is in violation of the contract between the parties, the one injured by the breach has his action for damages; and a court of equity will not, indirectly or negatively, by means of an injunction restraining the violation of the contract, compel the affirmative performance from day to day, or the affirmative acceptance, of merely personal services. Relief of that character has always been regarded as impracticable.

Undoubtedly, the simultaneous cessation of work by any considerable number of the employees of a railroad corporation without previous notice will have an injurious effect, and for a time inconvenience the public. But these evils, great as they are, and although arising in many cases from the inconsiderate conduct of employees and employers, both equally indifferent to the general welfare, are to be met and remedied by legislation restraining alike employees and employers, so far as necessary adequately to guard the rights of the public as involved in the existence, maintenance, and safe management of public highways. In the absence of legislation to the contrary, the right of one in the service of a quasi public corporation to withdraw therefrom at such time as he sees fit, and the right of the managers of such a corporation to discharge an employee from service whenever they see fit, must be deemed so far absolute that no court of equity will compel him, against his will, to remain in such service or actually to perform the personal acts required in such employments, or compel such managers, against their will, to keep a particular employee in their service.

The fact that employees of railroads may quit under circumstances that would show bad faith upon their part, or a reckless disregard of their contract or of the convenience and interests of both employer and the public, does not justify a departure from the general rule that equity will not compel the actual, affirmative performance of merely personal services, or (which is the same thing) require employees, against their will, to remain in the personal service of their employer. These employees having taken service first with the company, and afterwards with the receivers, under a general contract of employment which did not limit the exercise of the right to quit the service, their peaceable cooperation, as the result of friendly argument, persuasion, or conference among themselves, in asserting the right of each and all to refuse further service under a schedule of reduced wages, would not have been illegal or criminal, although they may have so acted in the firm belief and expectation, that a simultaneous quitting without notice would temporarily inconvenience the receivers and the public. If in good faith, and peaceably, they exercise their right of quitting the service, intending thereby only to better their condition by securing such wages as they deem just, but not to injure or interfere with the free action of others, they can not be legally charged with any loss to the trust property resulting from their cessation of work in consequence of the refusal of the receivers to accede to the terms upon which they were willing to remain in the service. Such a loss, under the circumstances stated, would be incidental to the situation, and could not be attributed to employees exercising their lawful rights in orderly ways, or to the receivers when. in good faith and in fidelity to their trust, they declare a reduction of wages, and thereby cause dissatisfaction among employees, and their withdrawal from service. According to the principles of the common law, a conspiracy upon the part of two or more persons, with the intent, by their combined power, to wrong others or to prejudice the rights of the public, is in itself illegal, although nothing be actually done in execution of such conspiracy. This is fundamental in our jurisprudence. So, a combination or conspiracy to procure an employee or body of employees to quit service in violation of the contract of service would be unlawful, and in a proper case might be enjoined, if the injury threatened would be irremediable at law.

An intent, upon the part of a single person, to injure the rights of others or of the public, is not in itself a wrong of which the law will take cognizance, unless some injurious act be done in execution of the unlawful intent; but a combination of two or more persons with such an intent, and under circumstances that give them, when so combined, a power to do an injury they would not possess as individuals acting singly, has always been recognized as in itself wrongful and illegal. It seems entirely clear, upon authority, that any combination or conspiracy upon the part of these employees would be illegal which has for its object to cripple the property in the hands of the receivers, and to embarrass the operation of the railroads under their management, either by disabling or rendering unfit for use engines, cars, or other property in their hands, or by interfering with their possession, or by actually obstructing their control and management of the property, or by using force, intimidation, threats, or other wrongful methods against the receivers or their agents, or against employees remaining in their service, or by using like methods to cause employees to quit, or prevent or deter others from entering the service in place of those leaving it.

In the absence of evidence, it can not be held, as a matter of law, that a combination among employees, having for its object their orderly withdrawal in large numbers, or in a body, from the service of their employers, on account simply of a reduction in their wages, is not a "strike," within the meaning of that word as commonly used. Such a withdrawal, although amounting to a strike, is not illegal or criminal. (United States Circuit Court of Appeals, Seventh Circuit, 1894, Arthur et al. v. Oakes et al., 63 Federal Reporter, 310.)

ACTS OF 1893, CHAPTER 220.-Liability of railroad companies for injuries of employees. (a)

[The four decisions immediately following were rendered in cases arising under section 1816 of the Annotated Statutes of Wisconsin, repealed by chapter 232 of the acts of 1880, and section 1816a of said statutes, repealed by chapter 220 of the acts of 1893, above noted; the principles enunciated in these decisions seem to be applicable to the present law and are therefore published:]

Section 1816 is valid and constitutional although it is confined in its operation to railroad companies and does not impose a similar liability upon other corporations or persons, and this for the reason that said section is a proper exercise by the legislature of the power granted to it by the constitution to alter or repeal the charters of railroad companies. It is the settled law of this State, that while a slight want of ordinary care on the part of the plaintiff will defeat an action under this section, it will not be defeated by slight negligence on his part; that phrase properly denoting a want of extraordinary care. (Supreme Court, 1879, Ditberner v. The Chicago, Milwaukee and St. Paul Railway Company, 49 Wis., 138.)

An established custom in the management of a depot yard of a railroad company, that, in switching cars therein, it is not the company's duty to have a brakeman or other person upon each group of cars, or single car, separately in motion, to give warning of its approach to men at work in the yard, but that the men in such cases must look out for themselves, would not relieve a brakeman actually in charge of a moving car, who should see that it was approaching a workman upon the track, from the duty of stopping it or warning him of its approach; and therefore it would not relieve the company from liability to such workman for an injury thus caused, under section 1816. (Supreme Court, 1880, Berg v. The Chicago, Milwaukee and St. Paul Railway Company, 50 Wis., 419.)

Case should have been submitted to jury on evidence tending to prove that, just as plaintiff was about to couple the cars the engineer, without notice, suddenly and negligently caused the train to come back with increased speed and thereby crushed the plaintiff's hand between the bumpers, as in such a case defendant would be liable under this act. (Supreme Court, 1892, Kruse v. The Chicago, Milwaukee and St. Paul Railway Company, 82 Wis., 568.)

This statute does not put the burden of proof on an injured employee to show freedom from contributory negligence. (Supreme Court, 1893, Dugan v. Chicago, St. Paul, Minneapolis and Omaha Railway Company, 85 Wis., 609.)

Under this statute [chap. 220, acts of 1893], a railroad company is not liable for injuries to one of its car repairers, caused by a switchman negligently running a train into the stationary car in which the repairer was at work, for the reason that such repairer was not an employee engaged in the branch of the railway service, when injured, entitled to the benefits of the statutory liability. (Supreme Court, 1895, Smith v. Chicago, Milwaukee and St. Paul Railway Company, 65 Northwestern Reporter, 183.)

UNITED STATES.

REVISED STATUTES OF 1878, TITLE 43, SECTION 3738.-Hours of labor-Public works. (b)

This section, declaring that eight hours shall constitute a day's work for all laborers, workmen, and inechanics employed by or on behalf of the Government of the United States, is in the nature of a direction by the Government to its agents, and not of a contract between the Government and its laborers, that eight hours shall constitute a day's work. It neither prevents the Government from

a See Law, page 1173.

b See Law, page 1198.

making agreements with them, by which their labor may be more or less than eight hours a day, nor does it prescribe the amount of compensation for that or any other number of hours' labor. When, therefore, a laborer, in the habit of working for the Government twelve hours a day, for $2.50 a day, is informed by the proper authority, that if he remains in the service at that compensation, he must continue to work twelve hours a day, and he does so continue, and is paid accordingly, he can not afterwards recover for the additional time over eight hours as a day's labor. And any allowance by the Government upon the application of the laborer, of a sum for the excess of time over eight hours per day, is, when accepted by him, a bar to any further claim. (United States Supreme Court, 1876, United States v. Martin, 94 U. S., 400.)

Seamen on a Government vessel are employed upon "public works of the United States" when engaged in removing obstructions to navigation in rivers and harbors, and to exact from them more than eight hours' labor per day at this work.. or in the actual care and repair of appliances necessary to carry it on, will subject the offender to indictment. (United States District Court, District of Washington, N. D., 1894, United States v. Jefferson, 60 Federal Reporter, 736.)

REVISED STATUTES OF 1878, TITLE 46, SECTION 3995.-Obstructing the mail. (a)

This section applies only to acts performed with the intention of obstructing and not to acts in themselves lawful from which delay unavoidably follows. (United States Supreme Court, 1868, United States v. Kirby, 7 Wallace, 482.)

This section applies to the unlawful stopping of a railway mail train, although those guilty are willing to permit the passage of the mail car detached from the passenger cars of the train. (United States District Court, Eastern District of Pennsylvania, 1877, United States v. Clark, 13 Philadelphia Reports, 476.)

This section applies to the stopping of a train by discharged railway laborers, although their primary intention may not be to obstruct the mail but to obtain a return passage. It also applies to the act of preventing by force and threats of violence, the conductor of a train from detaching a mail car, to enable it to go on without the rest of the train. (United States District Court, District of Oregon, 1884, United States v. Kane, 19 Federal Reporter, 42.)

Where employees of a railroad company, though remaining in its employment, refuse to perform their duties of operating its trains so long as Pullman cars are hauled, though the company is bound by contract to carry them, thus interrupting interstate commerce and the transmission of mails, and subjecting the company to suits and great and irreparable damage, injunction will issue requiring them to perform their duties during their continuance in the company's employment. (United States Circuit Court, Southern District of California, 1894, Southern California Railway Company v. Rutherford et al., 62 Federal Reporter, 796.)

Where the regular passenger trains of a railroad have been designated for the carrying of a mail, failure of the railroad to run other trains for that purpose is not in violation of the statute against obstruction and interruption of the mail. (United States District Court, Southern District of California, 1894, In re Grand Jury, 62 Federal Reporter, 834.)

It is a violation of section 3995, Revised Statutes, declaring it an offense to knowingly and willfully obstruct or retard the passage of the mail, for one to prevent the running of a mail train as made up, though he is willing that the mail car shall go on, and his purpose is other than to retard the mails. The railway is a great public highway, and the duty of the railroad company as a common carrier is first to the public. The road must be kept in operation for the accommodation of the public, if it is possible to do so with the force and appliances within reach. Any negligence in this respect is not excused by temporary difficulties capable of being promptly removed. Where the transportation of the mails and interstate commerce has long been interrupted by the refusal of the employees of the railway company to move trains carrying Pullman cars, it is the duty of the railway company to use every effert to move the mails and interstate commerce, without regard to the make-up of regular trains; and any willful failure to perform this duty is a violation of this statute. (United States District Court, Northern District of California, 1894, In re Grand Jury, 62 Federal Reporter, 840.)

a See Law, page 1198.

[The following decision not only construes section 3995, above, but also section 5440, page 1224, ante, and chapter 647 of the acts of 1889-90, the "antitrust act,' page 1238, ante:]

The statute relating to conspiracies to commit offenses against the United States, (Rev. Stat., sec. 5440) contains three elements which are necessary to constitute the offense. These are: (1) The act of two or more persons conspiring together; (2) to commit any offense against the United States; (3) the overt act, or the element of one or more of such parties doing any act to effect the object of the conspiracy.

A conspiracy is a combination of two or more persons by concerted action to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal, by criminal or unlawful means.

The common design is the essence of the charge; but it is not necessary that two or more persons should meet together, and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly, by words or in writing, state what the unlawful scheme was to be, and the details of the plan or the means by which the unlawful combination was to be made effective. It is sufficient if two or more persons, in any manner or through any contrivance, positively or tacitly, come to a mutual understanding to accomplish a common and unlawful design. Where an unlawful end is sought to be effected, and two or more persons, actuated by the common purpose of accomplishing that end, work together in any way in furtherance of the unlawful scheme, every one of said persons becomes a member of the conspiracy, although the part any one was to take therein was a subordinate one, or was to be executed at a remote distance from the other conspirators. Anyone who, after a conspiracy is formed, and who knows of its existence, joins therein, becomes as much a party thereto from that time as if he had originally conspired.

Where several persons are proved to have combined together for the same illegal purpose, any act done by one of them, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of the law, the act of the whole party, and therefore the proof of such act will be evidence against any of the others who were engaged in the conspiracy.

Any declaration made by one of the parties, during the pendency of the illegal enterprise, is not only evidence against himself, but against all the other conspirators, who, when the combination is proved, are as much responsible for such declarations, and the acts to which they relate, as if made and committed by themselves. This rule applies to the declaration of a coconspirator, although he may not himself be under prosecution.

The law regards the act of unlawful combination and confederacy as dangerous to the peace of society, and declares that such combination and confederacy to commit crime requires an additional restraint to those provided for the commission of the crime itself, with penalties and punishments distinct from those it attaches to the crime which may be the object of the conspiracy.

It is not incumbent upon the prosecution to prove that all the means set out in the indictment were in fact agreed upon to carry out the conspiracy, or that any of them were actually used or put in operation. It is sufficient if it be shown that one or more of the means described in the indictment were to be used to execute the unlawful purpose.

While at common law it was not necessary to aver or prove an overt act in furtherance of a conspiracy, yet, under the statute relating to conspiracies to commit an offense against the United States, the doing of some act in pursuance of the conspiracy is made an ingredient of the crime, and must be established as a necessary element thereof, although the act may not be in itself criminal.

It is not necessary, however, to a verdict of guilty, that the jury should find that each and every one of the overt acts charged in the indictment was in fact committed; but it is sufficient to show that one or more of these acts was committed, and that it was done in furtherance of the conspiracy.

Although the law which now appears in the United States Revised Statutes, section 3995, and which makes it an offense to obstruct and retard the passage of the United States mails, was originally passed prior to the introduction into the United States of the method of transporting mail by railroads, and the phraseology of the law conforms to conditions prevailing at that time (March 3, 1825), yet it is equally applicable to the modern system of conveyance, and protects alike the transportation of the mail by the "limited express" and by the old-fashioned stagecoach.

The statute applies to all persons who "knowingly and willfully" obstruct and retard the passage of the mails or the carrier carrying the same; that is, to those who know that the acts performed, however innocent they may otherwise be, will

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have the effect of obstructing and retarding the mail, and who perform the acts with the intent that such shall be their operation.

The statute also applies to persons who, having in view the accomplishment of other purposes, perform unlawful acts, which have the effect of obstructing and retarding the passage of the mails. In such case, an intent to obstruct and retard the mails will be imputed to the authors of the unlawful act, although the attainment of other ends may have been their primary object.

A mail train is a train as usually and regularly made up, including not merely a mail car, but such other cars as are usually drawn in the train. If the train usually carries a Pullman car, then such train, as a mail train, would include the Pullman car as a part of its regular make-up. Therefore, if such a train is obstructed or retarded because it draws a Pullman car, it is no defense that the parties so delaying it were willing that the mail should proceed if the Pullman car were left behind. Any train which is carrying mail, under the sanction of the postal authorities is a mail train, in the eye of the law.

It is not necessary that defendants should be shown to have had knowledge that the mails were on board of a train which they have detained and disabled. On the contrary, they are chargeable with an intent to do whatever is the reasonable and natural consequence of their acts; and as the laws make all railways postal routes of the United States, and it is within everyone's knowledge that a large portion of the passenger trains carry mail, it is to be presumed that any person obstructing one of these contemplates, among other intents, the obstruction of the mail.

The word "commerce," as used in the act of July 2, 1890, to protect trade and commerce against unlawful restraints and monopolies, and in the Constitution of the United States, has a broader meaning than the word "trade." Commerce among the States consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, as well as the purchase, sale, and exchange of commodities.

While the primary object of the statute of July 2, 1890, was doubtless to prevent the destruction of legitimate and healthy competition in interstate commerce, by the engrossing and monopolizing of the markets for commodities, yet its provisions are broad enough to reach a combination or conspiracy that will interrupt the transportation of such commodities and persons from one State to another. Pullman cars in use upon railroads are instrumentalities of commerce. The employees of railway companies have a right to organize for mutual benefit and protection, an ́l for the purpose of securing the highest wages and the best conditions they can command. They may appoint officers, who shall advise them as to the course to be taken in their relations with their employer, and they may, if they choose, repose in their officers authority to order them, or any of them, on pain of expulsion from their union, peaceably to leave the employment because the terms thereof are unsatisfactory. But it is unlawful for them to combine and quit work for the purpose of compelling their employer to withdraw from his relations with a third party, for the purpose of injuring that third party.

A strike, or a preconcerted quitting of work, by a combination of railroad employees, is, in itself, unlawful, if the concerted action is knowingly and willfully directed by the parties to it for the purpose of obstructing and retarding the pas sage of the mails, or in restraint of trade and commerce among the States. (United States District Court, Northern District of California, 1895, United States v. Cassidy et al., 67 Federal Reporter, 698.)

REVISED STATUTES OF 1878, TITLE 69, SECTIONS 5298 AND 5299.-Suppression of insurrection, domestic violence, conspiracy, etc. (a)

The law providing for calling out the militia to execute the laws of the Union, to suppress insurrections and repel invasions, is within the constitutional authority of Congress. A militiaman who refuses to obey the order of the President, calling him into public service, is liable to be tried for the offense.

The President is constituted the judge of the existence of the exigency in the first instance, and is bound to act in accordance with his belief of the facts. No appeal lies from his conclusion. When he exercises the authority vested in him, the presumption is that he exercises it in pursuance of law. (United States Supreme Court, 1849, Luther v. Borden, 7 Howard, 1; United States Supreme Court, 1887, Martin v. Mott, 12 Wheaton, 19.)

The open and active opposition of a number of persons to the execution of the laws of the United States, of so formidable a nature as to defy for the time being

a See Law, page 1223.