"One of the best places for study and amusement," confided a newspaper woman to another over shad roe and cold asparagus the other day, "is the woman's club breakfast, the annual sort, you know, where a lot of women are gathered together who do not meet constantly, and who are therefore ready to tell old stories to fresh listeners. It was a particularly valuable sort of club breakfast, because the company was seated at small round tables and you were brought in touch with five or six chatty women

at once.

"The very first subject that came up was that which seems to appeal with such strength to the average mothergetting children through a railway journey on half fare or no fare. A sweetfaced matron, who, I happened to know, is tremendously interested in the Young Woman's Christian Association, and is, I think, a thoroughly good woman, told, without a blush or tremor, of an extraordinary experience.

"I go up and down from New York to Albany a good deal,' she said, 'and my two children, 12 and 14, are my frequent companions. The doormen at the Grand Central Station are horribly strict, and won't let even a toy terrier through without a ticket; but I thought I knew how to get around this one. I tried it one day last fall, not, however, with signal success. I conceived what I fancied was a very brilliant idea. To get the boy past the Cerberus who guards the gate at Forty-second street I would buy a half-fare ticket to Poughkeepsie, and by the time we had got that far on our journey, I thought, the conductor would have taken up all our tickets, and would never notice how far the half ticket went.

"I carried out this plan and went by the gateman, laughing in my sleeve as to the way I had hoodwinked him. We boarded the train, and presently the conductor came through. He was a pleasant, kindly-faced man, and I foresaw no trouble with him. He took the tickets, glanced at them, and promptly

discovered that one half fare was for Poughkeepsie. He looked questioningly from the child to me, and I felt my face grow red as I saw that some explanation was necessary. Nothing but a downright fib was in order to save the situation. "I'm taking charge of this little boy as far as Poughkeepsie," I said, with a cool air which belied my feelings, for I was very much afraid that my son would promptly disclaim any intention of interrupting his trip at that point.

The conductor accepted it all in honest truth. 'Oh,' he said, 'I see. Well, when we get there, if there is no one to meet him, I'll see that he is put in charge of the man at the station. I know him well, and he'll look after this little chap. I've got a boy myself, and I know that they don't want to be left alone at railroad stations.'

"This was being taken at my word with a vengeance, and if I grew red before I was rainbow-colored now in dismay at the trap into which my subterfuge had led me; but the conductor passed on to finish taking up his tickets. The ride to Poughkeepsie was a nightmare. I began to hate that genialfaced conductor. We were traveling on a rather slow train, and we stopped, it seemed to me, at every curve in the Hudson River. After each station that man would come into the car, and I do not think he passed our seat once without stopping to exchange a word with my boy, or to reassure me as to his intentions at Poughkeepsie. Between my son's wondering understanding of the proceedings and my own lame explanations to him when the conductor would let us alone, my trip that pleasant fall afternoon was not happy.

"At Poughkeepsie that wretched conductor appeared for the fiftieth and last time; 'Now, madam,' he said, as the train slowed up, 'you needn't get off at all. I'll just take the boy and deliver him to his friends.' A mother about to be bereft of her off

spring rises to the occasion. 'Oh,

thank you,' I replied sweetly, and by this time I was so desperate that the untruth came to me glibly, and really did not seem a very bad falsehood. 'If there is no one there to meet him I should not think of leaving him alone. I will simply take him on with me.' But this the conductor was decidedly opposed to. 'You needn't be afraid at all,' he urged, 'I know the man at the station well, and he'll keep him as long as is necessary. Some one will probably come for him very promptly.'

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Considering that neither my son nor myself knew a human being in Poughkeepsie, I was not prepared to take his happy view of the case. How to get rid of this friendly blue-coated ticket taker, though, seemed for the moment a difficult matter. I stood up as tall as I could, though feeling about two inches high, and taking my son by the hand, prepared to enact this maddening farce to the bitter end. Escorted by the conductor, we made our way to the platform, descended from the train, and stood looking up and down the station, as if any moment a welcoming face would appear. I did not know whether to be glad or relieved that my little boy so promptly fell into the desperation of the situation. It was certainly less embarrassing for me at the moment, but the ease with which his morals were stretched was not altogether reassuring to a par

ent.

'The conductor stayed faithfully by me, and after a decent lapse of time I decided that no one would meet my son, and he must go to Albany with me. It was only after repeated assurances that this was the only proceeding I should consent to that the persistent conductor gave up his idea of leaving him with the station man and permitted me to reboard the train with my son. Of course he promptly collected the fare from Poughkeepsie to Albany, and if he had known that, as I counted the money out in his hand, I could willingly have jabbed it in with my hatpin, he would not have been so friendly as he was,

with his irritating 'Well, sonny, it will be all right when you come back.'

"Everybody laughed at that story," continued the newspaper woman, “and you may guess that I quickly reviewed it mentally to get its points, and then another woman spoke up.

"I had better luck,' she said, 'With my attempt the last time I came from the West with my two sons, 15 and 16. Of course they ought to have paid full fare, but that meant a tremendous addition to the expense of our trip, and I simply could not think of doing it. I bought two half-fare tickets, and as we were in the sleeping-car the first night I bundled them to bed early, and the next day had them sit as small as possible and managed, by I scarcely know what means, to slip them along as far as Cleveland. Here a bright, wide-awake conductor came through. As he approached me I felt somehow that I was about to meet my Waterloo, but I boldly held out three tickets. He looked at them, looked at the boys (those wretches seemed to have grown inches while he looked at them) and then at me.

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'These are half-fare tickets,' he said. 'Yes,' I replied, 'Are they for these young men?' he asked, sarcastically. 'They are for those boys,' I replied, defiantly. He looked at the tickets again and at me. 'You came from St. Paul?' 'Yes.' 'Did they come from St. Paul on those tickets?' 'Yes, they did.' 'Well, madam,' he said, with a grim sort of a smile, if you've been clever enough to get these two giants through from St. Paul on half-fare tickets, by George, I'll let you go over my run on them,' and he tore off the coupons that belonged to him and walked on.

“‘But I tell you my hair grew white that trip, and it is a consolation that my boys now have grown big enough for even me to give up trying to put them through for anything less than full fare.'"

The other mothers all agreed that when that elastic time finally did arrive it was a comfort.

A closed shop, for the purposes of this article, may be defined as a "shop" in which none but members of a certain union or unions can secure employment. "Shop" is a general term for any business requiring the employment of labor. A closed shop in itself is a mere condition, and cannot properly be spoken of as lawful or unlawful. The law, however, will look to the active forces by which the condition known as the closed shop is brought about or maintained, and will determine if those forces in their purposes or workings be lawful or unlawful.

A closed shop contract is a contract the immediate purpose of which is to secure or maintain the condition known as a closed shop.

Such contracts are susceptible of division into several classes, according to the parties to them.

(1) Contracts among the several members of a union in which they agree not to work in a shop where non-union men are employed. These contracts are usually in the form of by-laws.

(2) Contracts between a union and an employer by which none but members of the union are to be employed in the employer's shop.

(3) Contracts between a proprietor and a contractor by which the contractor is to employ none but union labor upon work to be done for the proprietor.

Such contracts may also be classified as public and private. A public closed shop contract is one which a public corporation, such as a city, county, or Board of Education is a party. A private contract is one all of the parties to which are private persons or corporations.

The courts have unequivocally condemned public closed shop contracts as unlawful and void upon constitutional and other grounds, and with no diversity of opinion.

The legal history of trades unions, their conduct, incidents and agreements, is in large measure a history of the application to labor combinations of the common law of conspiracy. It seems to have been true under early English common law, that workingmen had no right to combine for any purpose connected with labor conditions and that their mere combination was a criminal conspiracy. The restrictions upon the right of workingmen to act in a combination have been more and more removed, until, at the present time, there is no substantial difference from a legal standpoint between a labor combination and any other combination. The old common-law restrictions upon combinations of workmen in general also applied to combinations of masters, the courts viewing with distrust any combined effort to influence or control trade conditions. This removal of restrictions or grant of greater freedom to act in combination may be called the development of the "right to combine."

All the different legal questions connected with trades union activities are directly or indirectly connected with this so-called right to combine. The right to strike is the right of men to combine to quit work in a body. The right to boycott is the right of men to combine to refuse to deal with another. So, too, the closed shop contract is related to the right to combine, for it is the act of men in combination, and expresses the terms upon which they have com

bined. The right to make such a contract necessarily presumes the right to combine.

Besides the greater recognition by the courts of the workingmen's rights to act in combination, there are two other doctrines associated with recent judicial views upon labor questions. One is the comparatively recent doctrine that labor is a commodity to be bought and sold in the market in like manner as any other article of trade. The other is the right of individual contract, which, by the development of the view of labor as a commodity, has gained a new meaning or application in labor matters. The workingman, like the merchant, has something to sell, and has the right of individual contract in regard to the terms of sale. The fact that his commodity is labor, and not goods, has ceased to make any difference in the methods he may use in his bargaining. Undoubtedly these views have influenced the attitude of the courts toward labor combinations, and have had much to do with the judicial recognition of the workingmen's right to combine.

The development of the right to combine, or rather, the greater recognition by the courts of the right to combine, from the time when a combination of workmen for any purpose connected with labor matters was held to be a conspiracy, to the present, is summed up and expressed in the modern definition of a conspiracy. A conspiracy, at common law, has now come to be generally defined as a combination to do an unlawful act, or to do any act by unlawful means. In other words, mere combining is no longer criminal. It must be

further shown that the combination has an unlawful purpose in view, or contemplates the employment of unlawful

means.

With the former restrictions upon the right of workmen to act in combination, in mind, it becomes clear that the question of the validity of a closed shop contract, must be a comparatively recent one. Under the early doctrines, such a contract would have been not only void, but also evidence of a criminal conspiracy. Does the right to act in com

bination as now recognized justify or legalize the closed shop contract?—is the question to be answered.

In this country the right to combine on the part of workmen has been fully established and recognized by the courts without the coercion of any statute. This right to combine was not recognized by the common law at the time our country was separated from England, and English common law became American common law. The action of the American courts, therefore, in recognizing this right on the part of workmen, though not so stated, has been in the nature of a departure from the early English common law, and has amounted to a grant or creation of a right not before enjoyed. Of course there are cases to be found where our American courts have followed to a greater or less extent English precedents. These cases, however, have been more and more discredited until it may be considered as firmly established in this country that there are no restrictions whatever upon the laborer's right to combine, other than that the combination shall not be for an unlawful purpose, or employ unlawful means.

We come now to the discussion of the closed shop contract as affected by the recognition by the courts of the right to combine within the limits of the law of conspiracy.

Every contract starts with a presumption of validity. It may be said, therefore, that a closed shop contract is valid unless its purposes be unlawful, or it be secured or enforced by unlawful means. But no closed shop contract which has ever come before the courts has stood this test. There is no case at law or in equity holding such a contract valid; there are many, and some most recent, holding such contracts void.

A closed shop contract, the purpose of which is to establish or foster a monopoly of the labor market, is contrary to public policy, and void.

The rule that a contract, the purpose of which is to secure a monopoly, is void, is a familiar one. In its application to closed shop contracts two classes of cases arise: (1) Where the court holds that it is apparent on the face of such a

contract that its manifest purpose and inevitable tendency is to establish a monopoly, and, therefore, that such a contract is per se void. (2) Where the courts do not hold such a contract void per se, but inquire whether, under the facts of each case, the purpose of the particular contract is to secure a monopoly. In the first class of cases no outside or extrinsic evidence is necessary. In the second, outside evidence is considered. in order to make clear the purpose the particular contract in question.

The purpose of compelling non-members to join the union against their will is unlawful. Closed shop contracts having such a purpose, are, therefore, unlawful, and the attempt to enforce such a contract to the injury of persons, not parties to it, is an actionable wrong.

This is practically the same rule as the one preceding, except that it is stated from the standpoint of the non-union man. Evidently the ultimate purpose of compelling non-union men to join the union is to create a monopoly of the labor market. From the standpoint of the non-union man sought to be co-erced, this purpose is not only unlawful, but, if attempted to be carried out to his injury, it gives him a right of action.

The agreements or conduct of combinations must have a legitimate and proper motive. The injury of third persons from mere malice, or without any justification, is an actionable wrong.

Under this head come chiefly cases involving attempts to enforce or perform closed shop contracts and the rights of third parties affected thereby.

Ordinarily, the act of an individual done with malice involves no greater legal liability than one done without malice. So long as the individual stays within his strict legal rights his motive is immaterial. Many judicial utterances may be found to the effect that the same rule applies to combinations, and the question has been much debated. It may be said, however, that the later authorities, and the present weight of authority, is to the effect that malice or other improper oppressive purpose on the part of a combination result

ing in injury to a third party, confers a right of action upon the one injured. In other words, malicious conduct on the part of a combination is unlawful when it would not be so on the part of an individual.

A closed shop contract must be the voluntary act of all the parties to it, both in its inception and in its perform

ance.

This is a most important limitation upon closed shop contracts. It means that closed shop by-laws or closed shop agreements with an employer, adopted by a majority vote of the union, do not bind the minority. It means that the vote of a majority ordering a strike or boycott, to enforce a closed shop by-law or contract, does not bind the minority. It further means that if the assent or cooperation of the minority is secured by means of any coercive measures such as fines, forfeitures or other penalties, the contract becomes unlawful, and its enforcement to the injury of others becomes an actionable wrong.

If this article shall have made it clear that the closed shop in and of itself is not an unlawful thing, and has further clearly defined the limits set by the courts upon efforts to secure or maintain the closed shop, it has accomplished its purpose. The question of the closed shop contract, and the other labor questions now of such acute interest, are but different phases of an epoch in industrial history through which we are passing. The epoch started with the entry into the labor world of the spirit of combination. The epoch may be called "The Epoch of Incomplete Combination."

The very fact that combination on the part of labor is partial and incomplete, makes inevitable strife and war and legal questions. If there were 1,000 carvers in the United States, all of whom belonged to a union, it could not be said that such a union was trying to gain a monopoly, or to injure non-union men in any agreements it might make. Such a union could carry on its "collective bargaining" with the employers unhampered. It could name any wage or other conditions it saw fit, and the employer would have no option but to ac