Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 104.: Period of hiring—Breach or termination of labor contract—Compulsory performance of labor contract—Requirement of notice of discharge—Employers required to give statement of reasons for discharge.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 104.: Period of hiring—Breach or termination of labor contract—Compulsory performance of labor contract—Requirement of notice of discharge—Employers required to give statement of reasons for discharge.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 104.

Period of hiring—Breach or termination of labor contract—Compulsory performance of labor contract—Requirement of notice of discharge—Employers required to give statement of reasons for discharge.—

In the vast majority of employments, the labor contract does not contain any stipulation of a definite term of service. The contract is an indeterminate one as to the period of service, each party reserving the right to terminate the same at will and at any time. There may, however, be an express agreement as to length of employment in the ordinary labor contract, as in any other contract for the services of one of the parties thereto. It is probably true that a contract, by which one agrees to render certain services to another during his entire life, might be declared void as being tantamount to slavery or servitude, which is declared to be unlawful by the Thirteenth Amendment of the Constitution of the United States.2 But there can be no constitutional objection to a labor contract, which obligates the laborer to render certain services during a period of one, two, three, five, ten years, or any other definite period of time. And the California statute, which prohibits the enforcement of a labor contract, other than a contract of apprenticeship, beyond the term of two years from the commencement of service under it, may very reasonably be held to be unconstitutional, in that it restricts the constitutional right of the employee to make his own contracts.1

It goes without saying that there can be no compulsory service, where there has been no contract of service whatever.2 And since the ordinary labor contract provides for an indeterminate service, either party may terminate the contractual relation at his will, unless there are statutory regulations of that right, which constitutionally restrain him. But in the absence of statutory regulations, there is ordinarily no implication of law of a determinate term of service from the fact that the labor contract provides for the payment of wages at stated periods. This is the explanation of the supposed discrimination against employers, in the refusal of the courts to exercise their equity powers in compelling an employee to remain in the service of the employer, and to do his duty under the labor contract. The term of service, being indeterminate, it may be terminated at any time at the will of either party, and the employee cannot be compelled by injunction to remain in service, after he has decided to leave, and he exercises his right to terminate the relation of master and servant, in accordance with existing provisions of law or the terms of the labor contract, which may prescribe the method of terminating the relation.3 But the obligation to render services for a stated period of time need not be an express one. It may be implied from the nature of the employment. Thus, it has been a very general rule, probably throughout the civilized world, that a sailor, who has signed a shipping contract, may be compelled to specifically perform his contract of service. And that his arrest, imprisonment, and return on board of ship may be resorted to, in order to compel him to perform his contract.1 And the statutes in the different States in the South, which make it a misdemeanor for a farm laborer to fail to perform his duties, and desert during harvest time, may be sustained on the ground, that the farm laborer, when he enters into service to harvest a crop, impliedly enters into service for the time necessary to complete the harvesting; and his desertion without cause of his employment before the conclusion of his term of service may be prevented by any legal remedy which the legislature may deem fit and appropriate. In Arkansas, South Carolina and Tennessee, the statute is general in its application to all kinds of laborers, although it is aimed at farm laborers in particular. In South Carolina, the statute provides that a laborer, who willfully and without just cause fails to give the labor reasonably required of him by the terms of his contract, or in other respects shall refuse to comply with the conditions of his contract, shall be liable to fine and imprisonment. The statute was held to be constitutional, and not repugnant to the constitutional prohibitions of involuntary servitude, or imprisonment for debt.1 A recent English statute makes it a penal offense for a workman in certain occupations to violate his labor contract by refusal to work, and provides a summary remedy for enforcing the performance of the contract.2

In the absence of statutory regulation, either party to an indefinite contract of service may terminate such contract, and therewith the existing relation of master and servant without any previous notice to the other party, unless the contract contains an express stipulation that such notice shall be given; or, perhaps, unless the giving of such a notice is an established usage in that particular occupation. In order to protect themselves against sudden and unexpected strikes, the employers are generally requiring such an agreement of their employees. And there can be no doubt that such an agreement can be enforced, and the stipulated penalty exacted.1 Statutes have been passed in some of the States regulating this matter of giving notice in a variety of ways. In most of the States, where such regulations obtain, it is provided that wherever an employee is required by the terms of his contract to give a certain notice to his employer of his intention to terminate his contract of service, the employer is required to give a similar notice of his intention to discharge the employee. There would seem to be no serious doubt of the constitutionality of such laws. In Louisiana, steamboat employees are required by statute to give notice of their intention to leave; while in Texas a statute requires railroads to give their employees thirty days’ notice of their intention to reduce wages. There can be little doubt that statutes requiring notice are constitutional, if they are made mutually binding upon the employer and employee; but it may be doubtful whether the Texas statute would be sustained.2 On the other hand, in Connecticut it is made a penal offense to withhold any part of the wages of a workman who leaves his position without giving the contract notice. While in Arkansas a law has been sustained, which requires railroad corporations to pay discharged employees their wages in full on the day of discharge, subject to the penalty of double wages for each day thereafter on which they fail to make full payment of the wages due.1

In some of the States—Massachusetts and Georgia—statutes have been enacted, which require certain employers, railroad, express and telegraph companies, to furnish a discharged employee, when he demands it, a written statement of the cause of his discharge. Where the labor contract provides for a specific term of hiring, this regulation might be held to furnish the laborer only with a reasonable assistance in proving that his discharge, before the expiration of the term of hiring, was without good cause, and was consequently a breach of the contract. But where the hiring was under an indefinite contract, the employer has the right to dismiss an employee at any time, with or without good reason therefor; and the regulation would seem to serve no other purpose than to furnish the trade union, of which the discharged employee is a member, with the means of intimidating the employer by threatening to take up the cause of the employee. The statute, in such cases, would be reasonable, only upon the principle, that an employer, under an indefinite labor contract, had not the right to arbitrarily discharge an employee. In passing upon the constitutionality of the Georgia statute it been held by the Supreme Court of that State that unregulated silence is as much of a constitutional right as liberty of speech and the freedom of the press. And a law, which compels one, against his will, to speak or write to another, is as much of an infringement of constitutional liberty, as a law which restrained one’s liberty of speaking or writing, when he chose to do so, unless the disclosure was required in the interest of the public. And the public interest is not promoted by a compulsory disclosure of the reasons for the discharge of an employee. For these reasons, the statute was held to be unconstitutional.1

[2]Phila. Ball Club v. Hallman, 8 Pa. Co. Ct. 51.

[1]Cal. Civ. Code, 1980. A similar provision is to be found in the Montana Code. Mon. Civ. Code, 2675.

[2]In re Chung Fat, 96 Fed. 202. In this case, an alien seaman was impressed.,

[3]Arthur v. Oakes, 63 Fed. 310; 11 C. C. A. 209; Reynolds v. Everett, 144 N. Y. 189. In Southern California Ry. v. Rutherford, 62 Fed. 796, Judge Ross granted an injunction to compel the employees of a railroad to perform their duties as long as they have not formally quitted their employment. This would seem to involve the principle, that an employee cannot compel an employer to discharge him and that, until he quits the employment, he can be compelled to perform his duties.

[1]In Robertson v. Baldwin, 165 U. S. 275, it was held that the Revised Statutes, §§ 4598, 4599, which authorized the apprehension, imprisonment and return on board ship of a deserting seaman in the merchant marine, do not contravene the prohibition of involuntary servitude, as set forth in the Thirteenth Amendment of the United States Constitution. The court relied upon the fact that the compulsory performance of the services of a seaman, who had shipped under sailing contract, was an exception to the general law which had antedated the constitutional provisions, and for that reason would not come within the provisions of the constitutional prohibition. The better ground would seem to be that a seaman, when he signs shipping articles, undertakes to render certain services for a determinate period; and, being for a determinate period, this labor contract can be specifically enforced like any other contract. It is not true that courts of equity have in the past refused to enforce specifically contracts for personal services, where the character of the services did not require the exercise of any unusual skill. The rule of equity has been that a mandatory injunction will issue for the specific performance of a contract for personal services, where the services were of such a nature that the court could secure their specific performance. But where peculiar skill is required in the performance of the services, the courts of equity have refused to issue an injunction, for the reason that they cannot by any process of the court compel the exercise of the necessary skill. Kemble v. Kean, 6 Sim. 333; Kimberley v. Jennings, 6 Sim. 340; Manhattan Mfg. Co. v. N. J. Stock Yards, etc., Co., 22 N. J. Eq. 161; Gallagher v. Fayette Co. R. R. Co., 38 Pa. St. 102; Hahn v. Concordia Society, 42 Md. 460; Smith v. McElwain, 57 Ga. 247; Bank of California v. Fresno, etc., Co., 53 Cal. 201. But the court of equity has in such cases the power to prevent the recalcitrant employee from engaging with another in a similar employment during the stipulated term of service. Jennings v. Brighton, etc., Bd., 4 De G. J. & S. 735; Wolverhampton, etc., Ry. v. London, etc., Ry., L. R. 16 Eq. 433; Montague v. Flockton, L. R. 16 Eq. 189; Donnell v. Bennett, L. R. 22 Ch. D. 835; West. U. Tel. Co. v. Union Pac. Ry. Co., 1 McCrary, 558; West. U. Tel. Co. v. St. Joe, etc., Ry. Co., 1 McCrary, 565; Hamblin v. Dinneford, 2 Edw. Ch. 529; Metropolitan Exhibition Co. v. Ewing, 42 Fed. 198; 24 Abb. N. C. 419; Daly v. Smith, 49 How. P. 150; Alleghany Base Ball Club v. Bennett, 14 Fed. 257; McCaull v. Braham, 16 Fed. 37; Healy v. Allen, 38 La. Ann. 867.

[1]State v. Williams, 32 S. C. 123. The Arkansas statute reads: “If any laborer shall, without good cause, abandon his employer before the expiration of his contract, he shall be liable to such employer for the full amount of any account he may owe him, and shall forfeit to his employer all wages or share of crop due him, or which might become due him from his employer.” The Tennessee statute is similar in phraseology and terms.

[2]Reg. v Bunn, 12 Cox C. C. 316.

[1]Harmon v. Salmon Falls Co., 35 Me. 447; Preston v. Am. Linen Co., 119 Mass. 400; Walls v. Coleman, 34 N. Y. State Rep. 283; 11 N. Y. S. 907.

[2]See Texas cases, cited in preceding sections, in which laws regulating particular employments have been declared to be unconstitutional as class legislation.

[1]St. Louis, I. M. & S. Ry. Co. v. Paul, 64 Ark. 83; Kansas City, Ft. S. & M. Ry. Co. v. Boland, 64 Ark. 83; Kansas City, Ft. S. & M. Ry. Co. v. Whiddick, 64 Ark. 83.

[1]Wallace v. Ga. C. & N. Ry. Co., 94 Ga. 732.