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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 connucted 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
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
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 purposer, 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 performance.
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
cede or go without the services of its members. Unreasonable demands would thwart their own purpose, for the public would arrange to do without services for which a wage not warranted by trade conditions was insisted upon. In other words, complete combination of labor secured and maintained would do away with the present epoch of strife, with its attendant bitterness and legal questions. It would bring an era of “collective bargaining” when the different questions at issue between labor and capital would be settled more than ever before by the
laws of trade and not by the laws of the courts.
It is the belief of the writer, and his justification for introducing economic considerations into a legal article, that the courts are more and more recognizing the above fact; that they look upon complete combination of labor as a good and not as an evil; and that within the limitations already set they will put no unnecessary obstacle in the way, but that their attitude toward labor in combination will be broad and liberal.
TRIBULATIONS AND COLLECTIVE SELFISHNESS.
BY JOSE GROS.
Quantities of thinking people try to which we conceive the word “success." go through life thinking as little as possi That generally means the attainment of ble. When they do occasionally think a certain social position through the acthey are forced to acknowledge that life cumulation of certain amount of is considerable of a puzzle.
They notice wealth. We thus assume that our mafor instance that some accomplish a great' terial order is already in peace with the deal when they even commence life with moral order, or else we imagine that our no resources of their own, and receive present material order, however crooked, no help from anybody. They see others shall carry us into the brilliant and that with but very little help do fairly healthy realm of the moral and ethical well. They come across a number who order. And what do we require for that remain always at the bottom no matter success we tell everybody to try to athow much help they may receive. Of tain, although we know that only a few course life is a
mass of contradictions can attain it? We require shrewdness as long as we insist upon splitting it enough in business processes for some of into fragments and consider each one us to be the first fellows in capturing as independent of all the rest. Life is a the only few high positions our civilizagrand conglomeration or federation of tion ordains we shall have. And do we facts, they all radiating from a center of try to see that business, production, gravitation. That gravitation center transportation and exchange should rest will be right if it accepts and follows di on equity or honesty towards each other? vine ideals. It will be wrong as long That has never yet formed part of the as it only accepts and follows human political or economic order of any imideals. “In the world you shall have portant or powerful nation. tribulations, but I have overcome the All the same we stick to that social world.” Christ's teachings then give dogma of ours, that many can accommen the power to overcome the world, plish in wealth accumulation what Mi. to cancel and suppress all tribulations. So-and-So has done without any help The world is civilization, the social from anybody. Take, now, any of those status, the nation. What else can it be? heroes of ours who has accumulated a But who is willing to apprehend human lot of millions of dollars in any few years, life in that way?
isolate him and his family, with all his Before we go any deeper into the sub millions, for any ten years, away from ject please notice the vapid way with the workers of nations. Go and see him
in his solitude a few years after he was captured by the labor of the small dog. sent there and you will find that, with The former is perfectly willing that the all his business abilities and the millions latter should have his own banquet with he took with him to the wilderness, all the bone he has earned and belongs to he has been able to accomplish is to the small fellow. The same general prokeep his family alive through hard work cess of universal equity prevails among of the honest kind in wealth production. all animal specials, unless some transient Evidently then he got on top of some departure of the general order is rebody, received or took away from some quired to check over-production tending body what belonged to them, while to disturb the equilibrium of supply and flourishing in the bosom of the social demand or preventing the perpetual regroup. There you have the folly and freshing of new life through the amplifallacy of asserting that some can be tude of time and space. come rapidly wealthy without the help There is not a single law in the order of anybody, or without getting what be of the universe tending to proclaim that longs to others.
the majority of men shall have to go Please notice again that the kind of through life on low levels of physical or business shrewdness we require and re spiritual development. That is simply ward with success does not belong to the the product of civilizations which promoral or natural order of the universe. long the old clash between the laws of It simply belongs to the selfish, unnat nature and the laws of men, the former ural industrial order that Cain initiated resting on altruistic principles of growth, 6,000 years ago after his quarrel with the latter on selfish, egotistic principles, Abel. And the worst is that we all have principles of favoritism, giving to some the right to accumulate a certain amount opportunities to rise above the rest in of wealth with which to live a decent mental attitudes and through them in sensible life, and thus see our wife and the selfish potentialities for the rapid children enjoy a healthy existence, body, acquisition of earthly goods. The order mind, and soul; but our own beloved of nature gives to all men taste and civilization forces us to do that through power to make themselves useful and the curtailment of the sanitary needs thus have a full seat in the banquet of of life among millions of our brethren, life. sisters and children, all of them dropped Before we close up this little essay, let on earth by a rich eternal Father, who us meditate for a few seconds on that has given us a magnificent and rich human aberration which assumes that planet, rich, for abundance and plenty some of us have entered into the realm to all with ten times the population on of eternal salvation, and the rest shall be on earth today.
lost forever, lost to all future joys and Of course we have tribulations, every development if we don't give them a one of us, rich, poor or on any level be spiritual lift, while failing to let them tween. We have them because we don't rise up to a sensible, material developwant to overcome the world through the ment, because we wish to have laws of simple application of divine teachings to monopoly and favoritism crushing the our own civilized status.
We prefer any
many into poverty and hard work, and kind of compromise with the prince of the few into unhealthy wealth and usedarkness and the father of all lies, with less lives. our collective and citizenship selfishness, We thus presuppose that a
God of by which we antagonize not only the righteousness shall not be able to diswhole code of morality and ethics criminate in His judgment of each one preached by Christ, but also all the of us, or shall be unwilling to consider natural instincts of men not yet vitiated the abnormality of physical conditions by wrong social conditions, and even the which a merciless civilization imposed animal instincts in the cosmical order.
upon many of his children and prevented Not even a big dog, unless he is very them attaining a correct spiritual altihungry, tries to interfere with the bone tude. Besides, why should any of us
prejudge God's judgments by assuming that we have already purchased, acquired, the sublimities of life eternal? Also, why to imagine that it is only through our petty personal efforts that the mass of humanity can enter into a peaceful beyond? Let us give to all men what God means all men should have, viz.: a full opportunity to live a
THE CONDUCTOR WHO WAS DIFFERENT.
BY CAPT. GEO. W. BARBER, SR.
Flirtation was as natural as breathing to Alta Thorp. It was in her code that to meet an unattached man and leave him entirely heart and fancy free was almost criminal.
Generally speaking, she did much less harm than one might suspect, for the modern man of the society which Alta most affected is not the material of which novelists who write of broken hearts and death therefrom may spin their romances. Most of the young men of these old Virginia families were rather adept themselves in the pleasant, if dangerous, game, and it was in this fact that Alta Thorp found excuse for the lightness with which she treated the many victims of her undeniable physical and mental charms.
The first man who made love to her and found his attentions welcome enough up to a certain point and tabooed thereafter swore by all the saints in the calendar that she, with a most fiend-like cruelty, had wrecked his whole life, crushed all his faith in womanhood, and condemned him to die of a broken heart, if, indeed—and here he threw out dark hints about suicide and a lot of other tommyrot.
This frightened Alta dreadfully, the while she felt a delicious sense of her own importance in the scheme of the world. She argued the whole matter over with herself and inherited Puritan conscience, coming at length to the decision that, although she did not love him, it was clearly her moral duty to
full life on earth. Then alone shall we have done our duty torwards securing for them all, and our own precious selves, the full life somewhere else. Suppress collective selfishness, the prince of darkness, through unselfish laws, and all tribulations shall vanish, because Christ's teachings shall be duly applied to human life.
marry him, since she had certainly encouraged him somewhat in the earlier stages of their acquaintanceship. Unfortunately, before she could communicate this decision to her rejected and supposedly desperate suitor, his engagement to her very dearest rival and enemy was duly announced, and Alta was duly bidden to be a bridesmaid.
After a few experiences, more or less of a similar character, Alta decided that as to broken hearts she need not fear, and began to live up to her privileges as a much-sought beauty.
Through all the gaieties of the most aristocratic and exclusive summer and winter resorts, she had gone without the quickening of a heart beat, and she now played the game as scientifically as she did a game of bridge, which is saying a great deal, since the possible combinations of an affair between a man and a maid are infinitely more numerous than the possible hands to be obtained from several packs of cards.
In meeting Arthur Allison, she recognized a type of suitor new in her experience, and resolved at once, with the enthusiasm of a true scientist, to dissect him, in order to add something to the awe-inspiring amount of knowledge in regard to the habits and modes of thought of these young southern aristocrats of the genus homo already in her possession.
He was not, as she ascertained at first acquaintance, a butterfly sort of young man, nor a misunderstood young man