“clerk” within the meaning of said section. (Supreme Court, 1890, Hand t. Cole, 88 Tenn., 400.) The liability of stockholders under this section for wages of employees can not be enforced if the corporate assets are unexhausted and sufficient to pay all debts of the corporation. (Supreme Court, 1893, Albitztigui v. Gaudaloupe, etc., Mining Company, 92 Tenn., 598.) PART I, TITLE 12, ACTS OF 1881, CHAPTER 170.-Coal mine regulations and inspection. (a) Under this act, providing that no boy under 12 years shall be employed in a mine, a violation thereof is negligence in a civil action brought by a boy for damages sustained by reason of such employment. Though the employment of boys in mines is forbidden by this statute, the defense of contributory negligence may be set up in an action by a boy for injuries sustained by reason of such employment. (Supreme Court, 1895, Queen v. Dayton Coal and Iron Company, 32 Southwestern Reporter, 460.) ACTS OF 1887, CHAPTER 206.-Weighing coal at mines. (b) Held, that a custom, assented to by express contract by most of the miners employed, and known to and acquiesced in by all, that the company should allow only 2,500 pounds per carload, when its weight, in fact, exceeded that limit is no defense in a criminal suit under section 3 of this chapter on the ground that parties may not by contract dispense with the criminal law. (Supreme Court, 1891, Smith v. State, 90 Tenn., 575.) Held, that a president of a mining company, who notifies the miners that he will shut down the mine unless the miners discharge the check weighman hired by them, does not violate the provisions of this act which provide for the appointment of a check weighman by miners, and that he shall not be "interfered with or intimidated by " the agent, owner, etc. (Supreme Court, 1891, State v. Jenkins, 90 Tenn., 580.) ACTS OF 1887, CHAPTER 209.-Redemption of scrip by corporations. (c) Section 18 of Article I of the constitution of Tennessee provides: "The legislature shall pass no law authorizing imprisonment for debt in civil cases." Chapter 209 of the acts of 1887, while not directly authorizing imprisonment for debt, does attempt to create a crime for the nonpayment of debts evidenced by check, scrip, or order, and for such crime provides a penalty, which may or may not be followed by imprisonment. In that way and for that reason said chapter is violative of the spirit if not the letter of the constitutional provision above cited. It is an indirect imposition of imprisonment for the nonpayment of debt, and is, therefore, clearly within the constitutional inhibition. (Supreme Court, 1892, State v. Paint Rock Coal, etc., Company, 92 Tenn., 81.) TEXAS. PENAL CODE OF 1879, TITLE 9, ARTICLES 279 AND 289.-Unlawful assembly, (d) Appellant was one of a large number of striking employees of the Missouri Pacific Railway Company, who, on the 1st day of April, 1886, prevented a freight train of the said company, in charge of Conductor J. B. Coulisk, from proceeding from the city of Fort Worth, Tex., over the said company's railway, by boarding the train, applying the brakes, killing the engine, etc. Appellant and others were indicted under the above sections and the appellant, being the only one of the impleaded parties on trial in this case, was convicted. On appeal the conviction in the court below was affirmed. The following is, in part, the opinion as rendered: "In the general charge in the court below the jury were told: 'If you believe from the evidence introduced, that the defendant, and any two or more persons in Tarrant County, Tex., met together with the intent to aid each other by violence, or in any other manner, in preventing the running and operating of any steam engine or railroad train of the Missouri Pacific Railway Company, of which one a See Law, page 1050. c See Law, page 1062. J. B. Coulisk was conductor, whether such intention was carried into effect or not, it will be your duty to find the defendant guilty, and assess his penalty in any sum not exceeding $500.' To this charge the defendant specially excepted and presents his bill of exceptions in the record. As heretofore stated, the charge in the indictment was that the purpose of the unlawful assembly was to prevent Coulisk from pursuing his occupation or avocation as conductor of a railway train of cars. It is not, or rather was not, at the time alleged, an offense merely to prevent the running of a train of cars, but under sections 279 and 289, the offense' of unlawful assembly 'consists in illegally depriving any person of any right, disturbing him in the enjoyment of a right, preventing him from pursuing any labor, occupation or employment, or interfering in any manner with the labor or employment of another. Now, whilst it was no offense per se to prevent a train from running, nor to kill an engine, yet it is an offense to interfere in any manner with the labor and employment of another, and hence, to prevent a train from running and being operated is necessarily to interfere with the labor and employment of a conductor whose duty it is to manage and control the train under his charge, and to direct its operation. We are of opinion that the charge quoted above was correct." (Court of Appeals, 1887, McGehee v. State, 23 Texas Court of Appeals Reports, 330.) ACTS OF 1887, CHAPTER 91.—Railroad employees to be paid when discharged. (a) This act, providing that, in the event of a railroad company refusing to pay its indebtedness to an employee within fifteen days of demand, "it shall be liable to pay such employee 20 per cent on the amount due him as damages, in addition to the amount due," is special legislation, not protecting alike the interest of employer and employee, and is therefore unconstitutional. (Court of Appeals of Texas, 1892, San Antonio and Aransas Pass Railway Company v. Wilson, 19 Southwestern Reporter, 910.) ACTS OF 1893, CHAPTER 91.-Fellow-servants. (b) [A number of the decisions following were rendered in cases arising under chapter 24 of the acts of 1891, which has been repealed and superseded by chapter 91 of the acts of 1893; the principles involved in these decisions appear to be equally applicable to the new law as to the old:] This act [chapter 24, acts of 1891] can not be held to be unconstitutional on the ground that it embraces more than one subject, and that the subject is not fully expressed in the title. It was within the constitutional powers of the legislature to declare who are and who are not fellow-servants, and, whatever may have been the construction placed upon the term "fellow-servant" before the passage of the act, there was no interference with the prerogatives of the supreme court in the legislative declaration of what class of employees thereafter should be deemed fellow-servants. (Court of Civil Appeals of Texas, 1894, Galveston, Harrisburg and San Antonio Railway Company v. Worthy, 27 Southwestern Reporter, 426.) An employee, a brakeman, sued the receiver of a railroad company, alleging that the conductor was incompetent, and so known to be by the defendant, and that he, the plaintiff, was injured by reason of the negligence of the conductor. Held, that this act [chapter 24, acts of 1891] is constitutional. It applies to all railroads doing business in the State. All who are affected by the act are under the same conditions. Nor does the title, "An act to define who are fellow-servants and who are not fellow-servants" embrace two subjects. There is but one subject, which is expressed in the affirmative and negative form. Also Held, that the language of the act does not include receivers of railway corporations and that the act would not apply to this case. As, it not being alleged or shown that the conductor had authority to employ or discharge brakemen, the brakeman and conductor were fellow-servants. (Supreme Court, 1894, Campbell, Receiver, et al. v. Cook, 86 Texas, 630.) An employee of a railroad company who, in obedience to an order of the company, travels in the caboose of a freight train to reach a point where he had been assigned to work, but who takes no part in the running of the train, is not a fellowservant of the engineer of the train, as "fellow-servant" is defined by this statute, and is entitled to recover from the railroad company for injuries received through the negligence of the engineer. (Court of Civil Appeals of Texas, 1894, Galveston, Harrisburg and San Antonio Railway Company v. Leonard, 29 Southwestern Reporter, 955, and Same v. Ford, 29 Southwestern Reporter, 958.) a See Law, page 1079. b See Law, page 1081. A section foreman and the men operating the trains belong to different departments and the law of fellow-servants does not apply to the case. (Court of Civil Appeals, 1895, Southern Pacific Company v. Ryan et al., 29 Southwestern Reporter, 527.) A railroad company's yard master is not a fellow-servant of a brakeman under the law. (Court of Civil Appeals, 1895, International and Great Northern Railroad Company v. Sipole, 29 Southwestern Reporter, 686.) An engineer and a brakeman upon a railroad train are not engaged in the same grade of service, and for that reason are not fellow-servants within the meaning of chapter 24, acts of 1891, providing that all persons "engaged in the common service of "railroads, and who work" together at the same time and place, to a common purpose, of the same grade," but have no superintendence or control of others, are fellow-servants. (Court of Civil Appeals, 1895, San Antonio and Aransas Pass Railway Company v. Bowles et al., 30 Southwestern Reporter, 89.) The act of March 10, 1891, defining who are fellow-servants in the employment of railroad companies does not include the employees of the receivers of railroads. (Court of Civil Appeals, 1895, San Antonio and Aransas Pass Railway Company v. Reynolds et al., 30 Southwestern Reporter, 846.) The foreman of a bridge gang and a mechanic working under his superintendence are not fellow-servants under this act [chap. 24, acts of 1891]. and the employer is liable for the negligence of the former whereby the latter is injured. Where plaintiff, a mechanic, was working on a bridge, and other employees were hoisting a large timber which would swing past plaintiff and expose him to danger, and it was customary, and the duty of the foreman, to give notice of such danger to the workmen, his failure to do so was negligence for which the employer is responsible. (Court of Civil Appeals, 1895, San Antonio and Aransas Pass Railway Company v. McDonald, 31 Southwestern Reporter, 72.) Upon the hearing of this case before the court of civil appeals the court in its opinion rendered February 6, 1895, said in part as follows: "We find that appellee was injured at the time and place and in the manner and form substantially as alleged in his petition and that at said time he was a laborer in the employ of appellant, a railroad corporation operating a street railway in the city of Austin, Tex., and that he was under the immediate control of one Eggling, a foreman or superintendent of appellant's track, etc. We also find that Eggling, at the time of the injury complained of, stood as the representative of the appellant and was a vice principal in his relation to appellee within the meaning of the act of the legislature of March 10, 1891. In our opinion, the act in question [March 10, 1891] is not unconstitutional, for the reasons stated by the appellant [as being class legislation], and, upon the contrary, we do not think it is opposed to any provision of the constitution." (Court of Civil Appeals, 1895, Austin Rapid Transit Railway Company v. Groethe, 31 Southwestern Reporter, 197.) This case was afterward carried up on writ of error to the supreme court of Texas, which court, in its opinion rendered May 16, 1895, said in part as follows: "It seems to us that in giving this instruction the court proceeded upon the theory that the act of the legislature approved March 10, 1891, which declares who are and who are not to be deemed fellow-servants of railway corporations' applies not only to ordinary railroad companies, but also to street railway corporations. We seriously doubt if this be a correct construction of the statute; but after examining the full record of the proceedings in the trial court we think it unnecessary to decide that question." (Supreme Court, 1895, Austin Rapid Transit Railway Company v. Groethe, 31 Southwestern Reporter, 196.) Under chapter 24 of the laws of 1891, which declares all persons fellow-servants who are engaged in the common service of a railroad company, and are working together at the same time and place to a common purpose, of the same grade, conductors of switch engines in the same yard, engaged in moving cars, etc., under a common superior, but whose duties are separate and distinct, are fellow-servants. (Court of Civil Appeals, 1895, Texas and New Orleans Railroad Company v. Tatman, 31 Southwestern Reporter, 333.) This act [chap. 24, acts of 1891], defining "fellow-servants," and entitled “An act to define who are fellow-servants and who are not fellow-servants." is not unconstitutional because its object is not sufficiently expressed in its title; and under its provision that "all persons who are engaged in the common service of railway corporations working together at the same time and place to a common purpose," etc., are fellow-servants, a station agent is not a fellow-servant of a train crew, and the railroad company is liable for injuries sustained by such agent, without contributory negligence on his part, through the negligence of a train crew. (Court of Civil Appeals, 1895, Gulf, Colorado and Santa Fe Railway Company v. Calvert, 32 Southwestern Reporter, 246.) Under this act [chap. 24, acts of 1891], which is held to be constitutional, a locomotive engineer and an employee of the railroad company acting as hostler are not fellow-servants, and the company is liable for the death of such engineer caused, without negligence on his part, by the negligence of the hostler. (Court of Civil Appeals, 1895, Texas and Pacific Railway Company v. Leighty et al., 32 Southwestern Reporter, 799.) The repeal of the fellow-servant act of March 10, 1891, by the act of 1893 did not deprive an employee of a railroad company of a right of action against the company which had accrued under the former act. The latter act was simply an amplification of the scope of the law, and there was evidently no intention on the part of the legislature to interfere with rights acquired under the provisions of the amended statute. Under this statute, a car repairer working in a separate yard from a hostler is not a fellow-servant of such hostler, nor of the switchman in such other yard, particularly while on a car under orders to proceed to another place and assist in repairing damages caused by a wreck, and the railroad company is responsible for injuries sustained by the car repairer through the negligence of such other employees of the company. (Court of Civil Appeals, 1895, San Antonio and Aransas Pass Railway Company v. Keller, 32 Southwestern Reporter, 847.) Under this chapter, providing that, in order to be fellow-servants, employees must be in the common service, in the same department, of the same grade, working together at the same time and place, to a common purpose, an engineer of a road locomotive, who was under the control of the train master, is not a fellowservant with employees in the yard, who were under the supervision of the yard master, unless in the performance of his duties he became temporarily subject to the yard master while operating in the yard, but he was not then a fellow-servant with the yard master himself. (Court of Civil Appeals, 1895, San Antonio and Aransas Pass Railroad Company v. Harding, 33 Southwestern Reporter, 373.) Under section 2 of this chapter [chap. 24, acts of 1891] a hostler whose duty it is to bring the engines into the roundhouse and take them out when necessary, and a boiler washer, whose duty it is to clean the boilers of the engines so as to fit them for further service, both being under the orders of the roundhouse foreman, and without authority over each other, are, as a matter of law, fellow-servants. (Court of Civil Appeals, 1895, Missouri, Kansas and Texas Railroad Company of Texas v. Whitaker, 33 Southwestern Reporter, 716.) [The following decision was not rendered under any law published in this volume, but, being of interest, is here included:] In proceedings for contempt on part of certain strikers on the Texas and Pacific Railway Company an insolvent corporation in the hands of receivers, the court held that it is well-settled law that whoever unlawfully interferes with property in the possession of a court is guilty of contempt of that court, and it seems equally well settled that whoever unlawfully interferes with officers and agents of the court, in the full and complete possession and management of property in the custody of the court, is guilty of a contempt of court; and it is immaterial whether this unlawful interference comes in the way of actual violence or by intimidation and threats. The employees of the receivers, although, pro hac vice, officers of the court, may quit their employment, as can employees of private parties or corporations, provided they do not thereby intentionally disable the property; but they must quit peaceably and decently. Where they combine and conspire to quit with or without notice, with the object and intent of crippling the property or its operation, they thereby commit a contempt; and all those who combine and conspire with employees to thus quit, or, as officials of labor organizations, issue printed orders to quit, or to strike, with an intent to embarrass the court in administering the property, render themselves liable for contempt of court. Labor organizations are lawful and generally laudable associations, but they have no legal status or authority, and stand before men and the law on no better footing than other social organizations, and it is preposterous that they should attempt to issue orders that free men are bound to obey; and no man can stand in a court of justice and shelter himself behind any such organization from the consequence of his own unlawful acts. It is a part of this case, and has been established by evidence taken under the direction of the court, that among all the employees of the receivers in operating over 1,500 miles of railway there was no complaint made to the receivers, or to the court, by an employee, of bad treatment or insufficient wages or other grievances; and yet orders were issued from a secret organization to all their employees to quit work, to strike, to cripple the operations of a great thoroughfare for travel and commerce; and many employees, confederating and combining, did quit, and induced and forced others to quit, and did hinder and delay the operation of the railway, and did damage the property in the possession of the court many thousand dollars. This action was a gross contempt of court, wholly unreasonable and unjustifiable. The court has learned, through the newspapers, etc., that these wrongs were committed because the agents of the receivers had discharged as incompetent, and for absence without leave, a certain employee, and refused to reinstate him at the demand of a secret labor organization which claimed that this discharge was in violation of an agreement forced upon the managers of the road prior to the receivership. However this may be, if true, the reason is impertinent, and such demands can not be tolerated. (United States Circuit Court, Northern District, 1886, In re Higgins et al., 27 Federal Reporter, 443.) VERMONT. REVISED LAWS OF 1880, CHAPTER 196, SECTIONS 4226 AND 4227.—Intimidation of employees. (a) The labor and skill of the workman, the plant of the manufacturer, and the equipment of the farmer are in equal sense property; every man has the right to employ his talents, industry, and capital as he pleases, free from the dictation of others; and if two or more persons combine to coerce his choice in this behalf it is a criminal conspiracy, whether the means employed are actual violence or a species of intimidation that works upon the mind. A count is sufficient which charges that the respondents unlawfully combined, conspired and agreed together to prevent and hinder by violence, threats and intimidation the Ryegate Granite Works from retaining and taking into its employ certain workmen. A count is sufficient which charges that the respondents, with malicious intent to control and injure said company, unlawfully conspired to terrify, intimidate, and drive away by threats its workmen. A count is sufficient which merely charges a conspiracy to do an unlawful act and a fortiori one that charges a conspiracy to do an unlawful act by unlawful means; thus these sections prescribe the punishment for using threats or intimidation to prevent a person accepting or continuing an employment in a mill, etc. The count charged that the respondents conspired with intent to prevent a prosecution of the business of said granite works and threatened its workmen that they were scab shops," that the employees were "scabs," that their names would be published in the "scab" list in the Granite Cutters' Journal, that they would be shunned and disgraced in the craft, etc.; and that thereby they were frightened and driven away: Held, that said count charged a conspiracy to do an act unlawful at common law, by means unlawful under these sections and that it sufficiently sets out an offense under these sections. The "boycott" is not the remedy to adjust the differences between capital and labor. (Supreme Court, 1887, State v. Stawart et al., 59 Vt., 273.) .6 [The following decision was not rendered under any law published in this volume, but, being of interest, is here included:] On a prosecution for conspiracy to drive a mechanic out of his employment because he would not join a union, and the accomplishment of that purpose, there was evidence that all the persons charged were members of the union; that the mechanic was compelled by them, as members of such union, to quit his employment; that one of the accused was secretary, and recorded the minutes of an executive meeting at which a report of the mechanic's case was made, and was at such meeting appointed, and subsequently acted, as one of a committee to inves tigate the trouble. It was held by the court that the secretary was a conspirator. (Supreme Court, 1895, State v. Dyer et al., 32 Atlantic Reporter, 814.) VIRGINIA. [The two following decisions were not rendered under any law published in this volume, but, being of interest, are here included:] A demurrer to an indictment for a conspiracy to boycott was overruled, and the court here said: "From the nature of this offense no comprehensive rule can be a See Law, page 1097. |