C. A. 1903 HOWDEN ASSOCIATION. should stop work until the bag dirt dispute was settled, and accordingly on June 30 a majority of the men did not go to work at the collieries, but a minority, of whom the plaintiff was one, continued to work. The step so taken by the men YORKSHIRE MINERS' had not received the sanction of the defendant association, and no notices to determine their contracts of service had been given by the men before striking. On hearing of the strike the executive committee of the defendant association caused the Denaby and Cadeby branches to be informed that the strike was illegal and contrary to the rules of the association. On July 2 a deputation of the men waited on Mr. Chambers with a view to a settlement of the question, but no settlement was effected. On July 7 a resolution was passed by a meeting of the men on strike in favour of an application to the association for strike pay, and that the pits should remain closed until a fresh price-list was made out. On July 11 letters were written by the secretaries of the Denaby and Cadeby branches of the union to Mr. Pickard, the secretary of the defendant association, asking for strike pay, but the application for strike pay was not then granted. On July 14, at a meeting of the council of the association, it was in substance resolved that the men should be told to resume work, and to take a ballot whether they would give notices to terminate their contract of service, in order to get their grievances settled; and on the same day Mr. Pickard, in pursuance of instructions from the council, telegraphed to Mr. Chambers, asking him to receive a deputation for the purpose of arranging for the men to resume work. On the next day Mr. Chambers telegraphed in reply that there was no need of a meeting: the pits were open when the men wished to resume work. On July 14 summonses were taken out against the men who had struck, under s. 4 of the Employers and Workmen Act, 1875, for absenting themselves without leave from their employers' service on days between that date and June 30; upon the hearing of which summonses orders for payment of certain amounts by the men were made by the Court of summary jurisdiction. On July 15 at a meeting of the men it was resolved that they should go back to work, and that a ballot should be taken as to whether fourteen days' notice to terminate their contract of service should be given. On July 16 a ballot was taken among the men on the question whether they were in favour of giving fourteen days' notice, until such time as their grievances were remedied, and a majority voted in the affirmative. On July 17 the men went to the pits, and offered to resume work; but the employers, before they would allow them to do so, required them to sign the colliery book again. The men however refused to do so. In so refusing they acted by the advice of the council of the defendant association. It appeared that, since the men had signed in the first instance, certain special rules had been made, and approved by the Secretary of State, under the Coal Mines Regulation Act, 1887, known as the timbering-in rules, which the union alleged to be illegal, as not being in accordance with the provisions of the Act; and it was feared by the union that, if the men signed the book, they would be binding themselves by a fresh contract to observe those rules. The men then served notices on the employers to determine their contracts of service at the expiration of fourteen days. Subsequently on the same day Mr. Pickard requested Mr. Chambers to receive a deputation from the men, but he refused to do so, or to allow the men to resume work until they signed the new contract. After that date there were several applications to Mr. Chambers to receive deputations for the purpose of settling the dispute, which were unsuccessful. On July 24 a resolution was passed by the defendant association for the allowance of strike pay to the men who had struck as from July 17. During the fourteen days from July 17, the men continued to present themselves at the pits for the purpose of resuming work at each shift, but were not allowed to do so. The learned judge left to the jury the questions (1.) whether the men had broken their contract of service on or prior to July 17; (2.) whether the contract of service between the colliery proprietors and the men had been rescinded, and put an end to, by the conduct of the men on or prior to July 17; and (3.) whether the men had an opportunity offered them to return to work on the old terms on or prior to July 17, C. A. and, if so, whether they refused to return to work on those terms. The jury answered all the questions in the affirmative, and the learned judge thereupon gave judgment for the YORKSHIRE plaintiff. 1903 HOWDEN v. MINERS' ASSOCIATION. Rufus Isaacs, K.C., and Danckwerts, K.C. (Loehnis with them), for the defendants. Assuming in the plaintiff's favour that the giving of strike pay would in the present case be contrary to the rules of the defendant association, this action is, nevertheless, not maintainable. Prior to the passing of the Trade Union Act, 1871, the objects of a society of this kind being in restraint of trade, the society had no legal status: and, consequently, a member or members of it could have no legal remedy by way of action for misapplication of the funds, or infringement of the terms of the agreement between himself or themselves and the other members of the society. This state of the law was modified in favour of trade unions to a certain extent by the Trade Union Act, 1871, but, except to that extent, the law remains the same. By ss. 2 and 3 of the Act, the purposes of a trade union are no longer, by reason merely that they are in restraint of trade, to be deemed unlawful, so as to render members of a trade union liable to criminal prosecution, or to render void or voidable any agreement or trust; but by s. 4 "nothing in this Act shall enable any Court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements, namely," among others, "any agreement for the application of the funds of a trade union, (a) to provide benefits to members; or (b) to furnish contributions to any employer or workman not a member of such trade union, in consideration of such employer or workman acting in conformity with the rules or resolutions of such trade union." Therefore the Legislature, in legalizing the position of trade unions, refrains from giving them the status of corporations, and expressly excludes certain consequences which would otherwise follow from their legalization. The authorities shew that the effect of s. 4 is to prevent the maintenance of such an action as this, as being an action brought with the object of C. A. 1903 HOWDEN V. MINERS' directly enforcing an agreement which comes within the meaning of sub-s. 3 of the section. In Rigby v. Connol (1) the action was for an injunction to restrain a trade union from excluding a member, whom they had expelled, from partici- YORKSHIRE pating in the benefits of the union, and it was held by Jessel M.R. ASSOCIATION. that the foundation of the jurisdiction of the Court to grant injunctions in such cases was the right to property vested in a member of the society, and that therefore the action was brought directly to enforce an agreement by the society to provide benefits to members within the meaning of s. 4 of the Act of 1871. In Chamberlain's Wharf, Limited v. Smith (2) the Court of Appeal followed the decision in Rigby v. Connol. (1) In Duke v. Littleboy (3), which was substantially similar to the present case, Denman J. held that such an action as this could not be maintained as being brought with the object of directly enforcing an agreement within s. 4, sub-s. 3, of the Trade Union Act, 1871. The rules embody the terms of the agreement between the plaintiff and the other members of the society, but for which the plaintiff could not maintain the claim for an injunction, and it is impossible to give him a right of action without enforcing that agreement. His claim is that the defendants should be compelled to retain the funds, in order that they may be applied to the purposes sanctioned by the rules, i.e. (inter alia) the provision of benefits for himself as a member of the society. In a case like the present the only mode of directly enforcing the agreement embodied in the rules is by action for an injunction to restrain the society from applying the funds otherwise than according to the rules; for the plaintiff has no right in præsenti to any benefit under them. The decision in Chamberlain's Wharf, Limited v. Smith (2) is binding on this Court, and it is difficult to see how an action to restrain a trade union from excluding a member from participating in its benefits under the rules can for the present purpose be substantially distinguished from an action to restrain a trade union from applying its funds contrary to the agreement for their application to benefits embodied in its (2) [1900] 2 Ch. 605. (3) (1880) 28 W. R. 977. (1) (1880) 14 Ch. D. 482. C. A. 1903 HOWDEN YORKSHIRE ASSOCIATION. rules. The decision of Fry J. in Wolfe v. Matthews (1) is no doubt to a certain extent an authority against the defendants; but it is to be observed that the point seems to have been taken in that case by way of preliminary objection to the jurisMINERS' diction, and the learned judge, in overruling that objection, said that it remained to be seen whether the terms of the Act would eventually permit any relief to be given to the plaintiff. If the case is to be taken as a final decision of the point by the learned judge, it is submitted that that decision must be taken to have been in effect overruled by the Court of Appeal in Chamberlain's Wharf, Limited v. Smith. (2) The reference to Wolfe v. Matthews (1) by Lindley L.J. in Swaine v. Wilson (3) does not involve the expression of any opinion as to whether the former case is reconcilable with Rigby v. Connol. (4) In any case this action cannot be maintained by the plaintiff as an individual member of the association. The only remedies given by the Trade Union Act, 1871, for the protection of the property and rights of a trade union, and for the enforcement of the application of their funds to the purposes of the rules, are those given by ss. 9-12 of the Trade Union Act, 1871. Under those sections only the trustees of the association can sue in respect of its property. Before the Act of 1871 trade unions, being illegal, had no such remedies, and the only effect which the Act can have in this respect is to give the remedies which it expressly provides: Barraclough v. Brown. (5) Secondly, for the purposes of the point arising on the Trade Union Act, 1871, the case has been treated as if the application of the funds, which it is sought to restrain, were ultra vires in the sense of being entirely outside the scope of the association and the rules; but that is not really so, for it is one of the objects of the association to give strike pay to members of the association out on strike, subject to certain conditions. It is clear that a Court of Equity would not grant an injunction of this kind, where the proposed payment was not ultra vires in the sense of being entirely outside the objects of the association, (1) (1882) 21 Ch. D. 194. (3) (1889) 24 Q. B. D. 252, at p. 259. (4) 14 Ch. D. 482. (5) [1897] A. C. 615. |