v. Dhuy, 221 N. Y. 342, 117 N. E. 582, Ann. Cas. 1918D, 661. But But the argument by the complainant, followed by the learned Vice Chancellor in this case, seems to be based upon the idea that the union cannot in good faith frame or adopt a rule providing for a sliding scale of wages to fit ostensibly the varying local economic conditions throughout the United States, which in effect does discriminate against some employers, as a class, in the matter of wages to be paid. It seems to be based upon the ground that such regulations create an unfair restraint of trade.

-regulationsvalidity.

The attack is aimed not at the combination, but at its effect upon the employers. This is unsound, both legally and economically. In the last analysis, the prime object of the rule attacked is to establish a standard of wages. It is hardly necessary to enter into any extended discussion, pointing out that in law or by analogy article 4, § 2, and Amend. 14, § 1, of the Constitution of the United States, are not applicable to private contracts. These sections are directed against state action only. United States v. Harris, 106 U. S. 643, 27 L. ed. 295, 1 Sup. Ct. Rep. 601.

Economically, the conclusion reached by the lower court confuses the possible or probable effect of the defendants' action upon the employers with the defendants' rights. The law gives the defendants a right to sell their labor to whom they please, when and under such conditions as they may fix, individually or in combination. They may make rules and regulations passed in good faith, providing for what they deem. to be an economic advantage to themselves. If in the enforcement of such rules and regulations they violate no law, but act solely for the declared purpose, the courts ought not and cannot legally enjoin them from such concerted action, simply because such action may affect some employers. How can it be said that such rules and regulations create an

unfair restraint of trade? If the law gives the workers such rights, it must protect them in their enjoyment. They cannot be enjoined from their use or interfered with by the courts. Employers have no vested interest in the labor of workers. We think the defendants, by the terms of the statute of 1883, both its letter and spirit, are within its protection. They are also within the protection of the law as declared in the cases cited. The cases, in which concerted action on the part of a body of workers has been held unlawful, have invariably been such in which either the object sought to be attained had little or no bearing on the interest of the workers, or in which the methods employed by them were in themselves unlawful.

We therefore conclude the record does not present a case for injunc tive relief. The decree of the Court of Chancery is reversed, and the bill of complaint should be dismissed.

For affirmance: Justices Kalisch, Katzenbach, and Lloyd, and Judges White and Gardner.

For reversal: The Chief Justice, Justices Trenchard, Parker, Minturn, Black, and Campbell, and Judges Van Buskirk, Clark, McGlennon, and Kays.

White, J., dissenting:

I agree that the act of 1883 (P. L. p. 36) legalizes the combined action (the strike) here sought to be enjoined, if the purpose of that combined action is a lawful purpose. My difficulty is that I think the discrimination enforced by this strike is (as pointed out by the learned Vice Chancellor) an unlawful discrimination, because it is not founded upon any subject properly germane to the wage scale, or rather the difference in wage scales, here involved. This is a point not touched upon in the majority opinion. That opinion bases its reasoning upon the assumption that the prime object of this discrimination is to establish a standard of wages; whereas, in fact a standard wage of $8 per day for Newark, and of $9

(96 N. J. Eq. 632, 126 Atl. 399.)

per day for New York, was definitely established by the defendant labor organizations themselves, and the only effect of their rule here involved is to destroy such standard wage so fixed, by providing that if the contractor lives in a city having a higher wage scale the latter shall prevail, although the work and all the workmen are of the city of the lower wage scale. The place of residence of the contractor is not in any way germane to the wage scale he should be required to pay. If he attempts to do work where there is no established wage scale, his employees, or their organization for them, may fix the wages at which they are willing to work, and he cannot complain; but where, as here, his employees' organization has fixed the wage scale for the locality involved, they may not, it seems to me, boycott him by providing that, because he does not personally live in that locality, but, as here, lives in some other city or state, he shall because of that reason alone be re

quired to pay a higher wage scale. The place of residence of the contractor not being germane to the subject of the wage scale he may be required to pay, any discrimination made against him founded upon such place of residence alone is in principle a boycott, and is unlawful.

This principle was thought so important by the framers of our federal Constitution that they provided in that instrument against any such discrimination by any state against the citizens of any other state, and it seems to me a curious condition which, while denying to the sovereign states themselves this privilege of invading the equal rights of the citizens, should accord such right of invasion to the star chamber ex parte committee which met in Dallas, Tex., in the year 1922, and promulgated the rule here in question for the government (under penalty of strike) of all the citizens of all of the states.

Petition for rehearing denied.

ANNOTATION.

Legality of rule of labor organization operating to discriminate between employers or localities. [Labor Organizations, § 3.]

The courts which have had occasion to pass upon the rule that all wages paid by contractors engaging in outof-town work shall be determined by the scale of wages paid in the contractor's own locality, unless the local Wages are higher, have differed as to its validity. In support of such rule, it is alleged that the better class of union workmen tend to flock to the larger cities, where, because of their greater skill and efficiency, their services command the higher union wage; that, when they are sent to communi

ties where the lower union wage prevails, the local worker working at the lower union scale becomes dissatisfied; that the difference in wages paid to men working on the same job breeds discontent; and that on the whole the welfare of the union, not of the men, requires that under such circum

stances the members be on a footing of equality.

The court in the reported case (NEW JERSEY PAINTING CO. v. LOCAL No. 26, B. P. D. P. H. ante, 384) took the view that the prime purpose of the rule is to establish a standard of wages, rather than to discriminate against nonresident contractors; and a like view was taken by the Federal district court for the district of New Jersey, in Barker Painting Co. v. Local No. 734, B. P. D. P. H. (1926; D. C.) 12 F. (2d) 945; and by the Circuit Court of Appeals for the 3rd Circuit, in Barker Painting Co. v. Brotherhood of Painters (1926) 15 F. (2d) 16, in which it was said that injunctions against the enforcement of the rule have been denied by the superior court in Rhode Island in Geo. A. Douglas & Bro. Inc. v. Mallette, not reported, and

by the court of common pleas in Philadelphia county, Pennsylvania, in H. Newton Marshall Co. v. Brotherhood of Painters, not reported.

In Barker Painting Co. v. Brotherhood of Painters (1926) 15 F. (2d) 16, the court, in upholding the refusal by the court below against the enforcement of the union rules complained of, said: "Insistently urging that the rules in question and the manner of their enforcement by the Union are unjustly discriminatory against the complainant and all other employers similarly situated and operate to the injury of the public . . ., the complainant further urges that the rules are not made for any justifiable or, indeed, for any visible benefit to the laborers themselves except that thereby they may arbitrarily obtain higher wages in the given circumstances and that no ground or reason has even been intimated by the Union or its counsel justifying them. In this proceeding the burden of justifying the rules does not rest on the respondents; it is for the complainant, who pressed for a preliminary injunction before the answer was filed, to establish that the rules are unlawful by evidence sufficient to invoke that extraordinary remedy. While it is true the defendant union has not pointed out specific reasons for the rules, there is, perhaps, enough in the case to warrant these observations: The Union is national in scope and operates through its local bodies. The general trend of its constitution and governing rules, obviously, is to coerce the employment of union labor everywhere. Other purposes, equally obvious, are to broaden employment and conform wages to economic conditions prevailing in different sections of the country. Under the rules in question the outside employer is free to take fifty per cent of the laborers he may need from his home locality and put them at work in the distant locality. Then he is required to pay them the home rate, if higher. No one has complained of this. When he has taken some of his employees with him, he must employ the remainder at the place of the work. There the wage rate may be lower and

the time of labor longer. If he pays

a higher rate to the home laborers and a lower rate to the local laborers, trouble will inevitably follow. May not the Union legislate against this occurrence? But, as here, the outside employer may, if he choose, take with him no home laborers and employ all of his men at the distant point where the work is to be done and where wages are lower and hours longer than in his home locality. May not the Union, national in scope, make laws for the protection of its members everywhere, that is, may it not prescribe that when an employer leaves his locality of higher wages and shorter hours and thereby conceivably leaves at home laborers unemployed, he must pay the home wage rate in the distant locality? In other words, may not the Union legislate for the continued employment of laborers in varied localities at varied wage rates by providing rules that will measurably insure employment everywhere? Moreover, in large communities there is a more or less fixed labor supply. That labor supply, considered in respect to the local demand for labor and in respect to the local cost of living, determines the local wage rate and hours of labor. Obviously these factors vary in different communities. When thrown out of their relation one with another, that is, when thrown out of balance by influx of laborers and increase of work at one place, or a decrease of laborers and a decrease of work at another place, or transposing these factors, by an increase in one and a corresponding decrease in the other, might not confusion arise to the prejudice of workmen against which the Union may provide by rules? We advert to these possibilities, certainly not to express our views, nor to intimate sympathy with the rules-for assuredly we have none-nor to suggest arguments in their support or reasons justifying their promulgation, but merely to show that many variable and intangible factors inevitably enter into the situation, making the injunctive process of doubtful propriety and legality. It is a principle long recog

ing to do so from working for such outside contractor, except on terms that make it difficult, if not impossible, for them to compete with local contractors. That no threats of force have been used is immaterial, for threats of fine and expulsion from the defendant union are just as effectual as threats of force, where, as here, expulsion would mean the loss by the person expelled of the opportunity to make a living at his trade. The injury thus inflicted on the outside contractor and the public cannot be justified, since no legitimate interest of the defendants would be furthered by the

operation of the rule in question. It was clearly designed for the sole purpose of excluding outside competition in the home market on the part of outside contractors; and, since the plaintiff has been injured by the operation of the rule, he is entitled to an injunction enjoining the defendants. from enforcing it."

The rule is said, in the case last cited, to have been held invalid by the supreme court of the District of Columbia in Barker Paint Co. v. Brotherhood of Painters, decided April 8, 1924, but apparently not regularly reported. E. S. O.

ADELA VNUCK, Respt.,

V.

FRED V. PATTERSON, Appt.

Oregon Supreme Court (Dept. 1) — July 6, 1926.

Breach of promise, § 2

validity of promise to marry married person. 1. An engagement to marry is void as against public policy where one of the parties, with the knowledge of the other, has a living spouse. [See annotation on this question beginning on page 400.]

Breach of promise, § 2-engagement in less than statutory period after divorce.

2. An engagement to marry is invalid when made two months after one of the parties, to the knowledge of the other, has been divorced from a third person, where the statute provides that no party to a divorce proceeding shall be capable of contracting a marriage with a third person until the suit has been determined on appeal, or, in any case, until six months after the decree.

[See 4 R. C. L. 146; 1 R. C. L. Supp. 1071.]

Breach of promise, § 2 when promise valid.

3. To effect a valid engagement to marry, the parties must both be at the time eligible to enter into such a contract.

[See 4 R. C. L. 143.] Dismissal, § 11-complaint showing invalid contract.

4. The court will dismiss, even after a judgment in plaintiff's favor, an action for breach of promise of marriage, where the complaint shows that the promise was invalid because knowingly entered into with one having a living spouse.

APPEAL by defendant from a judgment of the Circuit Court for Multnomah County (Rossman, J.) in favor of plaintiff in an action brought to recover damages for an alleged breach of promise to marry. Reversed. The facts are stated in the opinion Messrs. Robert N. Munly, Lonergan & Wagner, and William A. Munly, for appellant:

The marriage agreement established by plaintiff's testimony is void because

of the court.

contrary to public policy on account of its immorality and illegality.

Noice v. Brown, 38 N. J. L. 228, 20 Am. Rep. 388, affirmed in 39 N. J. L. 133, 23 Am. Rep. 213; Prevost v. Wood,