some law passed on the subject. People v. Governor, 29 Mich. 320; Hawkins v. Governor, 1 Ark. 570; State v. Warmoth, 22 La. Ann. 1, 24 La. Ann. 351; State v. Board of Liquidation, 42 La. Ann. 647, 7 South. Rep. 706, 8 South. Rep. 577; Mauran v. Smith, 8 R. I. 192; Rice v. Austin, 19 Minn. 103 (Gil. 74); Dennett, Petitioner, 32 Me. 508; Vicksburg & M. R. Co. v. Lowry, 61 Miss. 102; State v. Governor, 25 N. J. Law, 331; State v. Drew, 17 Fla. 67; Hovey v. State, 127 Ind. 588, 27 N. E. Rep. 175, which distinguishes or virtually overrules Gray v. State, 72 Ind. 567; People v. Bissell, 19 Ill. 229; People v. Yates, 40 Ill. 126; People v. Cullom, 100 Ill. 472; Turnpike Co. v. Brown, 8 Baxt. 490; Bates v. Taylor, 87 Tenn. 319, 11 S. W. Rep. 266; Towns v. State, 8 Ga. 360; Railway Co. v. Randolph, 24 Tex. 317; Appeal of Hartranft, 85 Pa. St. 433; Mississippi v. Johnson, 4 Wall. 475.

The same views are enunciated by several text writers. Thus High says: "While, as to purely executive or political functions devolving upon the chief executive officer of a State, and as to duties necessarily involving the exercise of official judgment and discretion, the doctrine may be regarded as uncontroverted that mandamus will not lie, yet as to duties of a ministerial nature, and involving no element of discretion, which have been imposed by law upon the governor of a State, the authorities are exceedingly conflicting, and, indeed, utterly irreconcilable. Upon the one hand, it is contended, and with much show of reason, that as to duties of this character the general principle allowing relief by mandamus against ministerial officers should apply, and the mere fact of ministerial duties having been required of an executive officer should not deter the courts from the exercise of their jurisdiction. Upon the other hand, it is held that under our structure of government, with its three distinct departments, executive, legislative, and judicial, each department being wholly independent of the other, neither branch can properly interfere with the duties of the others, and that as to the nature of the duties required of the executive department by law, and as to its obligation to perform those duties, it is entirely independent of any control by the judiciary. While the former theory has the support of many respectable authorities, and is certainly in harmony with the general principles underlying the jurisdiction, as applied to purely ministerial officers, the latter has the clear weight of authority in its favor, and may be regarded as the established doctrine upon this subject." High, Extr. Rem. (2d Ed.) § 118. Touching this subject, Wood says: "The attempt on the part of some of the courts to interfere with the discharge of executive duties is not only in opposition to our theory of government, and in excess of their power, but also attended with great danger. If the courts may interfere with the discharge of any ministerial duties of the executive department of the gov ernment, they may with all; and we should have the singular spectacle of a government run by the courts, instead of the officers provided by the constitution. Each department of the government is essentially and necessarily distinct from the others, and neither can lawfully trench upon or interfere with the powers of the others; and our safety, both as to national and State governments, is largely dependent upon the preservation of the distribution of power and authority made by the constitution, and the laws made in

pursuance thereof. If the governor refuses or neg lects to discharge his duties, or exceeds his powers in flagrant cases, there is ample remedy by impeachment and removal from office. It is not believed that the courts have the power to discharge his duties for him or to say what he shall or what he shall not do." Wood, Mand. pp. 123, 124. See, also, Merrill, Mand. § 97.

Although the precise point now presented has never been decided in this State, yet in State v. Fletcher, 39 Mo. loc. cit. 388, the clear intimation is made by this court, speaking through Wagner, J., that there was really no valid distinction between a political and a ministerial act of the governor, when considered with reference to the issuance of a mandamus against him. There are many respectable authorities, however, which maintain views diametrically opposed to those here advanced. Most of them will be found collated in the brief filed for relator. Railroad Co. v. Moore, 36 Ala. 371; Middleton v. Low, 30 Cal. 596; Land Co. v. Routt, 17 Colo. 156, 28 Pac. Rep. 1125; Gray v. State, 72 Ind. 567; Magruder v. Swann, 25 Md. 173; Groome v. Gwian, 43 Md. 572; Chumasero v. Potts, 2 Mont. 242; State v. Blasdel, 4 Nev. 241; State v. Chase, 5 Ohio St. 528; State v. Nicholls (La.), 7 South. Rep. 738. In addition to those cited, see Martin v. Ingham, 38 Kan. 641, 17 Pac. Rep. 162; State v. Thayer (Neb.), 47 N. W. Rep. 704.

The fact that the governor has voluntarily submitted himself to the jurisdiction of this court has been pressed upon our attention as a reason why we should pass on or adjudicate the question submitted; and cases have been cited-among them, Pacific Railroad v. Governor, 23 Mo. 360-as showing that, where the governor does not claim his exemption, then this court may adjudicate the matters at issue, and leave the governor to claim his exemption afterwards. But we regard such cases as wrong in theory, and unsafe and unsound in practice. If we have authority to render a judgment, then we have jurisdiction to enforce that judgment by all appropriate process, and need not inquire whether any exemption from that process will be pleaded. If, however, we have no jurisdiction over the chief magistrate, his consent will not confer it on us. We will not "assume a jurisdiction if we have it not."

CRIMINAL LAW-HOMICIDE-RESISTING ARREST JUSTIFICATION.-Upon the subject of justification for homicide committed in making arrest, the Supreme Court of Georgia in Robinson v. State, 18 S. E. Rep. 1018, decide the following points:

1. Persons orally "deputized" by the sheriff to assist him in making an arrest for felony are neither officers nor mere private persons while co-operating with the sheriff and acting under his orders, but their legal position is that of a posse comitatus.

2. A person summoned by the sheriff to act as one of a posse to aid in the execution of a warrant for felony in the sheriff's hands is protected, in any lawful act done by him to promote or accomplish the arrest of the accused person, to the same extent as he would be were he himself an officer having personal custody of the warrant, and charged with its execution; and, in order for him to have this protection, it is not necessary that he should be and remain in the actual presence of the sheriff, but if the two are in the same neighborhood, and acting in concert, the sheriff giving

orders, and the other obeying them, either literally or according to their general spirit and purpose, with a view to effect the arrest in pursuance of the common design, it is sufficient.

3. One other than a known officer, who makes an arrest for felony without having the warrant in his own possession, ought to make it known, on demand, that the warrant exists, where it is, and that he claims to be acting under its authority or by command of the officer who has it in possession; but the omission to do so will not justify the party arrested, or sought to be arrested, in resisting the arrest, if he in fact already knows, or on reasonable and probable grounds believes, that he is under a charge of felony, that a warrant is out for his arrest, and that the arrest attempted is really in consequence of the warrant, and in execution of the same. If, however, the demand for authority be made under real ignorance of these. things, and in good faith for the purpose of eliciting information actually wanted and needed, failure to comply with the demand would justify resistance to any reasonable and proper extent; and, even if carried so far as the slaying of the person endeavoring to make the arrest, the homicide might amount to manslaughter only, or, if such person made the first demonstra. tion with a deadly weapon, the killing might be justifiable homicide.

4. The court, in its charge, having made the case turn chiefly on the right and power of the deceased to make the arrest, irrespective of the manner in which the power was executed and of the failure of the deceased to respond fully to the demand made upon him for his authority, and without reference to the good or bad faith with which that demand was made, the charge was erroneous, and the accused is entitled to a new trial.

WILL-SELECTION OF ATTORNEY.-The Supreme Court of California, hold in Re Ogiers' Estate, 36 Pac. Rep. 900, that a provision in a will, whereby testator selects a certain person as the attorney of his estate, and directs that his executrix consult and employ him in all matters pertaining, does not constitute a selection binding on his executrix, but is merely advisory. Belcher, C. J., says:

The first question presented is, Was appellant entitled to be entered and recognized as the attorney of record for said estate, in the place of the attorneys employed by Mrs. Shorb? No cases are cited in support of appellant's contention in this regard, and it is admitted that none can be found; but it is said that, "since it was the declared will of the testatrix that appellant should act as the attorney of her estate, it is both reasonable and just that the will should be observed in this as well as in other respects." There is no such office or position known to the law as "attorney of an estate." When an attorney is employed to render services in procuring the admission of a will to probate, or in settling the estate, he acts as the attorney of the executor, and not of the estate, and for his services the executor is personally responsible. Bvery executor and administrator is chargeable in his account with the whole of the estate of the decedent which may come into possession (section 1613, Code Civ. Proc.); and while, in the settlement of his account, he will be allowed all necessary expenses in the care, management, and settlement of the estate, including reasonable fees paid to attorneys for conduct

ing the necessary proceedings or suits in courts (section 1616, Id.), still, such allowance can be made only to him, and not to the attorney (Henry v. Superior Court, 93 Cal. 569, 29 Pac. Rep. 230). And if the attorney employed should be derelict in his duty, and should receive and misappropriate funds of the esstate, the executor would be liable therefor to the legatees under the will. This being so, it would seem to be neither reasonable nor right to hold that the executor of a will must necessarily accept the services of an attorney selected by the testator. Our conclusion, therefore, is that the language employed by Mrs. Ogier, "I hereby select, as the attorney of my estate, John W. Mitchell, and direct my executrix to consult and employ him in all matters pertaining to the distribution of my estate, and the requirements of this, my last will," did not constitute a selection which was binding on the executrix, but was simply an advisory provision, which she could disregard, if she chose to do so. In Young v. Alexander, 16 Lea, 108, the will under review contained the following clause: "I here. by nominate and appoint my nephew, M. B. Young, of Jackson county, Tennessee, as advisory and counsel of my said executors, who will assist them in winding up my unfinished and unsettled business." The executor refused to recognize or employ Young as counsel in the administration of the estate, whereupon he instituted the suit to compel such recognition and employment. The Supreme Court said that, "however persuasive such a provision may or might be, it can only be effective as an advisory provision;" and it was held that the provision was not binding upon the executor, and that he might ignore it, and appoint other counsel, at his discretion. In Foster v. Elsley, 19 Ch. Div. 518, the will under review contained the following clause: "And I declare that my solicitor, William Edward Foster, shall be the solicitor to my estate, and to my said trustees in the management and carrying out the provisions of this my will." It was claimed that this clause imposed on the trustees the duty of employing Foster as their solicitor, but it was held that it imposed no such trust or duty.

CHARITABLE CORPORATION-LIABILITY FOR ACTS OF SERVANTS.-It was held by the Court of Appeals of Kentucky in Williams v. Louisville Industrial School of Reform, that a purely charitable corporation, establised by the State, is not liable for the negligent or malicious acts of its servants. Hazelrigg, J.,

says:

The appellee, the Louisville Industrial School of Reform, was created a body corporate by an act of the General Assembly in 1854, under the name of the Louisville House of Refuge. Its object and business was to take charge of such youths as might be committed to it, and care for their moral and physical training and education. It was a charity, and its purpose was reformation by training its inmates to habits of industry, and by instilling into their minds the principles of right living, to the end that they might become useful citizens of the State, rather than fill its prisons and poor houses. The incorporators and their successors are under the control and oversight of the legislature, and are mere instrumentalities of the commonwealth. The State interposed in behalf of neglected and abandoned children within its confines in its capacity of parens patria and assumed the guardianship of such children as were committed to the institution. It was an agency of the State, and

maintained by taxation and State aid. The appellant a boy of 10 years of age, was committed to the care, control, and restraint of the institution, and his petition, brought by his next friend, Thomas, alleges that without fault on his part one of the servants and employees of the appellee, and known by it to be incompetent and unfit for such service, struck and beat the appellant in such cruel and inhuman manner that he was caused great suffering in mind and body, and was permanently injured and damaged, etc. To this petition a general demurrer was sustained, and the petition dismissed. The correctness of this judgment is the question on this appeal, and, while it has not been determined, directly, the general principles are well established. The functions of the institution are governmental. As said in Farnham v. Pierce, 141 Mass. 203, 6 N. E. Rep. 830: "It is a provision by the commonwealth, as parens patriæ, for the custody and care of neglected children, and is intended only to supply to them the parental custody which they have lost." In Perry v. House of Refuge, 63 Md. 20, it was held that an action does not lie against a State house of refuge for an assault on an inmate by an officer thereof. It is there said: "Youths, in whom the seeds of vice have already germinated, are placed there under proper restraint, so that the growth of crime may be arrested or eradicated in its incipiency. Funds are contributed by individuals impelled by philanthropic motives, and donations are obtained from municipal and State treasuries. These are the funds of the institution, contributed by the managers, not for their own profit or benefit, but solely for the charitable purposes designated by its organic law. . . . Several of the most eminent judges in England expressed themselves with much emphasis in opposition to an allowance of damages out of a fund so held by fiduciary agents;" and the principle determined in a number of English cases, that "damages are to be paid out of the pocket of the wrongdoer, and not from the trust fund," was approved. It is contended that these cases followed the older decisions in England, and that the latter have been since overruled. Be this as it may, the principle announced seems entirely just and reasonable. If the funds of these institutions are to be diverted from their intended beneficent purposes by lawsuits and judgments for damages for negligent or malicious servants, their usefulness-indeed, their existencewill soon be a thing of the past. The judgment dismissing the petition is affirmed.

CONTRIBUTORY NEGLIGENCE ELECTRIC WIRE.-In Haynes v. Raleigh Gas Co., 19 S. E. Rep. 344, decided by the Supreme Court of North Carolina, it was held that it was not contributory negligence for an intelligent boy, ten years old, when walking along the sidewalk, to grasp a guy wire hanging from an electric light pole to the ground, there being nothing to indicate that it was charged with electricity. The court said:

After a careful examination of all the evidence adduced on the trial, and after a full consideration of the argument of the able counsel for the defendant, we are clearly of the opinion that there was no evidence of contributory negligence, and his Honor should so have told the jury. A child is held to such care and prudence as is usual among children of his age and capacity. Murray v. Railroad, 93 N. C.

92. The defendant contends that the deceased was ten years of age, "a very healthy, intelligent, moral and industrious boy." Let us assume this to be true. As he returned to his home the morning of his death, passing along the streets of the city, he was trespassing on no one's property. He was walking where he had a right to walk, not by mere permission or invitation, but because he, as one of the public, had an absolute right so to do. The wire was on the sidewalk. Only one witness saw him when "he took hold of the wire, and the wire threw him in the ditch." That witness testified that "he did not have to reach for it. He just reached out his hand and took it. He did not have to stoop." No witness testified that there was anything from which even an adult could have inferred that this wire was carrying a deadly current of electricity, or, indeed, any current at all. True, the witness who saw him grasp the wire, when he came to his rescue, saw the fiery indications of the passing of the current from the wire to his hand, and several witnesses deposed that, after the accident and the throwing of the wire into a yard where there was wet grass, they noted that the wire was "steaming" at the point where one of its coils touched the sidewalk, and also at its extremity in the yard. Grant this to be true, and yet there is not, as it seems to us, any evidence that it was steaming when the deceased caught the wire, or, if it was, that its steaming was such as to carry, to a boy passing along, a warning that he must not touch it. We should be very loth to declare an adult guilty of negligence for grasping a wire such as this one under circumstances such as the defendant contends surrounded the deceased. We certainly cannot declare that this boy, whose conduct must be judged with due regard for his boyish nature and habits, negligently caused his own death. The instruction that "upon the evidence the plaintiff's intestate was not guilty of contributory negligence" should have been given.

BOYCOTTING, ITS LEGAL PHASE.

1. Definition.

2. Lawful Combinations.

3. Unlawful Combinations. 4. Civil Liability.

5. The Right to an Injunction.

1. Definition.—The word "boycott" as a common noun is of recent origin. Its origin is this: Captain Boycott was an Englishman, an agent of Lord Earne, and a farmer of Lough Mark, in the District of Connemara. In his capacity as agent of Lord Earne, he served notice on the Lord's tenants imposing

a certain condition. The tenants refused to comply with the notice and retaliated, and the captain's life appeared to be in danger; he claimed police protection, and to prevent

civil war, the authorities had to send a force of soldiers and police to Lough Mark, and the harvest was gathered by armed Ulster laborers guarded by the soldiers. The tenants would not accept the condition nor allow others to take their places. So the word "boycott" originally meant violence if not

murder by tenants. In America it means absolute ruin to the business of the person boycotted, unless he yields. The essential idea of boycotting is a confederation, generally secret, of many persons, whose intent is to injure another, by preventing any and all persons from doing business with him, through fear of incurring the displeasure, persecution and vengeance of the conspirators.1

2. Lawful Combinations.-Combinations have existed in the United States similar to the boycott and antedate it many years. But the mere uniting of a number of men for mutual protection under the law is by no means unlawful. And it has been decided time and again that men are free to hire to do work for their fellow-man or corporation and cannot be bound by any regulation that has a tendency to make them lose the right to contract. When the acts of combinations are lawful and compatible with prosperity, peace and civilization they are legal. Freedom, individual and associated, is the palladium of this government, so long as it is regulated by laws; and the maxim, sic utere tuo ut alienum non laedas, so use your own as not to injure another's property, is one of the cardinal tenents of our political and social existence. Every man has a right to work for any one who will hire him and for any price he can obtain or is willing to accept. He may select his companions and refuse to associate with any person; his freedom in this respect is uncontrolled and unchallenged. Men may legally enter into combinations and societies resolving not to work for any party or corporation and so long as they do not interfere with such a party or corporation, nor prevent others from entering the employment of such party or corporation their acts are legal. And if they be working for a person, they may, when there is no conspiracy, leave his service, being responsible only in civil damages for breach of contract, if they quit before the expiration of the term engaged. At common law every person has individually, and the public also have collectively, a right to require that the course of trade shall be kept free from unreasonable obstructions. Every person has a right under the law, as between him and his fellow-men, to full freedom in disposing of his own labor or his own capital according to his own will. Every person

1 State v. Glidden, 55 Conn. 76.

is also subject to the correlative duty arising therefrom, and is protected from any obstruction to the fullest exercise of this right, which can be made compatible with the exercise of similar rights by others. This is liberty regulated by law and is compatible with the peace and prosperity of the country. A restriction of such liberty by unlawful combinations would subvert the government and inaugurate a condition of affairs that would produce confusion. Under the common law as exemplified in the United States the individual is pre-eminent and the State subordinate; under the civil law the State was everything and the individual nothing. The rights vouchsafed by the common law cannot be surrendered without destroying the liberty of the employee and of the employer. Their interest should be mutual and reciprocal.

3. Unlawful Combinations.-In the absence of conspiracy, an employee may quit the service when not in violation of his contract, because he has the inalienable right to bestow his labor where he will, and to withhold his labor as he will. But it must be borne in mind that this inalienable right is accorded him in the absence of conspiracy with others to injure his employer. When the effort of a combination is to dictate to an employer whom he shall discharge or withhold, the dictation is unlawful and an unwarrantable interference with the conduct of his business. If the employer can be compelled in this way to discharge one or more employees, he can be coerced in like manner to retain such workman as the combination may select. Under the same unlawful means his customers may be proscribed and his business in other respects controlled by the interference of this unlawful dictation; a dictation that is subversive of the first principles of our institutions and of the common law. Though there may be no express intimidation, an intention to create alarm in the mind of an employer, and so to force his assent to an alteration in the mode of carrying on his business, is a violation of law. The essential idea of boycotting is a combination or federation, generally secret, of many persons whose in

2 Erle's Trade Unions, p. 6.

3 State v. Donaldson, 32 N. J. L. 151.

4 Commonwealth v. Hunt, 4 Met. (Mass.) 111; Regina v. Rowlands, 5 Cox C. C. 436, 462; Doolittle v. Schanbacher, 20 Cent. L. J. 229; State v. Wilson, 30 Conn. 507; Carew v. Rutherford, 106 Mass. 10, 15.

tent is to injure another, by preventing any and all persons from doing business with him through fear of incurring the displeasure, persecution and vengeance of the conspirators. And every attempt by force, threat or intimidation, to deter or control an employer in the determination of whom he will employ, or what wages he will pay, is an act of wrong and oppression; and any and every combination for such a purpose is an unlawful conspiracy. In law the offense is the combination for the purpose, and no overt act is necessary to constitute it. A boycott is an unlawful combination of many to cause a loss to a person, generally an employer, by coercing others, against their will, to withdraw from him their beneficial business intercourse, through threats that, unless those others do so, the many will cause similar loss to them. Such combinations are unlawful conspiracies, when their acts are done with malice, that is, with the intention to injure another without lawful excuse. It cannot be doubted that whenever persons enter into an unlawful conspiracy, and that agreement is carried into execution by the conspirators by means of an unlawful act or acts which produce private injury to some person that person has a cause of action against the conspirators. And such a conspiracy is a combination of two or more persons by concerted action to accomplish a criminal or unlawful purpose, or some purpose, not in itself criminal or unlawful, by criminal or unlawful means. A man has a right to sell his property when he will, but if he sells it, or refuses to sell it, as a means of inducing or compelling another to commit an unlawful act, his selling or refusal to do so is itself unlawful. The same principle applies

5 Crump v. Commonwealth, 84 Va. 927.

6 Regina v. Duffield, 5 Cox C. C. 432; Parker v. Griswold, 17 Conn. 302; Master Stevedore Asso. v. Walsh, 2 Daly (N. Y.), 12; Springhead Spinning Co. v. Riley, L. R. 6 Eq. Cas. 551; Walker v. Cronin, 107 Mass. 564; State v. Glidden, 55 Conn. 76.

7 Steamship Co. v. McGregor, 23 Q. B. 598, 624.

8 Pettibone v. United States, 148 U. S. 197. See, also, Walker v. Cronin, 107 Mass. 555; Casey v. Typographical Union, 45 Fed. Rep. 135; State v. Stewart, 59 Vt. 273; State v. Glidden, 55 Conn. 76; Steamship Co. v. McKenna, 30 Fed. Rep. 48; Steamship Co. v. McGregor, 23 Q. B. 598; Crump v. Commonwealth, 84 Va. 927; State v. Donaldson, 32 N. J. L. 151; Haskins v. Royster, 70 N. Car. 601; Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. 669; Carew v. Rutherford, 106 Mass. 1; Moores v. Bricklayers' Union, 23 Weekly Law Bul. 48.