In the same connection the court referred to the fact that the contract in question was not that of a public service corporation, recognizing that in the case of such corporations there was a different standard of determining the reasonableness of contracts in alleged restraint of trade.

There is however nothing in the Anti-Trust Act of 1890 warranting the limitation of its prohibitions according to what a court may adjudge are or are not necessaries of life. Tobacco and whiskey, and many other articles, may not be of such prime necessity as grain and coal, but in a complicated and progressive industrial civilization the standard of living of the masses is constantly advancing, and the comforts and even the luxuries of one generation are the necessities of another. At common law contracts in general restraint of trade are unenforcible, irrespective of the subjects of the contract, and it was only in the determination of the validity of contracts in partial restraint of trade that the subjects of the contracts were considered. Monopolies were first judicially pronounced illegal as against common right in a suit involving a royal grant of a monopoly in playing cards. The mediaeval statutes long since repealed in England have never been in force in the United States in the law of interstate commerce, nor is there any common law of conspiracy in the laws of the United States. The only federal statute relating to freedom of interstate commerce is the Anti-Trust Act. Under this statute therefore there is no basis for any distinction between articles of prime necessity and other articles. The owners of both classes of property have the same rights under the law, and are subject to the same obligations.

1 See case of Monopolies, 11 6 Coke Reps. Pt. 11, 84b (1601). 2 See infra, §§ 94 et seq.

The Forestalling Statute, 25 Edward III, enacted in 1350, made criminal the forestalling of "wine and other victuals, wares and other merchandise that came to the good towns of England by land or water." The statute of Edward VI against 'regrators, forestallers and grocers" included

merchandise, victuals or any other thing whatsoever. "Cattle, sheep, grain, butter, cheese, fish, or other dead victual whatsoever," were also included. These statutes were all repealed in 1771, Act 12 George III, c. 71. The preamble to the repealing act is as follows: "Whereas, it has been found by experience that the restraints laid by several statutes upon dealing in grain, meal, flour, cattle and sun

CHAPTER VI.

LABOR COMBINATIONS IN INTERSTATE COMMERCE.

88. The labor legislation of congress.

89.

90.

Regulation of interstate commerce in relation to labor.

The courts on labor combinations in relation to interstate com

merce.

91. Interstate commerce and railroad labor organization.

92. Business boycotts in interstate commerce.

93.

Strikes and boycotts by employees of interstate carriers.

94. The law of conspiracy in interstate commerce.

95. Distinguished from common-law conspiracy.

96. Interstate commerce in relation to employes therein.

97. "Picketing" and "soliciting" in interstate commerce.

98. The status of interstate railroad employes is that of free con

tract.

99. The right of labor organization includes the right of representation.

100. Injunction in interstate commerce.

§ 88 (77). The labor legislation of congress.-The labor legislation of congress has not been limited to the relations of labor in interstate commerce, but certain features of this legislation are distinctly related to the interstate commerce relations of labor, and the provisions of both the Interstate Commerce and the Anti-Trust Acts relating to unlawful combinations in interstate commerce have been construed as applicable to labor as well as to business combinations. The general labor legislation of congress is therefore properly considered in this connection.

The bureau of labor created under the act of June 27, 1884, was made a department of labor under the act of June 13, 1888. The general design and the duties of the commissioner of labor were declared by the act "to acquire and diffuse among the people of the United States useful information on subjects connected with labor in general in the most comprehensive

sense of the word, and especially upon its relation to capital, the hours of labor, the earnings of laboring men and women, and the general means of promoting their social, intellectual and moral prosperity."

The commissioner was charged to investigate conditions of labor, wages, cost of living, effect of customs laws, what articles were controlled by trusts, combinations of capital, and what effect trusts and other combinations of capital had on production and prices. The commisioner was also charged to investigate the cases of disputes between employes and employers.

By the act of February 14, 1903, the department of commerce and labor was established, and the department of labor made a part of this department.

§ 89 (78). Regulation of interstate commerce in relation to labor.-Congress has exercised its power of regulation in the effort to harmonize the relations of capital and labor in interstate railroads. The first legislation of this character was the act of June 29, 1886.1 This act was not limited to the employes of carriers, but authorized the incorporation of any association of working people having two or more branches in the states or territories of the union, and the incorporation was effected by filing articles in the office of the recorder for the district of Columbia. Provision was made for the establishing of branches and sub-unions in any territory of the United states.

The act of June 1, 1898,2 was entitled "An act concerning carriers engaged in interstate commerce and their employes," and by its terms only applied to employes engaged in the railroad train service, excluding employes of street railroads. Under section 2 of this act of 1898, the chairman of the Interstate Commerce Commission and the commissioner of labor were required to put themselves in communication with the parties to a controversy between a carrier and its employes threatening to interrupt the business of the carrier, and to use

1 Comp. Stats. p. 3204, infra, § 376.

23 Comp. Stats. p. 3205, infra, § 377. This repealed the earlier

statute of Oct. 1, 1888, providing for boards of arbitration for settling controversies between interstate carriers and their employes.

their best efforts by mediation and conciliation to amicably adjust the same; and if these efforts were unsuccessful, to endeavor to bring about a voluntary arbitration of the controversy in accordance with the provision of the act. Provision is made in the act for such voluntary arbitration. This act also amends the National Trade Union Incorporation Act, by providing that the articles of incorporation shall set forth that any member shall cease to be such by participating in or inciting force or violence against persons or property during strikes, lockouts or boycotts, or by seeking to prevent others from working through violence, threats or intimidation.

Section 10 of this act, making it a criminal offense against the United States for an interstate carrier or agent or officer having full authority from his principal to discharge an employe from service to the carrier because of his membership in a labor organization, was adjudged invalid as violative of personal liberty and due process of law guaranteed by the fifth amendment of the constitution and on the further ground that there was no such connection between interstate commerce and membership in a labor organization as to authorize congress to make such discharge for such reason a crime against the United States.1

The decision was held not to involve other and independent provisions of the act, such as provisions relating to arbitration, as the section upon which the defendant was convicted was separable from the other provisions of the act; so that it would seem that the provisions for voluntary arbitration referred to in the preceding section are still in force."

1 See Adair v. U. S., 208 U. S. 161, 52 L. Ed. 436 (1908). Justices McKenna and Holmes dissented. The judgment of conviction was reversed with directions to sustain the demurrer to the indictment and dismiss the cause, reversing 152 Fed. 736.

In the labor legislation of congress should also be included the Employer's Liability Acts and other acts for the safety of em

ployes of interstate carriers. See infra, 527 et seq.

Under joint resolution of sixtyfirst congress (Public Resolution No. 45) a commission was ap pointed for the purpose of making a "thorough investigation of the subject of Employer's Liability and Workmen's Compensation" to submit a report through the president to congress not later than the first Monday of December, 1911.