ruptions, through the fault of its members, in the business of the parties of the first part, provided, that the party of the second part shall have the privilege to have a shop delegate selected from among the hands therein employed, to preserve order among them and that a duly authorized officer, representative or committee of the said party of the second part shall have access once a week, or in case of disputes, on any day, to the said factory to confer with the hands therein employed.

That this agreement shall take effect at once and continue until the first day of July, 1901.

That the fees of counsel retained by the party of the second part to draw this agreement shall be paid by both parties equally.

And furthermore this agreement witnesseth:

That whereas it is understood and agreed by and between the said parties that in the event of a breach of this agreement by the parties of the first part, the said party of the second part would suffer great losses and damages, the amount whereof is incapable of exact ascertainment by computation or otherwise,

Now, therefore, it is further agreed by and between the said parties: That in the event of a breach of any of the covenants, conditions or provisions of this agreement by the said parties of the first part, they shall pay to the said party of the second part the sum of dollars

as liquidated damages, it being, however, understood and agreed that the damages which may be sustained by the parties of the first part, in the event of a breach of contract by the party of the second part, shall not be liquidated hereunder, and they shall be entitled to recover the full amount of damages in each case actually sustained.

That the faithful performance of this agreement by the parties of the first part shall be secured by a bond of the sum of

dollars.

DECISIONS OF NEW YORK COURTS.

Right of Trade Unionists to Refuse to Work With Non-Members.

In the June number of this BULLETIN (No. 5, p. 159), two decisions of Supreme Court justices were published which maintained the right of union members to strike or threaten to strike in order to secure the discharge of non-members. A much more important decision of the same tenor, on the same point, was rendered in July by the Appellate Division of the Supreme Court, First Department. The case was between The National Protective Association of Steam Fitters and Helpers and the Enterprise Association, the former being a corporation for the purpose of supplying steam fitters and helpers; the latter a union of steam fitters. The essential facts in the case were that certain members of the National Protective Association were employed by one William E. Roys; that while thus employed the officers of the Enterprise Association, members of which were also employed by Roys, threatened that if Roys did not discharge the members of the Protective Association, the Enterprise Associa tion would cause a strike of his other laborers; that as a result of such threats Roys did discharge the Protective Association members; but that while the Enterprise Association either caused or threatened to cause a strike in three separate instances, they neither used force nor did anything tending to a breach of the peace.

Upon the discharge of its members the Protective Association secured an injunction from Justice Truax perpetually enjoining the Enterprise Association from "interfering with the work, business or employment of the plaintiff or any of its members, and from coercing or obtaining by commands, threats, strikes or otherwise the dismissal or discharge by any employer" of members of the plaintiff. From this the Enterprise Association appealed to the Appellate Division, which unanimously reversed the decision of Justice Truax and ordered a new trial. The most significant portions of the opinion rendered by Justice McLaughlin are as follows:

"It cannot be seriously questioned but that every workman has the right, in the first instance, to say for whom and with whom he will work. This right is guaranteed to every person of legal age and competent to contract under our laws. An employer has the absolute right to say whom he will employ and the employee has the right to say by whom he will be employed and with whom he will work. The right is reciprocal, and once that right is destroyed, personal liberty is destroyed and chaos reigns. And if one has this right, acting in his individual capacity, he does not lose it when acting with others clothed with an equal right, so that employers may combine and say they will not employ persons who are members of labor organizations, and laborers may combine and say they will not work for employers who engage any but members of labor organizations. * "It cannot be questioned but that one may, by lawful means, obtain employment either for himself or another. He may procure the discharge, by lawful means, of another person, in order that he may obtain employment either for himself or another. This is all that the Enterprise Association did. It was seeking to obtain employment for its own members, and wherever it found places filled by members of the plaintiff association it procured their discharge, in order that the employment might be given to members of the Enterprise Association, and, in case that was not done, they either withdrew or threatened to withdraw from work."

Scope of the Eight-Hour Law.

*

The Municipal Gas Company, of Albany, under a contract with the State, has for several years furnished gas and electricity for lighting State buildings. The Albany branch of the State Federation of Labor asked Superintendent Bender, of the Department of Public Buildings, not to audit the company's bills, on the ground that it had violated the eight-hour labor law. Superintendent Bender referred this to Attorney-General Davies, who decided in favor of the Federation of Labor. His opinion is reprinted below:

To the Trustees of Public Buildings, Albany, N. Y.:

MAY 1, 1900.

Gentlemen.-I have received a communication from Mr. H. H. Bender, Superintendent of Public Buildings, under date of April 24th instant, inclosing copies of contract with the Municipal Gas Company, dated June 1, 1899, for the lighting of the Capitol and other public buildings, a petition from John C. Seaman and others, representing the Central Federation of Labor of the city of Albany, asking for the cancellation of said contract, and a brief from Mr. Andrew Hamilton, counsel for the Municipal Gas Company.

I am asked for my opinion as to whether or not the provisions of section 3 of the Labor Law, as amended by chapter 567 of the Laws of 1899, are applicable to this contract.

The contract in question was prepared under my supervision, and the question now presented arose and was carefully considered at that time by this Department. It was then understood that the position of the

1

Municipal Gas Company was that the Labor Law was not applicable to a contract of this character, and that it would refuse to execute a contract containing the provisions required by section 3. After careful consideration I reached the conclusion that the provisions of said section were applicable to this contract, and refused to approve of any contract which did not comply with them. I have seen no reason for changing the opinion which I then expressed.

The contract requires the Municipal Gas Company to furnish for the use of the State a sufficient quantity of current to supply and operate the electric lights in the Capitol and Executive Mansion and to operate an elevator; and also a sufficient quantity of gas for the lighting of said buildings and for the use of certain heating logs.

Section 3 of the Labor Law contains the following provision:

"Each contract to which the State or a municipal corporation is a party, which may involve the employment of laborers, workmen or mechanics, shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight hours in any one calendar day, except in cases of extraordinary emergency, caused by fire, flood or danger to life or property."

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The question presented, then, is whether the contract in question may involve the employment of laborers, workmen or mechanics." It seems to me to be apparent that it not only may involve such employment, but that it necessarily does involve such employment. It is simply a physical impossibility to produce the electric current called for by the contract without such employment.

It seems to me that this contract is easily distinguishable from a contract for the purchase of ordinary commodities by the State. If the State desires to purchase carpets, furniture, etc., it may doubtless do so without reference to the number of hours per diem which the workmen were employed in making the same. But if the State entered into a contract for the manufacture and delivery of such articles for the use of the State, then the provisions of the Labor Law would doubtless be applicable.

The fact that this particular company is also engaged in supplying individuals with lights, is not, in my judgment, important or controlling. If it deals with the State, it voluntarily brings itself within the provisions of the law and subjects itself to its requirements.

At the time when the contract was prepared, there was inserted in it, at the request or suggestion of the company, the following provision:

"None of the provisions of this contract, limiting the hours of labor or regulating the rate of wages, shall apply to or affect any other contract or any labor, services or material performed for or supplied to any person or party excepting the State of New York."

I thought at the time, and still think, that this provision is superfluous and meaningless. It is needless to say that no official of the State, in the absence of express authority of law, has any power to regulate or interfere with contracts between this company and individuals. The trustees of the public buildings are not called upon and have no authority to enforce the provisions of the Labor Law, except as to labor and services performed for them or under their supervision. If this provision is to be regarded as in any sense a construction or interpretation of the provisions of the

Labor Law, then, in so far as it conflicts, if at all, with the true meaning and intent of that law, it is a nullity.

I am, therefore, of the opinion that the provisions of the Labor Law to which I have referred are applicable to this contract. Yours respectfully,

J. C. DAVIES,
Attorney-General.

The gas company maintained, however, that the eight-hour law applied only to labor on public work; that it did not include commodities furnished to the State, and that gas and electricity are commodities. The gas company applied for a mandamus compelling the auditing of its bills on this ground, and on July 18th Judge Chester, of the Supreme Court, granted the mandamus, without, however, rendering an opinion.

The matter is still in the courts, and its issue will be awaited with considerable interest by both capital and labor. If the Attorney-General's contention is upheld, the benefits of the eight-hour law to workingmen will be considerably extended, for it will affect every gas, electric light, telegraph, telephone and water supply corporation that supplies its service to the State or any municipality.

Trade Union Benefits.

LEGALITY OF PROVISION FORBIDDING A MEMBER ACCIDENT BENEFIT UNLESS HE IS Working at THE ORGANIZATION RATE OF WAGES, OR HAS BEEN PERMITTED TO WORK AT ANOTHER RATE.— A decision on the above point was rendered at the Appellate Term of the Supreme Court in June. The case was that of a member of a trade union who claimed accident benefit from the organization. One of the rules of the union was that in order to receive accident benefit an injured member " must have worked at the job where the injury was received for the rate of wages demanded by the organization," but a by-law provided that members over sixty years of age might, upon application, be allowed by vote of the organization to work for such wages as they could obtain. In the case in question the member was over sixty years of age and was working for less than union wages but had not received permission to do so from the organization. The union therefore refused to pay him accident benefit, whereupon the injured member brought an action to recover the same in the