employment so far as they are concerned. It may be a strategic move to force at last a better employment, but it definitely destroys the present one, so far as the employees can destroy it. In this case the motion itself admits that there was a complete strike-a concerted refusal of all employees represented to do their customary work when summoned by the receiver. He accepted the situation and employed others to the number of 900, as many as he is at present able to pay. Evidently these and not the old men are now the employees.

But it is said that as to the trainmen the receiver had improperly announced a reduction of pay, and this is true. But the rights of the trainmen, under the Newlands Act (Comp. St., secs. 8666-8676), may be analogized to those that would exist under a definite contract to serve for the 20 days involved, at the fixed wage. As in the case of a contract, the benefit of the act may be waived by the trainmen. (Fort Smith Railway Co. v. Mills, 253 U. S. 206, 40 Sup. Ct. 526.) The wages here were not payable in advance of service, but were not due until about April 1st. The receiver's announcement was no more than an anticipatory breach of his duty to pay, like an anticipatory breach of a contract to pay, which gave the other party the choice of treating the relation as broken and abandoning it without incurring liability, or of denying the right to terminate it and performing or tending the service and claiming the pay.

Both things may not be done. A contract could not be treated as broken and abandoned, and also treated as unbreakable and to be performed.

In this case, after the receiver announced his wage reduction, the trainmen, with the others, conferred with him and insisted on the sole jurisdiction of the Labor Board, but made no mention of the Newlands Act; and as to the question discussed they were referred by the receiver to the provision in the court's order for a hearing at any time before the court. The men remained at work under protest. This was, as has been ruled, sufficient to reserve all rights, including those under the Newlands Act, and rebutted any inference of consent to the reduction.

The refusal to work further on March 5th, when summoned by the receiver, no matter what the reason or justification, terminated the employment. The invitation to present any contention to the court was extended by the original order of February 28th. A definite time for a hearing was set in advance of the next pay day on March 26th, without withdrawing the original invitation, which was open for any time. After the strike had commenced on March 5th, an order was made emphasizing the right to a hearing, and warning of this very complication, if the service should be abandoned.

A strike, though a lawful and a valuable economic weapon, is not a substitute for orderly procedure in court and can not be allowed as a legal remedy for legal rights as against a receiver, without asserting that our courts can not or will not do justice, which is to announce the failure of orderly government. Although the strike vote was taken January 28th, weeks before the receivership, and involved only a demand for a decision by the Labor Board, which it has held itself without authority to make, and although this only

was agitated in the conference with the receiver, and as to this question the men have been held to be in the wrong, yet there was the aggravation of the oversight of the Newlands Act, and reason, perhaps, for misunderstanding about the hearing. The strike has been conducted without violence connected with the striking employees and without personal bitterness between them and the receiver and no reason appears why they should not be reemployed, so far as the receiver has employment for them. He testifies that he will be glad to give it to them. We do not, however, think it right to direct him to reemploy them in a body, not only because he has not now sufficient business, but also because it would not be right to discharge those who have taken some of the places and are proving acceptable and contented employees. Reemployment must be treated as an administrative detail and to be taken up with the receiver.

LABOR

OF

ORGANIZATIONS-STRIKES-INJUNCTION-CONTEMPT COURT-FELONY-State ex rel. Hopkins, Atty. Gen., et al. v. Howat et al., Supreme Court of Kansas (June 11, 1921), 198 Pacific Reporter, page 686.-The defendants were officers and members of the district board of District No. 14, United Mine Workers of America. The Legislature of Kansas at the special session of January, 1920, passed a law creating a court of industrial relations for the supervision of and to secure the continuous operation of industries affected with a public interest. This court had taken jurisdiction of a controversy between employers and miners, and in the exercise of such jurisdiction had subpoenaed Howat and others to testify as witnesses. They had refused to obey these subpoenas and other subpoenas for like purpose issued by the district court, and had been committed to jail for contempt of court. The attorney general filed a petition for an injunction against the United Mine Workers of America and the officers and members of local unions of District No. 14 to enjoin them from interfering with the operation of coal mines in the mining districts of the State of Kansas. The petition alleged that the defendants were conspiring and confederating among themselves and with others to violate the act creating the court of industrial relations. The injunction was granted. In February, 1921, the officers of the district board of District No. 14 ordered a strike. The members of the union obeyed the order. Howat and the other defendants were accused of contempt, and after a hearing, the court, without a jury, found them guilty of violation of the injunction and of contempt of court. It was ordered that they be confined to jail for a period of one year and pay the costs of the prosecution. The defendants appealed to the supreme court. The assignments of error presented questions relating to the validity of the violated injunction and the validity of the act creating the court of industrial relations. The supreme court affirmed the judgment of the district court in a

lengthy decision which cited many authorities, set forth several industrial and economic facts, and as a note included chapter 29, Special Laws of 1920, creating the court of industrial relations. The following quotations are taken from the opinion written by Judge Burch:

The power of a court in any case to grant an injunction for any purpose is not statutory. In the absence of statute, power exists in courts to grant injunctions for numerous purposes. The power not being statutory, and not being in derogation of the common law, is not strictly construed. If the power were statutory, it would be liberally construed, to accomplish just and equitable purposes, because of an express statute of this State.

It is said the injunction was invalid, as an attempt to enjoin a crime. If so, the injunction order was not void, and the defendants are precluded from attacking it in this proceeding.

The purpose of the injunction was not to enjoin crime, and bore no other relation to administration of the criminal law. The purpose was to prevent the irreparable injury which the petition for injunction alleged would occur, and which the court found would occur, unless the defendants were restrained from executing their designs. It might be the defendants would incur sentences to the penitentiary or to jail, but the imposition of those penalties would not fulfill the obligation of the State of Kansas to protect its people from the calamitous consequences of the defendants' wrongdoing, and for which there was no redress.

* *

Nor is there in this any invasion of the constitutional right of trial by jury. * The power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court. (In re Debs, 158 U. S. p. 594, 15 Sup. Ct. 910.)

It is contended the act creating the court of industrial relations contravenes section 16 of article 2 of the constitution of the State, in that it contains more than one subject, and the subjects are not clearly expressed in the title.

In a certain sense, the act embraces two subjects: Regulation of public utilities, and regulation of those industries which have to do with supplying the people with necessaries of life. In the same sense, the second subject is doubly triple. It embraces food, clothing, and fuel, and it embraces production, manufacture, and distribution. According to the same method, the act might be conceived as divided into as many subjects as a carefully prepared index of its contents would disclose. That, however, is not the method by which to determine the scope of a statute. The question in any case is, Are the particulars so diverse that they may not be connoted in a single generic concept? In this instance the general concept is enterprise affected with a public interest, and the grouping is not only natural, but consistent and harmonious.

Employers and employees disagree about how the product of their joint contributions to industry shall be divided. In the last analysis, hours, working conditions, recognition of union, etc., revolve about this fundamental subject of grievance. The subject is of great im

portance to the employer. It is of even greater importance to the employee, because on wages depend food, clothing, and shelter; recreation, and the details of daily living; the value of the worker to the community in which he lives; and even the length of time he will live. Disagreements become acute, the contestants become hostile to each other, sometimes each one resorts to force, and the public, the great employer of both labor and capital, suffers grievously.

The court concludes the business of producing coal bears an intimate relation to the public peace, good order, health, and welfare; that such business is affected with a public interest; and that such business may be regulated, to the end that reasonable continuity and efficiency of production may be maintained.

It is said the act of 1920 is void because it trenches on personal liberty. The personal liberty contended for is liberty to leave the employer's service. All the leading cases in which the principle involved have been discussed are cited. It is not necessary to review them. The statute expressly guards the privilege of any employee to quit his employment at any time. He may quit before controversy arises, when controversy arises, while controversy is raging, and after controversy has been adjusted. As many others as desire may do likewise, and they may do so as the result of mutual interest consultations. No employee may, however, transgress the limits of his personal privilege, as defined earlier in this opinion, for the purpose of limiting or suspending production, contrary to the provisions of the act.

The foregoing case together with another case of the same title (107 Kans. 423, 191 Pac. 585; see Bul. No. 290, p. 170) came to the Supreme Court of the United States on writs of error. The earlier case involved the power of a district court of the State to punish by imprisonment persons who refused to comply with the subpœnas and summons of the court of industrial relations.

The writs of error were for the purpose of testing the constitutionality of the laws creating the court of industrial relations, but Chief Justice Taft, speaking for the court, found that the State courts had disposed of the questions before them on principles of general law, no Federal questions being involved (Howat v. Kansas, 42 Sup. Ct. 277). The Kansas Supreme Court had cited Interstate Commerce Commission v. Brimson, 154 U. S. 447, 14 Sup. Ct. 1125, as authority for the power of a properly constituted court to enforce the investigative features of the industrial relations act. This was approved, and an added citation given by Chief Justice Taft in support of the position taken, adding that even if the features of this law which were complained of had been void, the power to punish for contempt had been sustained on general law.

Passing to the second case, set forth above, much the same situation was found to exist. An injunction issued by a constitutional court of general jurisdiction with power to issue injunctions, and having the parties within its jurisdiction must be obeyed, and can

not be attacked in a collateral proceeding. "It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on this decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished." No Federal question being involved, this writ also was dismissed.

LAROR

TRACTS

66

ORGANIZATIONS

STRIKES-INTERFERENCE WITH CONCHECK-OFF-STRIKE ΤΟ COMPEL COLLECTIVE AGREEMENT INJUNCTION-Kinloch Telephone Co. et al. v. Local Union No. 2 of International Brotherhood of Electrical Workers et al., United States Circuit Court of Appeals, Eighth Circuit (June 27, 1921), 275 Federal Reporter, page 241.—The complainant telephone companies operate a telephone system in the States of Illinois and Missouri. The defendants are the union, certain of its officers and all of its members. The companies had a contract with their employees dated July 3, 1919, which was to be effective for one year. It provided that complainants' business would be operated on an open-shop basis, that the complainants would not interfere with the union affiliations of their employees, and that, in the event of a disagreement, a committee of employees and other persons on complainants' part would act as a board of arbitration, whose decision would be binding.

During January and February, 1920, a demand was made by the union that the complainants pay the union dues of certain of their employees or see that such dues were paid or discharge men who did not pay such dues. The demand was refused. A strike was then called. Complainants filed suit for the purpose of enjoining defendants from inducing their employees to break their contract. A motion for a temporary injunction was denied in the district court because of section 20 of the Clayton Act.

An appeal was made to the circuit court of appeals. That court reversed the order appealed from and remanded the case to the court below with instructions to issue a temporary injunction, upon the authority of Hitchman Coal and Coke Co. v. Mitchell and Duplex Printing Press Co. v. Deering et al. Judge Carland, speaking for the court, said:

We agree with the trial court that the contract between the appellants and their employees required arbitration of any dispute which the evidence may show existed between the appellants and their employees, and that the committee referred to in the contract was intended to be a committee on the part of the employees composed of employees of appellants, and not a committee of the local union to which said union employees of appellants might belong, or a commit