defendant had for some time forwarded only a small proportion of the freight regularly tendered for carriage. In holding that the company had thus violated its public duties, the court rested its decision in the first instance upon the duties undertaken by the corporation in accepting a charter from the state, the charter being regarded both as imposing a public trust upon the corporation, and as a contract between the corporation and the state. But the case illustrates very well the fact that the obligations which such a charter is construed to impose are derived fundamentally from the general duties of the carrier's employment. Thus, the petition which was filed alleged that the railroad company, since a certain date, had

"substantially refused to discharge its duties as a common carrier, and had, to a material degree, suspended the exercise of its franchises by refusing to take freight which had been offered at its stations in the city of New York for transportation, at the usual rates and upon the usual terms."

In commenting upon the petition the court says:

"These allegations are broad enough to show a quite general and largely injurious refusal and neglect to perform the duties of a carrier."

And again:

"We are not able to perceive the difficulties that embarrassed the court below us to the form of a writ of mandamus in such cases. It is true the writ must be specific as to the thing to be done; but the thing to be done in this case was to resume the duties of carriers of the goods and property offered for transportation; that is, to receive, carry, and deliver the same under the existing rules and regulations as the business had been accustomed to be done."

Thus it appears that the duties enforced in that case were exactly the same duties which are enforced in any suit by a private citizen against a common carrier for refusal to receive and carry the plaintiff's goods.

On the question whether the strike afforded any excuse to the carrier, the court said:

"The most that can be found from the petition and affidavits is that the skilled freight handlers of the respondents refused to work without an increase of wages to the amount of three cents per hour; that the respondents refused to pay such increase; that the laborers then abandoned the work, and that the respondents did not procure other laborers competent or sufficient in number to do the work, and so the numerous evils complained

of fell upon the public, and were continuous until the people felt called upon to step in and seek to remedy them by proceedings for mandamus.

"These facts reduce the question to this: Can railroad corporations refuse or neglect to perform their public duties upon a controversy with their employees over the cost or expense of doing them? We think this question admits of but one answer. The excuse has in law no validity. The duties imposed must be discharged at whatever cost. They cannot be laid down or abandoned or suspended without the legally expressed consent of the State. The trusts are active, potential, and imperative, and must be executed until lawfully surrendered, otherwise a public highway of great utility is closed or obstructed without any process recognized by law."

In accordance with this opinion the writ of mandamus was issued. An exactly similar case, resulting in the same decision, was Loader v. Brooklyn Heights R. R. Co.,1 decided in 1895, in which the court, after stating that it was the duty of the company to run cars enough to accommodate the public, proceeded as follows:

"It may not lawfully cease to perform that duty for even one hour. The directors of a private business company may, actuated by private greed or motives of private gain, stop business, and refuse to employ labor at all, unless labor come down to their conditions, however distressing. But the directors of a railroad company may not do the like. They are not merely accountable to stockholders. They are accountable to the public first, and to their stockholders second. They have duties to the public to perform, and they must perform them. If they cannot get labor to perform such duties at what they offer to pay, then they must pay more, and as much as is necessary to get it."

The authorities thus far cited have related to peaceable strikes. It may be thought, however, that when the element of mob violence is added the case takes on a different aspect. Let us see if this is so.

In the first place the cases in which a public service company has been held to be excused for failure in its ordinary duties by the existence of mob violence will be found on examination to turn very sharply on the question of causation. Thus in Hall v. Penn. R. R. Co., cited above, the suit was brought for the destruction of certain goods in transit. The court affirmed the proposition of the plaintiff that a peaceable strike would not excuse the company, but finding that the goods had been burned by a mob, held that the

1 35 N. Y. Supp. 996.

action of the mob and not the strike was the sole cause of the damage; that is, that the strike alone would not, so far as appeared, have resulted in the damage complained of. Again, in Geismer v. L. S. & M. S. R. R. Co.,1 suit was brought for damage to live stock, caused by delay in transportation. It appeared that, during the progress of a strike, the strikers or their sympathizers had taken possession of the company's engines, and carried off parts of them, and by other acts of violence had made it impossible for the company to operate its trains. In both these cases, and in others of the same sort, the defendant was held to be excused; but in all such cases it will be found that the particular damage in question was, under the evidence, the result of mob violence alone, and would not have resulted simply from the strike.

In most strikes extensive enough to affect the public injuriously, there is a certain element of violence. But it is almost never the case that violence alone causes the cessation of business. At the outset it usually plays very little part, and it is comparatively seldom, if ever, the case that lawlessness goes so far as to render it absolutely impossible to carry on the business. As has been shown, it does not excuse the employer that the men demand unreasonable wages. Neither would it excuse the employer if men refused to work out of sympathy with the strikers. It is only actual prevention by violence, or its equivalent in actual bodily intimidation of men otherwise ready to work, that the cases show to be an excuse.

Again it is to be noted that in the cases cited on the question of violence and lawlessness, the proceeding was an action to recover damages for past injuries. But the question of the duty of one engaged in a public calling in case of a strike may be raised in another way. When a stoppage of business is threatened as a result of a strike, those entitled to be served by the employer by virtue of the public nature of his calling, may seek to prevent the threatened damage to their interests by mandamus, injunction, or receivership proceedings. The first of these procedures is illustrated by some of the cases already cited. The second would be an obviously appropriate remedy wherever its enforcement would not be too complicated.2 The third might, it would seem, be properly invoked whenever it becomes evident that those in charge of the

1 102 N. Y. 563.

2 See Chicago, etc., Rv. Co. v. Burlington, etc., Ry. Co., 34 Fed. Rep. 481.

business are not able to cope with the difficulties which the conduct of their employees has produced. It is not the purpose of this article to argue for the applicability of any particular form of procedure. On the question of receivership the views of the present writer have already been presented to the public. The point here to be made is that when business of a public character is tied up or likely to be tied up by a strike, and the remedy sought by members of the public is preventive rather than compensative, the question of excuse takes on a somewhat different character.

One who has rights in certain property, of which he has not received the benefit in the past, through difficulties with which those in charge of the property have been unable to cope, may be entitled to such action by the courts as will enable him to secure those rights in the future, although he may not have a cause of action for all the damage that he has suffered up to the time of his application to the court. The familiar cases of incompetent management of corporations, unaccompanied by such fraud or negligence as would give a right of action for past losses, furnish a sufficient example. The very effective action of the courts in the Debs case, and in other proceedings at the same time, demonstrated the ability of the United States courts to deal through preventive remedies with conditions of violence which the owners of the property and the local authorities could not meet. It might easily be true that a court would sustain an application for preventive relief, when one who waited till after the damage was done could not recover all he had lost.

Our examples have been drawn chiefly from the business of the railroads, because it is there that cases have most often arisen. But no reason appears why the same principles are not applicable to all public callings; and it is necessary only to read the case of Munn v. Illinois,2 to realize both how many employments are included in that class, and how readily the law will enlarge it as public needs require. It is easy to see, therefore, that the views which the writer has presented are, if correct, of the utmost importance in their bearing on the conflict constantly waging between capital and labor. If it be thought that the recognition of such principles as have been pointed out puts into the hands of the workmen so powerful a club as to risk upsetting altogether the

1 In the pamphlet above referred to. See also Fishback v. Citizens' St. Ry. Co., 4 Nat. Corp. Rep. 9 (Ind. Super. Ct.).

economic balance, it may be said in reply that the law has also much to say to strikers and labor organizations. It has already been more than once effectively invoked against them, when they have gone too far, and it is doubtful if they have yet felt the full strength of its hand.

It is to be hoped that the possibilities of legal interference in the case of strikes, both as those possibilities affect the employer and as they affect the workman, may never require to be fully developed. There is a constantly increasing tendency on both sides to meet each other fairly and in a businesslike spirit. Where such a spirit is lacking, there is much to be hoped from the force of public opinion. The great coal strike of last summer, while it brought forcibly home to the people the possibilities of public danger in the struggle of labor and capital, demonstrated also how effectively the people may make their voices heard. But while the tendency to businesslike negotiation, -with the immense saving to both parties which it accomplishes, and the force of public opinion, may go far toward preventing serious public loss as a result of labor controversies, it is still important for two reasons to realize how the law on the question stands. In the first place public opinion speaks more readily and firmly when it is assured of a basis for its demands in law as well as in justice. Some such assurance, indefinite but real, pervaded the discussion last fall which finally culminated in the settlement of the coal strike. Again, when negotiation and public opinion fail, as they sometimes do, and employers and workmen prepare to fight their battle out, it is infinitely better that they and the public should resort to the law, and come to realize its full power, rather than wait for starvation or violence to bring about a settlement. At least in the case of public employments there can be little doubt that the law is capable of protecting the public from the serious loss which may result while employer and laborer are settling their quarrel.

H. W. Chaplin.