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[Except in cases of special interest, the decisions here presented are restricted to those rendered by the Federal courts and the higher courts of the States and Territories. Only material portions of such decisions are reproduced, introductory and explanatory matter being given in the words of the editor.]


ALIEN CONTRACT LABORERS DEPORTATION - EVIDENCE - Ex parte George, United States District Court, Northern District of Alabama, 180 Federal Reporter, page 785.-Harry George was arrested under a warrant issued by the Secretary of Commerce and Labor and held for deportation to Greece, the country from which he had emigrated two years and nine months before the proceedings in question, the act of Congress of February 20, 1907 (34 Stat. 898), prohibiting the immigration of alien contract laborers. George petitioned for a writ of habeas corpus, on which petition the present trial was had in July, 1910. The result was a dismissal of the petition, George being remanded to custody to be held for deportation.

There was proof of conviction for a felonious offense, but as the case was decided independently thereof it will not be here considered. It was not disputed that the proprietor of a shoe-shining establishment in Birmingham, Ala., while in Greece had offered to advance transportation money for George, taking a mortgage on his land as security therefor, and promising to employ George at a rate of $20 per month, out of which wages the loan for transportation should be repaid. The petitioner's plea was that the warrant did not designate the transaction with sufficient clearness, as to which Judge Grubb, speaking for the court, said:

The warrant charges that he was induced or solicited to migrate to this country by offers or promises of employment and in consequence of an agreement to perform labor in this country. The petitioner was fully apprised by the warrant that his deportation was sought by the Government because of a promise made to him or an agreement made with him to perform labor in this country, which induced his immigration. There could be no room for doubt on the part of petitioner as to the identity of the transaction relied on by the Government, since he could have received but one such promise and made but one such agreement. The warrant was sufficient as to this charge, certainly when unobjected to on the hearing and criticized for the first time after deportation was ordered and collaterally upon a writ of habeas corpus. The warrant charges each of the elements of the ground of deportation relied on, and is not void.

Continuing, the court said:

The evidence shows without conflict that the petitioner was within the excluded class, called “contract laborers.” Upon a promise to employ him upon his arrival in this country at stipulated wages in a definite occupation, made by one who advanced him money for his passage, secured by a mortgage on his property, and accompanied him on his journey, he came to this country, went to work for such person at the stipulated wages and at the designated occupation, repaid the advance out of his wages, and continued in the employment of the person who made the promise and advance for a year.

The writ is discharged, and the petitioner is remanded to the custody of the sheriff to await the execution of the warrant of deportation.

EIGHT-HOUR LAW-CONSTRUCTION OF LEVEES ON THE MissisSIPPI RIVER-EMERGENCIES- United States v. Garbish, United States Circuit Court for the Eastern District of Louisiana, 180 Federal Reporter, page 502.—This case involved the construction of the emergency provision of the Federal eight-hour law of August 1, 1892 (27 Stat. 340; U.S. Comp. St. p. 2521). This law restricts the employment of labor on public works to eight hours per day, with exceptions for cases of extraordinary emergencies. Harman Garbish was indicted for a violation of this statute by working his men in the construction of a levee. There was no question as to the facts, but only as to the application of the law to the facts. Garbish demurred to the indictment, and the demurrer was sustained, as appears from the quoted opinion of Judge Foster, who spoke for the court.

The opinion follows: Stripped of the surplusage, the indictment charges that on August 17, 1908, the defendant, a contractor, was engaged in building certain public levees on the banks of the Mississippi River in the parish of St. James, La., and required and permitted the laborers employed by him, and engaged in the said work, to work more than eight hours in one calendar day. The indictment further sets up that during the months of August, September, October, November, and December the waters of the Mississippi River annually fall below the level of the surrounding land and are retained within its banks without the necessity of artificial levees; that the work was being done in the ordinary and usual course of levee building by the Government of the United States, in preparation for the high waters that annually come down the river; that the existing levee was not of sufficient size and strength and did not comply with the Government standard, and was being destroyed and replaced by the new, higher, and stronger levee; that nothing unusual or out of the ordinary had required the destruction of the old levee, or the building of the new levee; and that the contractor had the usual time to complete the levee, so as to allow it to settle and pack and become ready to withstand the next annual rise of the river.

The defendant rests his case on the proposition that the building of levees on the Mississippi River, in the eastern district of Louisiana, at all times presents an extraordinary emergency; and hence that particular work is exempted from the operation of the law. This is denied by the Government, and the indictment contains the general averment that no extraordinary emergency existed. The question thus squarely presented is decisive of the case, if defendant's contention be sustained.

The building of levees in Louisiana has at all times presented many problems. It is absolutely necessary, not only for the preservation of property and to permit the cultivation of the land, but to safeguard the very lives of the inhabitants as well, that levees should be built on the banks of the Mississippi River in this locality. Therefore it has always been usual that levee work proceed with the greatest dispatch, and the labor of the day has never been restricted to eight hours. In the nature of things, it is impossible to employ an unlimited number of men or teams in the building of levees, as, no matter how great a force the contractor may assemble, the work will not permit of crowding. It is necessary that levees be built in as short a time as possible, in order that they may settle as much as they can, and that the grass may become well rooted upon them, before they are called upon to bear the strain of a high river.

It is true that the months of August, September, October, November, and December are the most favorable for levee building, but there is no certainty that during any part of these months the river will maintain a low stage. When the river is bank full, necessarily no levees can be built. Statistics of the river's height, at New Orleans, show that during the past 25 years the river has been bank full on nearly every day of the year, and these statistics may well apply to the locality where the defendant was working. An unprecedented rain, or an early freeze followed by a thaw, anywhere in the valley of the Mississippi River or its tributaries, might unexpectedly cause the river to rise at New Orleans. No one can foresee or anticipate the acts of nature, and who can say that a few days' more time, in which it might have become solidified, would not have so materially added to the levee's strength as to enable it to withstand the pressure, and without which it might signally fail.

All of these facts are within the common knowledge of the people of this district, and, in connection with the specific allegations of fact in the indictment, overcome the mere conclusion of the pleader that no extraordinary emergency existed. The case presented here is not that of a contractor trying to complete his job on schedule time, nor is it a question of expediency or the saving of expense. In my opinion, the building of levees on the banks of the Mississippi River in the eastern district of Louisiana presents at all times an extraordinary emergency, within the meaning of the statute.

It may be that the indictment is otherwise demurrable, but I prefer to base my decision on the broad ground above set forth.

The demurrer will be sustained, and the defendant discharged.

EMPLOYERS' LIABILITY-COMPENSATION LAW-LIABILITY WITHOUT FAULT-DUE PROCESS OF LAW-CONSTITUTIONALITY OF STATUTEIves v. South Buffalo Railway Company, Court of Appeals of New York (copy of opinion furnished by State reporter).—This case came before the court of appeals on an appeal from a decision by the supreme court sustaining the validity of chapter 674 of the Acts of 1910. (124 N. Y. Supp. 920.) This law required employers in designated dangerous employments to compensate their workmen for injuries befalling them in the course of employment, resulting merely from the risk of the employment, and without regard to the negligence of the employer. (For the text of the law see Bulletin No. 90, pp. 713, 714; Bulletin No. 91, pp. 1100-1102.) The plaintiff Ives was a brakeman in the employment of the railway company named, and was injured without negligence, but solely by reason of the necessary risks of his employment. The company resisted his claim to compensation under the law on the ground that the law was unconstitutional, denying equal protection of the law in contravention of the provisions of the fourteenth amendment, and violating the right of trial by jury guaranteed by the constitution of the State. From a decision in the plaintiff's favor in the supreme court the company appealed, securing a reversal of the judgment of the lower court on grounds that appear in the following opinion, which was delivered by Judge Werner on March 24, 1911, all judges concurring. Judge Werner said:

In 1909 the legislature passed a law (ch. 518) providing for a commission of 14 persons, 6 of whom were to be appointed by the governor, 3 by the president of the senate from the senate, and 5 by the speaker of the assembly from the assembly, “to make inquiry, examination and investigation into the working of the law in the State of New York relative to the liability of employers to employees for industrial accidents, and into the comparative efficiency, cost, justice, merits and defects of the laws of other industrial States and and countries, relative to the same subject, and as to the causes of the accidents to employees.” The act contained other mane to the subject and provided for a full and final report to the legislature of 1910, if practicable, and if not practicable, then to the legislature of 1911, with such recommendations for legislation by bill or otherwise as the commission might deem wise or expedient. Such a commission was appointed and promptly organized by the election of officers and the appointment of subcommittees, the chairman being Senator Wainwright, from whom it has taken the name of the "Wainwright commission,” by which it is popularly known. No word of praise could overstate the industry and intelligence of this commission in dealing with a subject of such manifold ramifications and of such far-reaching importance to the State, to employers and to employees. We can not dwell in detail upon the many excellent features of its comprehensive report, because the limitations of time and space must necessarily confine us to such of its aspects as have a necessary relation to the legal questions which we are called upon to decide. As the result of its labors the commission recommended for adoption the bill which, with slight changes, was enacted into law by the legislature of 1910, under the designation of article 14-a of the labor law. This act is modeled upon the English workmen's compensation act of 1897, which has since been extended so as to cover every kind of occupational injury. Our commission has frankly stated in its report that the classification of the industries which will be immediately affected by the present statute is only tentative, and that other more extended classifications will probably be recommended to the legislature for its action.

The statute, judged by our common-law standards, is plainly revolutionary. Its central and controlling feature is that every employer who is engaged in any of the classified industries shall be liable for any injury to a workman arising out of and in the course of the employment by “ a necessary risk or danger of the employment or one inherent in the nature thereof; * * provided that the employer shall not be liable in respect of any injury to the workman which is caused in whole or in part by the serious and willful misconduct of the workman."

This rule of liability, stated in another form, is that the employer is responsible to the employee for every accident in the course of the employment, whether the employer is at fault or not, and whether the employee is at fault or not, except when the fault of the employee is so grave as to constitute serious and willful misconduct on his part. The radical character of this legislation is at once revealed by contrasting it with the rule of the common law, under which the employer is liable for injuries to his employee only when the employer is guilty of some act or acts of negligence which caused the occurrence out of which the injuries arise, and then only when the employee is shown to be free from any negligence which contributes to the occurrence. The several judicial and statutory modifications of this broad rule of the common law we shall further on have occasion to mention. Just now our purpose is to present in sharp juxtaposition the fundamentals of these two opposing rules, namely, that under the common law an employer is liable to his injured employee only when the employer is at fault and the employee is free from fault; while under the new statute the employer is liable, although not at fault, even when the employee is at fault, unless this latter fault amounts to serious and willful misconduct. The reasons for this departure from our longestablished law and usage are summarized in the language of the commission as follows:

"First, that the present system in New York rests on a basis that is economically unwise and unfair, and that in operation it is wasteful, uncertain and productive of antagonism between workmen and employers.

Second, that it is satisfactory to none and tolerable only to those employers and workmen who practically disregard their legal rights and obligations, and fairly share the burden of accidents in industries.

“Third, that the evils of the system are most marked in hazardous employments, where the trade risk is high and serious accidents frequent.

“Fourth, that, as matter of fact, workmen in the dangerous trades do not, and practically can not, provide for themselves adequate accident insurance, and, therefore, the burden of serious accidents falls

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