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tion and the acceptance of awards. But even so, the power of
a court to take over and enforce the findings of such a tribunal,
whether this enforcement is to be by means of contempt pro-
ceedings or otherwise, is of at least doubtful feasibility under
the controlling provisions of the constitutions of the various
states and of the United States.

An instance of an attempt to combine functions appears in a
statute of Kansas,^ which undertook to establish a "court of
visitation," with jurisdiction over the operations of railroads.
This court was to have power to make and enforce orders to the
extent of appointing a receiver for any road not complying
therewith. It was also authorized to issue orders and compel
obedience thereto in cases of disputes affecting railroad em-
ployees. This law was declared unconstitutional by both state
and federal courts as being an attempt to confer on a single
body legislative, administrative, and judicial powers, contrary
to the provisions of the constitution.^

The costs of hearing before these boards are usually to be met
by the state, though in some States the parties having recourse
to the boards, or in whose behalf they are formed, are charged
with the costs, their apportionment being a part of the award
which it is the duty of the board to make.

From the nature of the tribunals and the objects for which they
are created, it is natural that there should have been but little
judicial consideration given to the laws establishing them or to the
operations of the boards themselves. The statute of Michigan '

1 Acts 1898-9, ch. 28.

« State V. Johnston, 61 Kans. 803, 60 Pac. 1068; Western Union Tel. Co. p
Myatt, 90 Fed. 335.

» C.L., sees. 559-568, as amended by act No. 69, Acts 1903 ; repealed May 1,


provided for a state board appointed by the governor. Each
arbitrator could administer oaths, and the secretary, not a mem-
ber of the board, might, under the direction of the court, sub-
poena witnesses, administer oaths, and compel the production
of books, papers, and documents, the same as courts of record.
The constitution of the state provides that "the legislature
may establish courts of concihation with such powers and
duties as shall be prescribed by law." No provision was made
for the enforcement of awards, and the submission of disputes
was of course voluntary. In a case ' in which the constitutional-
ity of the statute was challenged, it was upheld by the supreme
court of the state. As the case was presented it involved the
validity of an order for a rehearing, one of the parties to an
arbitration having secured such an order because of dissatis-
faction with the award. The court held that the law gave the
board no power beyond that of rendering and filing a decision,
and that in granting a rehearing it had exceeded its authority.
In another case ^ involving the same law, where there had been
a submission under an agreement to abide by the decision reached
in reference to prices, it was contended by one of the parties
that an award substituting piece rates for wages by the day
exceeded the authority of the board under the terms of sub-
mission. The supreme court held that if the board had in fact
exceeded the terms of submission, the contention would be a
valid one, but since the question was one of prices, and evidence
as to both time and piece rates had been heard ^\^thout objec-
tion, the court had not exceeded its powers. Another point in
question was the construction to be put on a proviso to the

» Renaud r. State Court of Mediation, etc.. 124 Mich. 648, 83 N.W. 620.
» Pingree v. State Court of Mediation, etc., 130 Mich. 229, 89 N.W. 943.


effect that decisions should be rendered within ten days after the
hearing. The supreme court construed this as directory only,
and not mandatory, and a delay of twelve days additional was
held, in the circumstances, not to invalidate the award.

The statute of Louisiana ^ was enacted under the authority
granted to the legislature by the constitution "to pass such laws
as may be proper and necessary to decide differences by arbitra-
tion." It provides for efforts at conciliation in cases of labor
disputes on the application of the parties, or either of them,
or of the mayor of a city or of the judge of a district court. No
provision is made for the enforcement of any finding of the
board, but if its efforts at mediation fail, its conclusions are to be
recorded on its books and also at once made public. In a case ^
in which a request for intervention had been made by an as-
sociation claiming to represent the employees of a street railway
company (which claim the company denied), the company
refused to join in the request, and asked for an injunction to
restrain the board from making any decision, on the ground that
such action would cause trouble and dissension among its em-
ployees. Irregularities were asserted, and the need of inter-
vention denied. The mayor of the city had sent a statement
as to strained conditions and suggested an investigation. The
supreme court of the state held that no restraint by injunction
would be proper on a suggestion of the mere apprehension of
injury, and that before it could act on questions of alleged
irregularity they should be argued before the board and de-
cided upon by it. The board was said to be one of conciliation,
with no power but to form and record a decision, and without

» Acts 1894, No.'139.

» Railroad Co. v. State Board of Arbitration, 47 La. Ann. 874, 17 So. 418.


judicial function. It is not bound by technical rules of legal
procedure, but must conform to the statute under which it
exists, and should "observe the broad rules of law and equity
without which a decision cannot be just."

The federal statute relative to mediation and arbitration,^
popularly known as the Erdman Act, relates only to common
carriers and their officers, agents, and employees engaged in
interstate commerce, except masters of vessels and seamen.
The act provides for a commission consisting of a member of
the Interstate Commerce Commission or of the Court of Com-
merce, designated for this duty by the President,^ and the
United States Commissioner of Labor. This commission is to
exercise its functions as a mediator on the request of either party
to a controversy between the carrier and its employees, concern-
ing wages, hours of labor, or conditions of employment. If
mediation and conciliation fail to lead to an amicable settlement
of the difficulty, the commission is to at once endeavor to bring
about an arbitration of the controversy. The board of arbitra-
tion is to consist of three members, one named by the company,
one by the labor organization representing the employees af-
fected, and the third by the first two ; if the persons named by
the parties fail to nominate the third member within five days
from their first meeting, the commissioners for mediation may
name him.

Submission to arbitration is by stipulations signed by both
parties, who agree under liability for damages to maintain the

« U.S. Comp. Stat., p. 3205. 30 Stat. 424.

« Prior to the act of Marrh 4, 1911 (36 Stat. 1397), making this provision
as to designation by the President, the chairman of the Interstate Commerce
Commission was fixed upon by the lawaa a member of the commission of media-


existing status pending the decision of the board, by which they
promise to abide. Equity may enforce the award so far as its
powers extend. It has already been noted that equity carmot
compel the performance of a labor contract against the will of
any person. Dissatisfaction with the award is not to be a ground
for withdrawal or discharge from employment within three
months from its rendition unless the party wishing to terminate
the relation gives the other party thirty days' notice in writing.
Awards continue in effect for one year from the date of their
going into operat on. The award is to be filed in the clerk's
office of a circuit court of the United States within thirty days
from the appointment of the third arbitrator, and is to go into
effect and judgment be entered upon it within ten days from
the date of its filing unless exceptions for matter of law are filed,
in which case the operation of the award is suspended until
determination is made by the court as to the exceptions. This
decision is to become the basis of a judgment at the expiration
of ten days unless within that time an appeal is taken to a cir-
cuit court of appeals.

There is Httle from which to determine the judicial construc-
tion of this act. A case involving the determination by arbi-
trators of four points in issue between a railroad company and
an order of telegraph operators^ resulted in objections by the
telegraphers to the award in two points, and a request for an
entry of judgment as to the remaining two points. The first
item submitted was as to whether the members of the
telegraphers' order employed by the company should "legislate
for" or act in behalf of its train dispatchers in the matter of
wages and in arbitration proceedings. On this point the ar-

» In re Southern Pacific Co., 155 Fed. 1001.


bitrators decided in the negative, though the train dispatchers
were for the most part members of the order and had voted to
authorize the operators to so act in their behalf. The arbi-
trators rejected the contention of the organization that only the
question of agency was submitted, since no mere matter of
simply determined fact would have been referred for decision,
but that the fair understanding of the submission was as to the
question of principle or poUcy affecting the relations of the
parties and the methods of conducting the dealings of the em-
ployer with its dispatchers ; and on a showing by the company
that the duties of dispatchers were essentially different from
those of operators, and that the two bodies of employees were
generally classed as distinct, the award of the arbitrators was
affirmed. The second contention was that a specific portion of
the award was not responsive to the terms of the submission.
This the court found to be well founded, and the plea of the
company to be allowed to offer an interpretation of the clause
of the submission under consideration was refused, the court
holding that where there was no ambiguity there was no room
for interpretation. It was said that the act providing for ar-
bitration put the proceedings on no different footing from that
of common-law arbitrations, i.e., that they rest entirely on the
agreements made by the parties, from which alone the arbitrators
derive their authority. "While the proceeding is judicial in its
character, the relation of the parties is purely a contractual one ;
and in no respect, other perhaps than in the application of the
rules of evidence, does the proceeding partake of the nature of a
civil action." The rules that govern are therefore those that
relate to the construction and interpretation of contracts rather
than to pleadings in a suit at law ; so that if any award is not


responsive to the terms of submission as they would be ordinarily
understood, it is not binding upon the parties.

As to the request for entry of judgment on the uncontro verted
portions of the award, the court ruled that, under the provisions
of the act governing exceptions and appeals, no judgment could
be entered prior to ten days after the determination of the ex-
ceptions ; and that moreover the general rules applicable in
proceedings of this sort did not provide for the enforcement of
awards by piecemeal, since each item would doubtless be decided
in contemplation of all the others, so that while formally sepa-
rable, the award must as a matter of fact be regarded as a unit,
and indivisible for purposes of enforcement.


Following is the Field Code (see sec. 4), here reproduced as
presenting in a concise form the general rules of the common
law governing the employment of labor. The numbering of the
sections is that used in the Civil Code of Montana, 1895.

Section 2650. The contract of employment is a contract
by which one, who is called the employer, engages another, who
is called the employee, to do something for the benefit of the
employer or of a third person.

Sec. 2660. An employer must indemnify his employee, except
as prescribed in the next section, for all that he necessarily ex-
pends or loses in direct consequence of the discharge of his duties
as such, or of his obedience to the directions of the employer,
even though unlawful, unless the employee, at the time of obey-
ing such directions, believed them to be unlawful.

Sec. 2661. An employer is not bound to indemnify his em-
ployee for losses suffered by the latter in consequence of the
ordinary risks of the business in which he is employed.

Sec. 2662. An employer must in all cases indemnify his
employee for losses caused by the former's want of ordinary

Sec. 2670. One who, without consideration, undertakes to
do a service for another, is not bound to perform the same, but
if he actually enters upon its performance, he must at least
slight care and diligence therein.

Sec. 2671. One who, by his own special request, induces
another to intrust him with the performance of a service, must
perform the same fully. In other cases, one who undertakes a
gratuitous service may relinquish it at any time.

Sec. 2672. A gratuitous employee, who accepts a written
power of attorney, must act under it so long as it remains in
force, or until he gives notice to his employer that he will not do



Sec. 2673. One who, for a good consideration, agrees to serve
another, must perform the service, and must use ordinary care
and diligence therein, so long as he is thus employed.

Sec. 2674. One who is employed at his own request to do
that which is more for his own advantage than for that of his
employer, must use great care and diligence therein to protect
the interest of the latter.

Sec. 2675. A contract to render personal service, other than
a contract of apprenticeship, * * * cannot be enforced
against the employee beyond the term of two years from the
commencement of service under it ; but if the employee volun-
tarily continues his service under it beyond that time, the con-
tract may be referred to as affording a presumptive measure of
the compensation.

Sec. 2676. An employee must substantially comply with all
the directions of his employer concerning the service on which
he is engaged, except where such obedience is impossible or un-
lawful, or would impose new and unreasonable burdens upon
the employee.

Sec. 2677. An employee must perform his service in conform-
ity to the usage of the place of performance, unless otherwise
directed by his employer, or unless it is impracticable, or mani-
festly injurious to his employer to do so.

Sec. 2678. An employee is bound to exercise a reasonable
degree of skill, unless his employer has notice, before employing
him, of his want of skill.

Sec. 2679. An employee is always bound to use such skill as
he possesses, so far as the same is required, for the service speci-

Sec. 2680. Everything which an employee acquires by virtue
of his employment, except the compensation, if any, which is
due to him from his employer, belongs to the latter, whether
acquired lawfully or unlawfully, or during or after the expiration
of the term of his employment.

Sec. 2681. An employee must, on demand, render to his
employer just accounts of all his transactions in the course of
his service, as often as may be reasonable, and must, without
demand, give prompt notice to his employer of everything which
he receives for his account.

Sec. 2682. An employee who receives anything on account
of his employer, in any capacity other than that of a mere ser-
vant, is not bound to deliver it to him until demanded, and is


not at liberty to send it to him from a distance, without demand,
in any mode involving greater risk than its retention by the
employee himself.

Sec. 2683. An employee who has any business to transact
on his own account, similar to that intrusted to him by his
employer, must always give the latter the preference.

Sec. 2684. An employee who is expressly authorized to
employ a substitute is liable to his principal only for want of
ordinary care in his selection. The substitute is directly re-
sponsible to the principal.

Sec. 2685. An employee who is guilty of a culpable degree
of negligence is liable to his employer for the damage thereby
caused to the latter ; and the employer is liable to him, if the
service is not gratuitous, for the value of such services only as
are properly rendered.

Sec. 2686. Where service is to be rendered by two or more
persons jointly, and one of them dies, the survivor must act
alone, if the service to be rendered is such as he can rightly
perform without the aid of the deceased person, but not other-

Sec. 2700. Every employment in which the power of the em-
ployee is not coupled with an interest in its subject is terminated
by notice to him of :

1. The death of the employer ; or,

2. His legal incapacity to contract.

Sec. 2701. Every employment is terminated :

1. By the expiration of its appointed term.

2. By the extinction of its subject.

3. By the death of the employee ; or,

4. By his legal incapacity to act as such.

Sec. 2702. An employee, unless the term of his service has
expired, or unless he has a right to discontinue it at any time
without notice, must continue his service after notice of the
death or incapacity of his employer, so far a.s is necessary to pro-
tect from serious injury the interests of the employer's successor
in interest, until a reasonable time after notice of the facts has
been communicated to such successor. The successor must
compensate the employee for such service according to the
terms of the contract of employment.

Sec. 2703. An empioymont having no specified term may
be terminated at the will of eithor party, on notice to the other,
except where otherwise provided by this title.


Sec. 2704. An employment, even for a specified term may
be terminated at any time by the employer, in case of any will-
ful breach of duty by the employee in the course of his employ-
ment, or in case of his habitual neglect of his duty or continued
incapacity to perform it.

Sec. 2705. An employment, even for a specified term, may
be terminated by the employee at any time, in case of any will-
ful or permanent breach of the obligations of his employer to
him as an employee.

Sec. 2706. An employee, dismissed by his employer for good
cause, is not entitled to any compensation for services rendered
since the last day upon which a payment became due to him
under the contract.

Sec. 2707. An employee who quits the service of his employer
for good cause is entitled to such proportion of the compensation
which would become due in case of full performance as the
services which he has already rendered bear to the services which
he was to render as full performance.

Sec. 2720. A servant is one who is employed to render per-
sonal service to his employer, otherwise than in the pursuit of
an independent calling, and who in such service remains entirely
under the control and direction of the latter, who is called his

Sec. 2721. A servant is presumed to have been hired for such
length of time as the parties adopt for the estimation of wages.
A hiring at a yearly rate is presumed to be for one year ; a hiring
at a daily rate, for one day ; a hiring by piecework, for no speci-
fied term.

Sec. 2722. In the absence of any agreement or custom as to
the term of service, the time of payment, or rate or value of
wages, a servant is presumed to be hired by the month, at a
monthly rate of reasonable wages, to be paid when the service
is performed.

Sec. 2723. Where, after the expiration of an agreement re-
specting the wages and the term of service, the parties continue
the relation of master and servant, they are presumed to have
renewed the agreement for the same wages and term of service.

Sec. 2724. The entire time of a domestic servant belongs to
the master ; and the time of other servants to such extent as is
usual in the business in which they serve, . . .

Sec. 2725. A servant must deliver to his master, as soon as
with reasonable diligence he can find him, everything that he


receives for his account, without demand ; but he is not bound,
without orders from his master, to send anything to him through
another person.

Sec. 2726. A master may discharge any servant, other than
an apprentice, whether engaged for a fixed term or not :

1. If he is guilty of misconduct in the course of his service, or
of gross immorahty, though unconnected with the same ; or,

2. If, being employed about the person of the master, or in a
confidential position, the master discovers that he has been
guilty of misconduct, before or after the commencement of his
service, of such a nature that if the master had known or con-
templated it, he would not have so employed him.

Sec. 2760. One who officiously, and without the consent of
the real or apparent owner of a thing, takes it into his possession
for the purpose of rendering service about it, must complete such
service, and use ordinary care, diligence, and reasonable skill
about the same. He is not entitled to any compensation for his
service or expenses, except that he may deduct actual and neces-
sary expenses, incurred by him about such service, from any
profits which his service has caused the thing to acquire for its
owner, and must account to the owner for the residue.


Adair v. United States, 5, 193, 234.

Adams v. Brennan, 241.

Adams D. Fitzpatrick, 11.

.^titus V. Coal Co., 99.

Aikens v. Wisconsin, 245, 257, 262, 274,

Alabama G. S. R. Co. ». Thompson, 204.
Alaska Treadwell Gold Min. Co. v.

Whelan, 161.
Albro V. Jaquith, 199.
Alexander M. Lawrence, The, 47.
Alexander v. Carolina Mills, 105.
Alfson V. Bush. 122.
Allen V. Boston & M. R. Co., 142.
Allen V. Compress Co., 28.
Allen V. Flood, 36, 37.
Allen V. Goodwin, 161
Allgeyer v. Louisiana, 4.
Allis-Chalmers Co. v. Iron Molders'

Union, 220, 221, 222, 261, 262, 277,

279, 318, 325.
Althorf V. Wolfe, 202.
American Car & Foundry Co. v. Ar-

mentraut, 104, 105, 126.
American Fed. of Labor v. Bucks Stove

& Range Co.. 282.
American Steel & Wire Co. v. Wire

Drawers' Union, 221, 308. 313, 316.
Anderson v. Drop Forging Co., 324.
Anderson v. Michigan C. R. Co., 130.
Andrews. Ex parte, 80.
Andricus' Adm'r. v. Coal Co., 133.
Angle V. Chicago R. Co., 35, 298.
Anglo t'. Hanna, 31.

Anoka Lumber Co. v. Fidelity & Casu-
alty Co., 182.
Anstee v. Ober, 27.
Antioch Coal Co. v. Rockey, 134.

A. R. Barnes

Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 28 of 32)