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 The Common Fund Theory of the Rights of Labor itself. We are passing through an epoch so momentous that the American bar should organize to resist the most

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Secession aimed to deprive the Union of part of the states, but the present scheme obliterates their sovereignty and changes

dangerous innovation ever attempted

the federation into a nation with one

since the formation of the government.

popular assembly.

The Common Fund and Co-Equal Right Theory of Capital and Labor NEW and interesting theory of the law that should govern strikes,

lock-outs, picketing, the boycott, and other questions arising from the conﬂict between capital and labor, has been suggested by Judge Francis E. Baker of the United States Circuit Court, in a paper read before the Chicago Bar Association of February 10 of this year and printed in the Illinois Law Review ("The Respective Rights of Capital and Labor in Strikes," 5 I11. L. Rev. 453).

The gist of his contention is that the rights of capitalist and laborer to the product of industry and to free access to the labor market being co-equal, these rights should be exercised on each

use of a co-equal right, and the strike is lawful. To clear the path for his contention, Judge Baker takes up the principles laid down in natural gas cases. In Indiana1 the Supreme Court ruled, in

substance, “that the surface proprietors had co-equal rights of access to the com mon source of supply-the common

fund; that the right of each was there fore not an absolute right, but was

limited and restricted by the co-existing and co-extensive rights of the others; that each therefore had the right to the

beneﬁcial use and enjoyment of the whole supply except as it was cut down by the

his acts should be treated as wrongful.

beneﬁcial use and enjoyment of the others; that while the loss that came to each from the beneﬁcial use of the com mon fund by the others was damnum absque injuria, a loss without cause of complaint, none of them was bound to suﬂer a loss malevolently inﬂicted — inﬂicted ‘for the sake of the harm as an

A sympathetic strike is thus wrongful,

end in itself and not merely as a means

side so as not unnecessarily to interfere with the exercise of the reciprocal and equal right of the opposite party. If

either party exercises one of these rights not for a beneﬁcial use but purely to inﬂict intentional and needless injury,

and the secondary boycott, and picketing

to some further end legitimately desired.’

which involves force and intimidation,

And. so it was held that wasters could

are likewise wrong.

be stopped by injunction. . . "And if a landowner has no absolute

On the other hand,

a strike may inﬂict harm, but if the

harm comes from a truly competitive act— that is to say, if demands are actually pending and the strike is based upon the immediate interests of the employees — then there is the beneﬁcial

and exclusive right, but only a limited

right, qualiﬁed by the co-existent and ‘Manufacturers’ Gas Co. v. Indiana Nat. Gas Co.. 155 Ind. 461; Lippincott Glass Co. v. Ohio Oil C0. 150 Ind. 695; State v. Ohio Oil Co.. 150 Ind. 21; Ohio Oil Co. v. Indiana, 177 U. S. 190.