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The Impact of Constitutions on Labour Law

Published online by Cambridge University Press:  16 January 2009

Otto Khan-Freund
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Extract

I propose to present to you some reflections on the impact which constitutions have had on the law governing the relations between management and labour. In many parts of the world that impact has been very considerable, and continues to be so.

It may be thought that an analysis of the role thus played by constitutions may perhaps be of absorbing interest to a comparative lawyer, but that it cannot have much practical significance in the United Kingdom. People who argue that way are obviously inclined to agree with De Tocqueville who, when asked what the British Constitution was, said that it did not exist. If the British Constitution does not exist, it may be argued, what is the good of giving in an English University an Inaugural Lecture about the role constitutions may play in the development of labour law?

Type
Research Article
Information
The Cambridge Law Journal , Volume 35 , Issue 2 , November 1976 , pp. 240 - 271
Copyright
Copyright © Cambridge Law Journal and Contributors 1976

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References

1 In a country with a formal constitution such as France elements of the substantive constitution may be found outside the document known as “the Constitution,” e.g., Arts. 1, 2, 4 and 5 of the Code Civil. On the other hand the formal constitution may contain rules which do not belong to the substantive constitution, e.g., the Third and Seventh Amendments to the Constitution of the United States, or Art. 4, para. 3 of the Bonn Basic Law. Such provisions may have an impact on labour law, but this is not considered here.

2 e.g., Supreme Court of Judicature (Consolidation) Act 1925; County Courts Act 1959; Courts Act 1971; Administration of Justice Acts 1960–73; Juries Act 1974. See for the following observations de Smith, Constitutional and Administrative Law (2nd ed., 1973)Google Scholar, Chaps. 1 and 2.

3 Esp. those of 1949 and of 1969. The extension of the franchise by the Representation of the People Acts 1867 and 1884 had a decisive influence on the character of labour legislation. See , S. and Webb, B., Industrial Democracy (1926 ed.), pp. 250Google Scholaret seq., and my own observations in Ginsberg (ed.), Law and Opinion in England in the 20th Century (1959), p. 221.

4 Scarman, English Law—The New Dimensions, Hamlyn Lectures (26th Series, 1974), esp. Pts. II (a) and VII.

5 i.e., Art. VI, para. 2: “This Constitution and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

6 s. 12.

7 Canadian Bill of Rights, Statutes of Canada, 1960, c. 44.

8 An attempt to “entrench” the Bill of Rights in the British North America Act 1967 was made by Lester Pearson and Pierre Trudeau, but, for the time being at least, it seems to have failed. See Trudeau, A Canadian Charier of Human Rights (1968), written by Mr. Trudeau when he was Minister of Justice and published by the Federal Government as a White Paper.

9 R. v. Drybones (1970) 9 D.L.R. 3rd 473Google Scholar, settling an acute controversy, at least for the time being.

10 s. 2. See for an analysis Fowler, “The Canadian Bill of Rights—A Compromise between Parliamentary and Judicial Supremacy” (1973) 21 American Journal of Comparative Law, 712–746; Driedger, “The Canadian Bill of Rights,” in Contemporary Problems of Public Law in Canada, Essays in Honour of Dean F. C. Cronkite, edited by O. E. Lang (1968), p. 31.

11 Passed in 1791, and, in the words of Professor Corwin (The Constitution and What it Means Today (12th ed.), p. 188) “designed to quiet the fears of mild opponents to the Constitution in its original form.” Its application to the legislative, administrative and judicial practice of the States (as distinct from those of the United States itself) is of much more recent origin and based on the practice of the Supreme Court to read the Bill of Rights (or its fundamental clauses) into the due process clause of the 14th Amendment, passed after the Civil War in 1868. This practice was developed in the 20th century.

12 Basic Law for the Federal Republic of Germany (Grundgesetz fuer die Bundesrepublik Deutschland) of 23 May 1949Google Scholar, Pt. I, entitled “Grundrechte” (Fundamental Rights). The Amendment of the Basic Law of 1968 with reference to a State of Emergency affected Art. 9 III, the fundamental provision on freedom of organisation. For some examples of the application of the constitutional provisions on fundamental rights in the practice of the Federal Constitutional Court see Cohn, Manual of German Law (2nd ed., 1968), Vol. I, para. 48, p. 32.

13 Waddington v. Miah [1974] 2 All E.R. 377Google Scholar (H.L.); R. v. Home Secretary, exp. Bhajan Singh [1975] 2 All E.R. 1081Google Scholar (C.A.); R. v. Home Secretary, ex p. Phansopkar and Ex p. Begum [1975] 3 All E.R. 497.Google Scholar

14 s. 2 (4). I have tried to state my reasons for thinking that the Sovereignty of Parliament has survived the accession of the United Kingdom to the European Communities in “European Community Law and the British Legal System” (1971–1972) 4 University of Tasmania Law Review 1.

15 Marshall C.J. in M'Culloch v. Maryland (1819) 4 Wheat. 316, 431. ”The power to tax involves the power to destroy.”

16 (1872) 12 Cox Cr.C. 316.

17 [1964] A.C. 1129.

18 Prof, de Nova's term: see “Historical and Comparative Introduction to Conflict of Laws” (1966)Google Scholar II Recueil des Cows, Hague Academy of International Law, 437, 557.

19 Crofter Harris Tweed Co. v. Veitch [1942]Google Scholar A.C. 435.

20 11 & 12 Geo. 6, c. 47, applicable to England and Wales only.

21 Agricultural Wages (Scotland) Act 1949 (12 & 13 Geo. 6, c. 30).

22 Trade Disputes and Trade Unions Act 1946, repealing the Trade Disputes and Trade Unions Act 1927.

23 The Trade Disputes and Trade Unions Act (Northern Ireland) 1927 was only partly repealed by the Trade Disputes and Trade Unions Act (Northern Ireland) 1958.

24 The Industrial Relations Act 1971 applied to Great Britain only. Hence the pre-1971 legislation on trade unions and trade disputes is still in force in Northern Ireland. In Great Britain it is now replaced by the Trade Unions and Labour Relations Act 1974.

25 Art. 157.

26 Especially the notorious Prussian Gesinde-Ordnungen.

27 Manifesto of the Council of People's Commissars of 12 November 1918 (which had the force of law), No. 8. Provisional Law on Agricultural Labour of 24 January 1919.

28 Constitution of 11 August 1919, Art. 7 No. 9.

29 Basic Law (see n. 12) Art. 74 No. 12.

30 The main exceptions are the mining industry to the bulk of which however—owing to its geographical situation—the often-amended Prussian Mining Law of 1865 applies, the public service of the Laender and municipalities (which is however subject to “framework legislation,” enacted by the Federal Republic in accordance with Art. 75 (1) of the Basic Law and laying down principles of remuneration, discipline and staff representation—see Benz, Beamtenverhaeltnis und Arbeitsverhaeltnis (1969)), and certain Laender provisions on arbitration, largely enacted to carry out the control Council Law No. 35 of 1946 (see Hueck-Nipperdey, Lehrbuch des Arbeitsrechts (7th ed.), Vol. II, para. 3, para. 41).

31 e.g., in France since 1936, in Germany since 1918, in the Netherlands since 1937.

32 See Heither, Das kollektive Arbeitsrecht der Schweiz (1964), p. 120, n. 4.

33 These were originally in force for three years, but then repeatedly extended.

34 Introducing Art. 34 ter by which the legislative jurisdiction of the Federation was clarified.

35 For a detailed discussion of the law of 28 September 1956 see Schweingruber-Bigler, Kommentar zum Gesamtarbeitsvertrag (1963), pp. 30 et seq.

36 For a detailed analysis of the distribution between Federal and State legislative powers in matters of labour law see Cox, Federalism in the Law of Labor Relations (1954) 67 Harv.L.Rev. 1297.

37 Gibbons v. Ogden, 9 Wheat. 1.

38 247 U.S. 251.

39 For descriptions of this crisis see Stern, The Commerce Clause and the National Economy, 1933–46 (1946) 59 Harv.L.Rev. 645, 883; and Hart and Wechsler, The Federal Courts and the Federal System (2nd ed., 1973), pp. 41–45.

40 Railroad Retirement Board v. Alton R.R. Co., 295 U.S. 330 (1935)Google Scholar; Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935)Google Scholar; Carter v. Carter Coal Co., 298 U.S. 238 (1936)Google Scholar; U.S. v. Butler, 297 U.S. 1 (1936).Google Scholar

41 Schechter Poultry Corp. v. U.S., supra.

42 U.S. v. Butler, supra.

43 See the President's Message to Congress of 5 February 1937, extracts of which are printed in Hart and Wechsler, loc. cit., p. 42 et seq., n. 57.

44 Paul A. Freund, “The Supreme Court of the United States,” 29 Can. Bar Rev. 1080, 1089.

45 301 U.S. 1.

46 312 U.S. 100.

47 301 U.S. at p. 36.

48 Maryland v. Wirtz, 392 U.S. 183.

49 Precisely the same policy as that of our Fair Wages Resolution of 1946, para. 2: “whether in execution of the contract or otherwise.”

50 Or Title VII of the Civil Rights Act 1964, or the Age Discrimination of Employment Act 1967, or the Occupational Safety and Health Act 1970.

51 i.e., Commonwealth of Australia Constitution Act, s. 9.

52 s. 51 (i) of the Constitution.

53 R. v. Foster, ex p. Eastern and Australian Shipping Co. Ltd. 103 C.L.R. 256, 309. S. 98 of the Constitution expressly extends the trade and commerce power to navigation and shipping, and per argumentum e contrario the court concluded that the power did not cover industries other than transport, an argument perhaps more congenial to a court applying the law within the British, i.e., European tradition, than to an American court.

54 i.e., for the purposes of the Commonwealth Conciliation and Arbitration Act 1904–74.

55 Or, alternatively, as an agreement “certified” by the Conciliation and Arbitration Commission under s. 31 of the Commonwealth Conciliation and Arbitration Act or through analogous procedures under the law of one of the four States which have a compulsory arbitration system. A certified agreement “shall… have the same effect as, and be deemed to be an award for all purposes of this Act.” See Yerbury and Isaac, “Recent Trends in Collective Bargaining in Australia” (1971) 103 I.L.Rev. 421 et seq.

56 Pt. VIII of the Commonwealth Conciliation and Arbitration Act.

57 The sharp division between the two types of dispute in the structure of the Australian system resulted from the decision of the High Court in R. v. Kirby, ex p. Boilermakers' Society of Australia (1956) 94 C.L.R. 254Google Scholar, affirmed by the Privy Council: [1957] A.C. 288. The Act was amended in 1956 to give effect to the principle of the separation of powers.

58 Also of New Zealand: Mathieson, Industrial Law in New Zealand, I (1970), esp. Chap. 7, pp. 304 et seq.

59 R. v. Findlay, ex p. Victorian Chamber of Manufacturers (1950) 81 C.L.R. 573.Google Scholar

60 Australian Boot Trades Employees Federation v. Whybrow & Co., 11 C.L.R. 311. In 1950 the court expressly refused to overrule the Whybrow Case: R. v. Kelly, Ex p. Victoria, 81 C.L.R. 64.

61 S. 41 (1) of the original Act.

62 Except (s. 49 of the present Act) in the Federal Territories where it still applies. The “common rule” is similar to a European “extended” collective agreement. (See above n. 31).

63 Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees Association (1925) 35 C.L.R. 528Google Scholar; Long v. Chubbs Australian Co. Ltd. (1935) 53 C.L.R. 143Google Scholar; Metal Trades Employers' Association v. Amalgamated Engineering Union (1935) 54 C.L.R. 387.Google Scholar The situation is summarised by Dixon C.J. in R. v. Commonwealth Court of Conciliation and Arbitration, ex p. Kirsch (1938) 60 C.L.R. 507, 567Google Scholaret seq.

64 R. v. Commonwealth Court of Conciliation and Arbitration and Australian Builders' Labourers' Federation (1914) 18 C.L.R. 225, 245Google Scholaret seq. For a case in which the Court held that the dispute was not “real” see Caledonian Collieries Ltd. v. Australian Coal and Shale Employees' Federation (1930) 42 C.L.R. 558Google Scholar, where Isaacs J. dissented.

65 R. v. Commonwealth Conciliation and Arbitration Commission, ex p. Association of Professional Engineers (1959) 107 C.L.R. 208, 268.Google Scholar

66 It includes e.g., banking and insurance: Australian Insurance Staffs Federation v. Accident Underwriters Association; Bank Officials Association v. Bank of Australasia (1923), 33 C.L.R. 517Google Scholar; the stage: R. v. Deputy Industrial Registrar (1912) 15 C.L.R. 576Google Scholar; the press: Daily News Ltd. v. Australian Journalists' Association (1920) 27 C.L.R. 532Google Scholar; local government: Federated Municipal etc. V. Melbourne Corporation (1919), 26 C.L.R. 508.Google Scholar See Mills, C.P., Federal Industrial Law (3rd ed of Nolan and Cohen), p. 74.Google Scholar

67 As a result of two fundamental decisions on constitutional law: the Engineers' Case, i.e., Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. 129Google Scholar, and the Professional Engineers' Case of 1959, above n. 65. See the very illuminating explanation of a complex development by Sawer, Australian Federalism in the Courts (1967), Chap. 8, esp. pp. 130 et seq.

68 Supreme Court Amendment Act 1949), c. 37, inserting a new s. 54 into the Supreme Court Act, Rev. St. of Canada, c. 35. In Att.-Gen. of Ontario v. Att.-Gen. of Canada [1947]Google Scholar A.C. 127 the Privy Council affirmed the power of the Canadian Parliament to abolish appeals to the Privy Council.

69 Lord Hobhouse, delivering the advice of the Judicial Committee in Bank of Toronto v. Lambe (1887) 12 App.Cas. 565, 579; Earl Loreburn L.C. delivering the advice of the Committee in Att.-Gen. of Ontario v. Att.-Gen. of Canada [1912]Google Scholar A.C. 517, 583 In Belfast Corp. v. O.D. Cars Ltd. [1960]Google Scholar A.C. 490, 518 Viscount Simonds expressed precisely the opposite view. See also Hinds v. The Queen [1976] 1 All E.R. 353.Google Scholar

70 Att.-Gen. of Canada v. Att.-Gen. of Alberta [1916] 1 A.C. 588, 596Google Scholaret seq. (P.C.) (Lord Haldane).

71 MacDonald, “The Constitution in a Changing World” (1948) 26 Can. Bar Rev. 21.

72 [1925] A.C. 396.

73 s At p. 409.

74 At pp. 409 et seq.

75 Smith, The Commerce Power in Canada and in the United States (1963).

76 British North America Act 1867, s. 91 (27).

77 See Toronto Electric Commissioners v. Snider, supra, at pp. 406 et seq. with review of the earlier case law.

78 Adell, The Legal Status of Collective Agreements in England, the United States and Canada (1970), p. 163. In the words of the Report of the Task Force on Labour Relations to the Prime Minister (Canadian Labour Relations (1968Google Scholar), para. 52) “the concept of national labour policy was shattered by the Privy Council judgment in the Snider case.” Carrothers, Collective Bargaining in Canada (1965), speaks of the “balkanisation of labour policy” which “distinguishes Canada from the United Kingdom and the United States” (p. 40), and which he attributes directly to the Snider decision.

79 s. 91 (2A), inserted by the British North America Act 1940.

80 s. 94A—amended by the British North America Act 1964.

81 Task Force Report, supra, para. 59; Carrothers, loc. cit., Chaps. 3 and 4, especially pp. 63 et seq., with regard to the adoption of the principles of the federal Industrial Relations and Disputes Investigation Act 1948, in most of the provinces. The scope of the federal statute is severely limited. See on the complex problem of delimitation Carrothers, loc. cit., Chap. 6, pp. 75 et seq.

82 Law of the Constitution, 10th ed. (by E. C. S. Wade), 1959, pp. 175 et seq.

83 As was the case with regard to Northern Ireland under the Government of Ireland Act 1920, s. 5 and s. 6. See on the whole problem—and also that of a bill of rights— Williams, D. G. T., The Constitution of the United Kingdom (1972B) 31 C.L.J. 266.Google Scholar In this very interesting and topical article the author indicates (p. 282) that a system of “devolution” coupled with a “Canadianstyle Bill of Rights for the whole Country” would “act as a possible steppingstone to a full-scale assumption of judicial review” though this would not necessarily be the case. See also ibid., p. 278 and p. 280.

84 Supra, n. 7.

85 310 U.S. 88 (1940); Carlson v. California, 310 U.S. 306 (1940)Google Scholar was to the same effect.

86 At 310 U.S. 105 the court emphasised that it was not concerned with mass picketing or other conduct giving rise to an imminent and aggravated danger so “as to justify a statute narrowly drawn to cover the precise situation giving rise to the danger.” This passage may be of some topical interest.

87 See n. 11, supra.

88 American Federation of Labor v. Swing, 312 U.S. 321 (1941).Google Scholar

89 By Frankfurter, J. in International Brotherhood of Teamsters v. Vogt, infra.Google Scholar n. 99.

90 Frankfurter, J. in the Meadowmoor case, infra.Google Scholar

91 Milk Wagon Drivers Union of Chicago v. Meadowmoor Dairies Inc., 312 U.S. 237 (1941).

92 Carpenters and Joiners Union v. Ritter's Cafe, 315 U.S. 722.

93 Simultaneously, however, the court struck down a State prohibition of peaceful picketing aiming at compliance by the picketed firm itself with union rules: Bakery and Pastry Drivers' Local v. Wohl, 215 U.S. 769.

94 The Ritter decision is one of those frequent examples of judicial action entirely justified on the merits or demerits of the case before the court—the union's conduct was unjustifiable—but which nevertheless in retrospect seem to be founded on dubious principles.

95 By imposing “restraint of trade.”

96 Giboney v. Empire Ice and Storage Co., 336 U.S. 490 (1949).Google Scholar

97 Hughes v. Superior Court, 339 U.S. 460 (1950).Google Scholar

98 International Brotherhood of Teamsters v. Hanke, 339 U.S. 470 (1950)Google Scholar; Building Service Employees International v. Gazzam, 339 U.S. 552 (1950)Google Scholar; Local Union No. 10 of United Association of Journeymen v. Graham, 343 U.S. 192 (1953).Google Scholar

99 354 U.S. 284.

1 In 1958, in Chauffeurs, Teamsters and Helpers Union v. Newell, 356 U.S. 228, the court quashed a Kansas injunction against picketing without opinion and simply citing the Thornhill decision which thus, in the view of the court, has somehow—as a shadow—survived the Vogt case.

2 American Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968).Google Scholar

3 Speaking for the court, Marshall J. denied that any of its earlier decisions supported the “proposition that the non-speech aspect of peaceful picketing are so great as to render the provisions of the First Amendment inapplicable to it altogether. The mere fact that speech is accompanied by conduct does not mean that the speech can be suppressed under the guise of prohibiting the conduct.” Black J. dissenting, however, said that picketing, i.e., patrolling was not free speech and protected as such. This is the gist of the controversy.

4 Without casting a doubt on the Logan Valley decision the court, in two cases decided on the same day in 1972—Central Hardware v. N.L.R.B., 407 U.S. 539, and Lloyd Corporation v. Tanner, ibid. 551 (a five to four decision)—treated it with very little sympathy and construed it narrowly, in the first case as applicable only where the owner of the property had, in the manner of a “company town” (see Marsh v. Alabama, 326 U.S. 501 (1946)Google Scholar, transformed it into the equivalent of a “community business block,” in the second case (which had nothing to do with labour law) as applicable only to picketing directly related to the activities of the shopping centre. Perhaps in the fullness of time Logan Valley may share the fate of Thornhill. Or perhaps not: only a few days after the Lloyd Corporation decision a unanimous court held in Police Department of the City of Chicago v. Mosley, 408 U.S. 92 that a differentiation between permitted and prohibited picketing in accordance with its purposes was a violation of the First Amendment. In view of the increasing federal pre-emption of the picketing problem the issue may have diminished in importance (see Gunther, Constitutional Law (9th ed.), p. 1358.

5 See Summers and Wellington, Labor Law, Cases and Materials (1968), p. 1030.Google Scholar “The most openly expressed judicial standard” (for the protection of the democratic rights of union members) “was protection of due process in union discipline and other judicial proceedings.” This was of course the application of a constitutional standard by analogy.

6 Haines, The Revival of Natural Law Concepts (1930).

7 Freund, Ernst, The Police Power (1904)Google Scholar, para. 69, 611.—The Second Slaughter house Case, 111 U.S. 746 (1884) may be mentioned as an example.

8 Mugler v. Kansas, 123 U.S. 623, concerning a state statute prohibiting the manufacture and sale of alcoholic liquor.

9 Allgeyer v. Louisiana, 165 U.S. 578 (1897).

10 198 U.S. 45.

11 261 U.S. 525.

12 Not the Fourteenth. This was legislation of the District of Columbia, i.e., federal law.

13 277 U.S. 350—a textbook example to show the tendency of lawyers everywhere to shut their eyes to social realities and to present legal form as social substance. Delivering the opinion of the court, Sutherland J. said that the business of an employment agent “does not differ in substantial character from the business of a real estate broker, ship broker, merchandise broker or ticket broker.”

14 208 U.S. 161 (1908)—Fifth Amendment.

15 263 U.S. 1 (1915)—Fourteenth Amendment.

16 The first relevant decision—Nebbia v. New York, 291 U.S. 502 (1934)—was not a labour law case.

17 300 U.S. 379.

18 Olsen v. Nebraska, 313 U.S. 236.

19 Day Brite Lighting Inc. v. Missouri, 342 U.S. 421.

20 Lincoln Federal Labor Union v. Northwestern Iron and Metal Co., 335 U.S. 325.

21 National Labor Relations Act, s. 8 (a) (3).

22 Ibid. s. 14 (b).

23 See also the very clear and explicit opinion of Black, J. in Ferguson v. Skrupa 372 U.S. 726 (1963) at p. 730.Google Scholar

24 For an eloquent statement of the case in favour of judicial review, see Rostow, Eugene V., “The Democratic Character of Judicial Review” (1952) 66 Harv.L.Rev. 193.Google Scholar

25 “Civil Rights Cases” (1883) 109 U.S. 3. For an illuminating analysis of the doctrine of “state action” and its history with regard to discrimination, see the extensive anonymous ldquo;243 Note on Federal Powers to Regulate Discrimination” (1974) 74 Col.L.Rev. 449.

26 See the decision of the Federal Constitutional Court of 2 May 1967, 21 B.V.G. 362, 372 et seq., according to which the fundamental constitutional rights are not merely subjective defensive rights (Abwehrrechte) of the citizen against the State, but objective norms which establish a system of values comprising all branches of the law (“ein Wertsystem das als verfassungsrechtliche Grund entscheidung fuer alle Bereiche des Rechts Geltung beansprucht”). The contrast to the attitude of the United States Supreme Court could not be clearer. See for a concise statement of the problem Stein, E., Staatsrecht (4th ed., 1975), pp. 253Google Scholaret seq., and for discussions of the problem in relation to labour law Nikisch, Arbeitsrecht (3rd ed., 1961), Vol. I, pp. 39 et seq.; Hueck-Nipperdey, Lehrbuch des Arbeitsrechts, Vol. I (7th ed.), pp. 716 et seq.; Conrad, Freiheitsrechte und Arbeitsverfassung (1965), pp. 60 et seq.

27 Since the leading case of 15 January 1955 [1955] Neue Juristische Wochenschrift 684 et seq., the principle of which has been applied in many subsequent cases (see Hueck-Nipperdey, loc. cit., Vol. II, pp. 373 et seq).

28 Notably that of 10 May 1962 [1962] N.J.W. 1537, the Christmas Bonus Case.

29 See Stone C.J., delivering the opinion of the court in Steele v. Louisville and Nashville R.R., 323 U.S. 192 (1944) at p. 202Google Scholar: “We think that the Railway Labor Act imposes upon the statutory representative of a craft at least as exacting a duty to protect equally the interests of the members of the craft as the Constitution imposes upon legislature to give equal protection to the interests of those for whom it legislates.”

30 For the controversy see Hueck-Nipperdey, loc. cit., Vol. II, pp. 154 et seq. For the decision of the Great Senate of the Federal Labour Court see Soellner, Arbeitsrecht (3rd ed., 1973), p. 59.

31 See the decision of 3 December 1954 [1955] N.J.W. 606.