Page:Harvard Law Review Volume 32.djvu/229

193 A NEW PROVINCE FOR LAW AND ORDER 193 various wheat states had formed wheat pools, and the state govemr- ments were quite willing to pay the extra third per hour in order to get the services of these men in loading the ships for export to Great Britain; but they did not hke to pay the extra third in the face of the decision just given by the Court. The Court reassured the employers of the wheat pool thus: ^ "It is not necessarily an unjust extortion for a man or a class of men who make wheat-carrying a speciality, to demand more than the mini- mimi rate for his or their services. It is quite in harmony with the principle of freedom of contract subject to the minimum wage that an employer should seek by extra wages to attract men, who, as he thinks, will give him extra speed and efficiency. The device of a minimum wage will soon prove to be a bane instead of a blessing if the position be per- verted as the arguments tend to pervert it. I can only say plainly that there is no breach of the award or impropriety in a man refusing his services in loading wheat unless the employer pay him more than the minimum. It is all a matter for contract." The extra third was paid. The wheat was loaded and carried to the Allies, while at the same time no obligation was imposed on all the exporters for the term of the award to pay a minimum rate of 2/-. The doctrine, however, which now appears to be a mere truism, was attacked by certain newspapers and employers in a tirade of abuse. The men, it was said, were actually encouraged by the Court to " strike " for higher wages. Even if the legal position were clear the Court was not justified in stating it, in suggesting higher demands, and so forth. However, I took the first opportunity of stating a case on the subject for the opinion of the High Court; and the High Court, by a unanimous decision, upheld the doctrine.^ It would, of course, be an astounding position if, while the em- ployer remains free to give or to refuse employment at the mini- mmn rate, the employee were bound to take employment at that rate. The employer has the formidable power of refusing to give work to any particular man, the power even to put an end to all his own business operations; why should not the employee be free to refuse to take work? A minimum rate is in effect a restraint on
 * Waterside workers, 9 Com. Arb. 315 (1915), 10 Com. Arb. i (1916).
 * Waterside workers, 21 Com. L. R. 642 (1916).