fore in saying that they would not do so they deprived such persons legal right. They could not have maintained an action for damages against the defendants for refusing to work such material or for saying so. How, then, in a legal sense, can he be said to be injured? It is said that the purpose of the defendants in making the publication was to induce persons to refrain from purchasing material for fear of incurring the ill will of the defendants. This certainly is not unlawful. (Bowen v. Matheson, 14 Allen, 499.) If courts were to maintain actions upon such grounds, society would soon be converted into an array of hostile litigants. As is well said by Judge Black in Jenkins . Fowler, 24 Pa., 308: Malicious motives make a bad act worse, but they can not make that wrong which in its own essence is lawful. * * Any transaction which would be lawful and proper if the parties are friends can not be made the foundation of an action merely because they happen to be enemies. As long as a man keeps himself within the law by doing no act which, violates it, we must leave his motive to Him who searches the heart."

It is very doubtful whether industrial conditions, or relations between employer and employees, have been improved by prosecutions for criminal conspiracy. As we have seen, in England the subject has received the most careful attention of enlightened statesmen, resulting in the passage of wise statutes. It is asked, May not a man conduct his business in his own way? And undoubtedly he may.

unlawful interference with this right he has a remedy, either civil or criminal, as such interference may justify. The question is asked, May not men organize to promote their common interests, and, when such interests conflict with other interests, resort to lawful and peaceful means to secure the best results? It is clear that they may. Where, then, is the line which separates conduct which is lawful from that which is unlawful? The answer comes from Chief Justice Shaw, one of the wisest and most learned of American jurists: "If it is to be carried into effect by fair or honorable or lawful means, it is, to say the least, innocent: if by falsehood or force, it may be stamped with the character of a criminal conspiracy."/ We would not be misunderstood. Capital, either in the form of money or other property, or in the form of skill, experience, intelligence, and strength, may combine for lawful purpose. When, in either form, or under whatever guise it seeks or conspires to effectuate its purpose, however lawful, by means of violence to person or property, or by fraud, or other criminal means, or when, by such means, it conspires to prevent any person from conducting his own business in his own way, or from employing such persons as he may prefer, or by preventing any person from being employed at such wages or upon such terms as he may prefer, the courts will be prompt to declare and firm to administer the law to punish the guilty and protect the injured. What acts will constitute such unlawful means it is impossible to define. As all other questions arising out of the struggle of political, social, or industrial forces, they must be decided as they are presented.

OF RISK

COOPERATING

EMPLOYERS' LIABILITY ASSUMPTION CAUSE Sirois v. J. E. Henry & Sons, Supreme Court of New Hampshire, 59 Atlantic Reporter, page 936.-J. B. Sirois sued the firm above. named to recover damages for injuries received while employed by the

defendants in repairing a bucket elevator in their mill. To perform his duty Sirois was required to have his head and arms inside the casing of the elevator. When he wished the elevator shifted so as to get access to the different buckets he signaled to an assistant who repeated the signal to a man in charge of the operating clutch.

While Sirois was thus engaged two steam fitters came into the same room to make other repairs, the two sets of workmen being mutually ignorant of each others' presence and of the danger that might ensue from a confusion of signals. In the course of their work one of the steam fitters signaled to the other in such a way that Sirois's assistant mistook the signal as being addressed to him, and directed the man at the clutch to move the elevator, with the result that Sirois received the injuries for which the suit was brought. Damages were allowed in the superior court of the State, from which an appeal was taken to the supreme court, where the judgment of the court below was affirmed.

In announcing the opinion of the court Judge Bingham, speaking for the court, said in part:

Notwithstanding the plaintiff admitted that he knew other men besides those associated with him in repairing the carrier were at work making repairs in the mill on the day of the accident, his evidence tended to prove that he did not know any of them were at work in the digester room, or that their work was of a nature calling for the use of signals which might be mistaken for his. Hence it can not be said as a matter of law that the plaintiff assumed the risk of injury from such a cause. It was for the jury to say whether he knew, or in the exercise of ordinary care should have known, and appreciated the danger, and assumed the risk of injury therefrom.

That the work in which the plaintiff was engaged at the time he received his injuries was dangerous, and of such a nature as to require reasonable rules and instructions for the guidance of the plaintiff and his associates in the performance of their duties, can not be doubted. The defendants did not contest this question at the trial. Their contention there was that adequate instructions were given the men, and, had they been followed, that the accident would not have happened. The plaintiff, on the other hand, contended and introduced evidence tending to prove that no instructions were given.

The judge then reviewed the evidence as set forth in the statement of facts given above, and concluded:

From this evidence the jury could find that the defendants were negligent in not informing the plaintiff of this new and unknown. danger, and in failing to make some reasonable provision for the conduct of the work in view of this added peril. If the evidence. warranted a finding that the middleman was negligent in not first ascertaining whether the plaintiff was out of the carrier before giving the signal to start, so that the defendants' negligence was not the sole cause of the accident, nevertheless the jury would be warranted in finding that their negligence was a cooperating cause, for which they would be responsible, the plaintiff being in the exercise of due care.

LABOR ORGANIZATIONS-POWERS-BY-LAWS-RIGHTS OF MEMBERS Flaherty v. Portland Longshoremen's Benovolent Society et al., Supreme Judicial Court of Maine, 59 Atlantic Reporter, page 58.—Jeremiah H. Flaherty sued the above-named society, an incorporated body of which he was a member, to prevent the employment of a physician by the organization. The supreme judicial court of Cumberland County dismissed the bill brought by Flaherty, who thereupon appealed to the supreme judicial court of the State, by which the decision of the court below was reversed, and an injunction issued to prevent the employment of the physician under a salary payable from association funds.

The facts of the case appear in the opinion of the court, which was delivered by Judge Savage, and which is reproduced herewith:

The Portland Longshoremen's Benevolent Society is a corporation created under the laws of Maine. Its business is conducted under a code of by-laws somewhat inartificially drawn. Its charter is not made a part of the record, but its object, as disclosed by the by-laws, is to "bind its members together as one man that we may be better able to protect our interests, regulate our wages, and attend to such other business as may from time to time come before us." Membership is limited to a single class of laborers. Sick benefits are provided for. It is, in short, a corporation benevolent and protective. One of its by-laws provides that "the funds of this society shall be appropriated for no other purpose than that necessarily incurred for the maintenance of wages, burying the dead, and other incidental expenses;" and another, that "resolutions adopted at any general or special meeting of this society for any special purpose shall be as binding on its members as if they were embodied in its by-laws." No provision is made in the by-laws for a physician of the society, but for some years before this controversy arose a physician had been employed by vote of the society, and paid a stipulated annual salary.

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At a meeting of the society held October 6, 1903, a committee was appointed to bring in the lowest terms that a competent physician will serve the society for one year." At a meeting a week later the committee reported the sealed proposals of three physicians, which being opened, it was found that the proposal of Doctor Conneen was the lowest. Discussion ensued, some claiming that the physician should be elected by ballot, and not appointed; but the president ruled that the lowest bidder was entitled to the position, and accordingly appointed Doctor Conneen. Afterwards the society, by vote, instructed the recording secretary to notify the previous physician that his services would end October 15, 1903, and to notify Doctor Conneen of his appointment as physician. At the next meeting of the society “the minutes of the last meeting were read and approved."

The plaintiff [Flaherty], a member of the society in good standing, brought this bill, in behalf of himself and of all other members who might desire to become plaintiffs, to restrain the society and its officers from paying any of the moneys of the corporation to Doctor Conneen as a salary under the foregoing appointment as physician. A temporary injunction was issued. After hearing, the sitting justice below dissolved the injunction and dismissed the bill. The plaintiff appealed.

The plaintiff contends, first, that the election or appointment of any physician by the society was ultra vires; and, secondly, that the appointment of Doctor Conneen was irregular, unauthorized, and void. No other questions have been raised or discussed by counsel.

To determine whether the acts of a corporation are ultra vires or not, recourse must be had primarily to its charter. To be ultra vires, an act of a corporation must be shown to be not within the scope of its charter, nor within its express or implied powers. In this case the charter is not before us. Both parties are content with such assumptions as may be made from the by-laws. Therefore the court will be content. There appears to be no specific or express warrant for the appointment of a physician by this society. But the society, though incorporated, partakes largely of the character of a mutual association for mutual aid and protection. It has no stockholders nor stock. Its object is to protect the interests of its members. It pays sick benefits to its members, and we must assume that it has the right to do so. Affording relief to its members by furnishing them the care of a physician in time of sickness is closely allied to the payment of sick benefits, and we think its corporate power to do so might be fairly implied from the general scope of the corporate purposes. The implied powers of a corporation are not limited to such as are indispensably necessary to carry into effect those which are expressly granted, but comprise all that are necessary, in the sense of being appropriate, convenient, and suitable for such purposes, including the right of a reasonable choice of means to be employed. (Cyclopedia of Law, vol. 10, p. 1097; 1 Cook on Corporations, sec. 3.)

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But notwithstanding the appointment of a physician may be within the scope of the corporate powers of the society, the plaintiff further contends that the payment of a salary to Doctor Conneen would be in express violation of the by-law which declares that the funds of the society shall be appropriated for no other purpose than that necessary "for the maintenance of wages, burying the dead, and other incidental expenses. The payment of a salary to a physician is certainly not. within any of these purposes. But it is argued for the defendants that the binding force of this and all other by-laws is much modified and weakened by that one which provides that resolutions adopted by the society for any special purpose shall be as binding on its members as if they were embodied in the by-laws." That by-law gives to a mere resolution the effect of a by-law. By-laws are simply the rules of corporate government. While they aid in the orderly transaction of the corporate business, they also serve sometimes as a protection of the corporation itself, or of minority members, against ill-advised or illegal acts of the majority. It is within the power of the corporation to modify, limit, or abrogate them. And one legally adopted may, in effect, limit or repeal an old one, though not expressly so stated. we have already pointed out, these by-laws themselves provide for the payment of sick benefits. And as this is outside of and inconsistent with, the by-law in question, the latter must be regarded as so far modified, at least.

As

Assuming, then, but not deciding, that the appointment of Doctor Conneen, with a salary, ratified as it was by the action of the society, was in effect a resolution adopted by the society for the special purpose, what was its effect in view of the by-law limiting the right to expend money to specific purposes, of which a physician's salary was not

one? Was it valid? If it was valid, it had the effect of so far amending the by-law. Practically it abrogated the by-law. For, if a simple resolution could amend the by-law in one particular or one instance, it could do so in all particulars and in all instances. Money could be voted for any purpose within the chartered powers of the society, the by-law to the contrary notwithstanding. The by-law would thus become of no effect. It would cease to be a protection to the members which it was evidently intended to be. We do not think such is the proper construction to be placed upon the by-law which provides that resolutions adopted by the society shall be as binding as if embodied in the by-laws. That by-law, as we construe it, gives to resolutions the effect of by-laws only when the resolutions are not inconsistent with the by-laws-in other words, only when they would not, if operative, have the effect of amending or repealing the by-laws. But the society can not override and abrogate a by-law, by a simple resolution, in favor of some object which is forbidden by the by-law. The action of the society in providing for the payment of a salary to a physician was clearly inconsistent with the by-law which provides that "the funds of the society shall be appropriated for no other purpose than that necessarily incurred for the maintenance of wages, burying the dead, and other incidental expenses," and hence was inoperative and void.

The plaintiff, a member of the society, has an interest in the society's funds, and is entitled to the protection of the by-law, and he may call upon the court for its enforcement.