A company to which a charter was granted by the superior court for the purpose of carrying on the general business of sawing all kinds of lumber by machinery run by steam, or such power as may be best adapted to the business, to place said lumber on the market," etc., is not a railroad company, although, according to its charter, it had authority "to buy, lease, sell, use, and operate locomotives and railroad engines on tramroads and railroads; to build, construct, and project railroads and tramroads contiguous to, and in connection with, and for the purpose of furthering, facilitating, and more readily and easily carrying on, the aforesaid business of sawing, manufacturing, etc., as proposed." The fact that said company did, on some occasions, transport passengers and freight for hire, did not make it a railroad company, as to one of its own employees who was injured by the movement of a locomotive at a time, and upon an occasion, when the company was in no sense engaged in transacting business as a carrier for the public. The laws of this State applicable to actions by employees against railroad companies, as such, are not applicable to an action against a lumber company, of the kind above indicated, by one of its employees, but the general law applicable to an action for personal injuries by a servant against his master must control. (Supreme Court, 1893, Ellington v. Beaver Dam Lumber Company, 19 Southeastern Reporter, 21.)

A decision by a State supreme court that a statute of the State making railroad companies liable for injuries caused to their employees by the negligence of coemployees does not apply to the case of an injury to an employee of a receiver operating a railroad under direction of a court of equity, is binding upon the Federal courts. The Georgia statute (Code, section 3036) making railroad companies liable for injuries caused to their employees by the negligence of coemployees does not apply to the case of an injury to an employee of a receiver operating a railroad under direction of a court of equity; and in such a case the common-law rule is still in force. An injury to a railroad employee by a dangerous structure placed too near the track is not an injury caused by negligence in the running of trains" within the meaning of the Georgia statutes relating to the liability of railroad companies "as common carriers" (Code, section 2083), or within the act of 1876, providing for a payment of claims out of income in the hands of a railroad receiver. A railroad employee injured by being brought into contact with a structure at the side of a road while standing on the side of a car instead of on the top thereof, where the company's rules required him to be, can not recover damages for the injury. (United States Circuit Court, Northern District of Georgia, 1888, Central Trust Company of New York v. East Tennessee, Virginia and Georgia Railway Company, 69 Federal Reporter, 353.)

The Georgia statutes making railroad companies liable for injuries caused to employees by the negligence of coemployees (Code, sections 2083 and 3036) do not apply to the case of an injury to an employee of a receiver operating a railroad under direction of a court of equity. Nor is such receiver made liable in such cases by the act of February 28, 1876, which defines the duties and fixes the liabilities of railroad receivers. (United States Circuit Court, Northern District of Georgia, 1895, Central Trust Company of New York v. East Tennessee, Virginia and Georgia Railway Company, 69 Federal Reporter, 357.)

The Georgia statutes (Code, sections 2083 and 3036 and act of February 28, 1876) do not give to the employees of a railroad receiver a right of action for injuries caused by the negligence of coemployees.

The conductors of two electric cars on the same road are fellow-servants. (United States Circuit Court, Northern District of Georgia, 1895, Baltimore Trust and Guaranty Company v. Atlanta Traction Company, 69 Federal Reporter, 358.)

CODE OF 1882, PART IV, SECTIONS 4598a, 4598b, AND 4598c.-Emigrant agents. (a)

The statute requiring any person engaged in hiring laborers in this State for employment beyond the limits of the same, to procure a license and pay therefor $100, and making it penal to carry on the business without such license, is constitutional. (Supreme Court, 1877, Shepperd v. County Commissioners of Sumter, 59 Ga., 535.)

CODE OF 1882, PART IV, SECTIONS 4813а TO 4817.-Convict labor. (a) Sections 4813a to 4813f, inclusive, are constitutional and valid. (Supreme Court, 1883, Georgia Penitentiary Companies, Nos. 2 and 3 v. Nelms et al., 71 Ga., 301.)

a See Law, page 221.

ACTS OF 1890–91, ACT No. 290.-Protection of employees—Blacklisting, etc. (a) The public, whether as many or one, whether as a multitude or as a sovereignty, has no interest to be protected or promoted by a correspondence between discharged agents or employees and their late employers, designed, not for public, but for private, information as to the reasons for discharges, and as to the import and authorship of all complaints or communications which produced or suggested them. A statute which undertakes to make it the duty of incorporated railroad, express, and telegraph companies to engage in correspondence of this sort with their discharged agents and employees, and which subjects them in each case to a heavy forfeiture, under the name of damages, for failing or refusing to do so, is violative of the general private right of silence enjoyed in this State by all persons, natural or artificial, from time immemorial, and is utterly void, and of no effect. Liberty of speech and of writing is secured by the constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred. Statements or communications, oral or written, wanted for private information, can not be coerced by mere legislative mandate at the will of one of the parties and against the will of the other. Compulsory private discovery, even from corporations, enforced, not by suit or action, but by statutory terror, is not allowable where rights are under the guardianship of due process of law. It follows from the foregoing that the act of October 21, 1891, entitled "An act to require certain corporations to give to their discharged employees or agents the causes of their removal or discharge when discharged or removed," is unconstitutional, and that an action founded thereon for the recovery of $5,000 as penalty or arbitrary damages fixed by the statute for noncompliance with its mandate can not be supported. (Supreme Court, 1894, Wallace v. Georgia, Carolina and Northern Railway Company, 22 Southeastern Reporter, 579.)

IDAHO.

[The following decision was not rendered under any law published in this volume, but, being of interest, is here included:]

An injunction may be granted to restrain labor unions and members thereof from entering upon complainant's mines, or interfering with the working thereof, by force, threats, or intimidation, preventing complainant's employees from working the mines, where the threatened acts are such that their frequent occurrence may be expected, and the defendants are insolvent. (United States Circuit Court, District of Idaho, 1892, Coeur d'Alene Consolidated and Mining Company v. Miners' Union of Wardner et al., 51 Federal Reporter, 260.)

ILLINOIS.

CONSTITUTION, ARTICLE 4, SECTION 29.-Protection of miners. (b)

This provision of the constitution, enjoining legislation in the interest of miners, requires legislation for the personal safety of miners, and relates only to the enactment of police regulations to promote that end. (Supreme Court, 1886, Millet v. The People, 117 Ill., 294.)

REVISED STATUTES OF 1891, CHAPTER 13, SECTION 13.-Attorney's fees in suits for wages. (c)

A traveling salesman is not a laborer or servant within the meaning of this statute. (Appellate Court, First District, 1893, Standard Fashion Company e. Blake, 51 Ill. Appellate Court Reports, 233.)

REVISED STATUTES OF 1891, CHAPTER 48, SECTIONS 6 TO 12.-Payment of wages—
Truck system prohibited. (d)

SECTIONS 1 (6) and 2 (7) of this act are unconstitutional, within section 2 of article 2 of the constitution of Illinois as depriving persons of property rights without due process of law. It is not incompetent for the legislature to select operators of mines or manufacturers, and provide that they shall bear burdens not imposed on

a See Law, page 224.

b See Law, page 242.

c See Law, page 244.
d See Law, page 256.

other owners of property, and prohibit them from making contracts which it is competent for owners of property or employers of labor to make. In all matters relating to mining and manufacturing wherein they differ from other industrial branches, the legislature has the constitutional power to determine whether any, and, if any, what, statute shall be enacted for their welfare, and necessarily affecting them alone. But keeping stores and groceries, or supplies of tools, clothing and food, by whatever name, to sell to laborers in mines and manufactories, is entirely independent of mining and manufacturing, and has no tendency to affect the mechanical process of mining and manufacturing. A man may not be prohibited from keeping a "truck store" for the sale of implements of labor, food or clothing merely because of his participating or being interested in a mining or manufacturing business. If the legislature should undertake to provide by law that persons following some lawful trade or employment should not have the capacity to make contracts, or to receive conveyances, or to build such houses as others were allowed to erect, or in any other way make such use of their property as was permissible for others, such act would transcend the bounds of legislative power, even if it did not come in conflict with constitutional provisions. The privilege of contracting is both a liberty and a property right, and if A is denied the right to contract and acquire property in a manner which he has hitherto enjoyed under the law, and which B, C, and D are still allowed by the law to enjoy, it will be clear that he is deprived of both liberty and property to the extent that he is denied the right to contract. The police power of the State is limited to enactments having reference to the comfort, the safety and the welfare of society, and under its guise a person can not be deprived of a constitutional right. Under it an adult person of sound mind, laboring under no legal disability, can not be deprived of the right to make contracts in respect to labor and the acquisition of property, under the pretense of giving such person protection. (Supreme Court, 1892, Frorer et al. v. The People, 141 Ill., 171.)

REVISED STATUTES OF 1891, CHAPTER 48, SECTIONS 13 TO 15.-Payment of wages. (a)

This act is unconstitutional within section 2 of article 2 of the State constitution, as depriving persons, without due process of law, of the property right of making contracts. It is also contrary to section 1 of article 11 of the State constitution, which declares that corporate charters shall not be amended by special laws, since it attempts to amend the charters of the kinds of corporations named in the act by imposing on them the requirement of weekly payments, while it does not affect other corporations created under the same general laws. (Supreme Court, 1893, Braceville Coal Company v. People, 35 Northeastern Reporter, 62.)

REVISED STATUTES OF 1891, CHAPTER 93, SECTIONS 1 TO 19.-Coal mine regulations and inspection. (b)

Where a mining company failed to comply with an act of 1872 requiring the top of each shaft to be securely fenced, etc. (similar to section 8 of this chapter), and in consequence of which an employee, while using due care, fell into a shaft and was killed: Held, that the company was liable in an action on the case, to his personal representatives for his death. (Supreme Court, 1873, Bartlett Coal and Mining Company v. Roach et al., 68 Ill., 174.)

Where a party is killed, on attempting to ascend from a coal mine, by the fall of a lump of coal, and it appears that the defendant willfully used uncovered cages for the ascent and descent of persons working in the mine, in violation of the statute (section 6), which caused the death, a recovery may be had by his widow, notwithstanding the deceased may not have been free from fault and negligence on his part. (Supreme Court, 1876, Litchfield Coal Company v. Taylor, 81 Ill., 590.) Where a company had provided no second escapement shaft, as required by section 3 of this chapter, and a fire occurred in the main shaft and the miners in the alarm and confusion consequent thereon rushed to the shaft and one fell down into said shaft and was killed: Held, that the company was liable, in an action, to his widow for his death, for the neglect to have a second means of escape, even though the fire was purely accidental. A party guilty of negligence or violation of law contributing to an injury and giving another a reasonable cause for alarm, can not complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility for damages resulting from the alarm. (Supreme Court, 1876, Wesley City Coal Company v. Healer, 84 Ill., 126.)

a See Law, page 256.

b See Law, page 260.

Under section 9 of this chapter the person whose duty it is made to report any accident in any mine or colliery, causing loss of life or serious personal injury, to the mine inspectors, etc., and upon whom a fine is imposed for neglect of such duty, is the one who has the immediate personal charge of the mine or colliery. The owner and operator of the mine or his agent is not within the penalty unless he has the personal charge of the mine. (Supreme Court, 1879, Sholl v. The People,

93 Ill., 129.)

Sections 3 and 13 of this chapter were intended for the protection of the persons employed in the mines and were not enacted for the benefit of the owners of mines. (Appellate Court, Third District, 1882, Loose v. The People, 11 III. Appellate Court Reports, 445.)

In order to hold the cage in its position, suspended part way up the shaft, the engineer had allowed the steam to go through the throttle valve, against the face of the piston, thus producing an equilibrium. He then, thinking that there was sufficient steam to hold the cage in its position, left the engine. In his absence, the force of the steam upon the face of the piston was in some way so diminished that the cage descended the shaft and struck an employee at the bottom and killed him; Held, that the giving way of the machinery, whether from the breaking or imperfection of some of its parts, a failure of the motive, or rather of the static power to hold it in equilibrium, or from any other cause, is a giving out of the machinery within the meaning of the statute (section 6 of this chapter). (Appellate Court, First District, 1883, Beard v. Skeldon, 13 Ill. Appellate Court Reports, 54.) Where gates are placed at the top of coal shafts, as provided by section 8 of this chapter, it is the duty of the mine owner to use reasonable care to prevent the gates or bars from becoming or remaining open. (Appellate Court, Second District, 1885, Coal Run Coal Company v. Coughlin, 19 Ill. Appellate Court Reports, 412.)

Section 8 of this act applies to all coal mines without reference to the motive power used in moving cars. (Supreme Court, 1887, The Sangamon Coal Mining Company v. Wiggerhaus, 122 Ill., 279.)

Under sections 7 and 14 of this chapter a coal-mining company is liable for a personal injury to a person in its employ, while descending into the mine, resulting from the employinent of an incompetent engineer to take charge of the engine used in lowering persons into and hoisting them out of the mine, and in improperly loading the descending car with a heavy piece of timber. (Supreme Court, 1888, Niantic Coal and Mining Company v. Leonard, 126 Ill., 216.)

Where a mining company has failed to comply with the requirements of this law as to appliances for the safety of cages used to hoist and lower the miners, it is liable for an injury to one of them which is caused by such failure on its part, although the immediate instrument of the injury was a drill which the miner had taken with him into the cage in violation of law. (Appellate Court, Third District, 1890, The Illinois Fuel Company v. Parsons, 38 Ill. Appellate Court Reports, 182.)

It is against public policy to allow the provisions of this statute, touching the care an employer must exercise with regard to the protection of his employees from personal injuries, to be dispensed with by contract. (Appellate Court, Second District, 1890, Chicago, W. & V. Coal Co. v. Peterson, 39 Ill. Appellate Court Reports, 114.)

Section 16 of this chapter implies that where no timberman is employed, it is the duty of miners, and a part of their employment, to carefully observe the roof under which they are working, from day to day, and to set props wherever they appear to be needed.

Where a timberman is employed, miners are not thereby relieved of the duty of observing the conditions and promptly reporting to the mine manager or timberman any signs of danger they may discover which require his services.

Mine owners in this State are under no statutory obligation to absolutely keep the roof of a mine so propped that it will not fall. (Appellate Court, Third Dis trict, 1891, Consolidated Coal Company of St. Louis v. Scheller, 42 Ill. Appellate Court Reports, 619.)

A mine is a pit or excavation in the earth from which ores or mineral substances are taken by digging. A colliery is a mine, pit, or place where coals are dug, with the machinery used in discharging or raising the coal. A pit intended to be used, when completed, as the shaft of a coal mine it was designed to open and work, is not a coal mine within the meaning of section 8 of this chapter, making it the duty of the owners or operators of coal mines to fence the top of each and every shaft of the mine by gates, properly protecting such top and entrance

thereto. Section 14 of this chapter gives a widow a right of action only in the event that the death of her husband was occasioned by the willful failure of the company to comply with the provisions of the statute in question, or by a willful violation of the act. If the death of a person is caused by some mere neglect or default of another, not willful in its character, the right of recovery, if any, is not in the widow, but in the administrator of the deceased, suing for the benefit of the widow and children, the next of kin of the deceased, under the provisions of sections 1 and 2 of chapter 70, Revised Statutes. The provisions of this chapter apply only to coal mines; not to mines out of which are taken lead or other materials or ores, nor to pits or excavations, not parts of a coal mine. (Appellate Court, Third District, 1892, Springside Coal Mining Company v. Grogan, 53 Ill. Appellate Court Reports, 60.)

Section 8 of this chapter requires that the top of the shaft in a coal mine shall be securely fenced by gates properly covering and protecting the shaft and entrance thereto. Providing a flat car, so that it can be placed over the shaft when not otherwise used, making its safety as to being covered depend upon the exercise of due care in operating such car and a movable block acting upon a pivot, is not a compliance with the statute. The very object to be attained by the statute is to prevent injuries to persons employed in a coal mine, so that negligence on their part in the manner of doing their work shall not prove fatal to a recovery for an injury suffered by them. (Supreme Court, 1892, Catlett v. Young, 143 Ill., 74.)

Section 14 of this chapter declares the liability for injuries when the mine owner and operator, "willfully" fails to provide the "safe means" and machinery required by paragraph 6. A willful violation of the statute is a violation of its provisions knowingly and willfully.

To constitute willful negligence, the act done or omitted must have been intended. Negligence so gross in character as to amount to recklessness, and to indicate a willingness to subject others to a known and avoidable risk, will support a charge of willful or intentional wrong.

The failure to use ordinary care does not necessarily include the elements of willfulness. A charge of willfulness is not maintained by proof of mere negligence.

The test demanded by the law as to machinery, is that it shall be safe, but the test of the liability of the mine owner is that he willfully failed to make or keep it safe.

The law does not require mine owners to use any particular make of machinery, nor does it require them to use the very best and most modern kinds; it only requires that the machinery shall be reasonably safe and suitable for the purpose for which it is used.

When recovery is sought for injuries resulting from mere inadvertence or negligence, pure and simple, the defendant may often defeat liability upon the ground that the plaintiff knew of the dangers to which he might be exposed, and voluntarily chose to take the chances of encountering them; or upon the other ground, that the plaintiff was injured by the negligence of a fellow-servant; but neither of these defenses is available when the injury is the result of the willful act, or willful failure of the defendant to act.

If a master in employing an engineer, had knowledge at the time of his employment, or at any time before an injury occurs that he was incompetent or inexperienced, and has willfully kept him in his employment after obtaining such knowledge, the company will be liable. (Appellate Court, Third District, 1893, Girard Coal Company v. Wiggins, 52 Ill. Appellate Court Reports, 69.)

REVISED STATUTES OF 1891, CHAPTER 93, SECTIONS 20 TO 28.-Weighing coal at mines. (a)

This act (sections 26, 27, and 28) is in violation of section 2 of article 2 of the State constitution, as depriving a class of persons of the liberty and of the property right of making contracts, without due process of law. Reasons the same as stated in decision in case of Frorer et al. v. The People [see pages 1268 and 1269, ante]. (Supreme Court, 1892, Ramsey v. The People, 142 III., 380.)

REVISED STATUTES OF 1891, CHAPTER 140, SECTIONS 6 TO 12.-Trade-marks of trade unions, etc. (b)

This act does not embrace more than one subject, contrary to section 13 of article 4 of the constitution of Illinois, although, in addition to providing for the registration of labels and trade-marks, it provides for the punishment of imitators and

a See Law, page 267.

b See Law, page 271.