Page:The Green Bag (1889–1914), Volume 18.pdf/561

526

THE GREEN BAG

cases of National Protective Ass'n v. Gumming, 63 N. E. 369, and Jacobs v. Cohen, 76 N. E. 5, are referred to as supporting and substantially con trolling this case. In the first mentioned case it was held that a person may refuse to work for another on any ground that he may regard as sufficient, and that the employer has no right to demand a reason for it, so that the employee may refuse employment on the ground that he would not work with other workmen who are not mem bers of his organization. In the second case it was held that it was entirely competent for an employer to enter into an agreement not to em ploy any workmen who were not members of a labor union, and the court argues that if these positions are well taken it must follow that a contract, the making or continuance of which is conditional upon the employee remaining free from all obligations to labor unions, is a proper exercise of the right of contract. The conflict between individual powers of free motion and locomotion is palpable, and we have no difficulty in seeing that restraint of individual power of physical motion, in the interest of freedom of motion on the part of others, is not an unreason able and arbitrary deprivation of liberty. The right of free contract is, as it were, a right of free mental motion and locomotion. Bit the conflict between individual powers of fr t- mental motion and locomotion is subtle, and escapes notice. If, in the judgment of society, the power to make certain contracts unduly interferes with the free mental action of a large class of the community, can it be said that restrictions upon such power are arbitrary and unreasonable infringements upon individual liberty, any more than where the acts and conse quent interferences are purely physical? The great danger in cases involving this right of free contract is that they will be treated in the abstract, and not with reference to the concrete facts of our present social and industrial organization. In my opinion, there is a wide difference in this connection between ordinary contracts between man and man, on the one hand, and contracts between employers of large numbers of laborers in industrial pursuits and employees whose sole vocation is labor in such pursuits, upon the other hand. With the former, the public have relatively little concern. Public interests touch the latter at every point. In the case under consideration, the contract was one between a corporation engaged in making skirts and a piece-worker. Unless the employee in such a business is at liberty to enter a union if he chooses, there is, in matter of fact, a very one-sided freedom of contract. Hence I should feel inclined to criticise the decision, as exhibiting too much of abstract individualism. R. P.

CONSTITUTIONAL LAW (Due Process — Equal Protection). Tex. — In Buttron v. El Paso & Northeastern Railway Company, 93 S. W. 676, a rather curious statute of the Territory of New Mexico is construed by the Texas Court of Civil Appeals. The statute provides that no suit for personal injuries or death shall be brought in any other state or territory if the wrongdoer can be served with process in New Mexico, and requires the claimant to serve notice of his claim within ninety days and thirtydays before commenc ing the action, and authorizes the tort-feasor to compel the claimant to come into court for the district in which the tort-feasor resides and liti gate the case. This statute is held not to operate to deprive the injured party of his cause of action without due process of law, nor to be objection able as depriving a party of the equal protection of the laws. Under this statute a tort-feasor commenced a proceeding to compel a person claiming damages to litigate the case, and in the ensuing litigation judgment was rendered for the wrongdoer, which judgment included a decree enjoining plaintiff from instituting a suit in any other state or territory on the same cause of action. This judgment it was held was a bar to an action in another state. There is possibly more to be said in support of this statute than would at first occur to one, for as the court ob serves, " Viewing the matter abstractly, what justice is there after all in forcing a party inter ested in the settlement of a controversy to await the pleasure of his adversary as to the time of its litigation; why should they not have equal right and opportunity to bring the matter to issue in the courts." CONSTITUTIONAL LAW (Due Process). U. S. Sup. Ct. — The right of a street railway company maintaining a tunnel under a navigable river, to receive compensation for the expense of removing or lowering the tunnel, in order to deepen the channel of the river, is denied in West Chicago Street Railway Co. v. Illinois, 26 Sup. Ct. 518. In passing it might be well to observe that a practice point decided in this case is not without interest, it being held that a state court cannot by resting its judgment upon some ground of local or general law defeating the appellate jurisdiction of the Supreme Court of the United States, if a federal right or immunity was specially set up or claimed, which if recognized and enforced would require a different judgment. The street railway company constructed a tunnel under the Chicago River, which at the time it was con structed was not an obstruction to navigation, but later became so because of the increased size