DECISIONS OF COURTS AFFECTING LABOR.

[This subject, begun in Bulletin No. 2, has been continued in successive issues. All material parts of the decisions are reproduced in the words of the courts, indicated when short by quotation marks, and when long by being printed solid. In order to save space, matter needed simply by way of explanation is given in the words of the editorial reviser.]

DECISIONS UNDER STATUTORY LAW.

CIVIL SERVICE REMOVAL OF HONORABLY DISCHARGED SoldierCONSTITUTIONALITY OF STATUTE-Stutzbach v. Coler, Court of Ap peals of New York, 61 Northeastern Reporter, page 697.-In this case it appeared that the relator, Stutzbach, was an employee in the department of finance of New York City, and that, on a reduction of the appropriation for that department, Coler, city comptroller, was compelled to dismiss a number of employees. Fourteen men were selected for dismissal, among whom was' Stutzbach, who was a veteran of the civil war, of which latter fact the comptroller was ignorant. Chapter 370, sec. 21, acts of 1899, provides that "no person holding a position [in the civil service] by appointment or employment who is an honorably discharged soldier shall be removed from such position or employment, except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right to such employee or appointee to a review by a writ of certiorari."

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Under this law Stutzbach applied for a peremptory writ commanding his reinstatement. This was denied in special term, and the question was taken to the appellate division, which reversed the court below, giving Stutzbach his position. Defendant Coler then brought the case to the court of appeals of New York. Further facts appear in the remarks of Chief Justice Parker, who delivered the opinion of the court, from which the following is quoted:

Lack of information justified the act of the comptroller in attempting to discharge him [Stutzbach]; but, if his removal was illegal because he was a veteran, it became the duty of the comptroller, when the fact came to his knowledge, to reinstate the relator.

The purpose of this proceeding is to compel reinstatement, which we think the relator is entitled to, provided his removal was not in compliance with the law. Stated charges were not made against this relator for incompetency or misconduct, and a hearing

given to him thereon upon due notice; and hence his removal was, according to the letter of the statute, illegal. The comptroller's return to the writ indicates that he was selected for discharge because he was the least competent man in his bureau, but it is not a sufficient compliance with the statute to discharge a man for incompetency. Before the dismissal takes place, the charge of incompetency must be made, notice given, and the hearing had.

It is now urged that, in so far as the statute extends preference of veterans beyond that accorded to them by the constitution, it is void. The constitution only provides for a preference of veterans in appointments and promotions in the civil service within the State, and does not, in terms or otherwise, provide that they shall be continued in the public service in preference to other appointees; and the contention is that the legislature can not go further and give a preference beyond that declared in the constitution. * * * Now while the legislature

can not enact laws repugnant to this provision of the constitution, it may legislate further in that direction from time to time, if in its judgment it shall seem wise to do so. And so it was within its power to place a limit upon the removal of persons employed in the public service, as it has done by section 21.

Reinstatement should be affirmed with costs.

RAILROAD COMPANIES-PAYMENT OF WAGES TO DISCHARGED EMPLOYEES PENALTY FOR NONPAYMENT WHEN DUE-Fordyce et al. v. Gorey, Supreme Court of Arkansas, 65 Southwestern Reporter, page 429.-Gorey brought suit in the circuit court of Polk County to recover wages due him by Fordyce & Withers, receivers of the Kansas City, Pittsburg and Gulf Railway Company, and to assess the penalty accruing under the statute. Section 6243, Sand. & H. Dig. (1894), provides that wages of discharged employees of railroad companies shall be due and payable on the day of their discharge, and if not then paid, as a penalty for nonpayment, the wages of such employees shall continue at the same rate until paid. Gorey was the conductor of a train in charge of the receivers, and as such had collected certain sums of money which should be paid over to the said receivers, but the amount of money so due was in dispute. Instruction No. 2 for the plaintiff was as follows: "If the jury find from the evidence that the plaintiff is entitled to a penalty in this case, then in that event he will be entitled to said penalty from the date of his discharge up to the date of the filing of the defendants' answer in this case." The jury awarded the penalty from date of discharge, and on exception to the above instruction the case came to the supreme court, which reversed the judgment and directed a new trial.

Judge Hughes, in delivering the opinion of the court, said:

We think there is reversible error in the second instruction set out herein, because there had been no ascertainment of the plaintiff's shortage, and consequently the amount which the railroad company owed him had not been, and could not have been, ascertained at the time of his

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discharge by the receivers; and this seems to have been his fault. The receivers, therefore, were not liable to a penalty for failure to pay his wages until they knew what was due him, or could by the exercise of reasonable diligence have ascertained the same, for failure to pay his wages after which time only the penalty would attach, and not from the time of his discharge. This is a penal act, and should be strictly construed.

STRIKES INJUNCTION-ENTICING APPRENTICES-CONSTRUCTION OF STATUTE-Southern Railway Company v. Machinists' Local Union No. 14 et al., United States Circuit Court for the Western District of Tennessee, 111 Federal Reporter, page 49.-In this case the abovenamed labor union went on strike in obedience to orders from a central organization. The union established and maintained pickets around the shops of the railway company, and its members climbed telephone poles and fences to watch such shops; gathered in numbers at the entrances, and sent abusive and threatening messages to workmen inside. They thrust themselves upon unwilling workmen to argue and persuade, and in some instances personal assaults were made upon such workmen by strikers or their friends.

A statute of Tennessee (Acts 1875, chap. 93) provides "that hereafter it shall not be lawful for any person in this State knowingly to hire, contract with, decoy, or entice away, directly or indirectly, anyone, male or female, who is at the time under contract or employ of another." Counsel for the labor union maintained that this statute applied to farm laborers only, and that it did not apply to the act of the union's committee appointed for the purpose of persuading the railroad company's apprentices to break their contracts and leave its service.

The company petitioned for an injunction against the continuance of the acts above named. In granting the injunction, Judge Hammond used in part the following language:

If the picketing, the climbing of the adjacent telephone poles, the climbing upon the fences, the watching of the shops, the assemblies in the streets and at the entrances and the constant and unceasing surveil lance had been confined to obtaining information and to unobjectionable social intercourse, for the purpose of begging and entreating not to work, there could be no injunction. But the thrusting themselves upon unwilling "scabs" to "argue;"" persuading," picketing, climbing poles and fences, as an exhibition of force and threats, accompanied by such assaults as have been mentioned; violent, abusive, and threatening messages sent to "scabs" inside, and the like, as shown in this proof, come clearly within the decisions against such conduct.

The strikers can not have, under the law of equal rights, a liberty of contracting as they please, working when they please, and quitting when they please, which does not belong alike to the "scabs" and their employers. And it is this right the courts of equity enforce by injunetion. The Supreme Court of the United States has established that as the law of this case.

Referring to the defendant's contention that the statute cited above applies only to enticing farm laborers, the court said:

This nowhere appears on the face of the statute, or otherwise in any other way than as an inference to be drawn from what counsel and the court know of the political and industrial conditions of this section of the country. If a legislature intends to limit its enactment, they must do so by the terms of the act itself, and no other limitation is authoritative where the language is unambiguous and construes itself.

DECISIONS UNDER COMMON LAW.

CARRIERS-INJURY TO EMPLOYEE ON SLEEPING CAR-CONTRACT LIMITING LIABILITY-Russell v. Pittsburg, Cincinnati, Chicago and St. Louis Railway Co., Supreme Court of Indiana, 61 Northeastern Reporter, page 678.-In this case the plaintiff, Russell, was a porter on a Pullman sleeping car. A door or other object projecting from a train on a side track struck and injured the plaintiff while the train on which he was riding was moving rapidly over the main track.

The road and both trains were under the control of the above-named railroad company, the Pullman car on which Russell was employed being carried under special contract. In the superior court of Marion County suit was brought against the company to recover damages for the injury so inflicted, and judgment was rendered in its favor, whereupon the plaintiff appealed.

The answer of the railroad company alleged, in its second paragraph, that the Pullman Palace Car Company, among other agreements made in its contract, had promised to indemnify the railroad company for any liability arising against it for any personal injury, death, or otherwise of any employee of the Pullman Company, such employees to be carried by the road free of charge.

The answer further alleged that at the time of the accident the appellant, Russell, was being hauled in the car of which he had charge as porter in compliance with the terms of the contract above referred to; and that prior to receiving the injury he had himself agreed in writing with the Pullman Company, for himself, his heirs, and legal representatives, to assume all risks of accident or casualties, by railroad travel or otherwise, incident to such employment and service, and to release the Pullman Company from all claims for liability of any nature or character whatsoever on account of any personal injury or death in such employment and service.

A clause of like tenor released from liability all transportation companies over whose lines the cars of the Pullman Company might operate.

The third paragraph of the answer repeated much the same facts, introducing no new matter.

Both these paragraphs were demurred to, and the demurrers overruled The appellant assigns for error the overruling of these

demurrers, which, as involving the same questions, were considered together.

In giving the opinion of the court, Judge Dowling said:

The principal question here presented is whether a contract between a palace car company and a porter having charge of one of its sleeping cars is invalid in so far as it attempts to exempt transportation companies over whose lines the coaches of the palace car company are being run from all liability arising from their negligence and the negligence of their servants, and whether such contract may be pleaded in bar of an action by such porter against a transportation company for an injury caused wholly by the latter's negligence.

The court here stated the rule of law that a common carrier of goods and passengers can not by contract secure release from liability for injuries resulting from its own negligence, and continued:

The appellant did not occupy the position of an ordinary passenger upon appellee's train. He was not being carried upon any journey from one point to another, nor was his presence incidental to the shipment of goods which the carrier was bound to accept. He occupied the sleeping car as a part of his employment with the Pullman Company. In no sense was the appellee bound to accept the appellant upon its trains solely because he accompanied a palace car tendered by the Pullman Company, for the obvious reason that the carrier was under no legal obligation to accept and haul the sleeping car itself.

The court concluded that "the appellee could under these circumstances contract specially for a release from all liability for negligence toward appellant."

As to Russell's claim that inasmuch as the railroad company was not a party to the contract entered into between himself and the Pullman Company, it could receive no benefit from it, it was said:

The contract referred generally to transportation companies over whose lines the Pullman Company should run its cars. This comprehended the appellee, and, as the contract was prima facie for the benefit of the appellee, it will be presumed to have accepted its provisions, and it may now claim its advantages, as one in whose interest the agreement was executed.

The judgment is affirmed.

CONSPIRACY-BLACKLISTING-Trimble v. Prudential Life Insurance Co. of America, Court of Appeals of Kentucky, 64 Southwestern Reporter, page 915.-This was an action by D. L. Trimble against the above-entitled company to recover damages for a conspiracy to prevent plaintiff, Trimble, from receiving employment. In the circuit court of Fayette County, Ky., where the case was heard, a judgment was rendered for the defendant insurance company, and the plaintiff appealed the case to the court of appeals of the State, which rendered its decision October 29, 1901, and affirmed the action of the lower

court.