February 4, 1916.

THE COLLIERY GUARDIAN.

223

important principle under the Coal Mines (Minimum
Wage) Act of 1912, was involved. Their lordships
decided in favour of the collier.

Mr. Wm. Stewart, the newly elected president of
the South Wales Institute of Engineers, gave an
interesting address on the question of the need for
technical education in the mining industry, on
Thursday of last week.

Important proposals with respect to measures
for securing the trade position after the war are
recommended by a sub-committee of the Advisory
Committee to the Board of Trade on Commercial
Intelligence.

Yesterday, Thursday, before the Royal Institution,
Prof. Bone delivered his third and last lecture on
“ The Utilisation of Energy from Enel.”

An interesting memorandum has been drawn up
by a committee organised to direct public attention
to the effect of science upon the wmr.

The South Wales coal owners are making applica-
tion for a reduction of 3-J per cent, in the miners’
wage rate. The men are asking for an advance of
6 per cent.

A national conference of the Miners’ Federation of
Great Britain will take place on Tuesday next at
Lancaster, when the Military Service (No. 2) Act
will be under consideration.

On Tuesday, the Coal Conciliation Board for the
Federated Area of England and North Wales con-
sidered the men’s application for a 5 per cent,
increase in wages. At the request of the owners the
matter was adjourned until the 17th inst.

It is stated that the Government have decided to
set up district committees, and a central committee to
advise, respecting the organisation of coal supplies.

The Home Secretary gives notice that, in con-
sequence of the passing of the Military Service Act,
the procedure for making applications to the colliery
recruiting courts in respect of attested men will be
revised.

The long-awaited judgment by the
Churm V. House of Lords in the case of
Dalton Bain Churm v. Dalton Main Collieries
Collieries Limited has now been issued, and .
Limited. the effect is to reverse the finding of
the Court of Appeal and restore the
original judgment of Mr. Justice Bailhache in the
High Court. The facts of the case are simple in
themselves. In the Silver wood Colliery, a modified
form of the old so-called “butty” system is in
practice, both hewers and fillers being directly
employed on piece work by the company.
A certain stall was worked by a collier, named
Fuller, and a filler, named Churm. For the
week ending July 23, 1913, the pay note showed
that a sum of £2 4s. was due on the piece-work rate
prevailing in the colliery—viz., for getting and
filling best coal 13s. 4d. per score of 10 tons. The
minimum wage as fixed in accordance with Statute
by Sir Edward Clarke was 5s. 9d. per day. The
filler was, accordingly, entitled to receive not less
than this sum, less any statutory deductions that
might be made. In this colliery the sum due weekly
was paid over to the collier and divided by him in
accordance with established custom, whereby he first
took a shilling a day for himself and divided the
balance equally between himself and the filler.
In this particular week the collier had been absent
for one day, thereby disqualifying himself for the
minimum wage, and he retained, therefore, instead of -
half, only four-ninths of the balance. The remaining
five-ninths was only £1 2s. 3d.; whereas the filler,
at the minimum wage rate, was entitled to receive
£1 12s. lid. Accordingly, the filler sued the colliery
company for the balance of 10s. 8d.—a small sum
but involving a great principle.

The colliery company contended that this sum
should be recovered from Fuller, the collier, who,
it was claimed, stood in the position of employer,
since he received the whole of the money due to his
stall, and shared it out by arrangement with his
fellow worker. The rwhole. case, therefore, reduced
itself merely to the legal interpretation of the status
of a collier with regard to his filler, and whether
these two stood to one another in the position of
employer and employed. It was not disputed that

the filler, Churm, was entitled to get his minimum
wage from someone.

When the matter came before the Court of Appeal
two of the three judges considered that the case was
governed by a previous decision, generally referred
to as the Wrexham case. In that case the collier
paid the filler a fixed daily wage, and there was no
question of any minimum rate. In the Wrexham
case it was held that there was no responsibility on
the part of the colliery company to pay the filler’s
wages, even in despite of the fact that there was a
contract between them as to regulations and other
obligations. Upon the nature of this case as a
precedent, however, the Lords’ decision is emphatic,
since every one of the judgments find that the
Wrexham decision is inapplicable in the present
instance. The Lord Chancellor holds that the
Court of Appeal were not bound by the Wrexham
case, the circumstances being different in important
particulars. Lord Shaw points out that the terms
of employment in that case were different from the
present, and especially that the action proceeded
upon the footing that the minimum wage had, in
fact, been paid in the Wrexham case.

It may, perhaps, be remembered that in the latter
case Lord Justice Vaugh an-Williams dissented from
the decisions of his colleagues Lords Justices Buckley
and Kennedy ; and Lord Atkinson now says that he
sees great' difficulty in regard, to an important
construction adopted by the Court of Appeal in that
case ; while Lord Shaw even goes so far as to state
that the Wrexham case will necessarily be deprived
of binding authority by the present judgment. This
is undoubtedly one of the important results of the
Lords’ decision in the Churm case.

Considerable stress was laid upon the fact that the
colliery company admitted a certain relationship
between themselves and the filler. Thus, (1) they
alone can engage and dismiss him ; (2) they alone
direct where he is to work and grant him holidays:
(3) they pay the employer’s contribution under the
Insurance Act and are responsible on his behalf
under the Workmen’s Compensation Act, and can
take proceedings against him under the Employers’
and Workmen’s Act, 1875. But against these facts,
and also as qualifying section 2 of the by-laws, must
be taken section 13 of the by-laws, which Churm,
amongst other documents, had signed. This clause
states that “All persons working under or for and
paid by contractors, or other persons, shall be deemed
to be the servants of the owners of the
colliery to the extent only that they shall be bound
to obey these by-laws and the other rules of the
colliery, but the owners of the colliery shall not be
bound to see to the payment of or be liable for the
wages due to such persons after they have paid the
contractor or other person for whom such persons
work.” At first sight this clause would seem to
absolve the colliery company from any liability in
regard to a filler’s wage, having paid the collier as a
contractor. The lords hold, however, that this section
refers only to outside contractors who are not actually
servants of the colliery company. Apparently the
clause has not been happily drafted, for the inclusion
of the expression “ or other persons,” instead of
strengthening it, seems to have had the opposite
effect, as Lord Sumner showed in his acute criticism,
that the ejusdem generis rule cannot apply in such a
case, since there is no genus of which “ contractors ”
are one species, and “other persons” another. But
more forcible still is the argument advanced by his
lordship that by-law 13 does not in fact come into
operation at all in this case, since the full amount
due to Churm under the Minimum Wage Act had
not been paid to anybody.

The second by-law, therefore, stands in this judg
ment without any qualification. This provides that
all persons employed in a colliery shall receive wages
at the current rates for the time being paid. The
company, in fact, believed that this was being done.
The pay note was correctly made out at tonnage
rates, the various additions were made, including
shift money and other things, together with 65 per
cent, added in accordance with the prevailing
percentage. On the other side were the deduc-
tions, including 8d; for the insurance due from
both collier and filler. Lord Parker, called

attention to the admission by the colliery
company of their liability to pay the minimum wage
in case both collier and filler were entitled to it, where
their joint earnings proved insufficient to provide it.
In this case, however, the collier had forfeited his
own right to a minimum wage by abstention from
work. It might seem, therefore, just that he should
be held liable for his partner’s minimum; especially,
if by the fact of his abstention he could be shown to
have actually caused the deficiency in joint earnings.
The lords, however, do not appear to take that view,
and there the matter now finally rests. In this
connection attention should be given to an inter-
esting point raised by Lord Atkinson. He said that
if the gross sum were sufficient, if equally divided,
to pay the minimum wage to each workman, it would
be very hard upon colliery owners that they should
by reason of the fact that one of their workmen
absorbed the lion’s share, be liable to pay the deficit
to the other. We are not at all sure that something
very like this contingency did not, in fact, arise in
this case.

This judgment, although not in accordance with
the colliery company’s claims, is of great importance
as defining more clearly the legal status of coal miners
working under the system in vogue in this district.
The company was quite right in contesting the case,
and the fact that two out of the three appeal judges
were so decidedly in their favour shows that their
position was a strong one. Much of this strength,
however, rested upon the Wrexham judgment, and
when once the analogy with that case is no longer
recognised the defence becomes more difficult. The
thanks of colliery owners generally, however, are
due, and will doubtless be heartily given, to the
Dalton Main Collieries Limited for their persistence
and energy in this long and arduous struggle in the
intricate entanglements of the law courts.

The present position of the shipping
Limitation industry and the abnormal rates to
Of Freight which freights have risen has been
Rates. the subject of prolonged and careful
consideration by the Cardiff Chamber
of Commerce, and important suggestions have been
proposed with the object of relieving the acute
situation which has arisen. Briefly, the remedy
that is proposed is a statutory limitation of freights
on the lines of the Price of Coal (Limitation) Act. At
the same time it is proposed that the latter Act
should also be extended so as to include export and
bunker coal. The suggested step is a drastic one
and would, if carried into practice, affect many
interests besides that of the British ship owner. Any
serious proposal, however, designed to moderate the
existing state of things is worthy of careful con-
sideration, and there can be little doubt that the
Board of Trade will give it full attention, for we do
not for a moment believe there is the slightest
ground for the imputation that the Government
looks with favour upon excessive rates on account of
the large sums that will eventually flow into the
Treasury under the Excess Profits Tax.

The main principles that should influence the
decision of the Government with regard to this
proposal are comparatively simple. In the first
place there is the question of its effect upon the
commercial interests of the nation, and in the second
place there is its influence upon the effective prose-
cution of the war. As a matter of fact these two
questions are really one and the same thing. Every
consideration for the moment should be subordinated
to the exigencies of the war, to which individual
interests must give place. There can be no doubt
that the high cost of fuel is exciting alarm amongst
our Allies, and it may wrell be that the manufacture
of munitions, is more or less hampered from this
cause. But it by no means follows that the proposed
limitation of freights will solve this outstanding
problem. For no jugglery with rates will alleviate
the scarcity of tonnage, which, after all, is the crux
of the situation.

The ship owners, one and all, resent the imputation
that the present high freights are due to their
rapacity’. The majority of them, indeed, claim
that the Government—viz., the Admiralty in the
first place, have contributed to the existing difficulty