The employes continued in the service and were paid wages varying from 75 per cent to 82 per cent of the wage scale laid down by the Railroad Labor Board. The sums

paid were arrived at in accordance with announcement by the manager. Pay checks were issued and accepted bearing the statement "payment in the full" or "in full for services to date." The road finally went into the hands of the receivers and the employes filed claims for amounts equalling the difference between what they were paid and what they would have received under the Labor Board scale. Summarizing the issue, the District Court said:

"This case, in brief, is this: The defendant company, financially embarrassed and practically wrecked, went to its employes and told them it was willing to furnish the tracks, rails and rolling stock and give them all the income earned as pay for doing the work, less the necessary current supply bills; that they must either work on that basis or quit. The employes said, we will not accept and we will not quit, because we don't think you can say upon what conditions we shall work. In other words, we are going to work for you, but we are going to have the Labor Board make you pay what the Labor Board says is just and reasonable." Holding that the wage scale set out by the Labor Board is not binding, the Court said:

"The United States Supreme Court has settled the controversy involved here in a case arising in this Circuit, by holding that the findings and the awards of the Labor Board are not binding, but are purely advisory. In other words, the Labor Board has said what rates of pay are reasonable, but the Labor Board can do no more, and it did no more. It was not the purpose of Congress to take away from employing masters in this country the right to employ railway employes and fix the rate of pay.'

The Court then reviewed in detail the case of the Pennsylvania Railroad Company v. the United States Labor Board in which the Supreme Court of the United States held that the decisions of the Board were merely recommendatory. Holding that the railroad was quite free to make a new contract or to refuse to continue an existing contract with its employes at any time, the Court said:

"Much was said before the bar and in the submitted briefs as to the effect of the words 'Payment in full,' and 'In full for services to date,' which were written into the pay checks of the several claimants here, and as to whether or not the delivery to the claimants of the pay checks mentioned amounted to an accord of satisfaction. These questions may be disposed of by the reflection that it was within the power of either the carrier or the employes to terminate their relations under Decision No. 2, on the 17th day of February, 1921. The management, in dire financial straights, with operating incomes insufficient to pay operating expenses, called the men together and told them that it had no disposition to disrupt wage scales or working conditions, but that the company would

pay them all the income of the railroad proportionally after deducting the current supply bills; that if they wished to continue on that basis they could do so; if they did not, they should seek service elsewhere. "Did the management of defendant have the legal right and power to take this position? Regardless of its reasonableness or unreasonableness, its wisdom, fallacy, or otherwise, it must be held that it did. On the other hand, each of the employes had the perfect right to decline to accept the offer of the management. Under it there was no threat nor intimation that the full schedule of pay found to be reasonable by the Labor Board theretofore, would not be paid if there was any money with which to pay it. So that the legal vice of defendant company did was to accept the propoeffect of what the employes who continued in the serLabor Board to investigate the reduction and give the sition of the management, subject to the right of the parties the benefit of the moral sanction of a decision. The benefit of a moral sanction of a decision against a common carrier when published, where there is a controversy between employes and a carrier that is in a fairly healthy, operative condition, seeking public patronage and service, would be of great value, but the moral sanction of a decision against a railroad in the last stages of disintegration is of little or no value."

Declaring that it was beyond the power of the government to compel a railroad to continue in business at a loss, the Court said:

“A great volume of wealth had been poured into the defendant company in an effort to make it a successful enterprise, with complete failure as a result. To require a railroad company to continue in business at a loss is beyond the powers of Congress or a state. Apart from statute or express contract, people who put their money into a railroad are not bound to go on with it at a loss, if there is no reasonable prospect of the profitable operation in the future. *** Nor can a railroad company or a receiver of a railroad company be required to operate a railroad on a scale of wages which produces continuous loss and which will finally eat up the corpus of the property. Under our constitutional system of government there is no power in or out of Congress, in a State, or in a Judiciary to compel those who devote their property to the use of the public to operate the same at rates of wages which occasion loss. In good morals, neither the public nor the employes should demand such sacrifice. * * *

"It is clear from the entire situation that on February 17th, the defendant company was being consumed by the excess of operating expenses over and above the income of the property.

"Did the defendant have the legal right and power to stop this process before it procured the consent of the Labor Board? There can be but one answer to this question. It did. Of course, it could not do so without giving the employes full, fair, clear and positive notice of the proposed change in their relations. This was done. Those who continued in the service after receiving that notice must be held, as a matter of law, to have accepted the terms of the proposed change."

The United States brought action against the Live Poultry Dealers' Association in New York City praying for an injunction under the Sherman Act to restrain the activities of this association on the ground that it was a price fixing combination in restraint of interstate trade. A temporary injunction issued, 298 Federal 139, 6 Law and Labor 247. The defendants appealed. The Circuit Court, summarizing the facts in the case, said:

"The corporate defendant was organized in 1914 by certain wholesale buyers of live poultry in the City of New York, who number in all somewhat over three hundred. Of these one hundred and seventy-eight have joined the Association, whose general purposes it is not here necessary to state. Live poultry, which is sold at once upon its arrival, is shipped in carload lots from the Middle Western states to Hoboken, where it is put into crates and sent across the river. The consignees are re

ceivers or commission merchants who acting as the ship

pers' agents sell the poultry for them on its arrival here. They are only eighteen in number. The poultry is sold either in the City of New York at the Washington Market, or in small quantities at Hoboken, whence the buyer brings it here. Before the defendants adopted the practices of which the plaintiff complains, the prices for live poultry had been determined without any rule and according to the higgling of the buyers and sellers. The defendants assert (and it must be accepted upon this proceeding), that during those times the market was in what they call a "demoralized" condition, prices being often determined by "wash" or "fake" sales, which did not represent real transactions. This resulted in frauds upon the buyers, and in the end a higher price to the consumers. It was the purpose of the association by "stabilizing" prices to give both buyers and sellers a reliable guide upon which to deal and thus to eliminate opportunities for bad trade practices.

"Before the first of June, 1923, the defendants determined to regulate the purchase of this poultry in execution of these purposes. They appointed a committee of seven of their members who were daily to treat with the receivers or commission men, and after negotiations with an eye upon the prospective supply and the demand, to establish a price for that day, which should obtain as to all purchases made by any member of the association. On June first, 1923, they sent out a circular announcing the names of the seven members who had been appointed, and who

were "fully authorized to bid upon the price of poultry in order to obtain a market price thereof." Any four members of this committee should have power to act. In pursuance of this plan the committee went daily to the receivers and commission men and after negotiation fixed prices which they conceived to be proper for that day. In many cases the poultry would be bought and shipped to the buyers before the price had been adjusted and the contracts later liquidated, in accordance with the prices so fixed.

"The plaintiff asserts that in execution of this plan the Association has threatened some receivers and commission men with a boycott if they should sell to any members of the Association at other prices than those fixed and in some cases to other buyers than members. The last allegation, although supported by affidavits, is in dispute, the

defendant concedes that as a matter of their own internal

discipline the Association has insisted that the commission

men shall sell to members only at the agreed prices and has enforced that insistence by threatening not to deal with such as would not observe them."

The first objection urged by the defendants was that the commerce involved in their transactions was not interstate. Holding, however, that the commerce affected was interstate in character, the Court said:

"As to the first, it should be noticed that the poultry reaches Washington Market after a pause at Hoboken only sufficient to put it into crates. It is, moreover, in proof that the sales take place on the same day as the poultry arrives in New York. We ignore such sales as take place in Hoboken, since they add no new feature to the case. So far as touches the point of interstate commerce such a situation is precisely within Swift & Co. v. U. S., 196 U. S. 375 and Stafford vs. Wallace, 258 U. S. 495, both of which concerned the shipment of live stock. It is equally within the decision of Binderup vs. Pathe Exchange, 263 U. S. 291. ***

"The distinction between the direct or indirect effects of a combination are necessarily practical rather than ratiocinative. It is impossible to draw a line which shall be immune from casuistical attack, and perhaps it is unfortunate that the somewhat arbitrary and pragmatic nature of what courts do in such cases has been so frequently disguised by a show of deduction. Happily much has now been settled by past cases and it seems to us unnecessary to do more than call attention to those which rule that at bar.”

The second point urged by the defendants was that so far as their activities fixed prices these activities tended merely to stabilize the market and to promote trade, and

not to restrain it. With this statement of fact the Court did not directly quarrel. Holding, however, that price fixing was an unlawful restraint of trade as determined by controlling interpretations of the Sherman Act, the Court

said:

"As to the second point it is somewhat surprising at this day to hear it suggested that a frank agreement to fix prices and prevent competition as regards them among one-half the buyers in a given market may be defended on the notion that the results are economically desirable. We should have supposed that if one thing were definitely settled it was that the Sherman Act forbade all agreements preventing competition in price among a group of buyers, otherwise competitive, if they are numerous enough to affect the market. The suggestion is that since Standard Oil Co. vs. U. S., 221 U. S. 55, such a combination may be justified if some prejudice to the public be not shown. That might be the law, but we do not so understand it. In numerous instances since that case the Supreme Court has held that such a combination is unlawful of itself, Standard Sanitary Mfg. Co. vs. U. S., 226 U. S. 20, Straus v. American Publishers Association, 231 U. S. 222, U. S. vs. Schrader's Sons, 252 U. S. 85, Frey & Son vs. Cudahy Packing Co., 256 U. S. 208, American Column Co. vs. U. S., 257 U. S. 377, U. S. vs. American Oil Co., 262 U. S., 371. In these cases there were indeed other unlawful elements, but an agreement fixing prices existed in all, and was always recognized as one ground for relief. Indeed many of them were cases where the manufacturer of a product in which he had a natural or legal monopoly attempted to control its resale prices, a weaker case than this at bar. Perhaps the court went further in American Column Co. vs. U. S., than at any other time to find a sinister interpretation in a trade practice which at least on its face

was innocent and beneficient. Because the means of information there exchanged was thought to be a covert plan for fixing prices the whole system went by the board. Nothing could be more striking evidence of the lengths to which the court will go to dis

cover and forbid what here is avowed. Among those trade practices which fall within the statute none we think is more typical than an agreement of a substantial number of either buyers or sellers to fix price at which alone all members of the group will trade.

"With the wisdom of such a policy we have of course nothing to do. It may well be that such an association as this may use its power to the benefit of the trade at large. Bids made at random with inadequate information of the supply and of the wants of consumers may not in the end protect either the producer or the consumer as well as when representatives of each side meet with full knowledge of the factors which will in the long run control average prices. It is however obvious from the long history of this act in the courts and outside, that Congress deliberately prefers unorganized individualism in bargaining to the danger, real or fancied, which may attend any efforts to control it by concerted efforts."

The question of fact concerning the practise of a boycott by the defendants remained somewhat in doubt. Holding that this doubt would not prejudice the issuance of an injunction against a practise which, if it existed, was certainly unlawful, the Court said:

"In conclusion we notice that there is a genuine question of fact about the existence of any 'boycott,' properly speaking, except as it is directed against members of the association who do not keep to its prices. As to others the defendants insist that the order should not remain. However, in cases of injunctions pendente lite while the plaintiff's right must be beyond dispute, when the question is of the probability that the defendant will violate that right, we are not so sensitive. In the case at bar, some injunction against boycotting was justified. If it goes farther than the uncontested proof warrants, it can do the defendants no hurt, while if they purpose what is forbidden it will be proper."

The temporary injunction was sustained.

under the authority of the decision of the Supreme Court

of the United States in the District of Columbia minimum wage law case and issued a temporary injunction against enforcement of the statute as to adult women, 6 Law and Labor 265. Upon trial the injunction was made permanent. The Court upon filing its opinion on that occasion, said:

"No provisions of the Wisconsin act are perceived

by this Court which will withdraw that act from the condemnation of the majority opinion in the Adkins case, and this Court is of course bound to apply the principle of the Adkins case to the one at bar, and it is therefore held that the Wisconsin act, so far as it valid, and a final decree may be entered enjoining the affects the plaintiff in employing adult women, is in

defendant Industrial Commission of Wisconsin from enforcing or attempting to enforce against the plaintiff the provisions of the Wisconsin act, or any of them, so far as they relate to plaintiff's employment of adult women, and from instituting or causing to be instituted any proceedings against plaintiff because of any violations of said act so far as the same relate to adult women."