S3(,f (L77 (Snrnjll KJam Srljnnl SItbrarg Cornell University Library KF 3369.C77 The law of trade and labor combinations 3 1924 019 270 671 ^ Cornell University M Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019270671 THE LAW OB" Teade and Laboe Combimtions AS APPLICABLE TO BOYCOTTS, STRIKES, TRADE CONSPIRACIES, MONOPOLIES, POOLS, TRUSTS, AND KINDRED TOPICS BY \&- FREDERICK H. COOKE Off THE New Tokk BiR author of "The Law of Lifb Insubanob" CHICAGO OALLAGHAlsr AND COMPANY 1898 COPYBIGHT, 1898, BY CALLAGHAN & CO. STATE JOTJRNAL PRINTING COMPANT, PBINTBRS and STBRKOm'EHS, MAsisoH, yna. PREFACE. The comparative suddenness with which Trade and Labor Combinations, in their more recent forms, have been forced upon the attention of the courts, seems to have resulted in a deplorable confusion and conflict in the decisions, with reference to fundamental principles and their application. A writer upon a branch of the law wherein such principles and application have long tjeen clearly established, has it al- most exclusively for his function'- to merely register or form- ulate what has already been declared by the courts. But a proper performance of my present task has seemed to m© to imperatively demand much more than this. I think it not too much to say, that thus far the fundamental princi- ples to be applied in determining the legality of Trade and Labor Combinations and their acts, have not been appre- hended at all, or at any rate have failed to secure general recognition. By way of clearing the ground I have herein introduced, for the first time, the fundamental classification of Combinor tions Producing Private Injv/ry and Comhinations Producing Public Injv/ry. A clear apprehension of the reason of this classification will suffice of itself to dissipate much of the fog and mist that have hitherto hovered about the ground- work of our topics. The confusion and conflict in the decisions relating to Combinations Producing Private Injury is, as I have repeat- IV PKEFAOB. ediy endeavored to point out, principally caused by the at- tempts to give effect to intent and combination as elements of civil liability. Happily some courts in this country have already repudiated them as such elements, and it is to be hoped that the notable decision made by the House of Lords in December, 189Y, in the case of Allen v. Flood, will prove to be the deathblow, in this country as well as in England, of the doctrine giving eJBfect to intent. Similar observations will apply to the doctrine giving effect to combination, which has likewise been recently repudiated in England, though not as yet by the court of last resort. I have herein presented for the first time, as the funda- mental and universal test of civil liability for an act of a trade or labor combination, whether it is the natural incident or out- growth of some existing lawful relation. I may say in pass- ing that the same test seems to me to furnish the essential element of the proper definition of a tort. After I had evolved this test as the only satisfactory one, it was gratify- ing to discover that, as a result of the elaborate discussions in Allen v. Flood, the majority of the court had reached what I may perhaps call an adumbration of, or approxi- mation to, the test as I have stated it. Probably the portion of the work devoted to Combina- tions Producing PubUo Injury will be of greater interest to the profession generally. Only within about the last ten years have these combinations, variously designated as " monopo- lies," " trusts," and so on, been frequently presented to the consideration of the courts. The investigations carried on in 1888 by committees appointed by the United States House of Representatives, by the New York Senate, and by the Canadian House of Commons, substantially mark the com- PEEFACE. V mencement of the epoch of the development of the law ap- plicable to these combinations. In 1889 were enacted the first " anti-trust laws," and such now exist in two-thirds of the States and Territories, besides the Federal legislation on the subject. Since that time the development of the law in this country, as measured by the number of decisions, has been rapid, though, as I have endeavored to point out, the legal status of these combinations has not yet been clearly defined by the English courts. Tet, as with reference to the law of Combinations Pro- ducing Private Injury, it may be said here that, notwith- standing the comparatively large number of decisions, there is as yet a deplorable conflict and confusion as to funda- mental principles and their 'application. As I have endeav- ored to point out, this result is due to at least two causes : one, the fallacious supposition that the doctrine against re- strictions upon competition is based upon or a development of that against contracts in restraint of trade; the other, the failure to establish or seek to establish any fundamental test of the legality of such restrictions. I have endeavored to make plain what is the basis of the present doctrine against such restrictions, and to point out the -existence of two imperfectly recognized tests of liability — the test of ex- tent and the test of reasonableness. * Many of the decisions covered by the second portion of the work involve the construction of the so-called " anti-trust acts," and it will doubtless be frequently found desirable to obtain ready reference to all the decisions directly constru- ing the anti-trust laws of a particular jurisdiction. Although such decisions will be found scattered throughout this por- tion of the work, each in connection with its appropriate Tl PBEFAOE. topic, yet in the index will be found grouped references to all the decisions directly construing the anti-trust laws of a particular jurisdiction, thus, under " Federal anti-trust laws " or " Texas anti-trust laws." Although the number of decisions cited herein is com- paratively small, a reference to the number of citations, as given in the table of cases, may furnish a suggestion of the amount of labor involved in analyzing these decisions. Indeed, at this stage of the development of the law on these subjects, it is the function of the text-writer to very elabo- rately analyze a comparatively small number of decisions. As in course of time fundamental principles and their appli- cation become established, the number of decisions calling for citation by the text-writer will of course increase, but individual decisions will require less attention. I have paid no special attention to the economic, as dis- tinguished from the purely legal, aspect of restrictions upon competition. To those desirous of studying the economic aspects, I commend Yon Halle's work on " Trusts or Indus- trial Combinations and Coalitions in the United States," published in 1895. It contains what appears to be an ex- haustive bibliography of the subject, also a " partial list of trade combinations and coalitions achieved or attempted, and of the commodities covered by them in the United States." Much information of interest and value is also contained in Stickney's " State Control of Trade and Com- merce," published in 1897. Feedeeiok H. Oooke. 120 Broadway, Borough of Manhattan, New York City, October, 1898. TABLE OF CONTENTS. Page. Table of Cases ix PAET I. COMBINATIONS PRODUCING PRIVATE INJURY. § 1. General liability for injury to another 1 2. Effect of presence of intent to injure ..... 4 3. The doctrine of criminal conspiracy . » . . . 9 A. Combination as element of civil liability .... 13 5. Relation of trade competitor as justifying act injuring an- other 17 6. Relation of employer or employee as justifying act Injuring another; locliouts; blacklisting 23 7. Legality of combinations to raise wages; trades unions . 26 8. Legality of combinations to quit employment; strikes . 31 9. Liability for inducing refusal to deal; boycotts ... 88 10. Liability for inducing employee to quit employment, or em- ployer to discharge employee 44 11. Boycott by trade competitor . . , i:. , . . .49 12. Boycott by employee . 52 13. Liability for inducing breach of contract .... 55 li Legality of acts accompanying strikes and boycotts and pro- ducing injury 61 15. Legality of threats or announcements of intention to do in- jury 68 16. Remedies; injunction . . . . .. . .73 PAET II. COMBINATIONS PRODUCING PUBLIC INJURY. § 17. The doctrine of public policy . . . . . .84 18. Nature and definition of monopolies 87 19. Origin and basis of doctrine against restrictions upon com- petition ... 96 ■ym TABLE OF CONTENTS. Page, § 20. Legislation against restrictions upon competition^ Scope of Federal and State legislation respectively . . • 105 31. Origin and basis of doctrine against contracts in restraint of trade HI 32. Test of legality of restriction upon competition . . . 120 23. Remote and permanent, as distinguished from immediate and temporary, effect of restriction upon competition . . 135 , 24. Legality of restriction upon competition, as determined by character of commodity 141 35. Legality of restriction upon competition, as determined by character of business as public or private . . • 143 26. Agreements in restriction of competition; "pools;" "trusts" 147 37. Agreements to fix price or wages; "corners" . . . 153 28. Criminal liability for restricting competition . . . 158 39. Civil remedies in case of restriction upon competition; pro- ceeding on behalf of public 160 30. The same; remedies as between parties . . , . 165 31. Restrictions by corporations upon competition . • . 173 Appendix . . .. . . . . . ..'. 183 Index . .197 TABLE OF CASES. References are to pages. Adler v. Fenton (24 How., TJ. S., 407), 13. Ajello V. Worsley (1 L. R Ch., 1898, 274), 5, 19. Aldridge v. Stuyvesant (1 Hall, N. Y., 210), 58. Alexandria Bay Steamboat Co. v. N. Y. Central, etc. R. R. Co. (18 N. Y. App. Div. 527; S. C, 45 N. Y. Suppl. 1091), 91, 177. Alger V. Thacher (19 Pick., Mass., 51), 113. Allen V. Flood (L. R. App. Cas., 1898, 1), 3, 4, 5, 6, 7, 8, 9, 18, 34, 38, 49, 53, 58, 60, 61, 67, 68, 69. See Flood v. Jackson. Altgelt V. City of San Antonio (81 Tex. 486; S. a, 17 S. W. Rep. 75), 90. American Biscuit Manuf. Co. v. Klotz (44 Fed. Rep. 721), 96, 124, 149, 168. American Fire Ins. Co. v. State (— Miss. — ; a C, 22 So. Rep. 99), 148, 160. American Preservers' Trust Co. v. Taylor Manuf. Co. (46 Fed. Rep. 152), 179. American Rapid Telegraph Co. v. Connecticut Telephone Co. (49 Conn. 352), 91. American SodarFountain Co. v. Green (69 Fed. Rep. 333), 95. Anderson v. Jett (89 Tex. 375; S. 0., 12 S. W. Rep. 670), 126, 140. Angle V. Chicago, St. Paul, etc. Ry. Co. (151 U. S. 1; s. C, 14 Supm. Ct. Rep. 240), 58. Anheuser-Busch Brewing Assoc, v. Houck (27 S. W. Rep. 693), 106, 108, 139, 137, 143, 147, 171, 173. See Houck v. Anheuser-Busch Brewing Assoc. Arnot V. Pittston & Elmira Coal Co. (68 N. Y. 558), 127, 141, 170. Arthur v. Cakes (24 U. S. App. 339; S. C, 63 Fed. Rep. 310), 10, 13, 14, 15, 30, 31, 32, 33, 34, 36, 62,. 81, 83, 131. See Farmers' Loan & Trust Co. V. Northern Pacific R. R. Co. Ashley v. Dixon (48 N. Y. 430), 57, 58. Attorney-General, see also Stock- ton. , Attorney-General, Matter of (22 N. Y. App. Div. 285; s. a, 47 N. Y. Suppl. 883), 107. Attorney-General v. Great North- ern Ry. Co. (1 Drewry & Smale, 154), 163. Bagg's Case (11 Coke, 936), 84. Bald Eagle Valley R. R. Co. v. Nittany Valley R. R. Co. (171 Pa. St. 384; S. 0., 33 Atl. Rep. 239), 103. Baltimore & Ohio R. R. Co. v. Ral- ston (41 Ohio St. 573), 146. TABLE OF CASES. Baltimore & Ohio Tel. Co. v. West- ern Union Tel. Co. (24 Fed. Rep. 319), 93. Bancroft v. Thayer (5 Sawyer, 503), 88. Barber Asphalt Paving Co. v. Brand (7 N. Y. Suppl. 744), 116. Barr v. Essex Trades Council (53 N. J. Eq. 101; s. C, SOAtl. Bep. 881), 2, 5, 6, 14, 19, 24, 81, 84, 41, 43, 43, 48, 52, 56, 68, 73, 76, 78. Bartholomew v. City of Austin (52 U. S. App. 512; s. C, 85 Fed. Rep. 859), 90. Barton v. Mulvane ( — Kan. — ; S. c, 52 Pao. Rep. 888), 169. Bates V. Coronado Beach Co. (109 Cal. 160; S. C, 41 Pac. Rep. 855), 179. Beeohley v. Mulville (102 Iowa, 603; S. C, 70 N. W. Rep. 107), 8, 153. Benton v. Pratt (2 Wend., N. Y., 385), 58. Bingham v. Maigne (53 N. Y. Super. Ct. 90), 113. Bishop V. American Preservers' Co. (157 111. 284; g. c, 4 N. E. Rep. 765), 125, 151, 170, 179. Bishop V. American Preservers' Co. (51 Fed. Rep. 372), 161. Bishop V. Palmer (146 Mass. 469; S. C, 16 N. E. Rep. 299), 85, 114. Blindell v. Hagan (54 Fed. Rep. 40), 78, 165. See Hagan v. Blindell. Blumenthal v. Shaw (39 U. S. App. 490; s. C, 77 Fed. Rep. 954), 26. Bohn Manuf. Co. v. HoUis (54 Minn. 223; S. 0., 55 N. W. Rep. 1119), 5, 16, 17, 18, 43, 50, 51, 70, 71, 76, 84, 161. Bourlier v. Macauley (91 Ky. 185; S. a, 15 S. W. Rep. 60), 45, 60. Bowen v. Hall (6 L. R. Q. B. D. 333), i, 58, 59, 60. are to pages. Bowen v. Matheson (14 Allen, Mass., 499), 20. Bowman v. Chicago & Northwest- ern Ry. Co. (135 TJ. S. 465; S. C, 8 Supm. Ct. Rep. 689), 108. Boyd v. American Carbon Black Co. (183 Pa. St. 206; S. C, 37 Atl. Rep. 937), 179. Boyson v. Thorn (98 Cal. 578 ; s. C, 38 Pac. Rep. 493), 5, 89, 57, 59. Brace v. Evans (3 Ry. & Corp. L. J. 561), 43, 57, 65, 78. Bradley v. Pierson (148 Pa. St. 503; s. C, 24 Atl. Rep. 65), 26. Bratt V. Swift (— Wis. ; S. C, 75 N. W. Rep. 411). 161. Brett V. Ebel (29 N. Y. App. Div. 256; s. C, 51 N. Y. Suppl. 573), 119. Brewster v. Miller ( — Ky. ; S. C, 41 S, W. Rep. 301), 13, 39, 161. Bromage v. Prosser (4 Barnewall & C. 247), 9. Brown v. N. Y. Central, etc. R. R. Co. (75 Hun, N. Y., 355; s. c, 27 N. Y. Suppl. 69), 91. Brown v. Rounsavell (78 111. 589), 103. Bruschke v. Furniture Makers' Union (18 Chicago Legal News, 306), 81. Buchanan v. Kerr (159 Pa. St. 433; s. c, 28 Atl. Rep. 195), 40, 71. Budd V. New York (143 U. S. 517; S. C, 13 Supm. Ct. Rep. 468), 157. Burlington, C. & N. Ry. Co. v. North- western Fuel Co. (31 Fed. Rep. 652), 92, 165, 173. Butchers' & Drovers' Stockyard Co. V. Louisville & N. R. R. Co. (31 U. S. App. 252; s. c, 67 Fed. Rep. 35), 91. California Steam Nav. Ca v. Wright (6 Cal. 258), 95. TABLE OF CASES. XI References are to pages. Cameron v. Havemeyer (12 N. Y. Suppl. 126), 180. Cameron v. N. Y. & Mount Vernon Water Co. (62 Hun, N. Y, 269; s. c, 16 N. Y. Suppl. 757), 87. Canadian Pacific Ry. Co. v. West- ern Union Tel. Co. (17 Canada Supm. Ct. 151), 93. Capital & Counties Bank v. Henty (7 L. R. App. Cas. 741), 7. Carew v. Rutherford (106 Mass. 1), 10, 11, 14, 34, 45. Carnig v. Carr (167 Mass. 544; s. c, 46 N. E. Rep. 117), 103. Carrington v. Taylor (11 East, 571), 2, 19. Carter Crume Co. v. Peurrung ( — U. S. App. — ; s. c, 86 Fed. Rep. 489), 85, 170. Casey v. Cincinnati Typographical Union (45 Fed. Rep. 135), 43, 56, 74, 77, 79, 83. Catawissa R. R. Co. v. Philadelphia & Reading R. R. Co. (14 Pa. Co. Ct. 280), 178. Catt V. Tourle (38 L. J. Ch. 665), 103. Central & Montgomery R. R Co. v. Morris (68 Tex. 49; s. C, 3 S. W. Rep. 457), 178. Central Ohio Salt Co. v. Guthrie (35 Ohio St. 666), 96, 115, 128, 138, 140, 148, 165. Central R. R. Co. v. Collins (40 Ga. 582), 134, 178. Central Shade Roller Co. v. Cush- man (148 Mass. 353; s. c, 9 N. E. Rep. 629), 95, 100, 139, 143, 155, 177. Central Trust Co. v. Ohio Central Ry. Co. (33 Fed. Rep. 806), 133, 167. Chambers v. Baldwin (91 Ky. 121; S. c, 15 S. W. Rep. 57), 5, 58, 59. B Chapin v. Brown (83 Iowa, 156; s. c, 48 N. W. Rep. 1074), 113, 126, 137. Chappel V. Brockway (21 Wend., N. Y., 157), 84, 99. Charles E. Wisewall, The (74 Fed. Rep. 802), 107, .169. Charles E. Wiswall, The (57 U. S. App. 179; s. c, 86 Fed. Rep. 671), 108, 169. Charles River Bridge v. Warren Bridge (11 Peters, U. S.. 430), 88, 89. Chesley v. King (74 Me. 164), 5, 7. Chicago Gas-light & Coke Co. v. People's Gas-light & Coke Co. (121 111. 530; s. C, 13 N. E. Rep. 169), 125. Chicago, Milwaukee & St- Paul Ry. Co. V. Wabash, St. Louis & Pacific Ry. Co. (27 U. S. App. 1; S. C, 61 Fed. Rep. 993), 131, 150, 167. Chicago, St. Louis, etc. R. R. Co. v. Pullman Southern Car Co. (139 U. S. 79; s. c, 11 Supm. Ct. Rep. 490), 91, 146. Chipley v. Atkinson (23 Fla. 206; s. c, 1 So. Rep. 934), 46, 47, 48. Chippewa Lumber Co. v. Tremper (75 Mich. 36; s. c, 43 N. W. Rep. 532), 143, 148, 166. Citizens' Gas-Light Co. v. Louisville Gas Co. (81 Ky. 263), 89. City of Brenharn v. Brenliam Water Co. (67 Tex. 542; s. C, 4 S. W. Rep. 148), 90. City of Laredo v. International Bridge & Tramway Co. (80 U. S. App. 110; s. C, 66 Fed. Rep. 246), 90. City of St. Louis v. St. Louis Gas- light Co. (70 Mo. 69), 87. xu TABLE OF OASES. Tleferences are to pagai. Clancey v. Onondaga Salt Manuf. Co. (63 Barb., N. Y., 395), 148, 153, 170, 175. Clark V. Crosby (37 Vt. 188), 103. Clarke v. Central R. E. & Banking Co. (50 Fed. Rep. 338), 177. Clarke v. Richmond & W. P. Ter- minal, etc. Co. (23 U. S. App. 597; S. c, 63 Fed. Rep. 339), 177. Clemmitt v. Watson (14 Ind. App. 38; S. a, 43 N. E. Eep. 367), 17, 39, 31, 34, 47. Cleveland, Columbus, Cincinnati, etc. Ry. Co. v. Closser (136 Ind. 348; s. C, 36 N. E. Rep. 159), 94, 104, 135, 144, 168. Cleveland, C, C. & St. Louis Ry. Co. V. Jenkins (70 IlL App. 415), 26. Clifford V. Brandon (3 Campbell N. P. 358), 3. Cceur D'Alene Consolidated & Min- ing Co. V. Miners Union (51 Fed. Rep. 360), 63, 80, 83. Colgate V. Bacheler (3 Cro. Eliz. 873), 112. Colles V. Trow City Directory (11 Hun, N. Y., 397), 175. Collins V. Locke (4 L. R. App. Cas. 674), 102, 131. Columbia Wire Co. v. Freeman Wire Co. (71 Fed. Eep. 302), 94. Commonwealth v. Carlisle (Bright- ly, Pa., 36), 29. Commonwealth v. Hunt (4 Mete, Mas&, 111), 5, 10, 11, 12, 18, 19, 28, 31, 34, 49. Commonwealth v. Sheriff (15 Phila., Pa., 393), 29, 73. Connell v. Stalker (20 Misc. 423; s. C, 45 N. Y. Suppl. 1048; 21 ' Misc. 609; s. a, 48 N. Y. Suppl. 77), 48, 49, 54. Consolidated Steel & Wire Co. v. Murray (80 Fed. Eep. 811), 14, 43, 46, 73, 77, 81. Continental Ins. Co. v. Board of Underwriters (67 Fed. Rep. 810), 5, 17, 23, 161. Cook V. Dolan (19 Pa. Co. Ct. 401), 65. Coons V. Chrystie (N. Y. Law Jour., July 21, 1898), 47, 63, 78. Coquard v. National Linseed Oil Co. (171 IlL 480; S. C, 49 N. E. Rep. 563), 133, 180. Corning, Re (51 Fed. Eep. 305), 116, 173. Cote v. Murphy (159 Pa. St. 420;; s. C, 28 Atl. Eep. 190), 14, 39, 40; 71. Covington Stock- Yards Co. v. Keith (139 U. S. 128; S. C, 11 Supm. Ct. Eep. 461), 91. Cowan V. Fairbrother (118 N. C. 407; S. c, 34 S. E. Eep. 212), 144. Craft V. McConoughy (79 111. 346), 115, 125, 135, 166. Cravens v. Eodgers (101 Mo. 247; s. d, 14 S. W. Eep. 106), 90. Crawford v. Wick (18 Ohio St 190), 128. Crump V. Commonwealth (84 Va. 927; & c, 6 S. E. Eep. 620), », 18, 42, 49, 7a Cummings v. Foss (40 111. App. 523), 142, 155, 159, 166. See Foss v. Cummings. Cummings v. Union Blue Stone Co. (15 N. Y. App. Div. 603; s. C, 44 N. Y. Suppl. 787), 85, 128, 143. Curran v. Galen (152 N. Y. 38; s. C, 46 N. E. Eep. 397), 15, 39, 30, 73. Curran t. Treleaven (3 L. R. Q. B., 1891, 560), 18, 72. Currier v. Concord R. R. Co. (48 N. H. 331), 127, 165. Cutting V. Florida Ry. & Nav. Co. (48 Fed. Rep. 508), 167. Dannerberg v. Ashley (10 Ohio Cir. Ct. 558), 48. TABLE OF OASES. xm Beferences are to pages. Daroy v. Allein (11 Coke, 84b), 88, 96, 97, 98. Davies y. Davies (36 L. R Ch. D. 359), 85, 86. Davis V. State (80 Weekly L. Bull. 342), 35. Davia v. United Portable Hoisting Engineers (28 N. T. App. Div. 396; s. C, 51 N. Y. Suppl. 180), 54. Davis V. Zimmerman (91 Hun, 489 ; ' S. C, 36 N. Y. Suppl. 303), 2, 81. Debs, Re (158 U. S. 564; s. 0., 15 Supm. Ct. Rep. 900), 5, 35, 62, 81, 121. See United States v. Debs. Delaware, L. & W. R. R Co. v Bowns (58 N. Y. 573), 33. Delz V. Winfree (80 Tex. 400; S. C, 16 S. W. Rep. Ill), 17, 39, 53. Delz! V. Winfree (6 Tex. Civ. App. 11; s. C, 35 S. W. Rep. 50), 39. Dennehy v. MoNulta ( — U. S. App. . — ; s. a, 86 Fed. Rep. 835), 169, 174. See Olmstead v. Distilling & Cat- tle-Feeding Co. Denver & N. O. R. Co. v. Atchison, T. & S. F. R Co. (15 Fed. Rep. 650), 123. De Wick v. Dobson (18 N. Y. App. Div. 399; s. C, 46 N. Y. Suppl. 390), 83. De Witt Wire-Cloth Co. v. N. J. Wire-Cloth Co. (16 Daly, 539; S. C, 14 N. Y. SuppL 277; af- firmed, it seems, in 38 N. Y. State Reporter, 1023), 137, 143, 155, 166. Diamond Match Co. v. Roeber (106 N. Y, 473; s. 0., 13 N. E. Rep. 419), 86, 89, 113, 116, 118. Dionne v. New Iberia Refining, etc. Assoc. (50 La. Ann. — ; S. a, 23 So. Rep. 634), 139. Distilling & Cattle Feeding Co. v. People (156 111. 448; s. 0., 41 N. E. Rep. 188), 153, 176, 180. Dolph V. Troy Laundry Machinery Co. (38 Fed. Rep. 553), 117, 143, 155. Doremus v. Hennessy (63 111. App. 391), 2, 5, 14, 58, 60. Drake v. Siebold (81 Hun, N. Y., 178; s. C, 30 N. Y. Suppl. 697), 85, 143, 149, 154, 172. Dueber Watch-Case Manuf. Co. v. Howard Watch & Clock Co. (55 Fed. Rep. 851), 153, 161. Dueber Watch-Case Manuf. Co. v. Howard Watch & Clock Co. (35 U. S. App. 16; s. c, 66 Fed. Rep. 637), 14, 109, 116, 136, 141, 143, 144, 153, 161. Dueber Watch-Case Manuf. Co. v. ' Howard Watch & Clock Co. (3 Misc. 583; s. c, 24 N. Y. Suppl. 647), 53, 161. Bast India Co. v. Sandys (10 How- ell's State Trials, 371), 88. Eastern Express Co. v. Meserve (60 N. H. 198), 114. Edwards County v. Jennings (89 Tex. 618; S. C, 35 S. W. Repi 1053), 90, 174. Elder v. Whitesides (73 Fed. Rep. 734), 14. Elkins V. Camden & Atlantic R. R Co. (36 N. J. Eq. 5), 137. Ellerman v. Chicago Junction Rail- ways, etc. Co. (49 N. J. Eq. 217; S. C, 23 Atl. Rep. 287), 102. Emack v. Kane (34 Fed. Rep. 46), 83. Emert v. Missouri (156 U. S. 396; S. C, 15 Supm. Ct. Rep. 367), 110. Emery v. Ohio Candle Co. (47 Ohio St. 330; s. C, 24 N. E. Rep. 660), 138, 166. XIV TABLE or CASES. Beferences Erwin v. Hayden ( — Tex. Civ. App. — ; s. C, 43 S. W. Rep. 610), 120. Exchange Telegraph Co. v. Greg- ory (1 L. R. Q. B., 1898, 147), 59. Express Cases (117 U. S. 1; s. C, 6 Supm. Ct. Rep. 543), 91. Farmers' Loan & Trust Co. v. North- ern Pacific R. R. Co. (60 Fed. Rep. 803), 8, 13, 83, 34, 85, 45, 48, 63, 70. See Arthur v. Oakes. Farrer v. Close (4 L. R. Q. B. 603), 28, 83. Field Cordag e Co. v. National Cord- age Co. (6 Ohio Cir. Ct. 615), 148, 149. Flood V. Jackson (3 L. R. Q. B., 1895, 31), 8, 60. See Allen v. Flood. Ford V. Chicago Milk Shippers' Assoc. (155 111. 166; s. a, 39 N. E. Rep. 651), 125, 169, 177, 181. Foss V. Cummings (149 IlL 853; s. C, 36 N. E. Rep. 558), 143, 155, 156, 159, 166. See Cummings v. Foss. Frances v. Flinn (118 U. S. 385; s. C, 6 Supm. Ct. Rep. 1148), 82. French v. Parker (16 R. L 219; s. C, 14 Atl. Rep. 870), 112. Fuller V. Roberts (35 Fla. 110; S. C, 17 So. Rep. 859), 70. Fuqua v. Pabst Brewing Co. (90 Tex. 398; s. C, 38 S. W. Rep. 39), 107, 119, 147, 167. Garret v. Taylor (Cro. Jac. 567), 3. ■Gates V. Hooper ( — Tex. Civ. App. — ; s. C, 39 S. W. Rep. 186; reversed in 90 Tex. 563; s. c, 89 S. W. Rep. 1079), 119, 120, 136, 147, 148. •George v. East Tennessee Coal Co. (15 Lea, Tenn., 455), 103. are to pages, Gibbs V. Consolidated Gas Co. of Baltimore'(130 U. S. 396; S. C, 9 Supm. Ct. Rep. 553), 113, 144, 145, 146, 171. Gibson v. Lawson (3 L. R. Q. B., 1891, 557), 35, 73. Gilbert v. Mickle (4 Sandf. Ch., N. Y., 357), 88. Globe Sewer Pipe Co. v. Otis (33 N. y. Suppl. 411), 169. Gloucester Isinglass & Glue Co. v. Russia Cement Co. (154 Mass. 93; S. C, 37 N. E. Rep. 1005), 143. Gore V. Condon (— Md. ; a C, 39 Atl. Rep. 1043), 58. Gould V. Head (38 Fed. Rep. 886; 41 Id. 340), 153. Graham v. St. Charles Street R. R. Co. (47 La. Ann. 214; s. C, 16 So. Rep. 806), 35. Grand Jury, Re (63 Fed. Rep. 838, 884, 840), 68, 120. Gray v. De Castro & Donner Co. (10 N. Y. Suppl. 632), 180. Green v. Button (3 CromptOD, M. & R. 707), 58. Greene, Re (53 Fed. Rep. 104), 95, 107, 109, 136, 160, 173, 174, 181. Greer v. Payne (4 Ean. App. 153; s. c, 46 Pac. Rep. 190), 126, 167. Greer v. StoUer (77 Fed. Rep. 1), 107, 165, 168. Gregory v. Duke of Brunswick (6 Manning & Gr. 205, 953), 2, 15, 16. Grice, Re (79 Fed. Rep. 627), 106, 136, 160. Griffin v. Piper (55 111. App. 213), 166. Gulf, Colorado & Santa Fe Ry. Co. V. Miami Steamship Co. (52 U. S. App. 733; s. G, 86 Fed. Rep. 407), 165. TABLE OF OASES. XV Beferences Gulf, Colorado & Santa Fe Ey. Co. V. State (72 Tex. 404; s. C, 10 S. W. Rep. 81), 157, 177. Gunter v. Aster (4 Moore, 12), 46. Guy V. Commissioners of Cumber- land Co. ( — N. C. — ; S. C, 29 S. E. Eep. 771), 89. Hackley v. Headley (45 Mich. 569), 70. Hafer v. Cincinnati H. & D. R. E. Co. (39 Weekly L. Bull. 68), 178. Hagan v. Blindell (13 U. S. App. 354; s. C, 56 Fed. Eep. 696), 78, 165. See Blindell v. Hagan. Hamilton v. Savannah F. & W. Ry. Co. (49 Fed. Rep. 412), 177. Hamilton-Brown Shoe Co. v. Saxey (131 Mo. 212; S. C, 32 S. W. Eep. 1106), 81. Hare v. London & Northwestern Ey. Co. (2 Johnson & Hem- ming, 80), 103, Harrison v. Lockhart (25 Ind. 112), 113. Hartford & New Haven E. E. Co. V. New York & New Haven E. E. Co. (3 Eobt, N. T., 411), 137, 165, 173. Hartley v. Cummings (5 C. B. 347), 103. Hathaway v. State (36 Tex. Crim. App. 261; S. C, 36 S. W. Eep. 465), 106, 160. Havemeyer v. Superior Court (84 Cal. 337; s. G, 34 Pao. Eep. 131), 180. Hays V. Pennsylvania Co. (13 Fed. Eep. 309), 93. Hazlehurst v. Savannah, etc. E. E. Co. (43 Ga. 13), 124, 178. Hearn v. Griffin (3 Chitty, 407), 101. Heaton-Peninsular Button Fas- tener Co. V. Eureka Specialty are to pages Co. (47 U. S. App. 146; S. G, 77 Fed. Eep. 388), 95. Herriman v. Menzies (115 Cal. 16; S. c, 46 Pac. Eep. 730), 95, 104, 115, 142, 153, 156. Heywood v. Tillson (75 Me. 225), 5, 25. Higgins, Ee (37 Fed. Eep. 443), 13. Hilton V. Eokersley (6 El. & BL 47), 37, 84, 123, 159. Hitchcock V. Anthony (54 U. S. App. 439; s. C, 83 Fed. Rep. 779), 130. Hoffman v. Brooks (33 Am. Law Reg., N. S., 648), 85, 104, 135, 140, 143, 154, 173. HoUenbeck v. Kistine ( — Iowa, — ; S. C, 75 N. W. Rep. 355), 1, 7,48. Hooker v. Vandewater (4 Denio, N. y., 349), 98, 100, 137, 138, 139, 141. 166. Hopkins v. Oxley Stave Co. (49 U. S. App. 709; s. C, 83 Fed. Rep. 913), 13, 17, 34, 34, 40, 43, 51, 54, 56, 69, 75, 78. Hornby v. Close (2 L. E. Q. B. 153), 28, 85. Houck V. Anheuser-Busch Brewing Assoc. (88 Tex. 184; s. C, 80 S. W. Eep. 869), 106, 108, 129, 137, 143, 147, 171, 173. See Anheuser-Busch Brewing Assoc, V. Houck. Hughes V. McDonough (43 N. J. Law, 459), 38. Huston V. Reutlinger (91 Ky. 333; S. C, 15 S. W. Rep. 867), 135, 136. Hutchins v. Hutchins (7 Hill, N. Y., 104), 13. Huttley V. Simmons (1 L. R. Q. B., 1898, 181), 4, 15. India Bagging Assoc, v. Kock (14 La. Ann, 168), 136. XVI TABLE OF CASES. BefereTices Indian River Steamboat Co. v. East Coast Transp. Co. (28 Fla. 387; s. C, 10 So. Eep. 480), 90. International & G. N. Ky. Co. v. Greenwood (2 Tex. Civ. App. 76; s. c, 21 S. W. Rep. 559), 25. Ives V. Smith (3 N. Y. Suppl. 645; affirmed in 8 Id. 46), 104, 127, 134. Jackson v. Akron Brick Assoc. (58 Ohio St. 803; s. 0., 41 N. E. Rep. 257), 128. Jackson v. Stanfield (137 Ind. 592; s. c, 36 N. E. Rep. 845), 2, 51, 71, 76. Jenkinson v. Nield (8 Times L. R. 540), 26. Johnston Harvester Co. v. Mein- hardt (60 How. Pr., N. Y., 168), 38, 29, 46. Jones V. Clifford's Executor, Fell (5 Fla. 510), 138. Jones v. Stanly (76 N. C. 355), 58, 59. Judd V. Harrington (139 N. Y. 105; s. C, 34 N. E. Rep. 790), 128, 141, 149, MS. Judge V. Bennett (36 "Weekly Rep. 103), 73. Kalamazoo Hack & Bus Co. v. Sootsma (84 Mich. 194; s. C, 47 N. W. Rep. 667), 90. Kearney v. Lloyd, 26 L. R., Ireland, 368), 15. Keeble v. Hickeringill (11 East, 574, note), 2, 7. Keene v. Kent (4 N. Y. State Re- porter, 431), 171. Keith V. Herschberg Optical Co. (48 Ark. 188; S. C, 3 S. W. Rep. 777), 103. Kellogg V. Larkln (8 Pinney, Wis., 123), 84, 85, 98, 99, 114, 115, 127, 133, 138. are to pages. Kidd V. Horry (28 Fed. Rep. 773), 83. Kimball v. Atchison, Topeka & Santa Fe E. Co. (46 Fed. Eep. 888), 178. King, see under Rex. King V. Ecoles (3 Douglas, 337), 13. King v. Journeymen Tailors of Cambridge (8 Modern, 10), 27, 28. King V. Mawbey (6 T. R. 619), 37, 28. Kinsley v. Buffalo, N. Y. & P. R. R. Co. (37 Fed. Rep. 131), 92. Ladd V. Southern Cotton Press, etc. Co. (53 Tex. 172), 157. Lake Erie & Western Ry. Co. v. Bailey (61 Fed. Rep. 494), 81. Lally V. Cantwell (80 Mo. App. '534), 58. Langdon v. Branch (37 Fed. Rep. 449), 177. Lawrence v. Kidder (10 Barb., N. Y., 641), 112, 113. Leisy v. Hardin (135 U. S. 100; s. C, 10 Supm. Ct. Rep. 681), 110. Leonard v. Poole (114 N. Y. 871; S. 0., 21 N. E. Rep. 707), 155, 160, 171. Leslie v. Lorillard (110 N. Y. 519; S. C, 18 N. E. Rep. 363), 104, 117. Lewin v. Welsbach Light Co. (81 Fed. Rep. 904), 17, 80. Livestock Assoc, of N. Y. v. Levy (54 N. Y. Super. Ct. 32), 103. Long V. Towl (43 Mo. 545), 113. Longshore Printing Co. v. Howell (36 Oreg. 537; s. c, 38 Pac. Rep. 547), 14, 29, 81, 84, 85, 36, 71, 79. Lough \. Outerbridge (143 N. Y. 271 ; S. C, 38 N. E. Rep. 292), ,5, 32. Louisville, Evansville, etc. R. R. Co. v. Wilson (133 Ind. 517; S. c, 33 N. E. Rep. 811), 92. TABLE OF OASES. XVll References are to pages. Louisville, New Albany, etc. Ey. Co. V. Sumner (106 Ind. 55; s. c, 5 N. R Eep. 404), 146. Lovejoy v. Michels (88 Mich. 15; S. C, 49 N. W. Eep. 901), 154. Lowenstein v. Evans (69 Fed. Eep. 908), 88, 161. Lucke V. Clothing Cutters', etc. As- sembly (77 Md. 396; s. C, 26 Atl. Eep. 505), 30, 46, 47. Lrufkin Eule Co. v. Fringeli ( — Ohio St. — ; s. C, 49 N. E. Eep. 1030), 97, 118, 114 119, 174. Lumley v. Gye (3 El. & Bl. 316), 45, 58, 59, 60. Lynch v. Knight (9 House of Lords Cases, 577), 59. Lyons v. Wilkins (1 L. E. Ch., 1896, 811), 33, 35, 53, 78. Macauley v. Tierney (19 E. L 355; s. C, 33 Atl. Eep. 1), 6, 17, 18, 51, 71. McCann v. Wolff (38 Mo. App. 447), 60. McCartney v. Berlin (31 Neb. 411; S. C, 47 N. W. Eep. 1111), 3. McConnell v. Pedigo (93 Ky. 465; S. a, 18 S. W. Eep. 15), 90. McCutcheon v. Merz Capsule Co. (37 tr. S. App. 586; s. c.,71 Fed. Eep. 787), 177. McDonald v. Edwards (20 Misc. 523; S. C, 46 N. Y. Suppl. 673), 38, 58. Mackall v. Eatchford (82 Fed. Eep. 41), 65. Mallory v. Hanaur Oil Works (86 Tenn. 598; s. G, 8 S. W. Eep. 396), 179. Manchester & Lawrence E. E. v. Concord E. E (66 N. H. 100; s. G, 30 Atl. Eep. 383), 133, 168, 178. Mannheim Ins. Co. v. Erie & West- ern Transp. Co. ( — Minn. ; S. 0., 75 N. W. Eep. 602), 118. Manufacturer's Outlet Co. v. Long- ley (_ E. L — ; S. a, 37 Atl. Eep. 535), 80. Mapstrick v. Eamge (9 Neb. 390; s. c, 3 N. W. Eep. 739), 14, 34. Marsh v. Eussell (66 N. Y. 288), 103. Master Stevedores' Assoc, v. Walsh (2 Daly, N. Y., 1), 28, 49, 117. Matter of, see under name of party. Matthews v. Associated Press of N. Y. (136 N. Y. 333; s. 0., 33 N. E. Eep. 981), 103. Mattison v. L. S. & M. S. Ey. Co. (3 Ohio Dec. 536), 26. Mayer v. Journeymen Stonecut- ters' Assoc. (47 N. J. Eq. 519; a G, 30 Atl. Eep. 492), 48, 77, 83, 83. Mayor, etc. of Bradford v. Pickles (L. E App. Cas., 1895, 587), 7. Mercantile Trust Co. v. Atlantic & Pacific E. E. Co. (63 Fed. Eep. 513), 93. Meredith v. N. J. Zinc & Iron Co. (55 N. J. Eq. 211; s. G, 37 AtL Eep. 539), 127, 143, 145. Merz Capsule Co. v. United States Capsule Co. (67 Fed. Eep. 414), 106, 109, 123, 166. Messenger v. Pennsylvania E. E. Co. (37 N. J. Law, 531), 92. Milwaukee Masons & Builders' Assoc. V. Niezerowski (95 Wis. 129; s. G, 70 N. W. Eep. 166), 113, 116, 130, 135, 148, 168. Mitchel V. Eeynolds (1 P. Wms. 181), 112, 113. Mogul S. S. Co. V. McGregor (33 L. E. Q. B. D. 598; see 21 Id. 544; 15 Id. 476), 1, 2, 3, 4, 6, 9, 13, 20. Mogul S. S. Co. V. McGregor (L. E. App. Cas., 1892, 35), 14, 15, 16, 18, 20, 24, 102, 159, 161, 174 XVlll TABLE OF OASES. Seferemxies are to pages. MoUyneaux v. Wittenberg (39 Neb. 547; S. C, 58 N. W. Eep. 205), 101. Montana Union Ry. Co. v. Lang- lois (9 Mont. 419; S. C, 24 Pao. Rep. 309), 90. Moore v. United States (56 U. S. App. 471; s. 0., 85 Fed. Rep. 465), 108, 111. Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108), 2, 5, 7, 14, 15, 16, 39, 43, 55. More V. Bennett (140 III. 69; S. C., 39 N. E. Rep. 888), 115, 137, 148, 156, 165. Morgan v. Andrews (107 Mich. 33; s. C, 64 N. W. Rep. 869), 58. Morrill v. Boston & Maine R. R. (55 N. H. 531), 137. Morris v. Colman (18 Vesey, 437), 103. Morris Run Coal Co. v. Barclay Coal Co. (68 Pa. St. 173), 14, 104, 115, 139, 135, 140, 142, 154, 160, 166. Murdock v. "Walker (152 Pa. St. 595; s. C, 25 Atl. Rep. 493), 64. Murray v. McGarigle (69 Wis. 483; s. C, 34 N. W. Rep. 523), 3. Murray v. Vanderbilt (39 Barb., N. T., 140), 171. Nashville, Chattanooga, etc. Ry. Co. V. McConnell (83 Fed. Rep. 65), 3, 58. National Benefit Co. v. Union Hos- pital Co. (45 Minn. 373; s. c.,47 N. W. Rep. 806), 116, 145. National Distilling Co. v. Cream City Importing Co. (86 Wis. 352 ; s. 0., 56 N. W. Rep. 864), 109, 153, 169, 173. National Harrow Co. v. Bement (21 N. Y. App. Div. 290; S. 0., 47 N. Y. Suppl. 463), 94, 124 143, 155, 165, 177. National Harrow Co. v. Hench (76 Fed. Rep. 667; affirmed in 55 U. S. App. 53; s. C, 83 Fed. Rep. 36), 94, 115, 124, 165, 173. National Harrow Co. v. Lynch (84 Fed. Rep. 326), 173. National Harrow Co. v. Quick (67 Fed. Rep. 130), 94, 95, 124. National Wall Paper Co. v. Hobbs (90 Hun, N. Y., 288; S. C, 35 N. Y. SuppL 932), 168. Nester v. Continental Brewing Co. (161 Pa. St. 473; S. C, 29 Atl. Rep. 103), 114, 129, 141, 143, 166. New England Express Co. v. Maine Central R. R Co. (57 Me. 188), 90. New Orleans Gas Co. v. Louisiana Light Co. (115 U. S. 650; S. C, 6 Supm. Ct. Rep. 252), 90. New Orleans Water-works Co. v. Rivers (115 U. S. 674; s. C, 6 Supm. Ct Rep. 373), 90. N. Y. Central, etc. R. R Co. v. Flynn (74 Hun, N. Y., 134; s. C, 36 N. Y. Suppl. 859), 93. N. Y. Central, etc. R. R. Co. v. Sheeley (27 N. Y. Suppl. 185), 93. N. Y., Lake Erie & W. R. R. Co. v. Wenger (17 Weekly L. Bull. 306), 81. Newell V. Meyendorff (9 Mont. 354; s. C, 33 Pac. Eep. 333), 113. Newman v. Commonwealth (5 Centr. Rep. 497), 64. Noble V. McGurk (16 Misc. 461; s. C, 39 N. Y. Suppl. 981), 168. Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co. (L. R. App. Cas., 1894, 535), 86, 113. TABLE OF CASES. XIX References are to pages. Norwich Gas^Light Co. v. Norwich City Gas Co. {25 Conn. 19), 89, 90. Oakdale Manuf. Co. v. Garst (18 E. I. 484; s. C, 28 Atl. Rep. 973), 100, 138. Oakes v. Cattaraugus Water Co. (143 N. Y. 480; S. C, 38 N. E. Rep. 461), 100. Old Colony R. R. Co. v. Tripp (147 Mass. 35; s. C, 17 N. E. Rep. 89), 92. Old Dominion Steamship Co. v. MoKenna (30 Fed. Rep. 48), 44, 56, 64, 67, 76. Olive V. Van Patten (7 Tex. Civ. App. 630; s. C, 25 S. W. Rep. 428), 17, 52. Oliver v. Gilmore (52 Fed. Rep. 562), 105, 165, 171. Olmstead v. Distilling & Cattle- Feeding Co. (77 Fed. Rep. 265), 161, 178, 174. See Dennehy v. McNulta. Ontario Salt Co. v. Merchants' Salt Co. (18 Grant, Ontario, 540), 103, 147, 155, 157, 159. Oregon Steam Navigation Co. v. Winsor (20 Wall 64), 113. Pacific Factor Co. v. Adler (90 Cal. 110; s. C, 27 Pac. Rep. 36), 135, 173. Pacific Postal Tel. Cable Co. v. Western Union Tel. Co. (50 Fed. Rep. 493), 93. Palmer v. Stebbins (3 Pick., Mass., 188), 99, 103. Park V. Hubbard (30 N. T. App. Div. 517; s. C, 53 N. Y. Suppl. 481), 40. Park V. National Wholesale Drug- gists' Assoc. (50 N. 5Y. Suppl. 1064; 30 N. Y. App. Div. 508 S. C, 52 N. Y. Suppl. 475), 40. Patterson v. Wollman (5 N. D. 608 S. c, 67 N. W. Rep. 1040), 89. Payne v. Western & Atlantic R. R, Co. (18 Lea, Tenn., 507), 5, 17, 25, 69, 70. Pennsylvania R. Co. v. Common- wealth (7 Atl. Rep. 368), 178. Pensacola Tel. Co. v. Western Union TeL Co. (96 U. S. 1), 93. People ex rel. v. American Sugar Refining Co. (7 Ry. & Corp. L. J. 88), 97, 124, 180, 181. People ex rel. v. American Tobacco Co. (2 Chicago L. J. Weekly, 249), 106, 108, 111, 125, 151, 164. People V. Barondess (133 N. Y. 649; S. C, 31 N. E. Rep. 240; revers- ing 61 Hun, 571), 29, 72. People ex reL v. Chicago Gas Trust Co. (130 111. 368; s. C., 33 N. E. Rep. 798), 85, 87, 89, 135, 137, 143, 145, 146, 178, 180. People ex rel. v. Chicago Live Stock Exchange (170 111. 556; S. C, 48 N. E. Rep. 1063), 126, 180. People v. Davis (57 Alb. Law Jour. 170), 5, 54. People V. Duke (19 Misc., N. Y., 293), 14, 38, 52, 76, 143, 174. People V. Fisher (14 Wend., N. Y., 9), 9, 28, 158. People V. Kostka (4 N. Y. Crim. R. 429), 29, 66. People V. Melvin (2 Wheeler Cr. Cas„ N. Y., 143), 49. People V. Milk Exchange (145 N. Y. 267; S. C, 39 N. E. Rep. 1062), 140, 154, 180. People ex rel. v. N. Y. Board of Underwriters (54 How. Pr., N. Y., 240), 148. XX TABLE OF OASES. References People V. North River Sugar Re- fining Co. (54 Hun, N. Y., 354; s. C, 7 N, T. SuppL 406), 95, 98, 122, 137. 137, 139, 141, 149, 178, 180. People V. North River Sugar Re- fining Co., 131 N. Y. 583; S. c, 24 N. E. Rep. 834), 137, 138, 153, 178, 180, 181. People V. O'Loughlin (3 Utah, 133; s. C, 1 Pac. Rep. 653), 66. People V. Sheldon (139 N. Y. 351; s. C 34 N. E. Rep. 785), 128, 139, 140, 148. People ex reL Gill v. Smith (5 N. Y. Crim. R. 509), 39, 73. People V. Trequier (1 Wheeler Cr. Cas., N. Y., 142), 49. People V. Warden of City Prison (26 N. Y. App. Div. 228; s. C, 50 N. Y. Suppl. 56), 89. * People V. Wilzig (4 N. Y. Crim. R. 403), 29, 65. Perkins v. Lyman (9 Mass. 533), 99. Perkins v. Pendleton (90 Me. 166; S. a, 38 Atl. Rep. 96), 48, 58, 76. Perkins v. Rogg (28 Weekly L. BulL 33), 67, 81, 83. Perrault v. Gauthier (38 Canada Supm. Ct. 341), 35. Pettamberdass v. Thackoorseydass (7 Moore P. C. C. 339), 105, 143. Phelps V. Nowlen (73 N. Y. 39), 7. Phcenix Bridge Co. v. Keystone Bridge Co. (143 N. Y. 435; s. 0., 37 N. E. Rep. 562), 166. Pidcock V. Harrington (64 Fed. Rep. 821), 165. Pierce v. Fuller (8 Mass. 233), 99. Pilkington v. Scott (15 M. & W. 657), 103. Pinkney, Matter of (47 Kan. 89; a 0., 37 Pac. Rep. 179), 120. are to pages, Pittsburg Carbon Co. v. MoMillin (119 N. Y. 46; s. 0., 33 N. E. Rep. 530), 128, 166. Pittsburgh & Southern Coal Co. v. Bates (156 IT. S. 577; S. C, 15 Supm, Ct. Rep. 415), 110. Presoott & Arizona Central R. R. Co. V. Atchison, Topeka & Santa Fe R. R. Co. (73 Fed. Rep. 438), 92, 136. Printing & Numerical Registering Co. V. Sampson (19 L, R. Eq. Cas. 462), 104. Prudential Assurance Co. v. Knott (10 L. R. Ch. App. 143), 83. Queen, see under Reg. Queen v. Rowlands (17 Q. B. 671), 30, 70. Queen Ins. Co. v. State (86 Tex. 350; S. c, 34 S. W. Rep. 397, revers- ing 33 Id. 1048), 39, 98, 105, 107, 130, 142, 144, 158, 163. Rayoroft v. Tayntor (68 Vt. 219; s. c, 35 AtL Rep. 53), 8, 47. Raymond v. Leavitt (46 Mich. 447), 142, 156, 159, 166. Re, see under name of party. Reg., see under Queen. Reg. V. Bauld (13 Cox C. C. 282), 66. Reg. V. Bunn (13 Cox C. C. 316), 49. Reg. V. Druitt (10 Cox C. C. 593), 66. Re|g. V. Duffield (5 Cox C. C. 404), 46. Reg. V. Hewitt (5 Cox C. C. 162), 49. Reg. V. Hibbert (13 Cox C. C. 83), 66. Reg. V. Parnell (14 Cox C. C. 508), 10. Reg. V. Shepherd (11 Cox C. C. 325), 66. Rex, see under King. Rex V. Bykerdike (1 Moody & Rob. 179), 48. Rex V. Ferguson (2 Starkie, 481^ 48. TABLE OF CASES. XXI References are to pages. Eex V. Waddington (1 East, 143), 159. Reynolds v. Everett (144 N. Y. 189; S. C, 39 N. E. Rep. 72), 77. Rice V. Manley (66 N. Y. 82), 58. Rice V. Rockefeller (134 N. Y. 174; s. G, 81 N. E. Rep. 907), 151. Richardson v. Buhl (77 Mich. 632; S. C, 43 N. W. Rep. 1102), 140, 142. 155, 165, 175. Richardson v. Mellish (2 Bingham, 229), 84. Richmond v. Dubuque & Sioux City R. R. Co. (26 Iowa, 191), 92. Richter v. Journeymen Tailors' Union (24 Weekly L. Bull. 189), 82. Robbins v. Taxing District (120 U. S. 489; s. G, 7 Supm. Ct. Rep. 592), 110. W Rogers v. Evarts (17 N. Y. Suppl. 264), 5, 39, 46, 47, 66. Rogers v. Parrey (Bulstrode, 136), 113. Ryan v. Burger, etc. Brewing Co. (13 N. Y. Suppl. 660), 80. Sabine Tramways Co. v. Bancroft, (— Tex. — ; s. C, 40 S. W. Rep. 837), 179. Saginaw Gas-Light Co. v. City of Saginaw (28 Fed. Rep. 539), 88, 89. St. Louis Gas-Light Co. v. St. Louis Gas, Fuel, etc. Co. (16 Mo. App. 52), 89. Sampson v. Shaw (101 Mass. 145), 156, 172. Samuels v. Oliver (130 111. 73; s. C, 23 N. E. Rep. 499), 143, 155, 171. San Diego Water Co. v. San Diego Flume Co. (108 Cal. 549; s. C, 41 Pac. Rep. 495), 95, 115, 132, 146. Sandf ord v. Railroad Co. (34 Pa. St. 378), 90. Santa Clara Valley Mill & Lum- ber Co. V. Hayes (76 Cal. 387; s. c, 18 Pac. Rep. 391), 172. Savile v. Roberts (1 Ld. Raymond, 374), 13. Sawyer-Man Electric Co. v. Edison Electric Light Co. (U U. S. App. 712; s. C, 58 Fed. Rep. 592), 169. Sayre v. Louisville Union Benev. Assoc. (1 Duvall, Ky., 143), 148, 156, 157, 158. Schulten v. Bavarian Brewing Co. (96 Ky. 224; s. c, 28 S. W. Rep. 504), 39. Sohwalm v. Holmes (49 Cal. 665), 103. Scofleld V. Railway Co. (43 Ohio St. 571; s. C, 3 N. E. Rep. 907), 92. Scranton Electric Light & Heat Co., Appeal of (132 Pa. St. 154; s. O., 15 Atl. Rep. 446), 88. See V. Heppenheimer (55 N. J. Eq. 340; S. C, 36 Atl. Rep. 966), 180. Seeligson v. Taylor Compress Co. (56 Tex. 219), 157. Sherry v. Perkins (147 Mass. 212; s. c, 17 N. E. Rep. 307), 64, 83. Shoemaker v. South Bend Co. (135 Ind. 471; S. C, 35 N. E. Rep. 280), 82. Shrewsbury & Birmingham Ry. Co. v. London & Northwestern Ry. Co. (16 Jurist, 311), 101. Sinsheimer v. United Garment Workers (77 Hun, N. Y., 215; S. C, 38 N. Y. Suppl. 331; re- versing 5 Misc. 448; s. c, 36 N. Y. Suppl. 153), 53, 53, 79. Skinner v. Kitoh (3 L. R. Q. B. 393), 73. xxu TABLE OF CASES. Beferences are to pagesi Skrainka v. Scharringhausen (8 Mo. App. 532), 100, 113, 114, 138. t Slaughter-House Cases (16 Wall. 38), 88. Smith V. Nippert (76 Wis. 86; S. C, 44 N. W. Eep. 846), 8. Smith V. Scott (4 Paton, Scotland, 17), 101. Smyth V. Ames (169 U. S. 466; S. C, 18 Supm. Ct. Eep. 418), 157. Snow V. Judson (38 Barb., N. Y., 310), 58. Snow V. Wheeler (118 Mass. 179), 29, 63. South Chicago City Ry. Co. v. Calu- met Electric Street Ry. Co. (171 IlL 391; s. C, 49 N. E. Rep. 576), 144. South Florida R. R. Co. v. Rhodes (25 Fla. 40; s. C, 5 So. Rep. 633), 85. Springhead Spinning Co. v. Riley (6 L. R. Eq. Cas. 551), 77, 82. Standard Oil Co. v. Scofield (16 Abb. N. C, N. Y., 372), 149. Stanton v. Allen (5 Denio, N. Y., 434), 98, 127, 166. State V. American Cotton Oil Trust (40 La. Ann. 8; s. c, 3 So. Eep. 409), 151. State ex rel. v. Atchison & M. R. Co. (24 Neb. 143; s. C, 38 N. W. Rep. 43), 178. State ex rel. v. Bell Telephone Co. (36 Ohio St. 29C), 91. State V. Call (121 N. C. 643; s. C, 28 S. E. Rep. 517), 89. State V. Donaldson (S3 N. J. Law, 151), 2, 16, 48, 49. State V. Dyer (67 Vt. 690 ; S. C, 33 Atl. Rep. 814), 12, 49. State V. Glidden (55 Conn. 46; S. C, 8 Atl. Rep. 890), 3, 3, 5, 11, 15, 41, 42, 43, 70, 76. State V. Hartford & New Haven R. R. Co. (39 Conn. 538), 124. State V. Julow (129 Mo. 163; S. C, 31 S. W. Rep. 781), 25. State V. Nebraska Distilling Co. (29- Neb. 700; S. C, 46 N. W. Rep. 155), 126, 142, 173, 177, 180. State V. Phipps (50 Kan. 609; S. 0., 31 Pac. Rep. 1097), 130, 131. State ex rel. v. Standard Oil Co. (49 Ohio St. 137; s. c, 30 N. E. Rep. 379), 97, 98, 138, 139, 140, 150, 153, 179, 180, 181. State V. Stewart (59 Vt. 273; S. C, 9 AtL Rep. 559), 3, 10, 11, 13, 45, 46, 63, 69. Stewart v. Erie & Western Transp. Co. (17 Minn. 873), 87, 88, 180. Stockton V. American Tobacco Co. 55 N. J. Eq. 352; s. C, 36 AtL Rep. 971), 168, 175. Stockton V. Central E. E. Co. of N. J. (50 N. J. Eq. 53; s. C, 24 Atl. Eep. 964), 137, 138, 163, 164. Strait V. National Harrow Co. (18 N. Y. Suppl. 334), 94, 115, 134, 138, 140, 159, 166, 175. Strait V. National Harrow Co. (51 Fed. Eep. 819), 169. Sweeny v. Torrence (11 Pa. Co. Ct. 497), 80. Talcott V. Brackett (5 IlL App. 60), 113. Tarleton v. McGawley (Peake N. P. 305), 3, 67. Taylor v. Blanchard (13 Allen, Mass., 370), 113, 126. Temperton v. Eussell (1 L. E. Q. B., 1893, 715), 4, 13, 14^ 15, 35, 39, 60, 61, 74, 75. Terrell, Ee (51 Fed. Eep. 313), 173. TABLE OF CASES. XXIU References are to pages. Texas Brewing Co. v. Anderson (— Tex. Civ. App. — ; s. c, 40 S. W. Rep. 737), 103, 120, 147. Texas Brewing Co. v, Durrum ( — Tex. Civ. App. — ; s. C, 46 S. W. Rep. 880), 120. Texas Brewing Co. v. Meyer ( — Tex. Civ. App. — ; s. C, 38 S. W. Rep. 263), 120, 147. Texas Brewing Co. v. Templeman (90 Tex. 277; s. C, 38 S. W. Rep. 27), 120, 147, 167. Texas Standard Oil Co. v. Adoue (83 Tex. 650; s. C, 19 S. W. Rep. 274), 96, 114, 129, 135, 138, 167. Texas & Pacific Coal Co. v. Law- son (89 Tex. 394; s. C, 34 S. W. Rep. 919; reversing 10 Civ. App. 491 ; s. C, 81 a W. Rep. 843. See 32 S. W. Rep. 871), 119, 121, 136, 143, 147, 167. Texas & Pacific Ry. Co. v. South- ern Pacific Ry. Co. (41 La. Ann. 970; s. 0., 6 So. Rep. 888), 126, 139, 144, 145, 166. Texas & St. Louis R. R Co. v. Rob- ards (60 Tex. 545), 146. Thomas v. Cincinnati, N. O. & T. P. Ry. Co. (63 Fed. Rep. 803), 5, 16, 29, 37, 41, 43, 45, 56, 62, 121. Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co. (54 Fed. Rep. 730), 5, 13, 14, 15, 34, 36, 41, 42, 54, 77, 78. Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co. (54 Fed. Rep. 746), 14, 83, 77, 78. Trenton Potteries Co. v. Oliphant (— N. J. Eq. — ; s. C, 39 Atl. Rep. 923), 113, 137, 188, 139, 140, 143, 174. Trollope v. London Building Trades Federation (73 L. T. R. 343), 83. Ulery v. Chicago Live-stock Ex- change (54 111. App. 333), 5, 88. Unckles v. Colgate (148 N. Y. 539; s. c, 43 N. E. Rep. 59), 167. Union Ferry Co., Matter of (98 N. Y. 139), 89. Union Trust Co. v, Atchison, Tp- peka & Santa Fe R. R. Co. (43 Pac. Rep. 701), 93. United States v. Addyston Pipe & Steel Co. (54 U. S. App. 723; s. c, 85 Fed. Rep. 271), 91, 94, 99, 101, 102, 109, 110, 118, 115, 117, 118, 119, 131, 183, 136, 137, 143, 155, 160, 161, 165. United States v. Agler (62 Fed. Rep. 824), 121. United States v. Cassidy (67 Fed. Rep. 698), 29, 31, 57, 63, 130, 121. United States v. Coal Dealers' Assoc. (85 Fed. Rep. 253), 110, 119, 130, 123, 137, 140, 149, 164. United States v. Debs (64 Fed. Rep. 734), 5, 35, 63, 81, 130, 131, 164. See Re Debs. United States v. B. C. Knight Co. (156 U. S. 1; s. c, 15 Supm, Ct. Rep. 249), 88, 108, 109. United States v. Elliott (62 Fed. Rep. 801), 63, 121, 164. United States v. Elliott (64 Fed. Rep. 27), 13, 14, 15, 34, 63, 181. United States v. Greenhut (50 Fed. Rep. 469), 160. United States v. Hopkins (83 Fed. Rep. 539), 109, 123, 149. United States v. Jellico Mountain Coal, etc. Co. (46 Fed. Rep. 432), 109. United States v. Joint TraflSc Assoc. (76 Fed. Rep. 895), 132. United States v. Kane (33 Fed. Rep. 748), 64, 81. XXIV TABLE OF CASES. References are to pages. United States v. Nelson (52 Fed. Eep. 646), 153, 160. • United States v. Patterson (55 Fed. Rep. 605), 108, 120, 160. United States v. Patterson (59 Fed. Rep. 280), 160. United States v. Trans-Missouri Freight Assoc. (19 U. S. App. 36; s. C, 58 Fed. Rep. 58), 86, 95, 104, 107, 180, 186, 144, 146, 150. United States v. Trans-Missouri Freight Assoc. (166 U. S. 290; s. C, 17 Supm. Ct. Rep. 540), 95, 96, 97, 106, 107, 118, 119, 120, 131, 132, 136, 141, 144, 145, 153, 154,' 164. United States v. Workingmen's Amalgamated Council (54 Fed. Rep. 994), 121. United States Chemical Co. v. Provident Chemical Co. (64 Fed. Rep. 946), 101, 114, 174 United States Vinegar Co. v. Schle- gel (67 Hun, 856; s. c, 22 N. Y. Suppl. 407), 169. Urmston v. Whitelegg (63 L. T. R., N. S., 455), 116, 148, 156, 166. Van Horn v. Van Horn (53 N. J. Law, 284; s. C, 20 Atl. Rep. 485), 3, 14, 59. Van Horn v. Van Horn (56 N. J. Law, 318; 8. C, 28 AtL Rep. 669), 2, 19. Van Marter v. Babcook (23 Barb., N. Y., 633), 171. Vegelahn v. Guntner (167 Mass. 92; s. a, 44 N. E. Rep. 1077), 18, 20, 33, 46, 49, 69, 74, 78, 81, 83. Vicars v. Wilcocks (8 East, 1), 59. Vulcan Powder Co. v. Hercules Powder Co. (96 Cal. 510; s. o., 31 Pao. Rep. 581), 94, 166. Wabash R. Co., Re (24 Fed. Eep. 217), 64, 81. Walden v. Conn (84 Ky. 313; s. C, 1 S. W. Rep. 537), 58. Walker v. Cronin (107 Mass. 555), 1, 5, 6, 18, 44, 46, 48, 58, 59, 60. Wallis V. Day (3 M. & W. 273), 103. Walsby v. Anley (3 El. & Bl. 516), 72. Waterhouse v. Comer (55 Fed. Rep. 149), 35. Waters-Pierce Oil Co. v. State ( — Tex. Civ. App. — ; s. c, 44 S. W. Rep. 938), 106, 108, 139, 181. Watson V. Harlem & N. Y. Navi- gation Co. (53 How. Pr., N. Y., 348), 177. Webber v. Barry (66 Mich. 127; s. C, 33 N. W. Rep. 289), 45. Welch V. Phelps & Bigelow Wind- mill Co. (89 Tex. 653; s. C, 36 N. W. Rep. 71), 102, 148. Wells V. McGeoch (71 Wis. 196; s. C, 35 N. W. Rep. 769), 156, 172. West Virginia Transp. Co. v. Ohio River Pipe Line Co. (23 W. Va. 600), 144, 145, 146. Western Union Tel. Co. v. Ameri- can Union Tel. Co. (65 Ga. 160), 93. Western Union Tel. Co. v. Amer- ican Union Tel. Co. (9 Bissell, 72), 93. Western Union Tel. Co. v. Atlantic & Pacific Tel. Co. (7 Bissell, 367), 93. Western Union Tel. Co. v, Balti- more & Ohio TeL Co. (19 Fed. Rep. 660), 93. Western Union Tel. Co. v. Balti- more & Ohio Tel. Co. (22 Fed. Rep. 133), 93. Western Union Tel. Co. v. Balti- more & Ohio Tel. Co. (23 Fed. Rep. 1-3), 93. TABLE OF OASES. XXV References Western Union Tel. Co. v. Burling- ton & S. W. Ry. Co. (11 Fed. Rep. 1), 93, 166, 172. Western Union TeL Co. v. Chicago & Paducah R. R. Co. (66 IlL 346), 93. Whitney v. Slayton (40 Me. 234), 99. Wiok China Co. v. Brown (164 Pa. St. 449; s. C, 30 Atl. Rep. 261), 64. Wickens v. Evans (3 Tounge & J. 318), 101, 133. Wiggins Ferry Co. v. Chicago & Alton R. R. Co. (73 Mo. 389), 98. Wiggins Ferry Co. v. Ohio & Mis- sissippi Ry. Co. (73 111. 360), 149. are to pages. Wiley V. National Wall Paper Co. (70 111. App. 543), 169. Wisewall, see Charles E. Wisewall. Wiswall, see Charles E. Wiswall. Woods V. Hart (50 Neb. 497; S. 0., 70 N. W. Rep. 53), 103. Woodward v. Boston (33 Am. Law Rev. 624), 38. Worthington v. Waring (157 Mass. 431; S. C, 33 N. E. Rep. 744), 80. Wright V. Crabbs (78 Ind. 487), 156, ■ 171. Wright V. Cudahy (168 111. 86; S. C, 48 N. E. Rep. 39), 85, 156. . THE LAW 01' TRADE AND LABOE COMBINATIONS. PART I. COMBINATIONS PRODUCING PRIVATE INJURY. §1. General liability for injury to another. — The ex- istence in this world of numerous human beings, most of them in close proximity to one another, gives rise to the eternal and universal conflict between the interests of one's self and those of others. Law, both human and divine, is con- cerned with the establishment of rules to harmonize these conflicting interests. In this treatise we are specially con- cerned with this conflict as it is produced in the course of strictly trade or commercial relations. But there seem to be no legal burdens or restrictions placed upon a trader, merely by reason of his being a trader. Not merely to trade rela- tions, but to all the other relations in life wherein exists the possibility of conflict between the interests of one's self and those of others,^ applies the doctrine long since established, that, " in all oases where a man has a temporal loss or dam- age by the wrong of another, he may have an action upon the case to be repaired in damages." ^ The application of 1 See remarks of Bowen, J., in the Case, p. 378, cited in Walker v. Mogul S. a Co. V. McGregor, 33 Cronin, 107 Mass. 555, 563 (1871). So L. R. Q. B. D. 598, 614 (1889); and far as injury results from wovds, article by J. H. Wigmore in 21 Am. the rule on this subject is closely Law Rev. 521 (1887). related to the law of libel. In 2 1 Comyn's Digest, Action upon HoUenbeck v. Eistine, — Iowa, 1 2 GENERAL LIABILITY. [§1- this doctrine to acts of purely physical violence, or acts pro- ducing fear of violence, to person or property, is compara- tively easy. Eecently the idea has gained currency that the doctrine applies to protect not only property, but "busi- ness." ^ But the cases of alleged interference with " business," — ; s. C, 75 N. W. Eep. 355 (1898), it was held actionable to write a letter to the plaintiff's employer resulting in his discharge from em- ployment, even on the assumption that the letter was not defamatory, so as to sustain a technical action for libeL iBarr v. Essex Trades Council, 53 N. J. Eq. 101, 112; S. C, 30 Atl. Eep. 881 (1894; business of publish- ing newspaper, including the right to use "plate" matter therein); Van Horn v. Van Horn, 53 N. J. Law, 284; s. C, 20 Atl. Rep. 485 (1890); Same v. Same, 56 N. J. Law, 318; s. c, 28 Atl. Eep. 669 (1894); State V. Donaldson, 33 N. J. Law, 151, 155 (1867); State v. Stewart, 59 Vt. 373, 289; S. C, 9 Atl. Rep. 559 (1887); State v. Glidden, 55 Conn. 46, 71; S. C, 8 Atl. Eep. 890 (1887; business of publishing news- paper); Crump V. Commonwealth, 84 Va. 927, 934; s. C, 6 S. E. Eep. 620 (1888); Doremus v. Hennessy, 62 111. App. 391, 405 (1895); Nash- ville, Chattanooga, etc. Ry. Co. v. McConnell, 82 Fed. Eep. 65, 80 (Cir. Ct. Tenn., 1897); Davis v. Zimmer- man, 91 Hun, 489; s. C, 36 N. Y. Suppl. 303 (1895); Jackson v. Stan- field, 137 Ind. 593, 613; S. 0., 36 N. E. Eep. 345 (1894); Bowen, J., in Mogul S. S. Co. v. McGregor, 23 L. E. Q. B. D. 598, 614 (1889); Moores V. Bricklayers' Union, 7 Ey. & Corp. L. J. 108 (Super. Ct. Cinn., 1889). As instances of interference with business, held to be unlaw- ful, the following are cited by Bowen, J., in the case just cited: The intentional driving away of customers by show of violence, Tarleton v. McGawley, Peake, N. P., 205 (1793); the obstruction of act- ors on the stage by preconcerted hissing, Clifford v. Brandon, 3 Campbell, N. P. 358 (1810); Greg- ory V. Duke of Brunswick, 6 Man- ning & Gr. 205 (1843); the disturb- ance of wild fowl in decoys by the firing of guns, Carrington v. Taylor, 11 East, 571 (1809); Keeble v. Hick- eringill. Id. 574, note (1706); the im- peding or threatening servants or workmen. Garret v. Taylor, Cro. Jac. 567 (1620). But in State v. Donald- son, 32 N. J. Law, 151, 155 (1867), combining to induce the discharge of fellow-employees by the an- nouncement of an intention to quit employment, was held not indict- able as " an injury to trade " under the statute, the court saying: " It is true that, at a far remove, an in- jury to an individual manufacturer may affect trade injuriously; but, in the same sense, so it is true, will an injury inflicted on a consumer of manufactured articles. But it is not this undesigned and inci- dental damage which is embraced within the statutory denuncia- tion." See, generally, as to lia- bility for wracking and breaking up a business, McCartney v. Ber- lin, 31 Neb. 411; s. a, 47 N. W. §1.] GENERAL LIABILITY. when analyzed, resolve themselves either into mere cases of injury ©r threat of injury to person or property (the addi- tional category of injury to business being of course unnec- essary as to such cases), or into mere oases of inducing a refusal to deal. In other words, the introduction of the term " injury to business " serves to make more plausible the doc- trine that merely inducing a refusal to deal is unlawful. But, in the view we take, an injury to " business " has no inde- pendent existence.^ Eep. 1111 (1891); Murray v. Mc- Garigle, 69 Wis. 483; s. C, 34 N. W. Rep. 522 (1887). Compare Smith v. Nippert, 76 Wis. 86; s. c, 44 N. W. Eep. 846 (1890). For statutes bear- ing on the subject, see Appendix. In State v. Glidden, above, it was pointed out that the injury was not only to the business of the newspaper publisher, but to that of his employees — the fellow- work- men of the parties offending. See Farmers' Loan & Trust Co. v. Northern Pacific E. R Co., 60 Fed. Rep. 803, 816 (Cir. Ct. Wis., 1894). As to whether the existence of a combination illegal as in restraint of competition furnishes ground for an action by a third party, see §29. 1 This seems to be in substantial accord with the view taken in Al- len V. Flood, L. R. App. Cas. (1898), 1, where Lord Herschell (p. 133, and see views of Lord Davey to same effect, p. 173) vigorously disputes the proposition that "every man has a right to pursue his trade or calling without molestation or ob- struction, and that any one who by any act, though it be not other- wise unlawful, molests or obstructs him, is guilty of a wrong unless be can show lawful justification or excuse for so doing." After dis- cussing authorities cited as sup- porting this proposition, it is said (p. 137) : " In all of them the act com- plained of was in its nature wrong- ful: violence, menaces of violence, false statements. . . . The act was not wrongful merely because it affected the man in his trade, though it was this circumstance which occasioned him loss;" and again (p. 138): "I do not doubt that every one has a right to pursue his trade or employment without " mo- lestation" or "obstruction, "if those terms are used to imply some act in itself wrongful. This is only 3, branch of a much wider propo- sition, namely, that every one has- - a right to do any lawful act he pleases without molestation or ob- struction. If it be intended to assert that an act not otherwise wrongful always becomes so if it interferes with another's trade or employment, and needs to be ex- cused or justified, I say that such a proposition, in my opinion, has, no solid foundation in reason to rest upon." See criticism of re- marks of Bowen, J., in Mogul S. S. Co. V. McGregor, 23 I* E. Q. B. D. 598, 613 (1889). 4r INTENT TO INJtlEE. [§ 2. § 2. Effect of presence of intent to injure. — Great con- fusion and conflict in the decisions relating to the legality of trade and labor combinations have resulted from the in- troduction of intent to injure, as constituting an element of civil liability. It is clear that an injury may be actionable, though without the existence of the slightest intent to in- jure.i But, on the other hand, supposing an act producing injury to be otherwise damnum absque injuria, and to give the injured party no right of action, is such a right of action created by the circumstance that the act was done with in- tent to injure ? On this point there is confusion and conflict among the authorities, and judging from them it would seem to have been said with truth ^ that " the English laW, which in its earlier stages began with but an imperfect line of de- marcation between torts and breaches of contract, 'presents us with no scientific analysis of the degree to which the in- tent to harm, or, in the language of the civil law, the animus moino nocendi, may enter into or affect the conception of a personal wrong." ^Nevertheless, until recently at least, the weight of opinion seems to have favored the view that no right of action is created under these conditions.' But re- 1 As in case of trespass and con- Lord Shand (p. 167): "The exercise version. See Pollock on Torts, p. 9. by a person of a legal right does not 2 By Bowen, J., in Mogul S. S. Co. become illegal because the motive V. McGregor, 33 L. K. Q. B. D. 598, of action is improper or malicious." 613(1889). That the, animus vicino See also' p. 171. To what singular nocendi did so enter into the con- results the doctrine reo<»gnizing ception of a wrong as viewed by the efiScacy of evil motive might the Eoman law, see Pollock on lead, even supposing it to be lim- Torts, p. 136. ited to cases of interference with 3 This is now the established law a man's trade or employment, is in England. The point was elabo- very forcibly pointed out by Lord rately discussed in Allen v. Flood, 'Watson (p. 100). On this point such L, R. App. Cas. (1898), 1. For facts decisions as Bowen v. Hall, 6 L. E. see § 13. Here it was said by Lord Q. B. D. 338 (1881), and Temperton Watson (p. 93): "The existence of v. Russell, 1 L. R. Q. B. (1893), 715, a bad motive, in the case of an act so far as they hold or declare to which is not in itself illegal, will not the contrary, are overruled. Allen convert that act into a civil wrong v. Flood was followed on this point for which reparation is due." So by in Huttley v. Simmons, 1 L. R. Q. B. 2.] INTENT TO INJURE. cently, and especially in connection with the determination of the legality of acts of trade and labor combinations, the doctrine seems to have gained ground that an act producing injury, though otherwise giving the injured party no right of action, may be actionable if done with an intent to do the injury.^ The confusion and uncertainty resulting from bring- (1898), 181; Ajello v. Worsley, 1 L. R Ch. (1898), 274 This view is also very forcibly and elaborately con- tended for in Payne v. Western & Atlantic E. R. Co., 13 Lea (Tenn.), 507 (1884); Chambers v. Baldwin, 91 Ky. 121; s. C, 15 S. W. Rep. 57 (1891); Boyson v. Thorn, 98 Cal. 578; S. C, 33 Pac. Rep. 492 (1893); S. P., Bohn Manuf. Co. v. HoUis, 54 Minn. 223; s. C, 55 N. W. Rep. 1119 (1893); Ulery v. Chicago Live-stock Exchange, 54 111. App. 233, 241 (1894) ; People v. Davis, 57 Alb. Law Jour. 170 (Cook Co., 111., Crim. Court, 1898). See Rogers v. Evarts, 17 N. Y. Suppl. 264 (Sup. Ct. Sp. T. 1891); Commonwealth v. Hunt, 4 Mete. (Mass.) Ill, 133, 134 (1842); Lough V. Outerbridge, 143 N. Y. 271, 282; s. C, 38 N. E. Rep. 292 (1894). For discussion of cases of malicious prosecution and libel and slander, see Allen v. Flood, above (pp. 125, 172). 1 This view is indicated in Walker V. Cronin, 107 Mass. 555, 562 (1871), where, after stating the rule allow- ing an action for " loss or damage by the wrong of another " (see p. 1, note 2), it is added: "The inten- tional causing of such loss to an- other, without justifiable cause, and vHth the malicious purpose to inflict it, is of itself a wrong." The doctrine is thus forcibly stated in State v. Glidden, 55 Conn. 46, 71 ; s. C, 8 Atl. Rep. 890 (1887), where a conspiracy was held unlawful as designed to injure the business of a newspaper: "The motive was a selfish one: to gain an advantage. unjustly and at the expense of others; and therefore the act was legally corrupt. As a means of accomplishing the purpose, the parties intended to harm the com- pany, and therefore it was mali- cious." Other authorities uphold- ing the view that intent is an element to be considered in de- termining liability are Moores v. Bricklayers' Union, 7 Ey. & Corp. L. J. 108 (Super. Ct. Cinn., 1889); Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 780, 737 (Cir. Ct. Ohio, 1893); Thomas v. ^ncinnati, N. 0. & T. P. Ry. Co., 62 Fed. Rep. 803, 818 (Cir. Ct. Ohio, 1894); Barr v. Essex Trades Coun- cil, 53 N. J. Eq. 101, 116; s. c, 30 Atl. Rep. 881 (1894)Y.Continental Ins. Co. V. Board of Underwriters, 67 Fed. Rep. 310, 320 (Cir. Ct. Cal., 1895); Doremus v. Hennessy,63 111. App. 391, 405 (1895); Chesley v. King, 74 Me. 164 (1882). This case last cited contains a very instruct- ive discussion of the general ques- tion; but see Hey wood v. Tillson, 75 Me. 325 (1883). See also United States V. Debs, 64 Fed. Rep. 724, 765 (Cir. Ct. III., 1894), affirmed in Re Debs, 158 U. S. 564, 598; s. c, 15 Supm. Ct. Rep. 900 (1895). For an application of the rule of liability INTENT TO INJUEE. [§2. ing so subtle an element into consideration have frequently been recognized, and in our view there is absolutely no ne- cessity for it. In this view, in determining whether a right of action arises from an act producing injury, attention should be directed, not at all to the intent with which the act was done, but to the existing relation, if any, of the party doing the injury, to the conditions out of which arose the act. In other words, the test of liability is whether the act was the natural incident or outgrowth of some existing lawful relation} Perhaps the most striking and suggestive for the natural and ineYitable con- sequences of one's acts, see Barr V. Essex Trades Council, above (p. 117), a case of the boycott of a newspaper. 1 Although, so far as I know, this view has never before been formu- lated, the court, in the leading case of Allen V. Flood, L. E. App. Cas. (1898), 1, seem to have come very near an apprehension of it, as not confined in its application to any particular relation, such as that of trade competitor, but extending to lawful relations generally. Thus, Lord Herschell (p. 140) explains the decision in Mogul S. S. Co. V. McGregor, below, as not rest- ing on the narrow basis that "the law sanctions acts which are done in furtherance of trade competi- tion," "but rather on this: that the acts by which the competition was pursued were all lawful acts; that they were acts not in them- selves ivrongful, but a mere exer- cise of the right to contract with whom, and when, and under what circumstances and upon what con- ditions they pleased." And some of the judges who delivered the numerous opinions in Mogul S. S. Co. V. McGregor seem to us to have been not far from such clear apprehension. Thus, Bowen, J., when (23 L. R. Q. B. D. 598, 613) he says that an intentional act pro- ducing damage is actionable if done without just cause or excuse. This is very near saying that it is actionable, if not the incident or outgrowth of some existing lauful relation. Still nearer to the truth does he come when he says (p. 618), "If it was bona fide done in the use of a man's own property, in the exercise of a man's ovm trade, such legal justification would, I think, exist not the less because what was done might seem to others to be selfish or unreasonable. But such legal justification would not exist when the act was merely done with the intention of causing tem- poral harm, without reference to one's own lawful gain or the lawfuL enjoyment of one's oum rights." So,^ in Barr v. Essex Trades Council, 53 N. J. Eq. 101, 117; s. 0., 30 Atl. Rep. 881 (1894), it is said that "the test is, has the injury been inflicted in- tentionally and without legal ex- cuse? " To similar effect,'Macauley v. Tierney, 19 R. I. 255; s. c, 33 Atl. Rep. 1 (1895). Compare what is said in Walker v. Cronin, 107 §2.] INTENT TO INJTJEE. illustration of such a relation is that of the owner of tangible property, especially real estate. It is the generally-accepted doctrine that the owner of land is not liable for an injury resulting from an act done upon his own land, merely be- cause • the act was done with intent to do the injury .^ In such case the act is merely an incident or outgrowth of the existing lawful relation of owner. It is a mistake, however, to suppose that the doctrine is confined in its application to the relation of owner of land.^ Thus, the existence of the re- Mass. 555,563(1871), as to "acting in the lawful exercise of some distinct right which furnished the defense of a justifiable cause." See, gener- ally, Cooley on Torts (2d ed.), p. 93. Recent suggestive discussions, more or less closely bearing on this sub- ject, will be found in articles by Judge O. W. Holmes, on " Privilege, Malice and Intent," in 8 Harv. Law Rev. 1 (1894);. by J. H. Wigmore, on "The Tripartite Division of Torts," Id. 200 (1894); on "A General Analysis of Tort Relations," Id. 377 (1895); and on "The Boycott and Kindred Practices as Ground for Damages," 21 Am. Law Rev. 509 (1887). The last-mentioned arti- cle is rich in suggestion, but the learned author, throughout his dis- cussion of " interference with rela- tions," seems to us to fall into the common error of treating the sub- ject from the standpoint of the relation of the party injured, in- stead of from the standpoint of the^ party doing the injury. See also ar- ticle by E. Freund, on " Malice and Unlawful Interference," in 11 Harv. Law Rev. 449, 463 (1898). Compare, as to doctrine of privilege in libel, Hollenbeck v. Ristine, — Iowa, — ; s. c, 75 N. W. Rep. 855 (1898). 1 Phelps V. Nowlen, 72 N. Y. 39 (1878); Mayor, etc. of Bradford v. Pickles, L. R. App. Cas. (1895), 587. See, however, Chesley v. King, 74 Me. 164 (1882). That, for instance, creating noises on one's land is not a natural incident or out- growth of the relation of owner of land, see Allen v. Flood, L. R. App. Cas. (1898), 1, 101, commenting on Keeble v. Hiokeringill, 11 East, 574, note (1706), a case where firing a gun on one's own land frightened wild fowl from a neighbor's decoy. It is further said (p. 133) that Keeble V. Hickeringill may be "explained by the circumstance that, if the defendant merely fired on his own land, in the ordinary use of it, his neighbor could make no com- plaint, whilst if he was not firing for any legitimate purpose con- nected with the ordinary use of- land, he might be held to commit a nuisance." What is this but sayw ing that the act of firing, though done upon the land, was not the natural incident or outgrowth of the existing lawful relation as owner of such land? 2 This may liave been the view of the court in Moores v. Bricklay- ers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn., 1889), citing dis- senting opinion in Capital & Coun- INTENT TO INJUEE. [§2. lation of party to a lawful contract enables such a party to enforce or terminate the contract according to its provisions, without reference to the presence of intent to injure another party to the contract or a third person.^ In this view the same doctrine should apply to the existing relation of competitor in trade, of employer, and of employee. In the line of what we have already stated, the failure to recognize and apply this doctrine seems to be largely responsible for the confusion and conflict in the decisions relating to the legality of trade and labor combinations. It will be our endeavor in this part of this treatise to show its application to such cases. Having thus seen that an act, though done with intent to injure, is lawful if the natural incident or outgrowth of some lawful relation, we may define, as 'malicious acts, acts done with malice, or with intent to do injury, in the absence of any existing lawful relation of which the act is a natural inci- dent or outgrowth? ties Bank v. Henty, 7 L. E. App. Cas. 741, 766 (1883). " iThus, in Raycroft v. Tayntor, 68 Vt. 219; s. C, 35 Atl. Rep. 53 (1896), it was held that no action would lie for pi-ocuring a discharge from employment by threatening the employer that the defendant would terminate a contract that he had the right to terminate at any time. To the same rule seems referable Beechley v. Mulville, 102 Iowa, 602; s. C, 70 N. W. Rep. 107 (1897), where an action by a mem- ber of a combination among firq insurance companies and agent^ to fix rates was held not maintain- able as for a conspiracy to destroy the plaintiff's business as an insui;- ance agent, merely because of the combined action of the defendants to enforce the rules and penalties against him, as by Imposing fines and revoking agenciea 2 It seems a sufficient justifica- tion of the view we have advanced that we are thereby enabled to avoid the deplorable confusion into which courts have fallen in the attempt to define malice while ignoring the existing relation of the party doing the act. Thus, we need not wonder to find Lord Mac- naghten in Allen v. Flood, L. R. App. Cas. (1898), 1, 144, saying, with refer- ence to the word "maliciously:" "Sometimes I rather doubt whether I quite understand that unhappy expression myself." In Flood v. Jackson, 2 L. R. Q. B. (1895), 21, the court had an admirable opportu- nity to decide the case on the issue whether the act complained of was the natural incident or outgrowth of the relation of the defendant as a member of or representing a large body of employees with common interests. (See §12.) Bufthe court §3.] CRIMINAL CONSPIEAOT. §3. The doctrine of criminal conspiracy. — The com- paratively recent introduction of the doctrine that the fact of combination creates a civil liability where otherwise it would not exist, makes it desirable to obtain a clear idea of the scope of the doctrine of criminal conspiracy, from which the above-mentioned doctrine seems to have been derived. A consideration of the authorities on this subject may well lead us to the conclusion that " no branch of the law of Eng- land is more uncertain and ill-defined than the law of crim- inal conspiracy." ^ A survey of the historical conditions will entirely ignore the existence of this relation, using (th rough Lord Esher) the following somewhat remark- able language: "We have been in- vited to define malice. One cannot do so any more than one can define fraud, and I certainly shall not at- tempt it. Every one knows what is meant by a man acting maliciously. The only recognized tribunal that can decide whether an act is or is not malicious is a jury." It would seem then that the statement that " every one knows what is meant by a man acting maliciously " should be qualified as follows : " Every one except Lord Esher knows," etc. In the same case, however. Lopes, J., cautiously stated " as being appli- cable to the present case, that when a person wilfully does an act to the injury of another without any laiv- ful cause, that is evidence of mal- ice. " Instead of " without any law- ful cause," it would have been better to say "in the absence of any existing lawful relation of which the act is a natural out- growth or relation." But on re- versal of this decision in Allen v. Flood, L. E. App. Cas. (1898), 1 (see p. 4, above), this opinion of Lord Esher was deservedly condemned, it being said by Lord Herschell (p. 118): "I can imagine no greater danger to the com munity than that a jury should be at liberty to im- pose the penalty of paying dam- ages for acts which are otherwise lawful, because they choose, with- out any legal definition of the term, to say that they were mali- cious. No one would know what his rights were." Compare state- ment of Bowen, J., in Mogul S. S. Co. V. McGregor, 33 L. R. Q. B. D. 598, 613 (1889), that "such inten- tional action taken without just cause or excuse is what the law calls a malicious wrong; " and see p. 6, above. See also Bromage v. Pros- ser, 4 Barnewall & C. 247, 355 (1835) ; Allen V. Flood, above (pp. 94, 171). 1 K. E. Digby, in article in 6 Law- Quart. Rev. 138 (1890), on "The Law of Criminal Conspiracy in England and Ireland." See reply by J. G. ■Butcher, Id. 247 (1890), and further article by Mr. Digby, Id. 863 (1890). So it was said in People v. Fisher, 14 Wend. 9 (1835), that "the offense of conspiracy seems to have been left in greater uncertainty by the common law than most other of- fenses." As to statutes modifying common-law doctrine, see Appen- dix. 10 CRIMINAL CONSPIEAOT. [§3. assist us to understand the origin of the doctrine of criminal, as distinguished from civil, liability for conspiracy. When conspiracies to overthrow governments were more frequent and dangerous than at present, the governmental authorities found it desirable to "nip in the bad" such plots, and pun- ish the conspirators before the conspiracy could be carried into execution. The desire to do this under form of law, if it did not actually produce, seems at least to have made it easier to establish, the doctrine that " a combination to com- mit any crime was punishable, although the crime had not been executed," ' the doctrine being extended to include cases where the acts proposed were not criminal.^ A commonly accepted definition of a conspiracy Is that " it is a combi- nation of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to ac- iThis doctrine appears in Eng- lish jurisprudence as early as the fourteenth century, though it does not seem to have been firmly es- tablished until the seventeenth. In that period its convenience in obtaining convictions for treason was fully demonstrated. Wright on Criminal Conspiracies and Agree- ments, pp. 6, 7. These applications of the doctrine v?ere vividly before the minds of those who conducted the Revolutionary war and founded our government. " No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." U. S. Const., art. 3, §3. 2 This extension was recognized in Reg. v. Parnell, 14 Cox C. C. 508 (1881), and seems to have been so generally in this country. State v. Stewart, 59 Vt. 273; s. a, 9 Atl. Rep. 559 (1887); Commonwealth v. Hunt, 4 Mete. (Mass.) Ill, 133 (1843) ; Carew v. Rutherford, 108 Mass. 1, 10 1870). Compare, however, Wright on Criminal Conspiracies and Agree- ments, p. 48, where, as the result of an elaborate discussion, it is con- cluded that "there is a great pre- ponderance of authority in favor of the proposition that, as a rule, an agreement or combination is not criminal unless it be for acts or omissions (whether as ' ends ' or as ' means ') which would be crim- inal apart from agreement." See Arthur v. Oakes, 34 U. S. App. 289, 363; s. C, 63 Fed. Rep. 310, 335 (7th Cir., 1894), as to Wisconsin statutes said to embody "the principle that a combination or conspiracy of two or more persons to injure the rights of others is illegal." But these statutes create a criminal liabil- ity, and the reference to them by the court only adds to the evidence that the court, as we shall show elsewhere (see § 4), failed to keep in mind the distinction between criminal and civil liability for con- spiracy. 3.] CRIMINAL CONSPIEAOT. 11 complish some purpose, not in itself criminal or unlawful, by criminal or unlawful means." ' The question when, within the meaning, of this definition, an act is unlawful, has been one of considerable difficulty. It seems clear that not all unlawful acts are included.^ But, without further discussing the point, we content ourselves with the suggestion that seems sufficient to cover the authorities, namely, that the doctrine extends to agreements to deprive another of his lib- erty or property? In any given case the decision is likely 1 Commonwealth v. Hunt, 4 Meto. (Mass.) Ill, 123 (1842). See also Carew v.'Kutherford, 106 Mass. 1, 10 <1870); State v. Stewart, 59 Vt. 373, 386; s. c, 9 Atl. Rep. 559 (1887). In Commonwealth v. Hunt, a criminal conspiracy was held not charged in an indi ctment alleging that " the defendants, with others unknown, did assemble, conspire, confederate and agree together, not to work for any master or person who should employ any workman not being a member of a certain club, society or combination called the Boston Journeymen Bootmakers' Society, or who should break any of their by-laws, unless such work- men should pay to said club such sum as should be agreed upon as a penalty for the breach of such unlawful rules, etc.; and that by means of said conspiracy they did compel one W., a master cord- wainer, to turn out of his employ one H., a journeyman bootmaker, etc.jin evil example," etc. The court say (p. 131): "The averment of a con- spiracy is simply an averment of an agreement amongst themselves not to work for a person who should em- ploy any person not a member of a certain association. It sets forth no illegal or criminal purpose to be accomplished, nor any illegal or criminal means to be adopted for the accomplishment of any pur- pose. It was an agreement as to the manner in which they would exercise an acknowledged right to contract with others for their labor." The averment as to com- pelling W. to turn H. out of his employ was held mei-e matter of aggravation that could not supply the want of allegation of a con- spiracy, or, regarding it a substan- tive charge, was held not to allege a criminal conspiracy, in view of the connection in which it was used. The court, however, inter- preted the agreement as not cov- ering the case of quitting employ- ment on breach of a contract for a fixed period, or inducing others to so quit, saying: "If a large num- ber of men, engaged for a certain time, should combine together to violate their contract and quit their employment together, it would pre- sent a very different question." ^ See State v. Glidden, note 3, below (p. 70); Commonwealth v. Hunt, note 1, above (p. 134). 3 State V. Glidden, 55 Conn. 46, 71 ; s. 0., 8 Atl. Eep. 890 (1887), where see the ordinary definitions discussed and criticised. In Commonwealth 12 OOMBINATIOIT AS ELEMENT OF CIVIL LIABILITY. [§4. to be governed by the local law applicable.^ It remains to point out that the doctrine has never been carried to the extent of creating a ciAiil liability for a conspiracy not car- ried into effect, though it seems to have had an influence in developing the doctrine presently to be considered, that the fact of combination creates a civil liability where otherwise it would not exist. §4. Combination as element of civil liability. — As we have just seen, the doctrine seems well established that a combination to commit a crime, or (with certain limitations) V. Hunt, note 1, above (p. 131), the injuries included in the definition are described as to " the public, or portions or classes of the commu- nity, or even to the rights of an in- dividual." In State v. Stewart, below (p. 287), are included combi- nations that " seek to restrain trade or tend to the destruction of the material prosperity of the coun- try" as "working injury to the public." Thus, in King v. Eccles, 3 Douglas, 337 (1783), the indictment sustained was for a conspiracy to impoverish a person and to deprive (p. 289): "While such conspiracies may give to the individual di- rectly affected by them a private right to action for damages, they at the same time lay a basis for an indictment on the.ground that the state itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens en- gaged in the exercise of their call- ings." This language was approved and applied in Hopkins v. Oxley Stave Co., 49 TJ. S. App. 709, 719; and hinder him from following and s. c, 83 Fed. Rep. 912, &19 (8th Cir., 1897). In State v. Dyer, 67 Vt. 690 ; s. c, 32 Atl. Rep. 814 (1894), the con- spiracy was not only to induce an employer to discharge an employee, but to prevent him from obtaining other employment. The inducing his discharge was, according to the doctrine stated in § 10, an unlawful act, but the preventing him from obtaining other employment was not so, irrespective of the means employed. As to the criminality of combinations in restraint of competition, see § 28. 1 Commonwealth v. Hunt, 4 Mete. (Mass.) Ill, 121 (1842). exeroising his trade. In Crump v. Commonwealth, 84 Va. 927; S. C, 6 S. E. Rep. 620 (1888), to injure persons in their business by mak- ing threats to their customers. In State V. Stewart, 59 Vt. 273; s. C, 9 Atl. Rep. 559 (1887), to prevent, hinder - and deter a corporation from employing certain persons, and to frighten them away from such employment. Here the sub- ject is very elaborately discussed. After declaring it to be a criminal conspiracy to combine to coerce the free choice of every man to employ his talents, industry and capital as he pleases, it is said 4.] COMBINATION AS ELEMENT OF CIVIL LIABILITY. 13 any other unlawful act, subjects the members of the combi- nation to criminal liability, though the act proposed be not done. But, at least until recently, it seems to have been equally well established that under these conditions no civil liability exists, or, as it has been said, " an action will not lie for the greatest conspiracy imaginable, if nothing be put in execution." ^ If, however, in pursuance of the conspiracy. 1 Savile v. Roberts, 1 Lord Ray- mond, 374 (1697); Hutching v. Hutchins, 7 Hill (N. Y.), 104, 108 (1845); Adler v. Fenton, 34 How. (U.S.) 407, 410(1860); Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 739 (Cir. Ct. Ohio, 1893); Brewster v. Miller, — Ky. ; s. C, 41 S. W. Rep. 301 (1897) ; Mogul S. S. Co. V. McGregor, 33 L. R. ■Q. B. D. 598, 616 (1889) ; Temperton v. Russell, 1 L. R. Q. B. (1893), 715. In United States v. Elliott, 64 Fed. Rep. 37, 33 (Cir. Ct. Mo., 1894), it is said of the decision in Arthur v. Oakes, 34 U. S. App. 839; S. G, 63 Fed. Rep. 310 (7th Cir., 1894), modifying Farm- ers' Loan & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. Rep. 803 (Cir. Ct. Wis., 1894), that "no public decision has perhaps been so much misunderstood, or ignorantly or intentionally misrepresented and perverted." But the confusion pro- duced by this decision is, we sub- mit, largely due to the failure of the court to keep in mind this well established distinction be- tween criminal and civil liability for conspiracy. Here, though an injunction against employees of the receivers of a railroad, restrain- ing them from " quitting the senice of the said receivers with or with- out notice," was refused, yet one was allowed- against their "oom- bining and conspiring to quit with or without notice the service of said receivers, with the object and intent of crippling the property in their custody or embarrassing the operation of said railroad." See Re Higgins, 87 Fed. Rep. 443 (Cir. Ct. Tex., 1886). There being nothing objectionable, then, in the mere quitting (84 U. S. App. 855), the vice, if any, lay in the combination and conspiracy to cripple property or embarrass the' operation of the railrog.d. How came the court to grant this injunction in a civil proceeding ? The case would have been otherwise if the injunction had been limited to merely " crip- pling the property, or embarrass- ing the operation of the road," and it would seem on principle, that the injunction, if proper at all under the circumstances, should have been so limited, specifying, so far as needful (see p. 361), the particular acts of violence desir- able to prevent. That the court entirely overlooked the distinction between civil and crim.inal lia- bility for conspiracy seems clear from what is thus said (p. 357) : " Ac- cording to the principles of the common law, a conspiracy upon the part of two or more persons, vjith the intent, by their combined powers, to wrong others, is in itself 14 COMBINATION AS ELEMENT OF CIVIL LIABILITY. [§ 4. an act is done injurious to any person, the conspirators are civilly liable to him.^ Quite recently has sprung into recog- nition the doctrine that an act, entirely lawful if done by a single individual, may be unlawful by reason of being done in pursuance of a combination of individuals to do the same act.^ According to some authorities, however, the doctrine N. J. Law, 284; s. C, 20 Atl. Rep. 485 (1890); Temperton v. Russell, 1 L. R. Q. B. (1893), 715. ^ Toledo, Ann Arbor, etc Ry. Co. V. Pennsylvania Co., 54 Fed. Rep. 730, 740 (Cir. Ct. Ohio, 1893); Same v. Same, Id. 746 (Cir. Ct. Ohio, 1893; quitting of train by engineer); Moores v.- Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn., 1889; inducing refusal to deal); Mogul S. 8. Co. v. McGregor, L. R. App. Cas. (1892), 25, 38, 45; Cote V. Murphy, 159 Pa. St. 420, 427, 431; s. 0., 28 Atl. Rep. 190 (1894). Though not so stated, this seems to be the ground on which Mapstrick v. Ramge, 9 Neb. 390; S. c, 2 N. W. Rep. 739 (1879), a case of quitting of employment, is sus- tainable, if at all. See also Con- solidated Steel & Wire Co. v. Mur- ray, 80 Fed. Rep. 811, 823 (Cir. Ct Ohio, 1897); Morris Run Coal Co, V. Barclay Coal Co., 68 Pa. St. 173, 186 (1871); Doremus v. Hennessy, 62 111. App. 391, 402 (1895); Barr v. Essex Trades Council, 53 N. J. Eq. 101, 123; s. C, 30 Atl. Rep. 881 (1894); People v. Duke, 19 Misc. (N. Y.) 292 (N. y. County General Sessions, 1897); DueberWatch-Case Manuf. Co. v. E. Howard Watch & Clock Co., 35 U. S. App. 16, 29, 88; S. C, 66 Fed. Rep. 637, 645, 651 (2d Cir., 1895). Though not so distinctly stated, the existence of a combina- tion seems largely to have influ- il, although nothing be done in execution of such conspiracy. This is fundamental in our jurii^ prudence." Hence the result reached in Arthur v. Oakes is that an injunction may be granted against an act which in its civil aspect is entirely lawful. The cases cited by the court to show the illegality of the conspiracy are all criminal proceedings. See comments on this decision in United States v. Elliott, p. 13, above. In Longshore Printing Co. V. Howell, 26 Oreg. 527, 547; S. c.,)38 Pac. Rep. 547 (1894), the court, ap- parently relying on the reasoning of and authorities cited in Arthur V. Oakes, fall into like confusioh of ideas, and conclude that " there, is no good reason why civil liabili-i ties may not ensue by reason of a conspiracy to commit that which' is made unlawful by statute." So in Elder v. Whitesides, 72 Fed. Rep. 724 (Cir. Ct. La., 1895), Arthur V. Oakes was followed in granting an injunction against a mere con- spiracy to prevent the loading or unloading of a vessel except by such labor as might be acceptable to the defendants, but without any overt unlawful act. 1 Carew v. Rutherford, 106 Mass. 1, 10 (1870); Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 739 (Cir. Ct Ohio, 1893); Van Horn v. Van Horn, 52 §4.] COMBINATIOlSr AS ELEMENT OF OIVIL LIABILITY. 15 seems rather to be that it is easier to show the illegalitj' of an act when done in pursuance of a combination of individuals to do the same act, than if done by a single individual. In this view the difference is not as to liability, but as to the enced the decision in Curran v. Galen, 153 N. T. 33; s. C, 46 N. E. Eep. 297 (1897). The origin of this doctrine is somewhat obscure, but perhaps it may be referred to some remarks in Gregory v. Duke of Brunswick, 6 Manning & Gr. 953, 959 (1844). See Temperton v. Rus- sell, 1 L. R Q. B. (1893), 715; Moores V. Bricklayers' Union, 7 Ky. & Corp. L. J. 108 (Super. Ct. Cinn., 1889); also p, 16, note 1, below. But although the doctrine, largely American as to development, is pro- fessedly based on English decisions, it seems now clear that it has been repudiated in England. Thus, in Huttley V. Simmons, 1 L. B. Q. B. (1898), 181, where an action for con- spiring with others to induce a per- son not to employ the plaintiff was held not maintainable, the court say: " Conspiracy to do certain acts gives a right of action only where the acts agreed to be done, and in fact done, would, had they been wdthout preconcert, have involved a civil injury to the plaintiff." The same result had been reached in Kearney v. Lloyd, 26 L. B. (Ireland), 268 (1889). As indicating the sup- posed grounds of the doctrine, the following remarks are suggestive: " A man may encounter the acts of a single person, yet not be fairly matched against several." Lord Bramwell, in Mogul S. S. Co. v. Mc- Gregor, p. 14, above. "The com- bination is material in giving the act a different character from a similar act of an individual by rea- son of its greater, more dangerous and oppressive effect." Moores v. Bricklayers' Union, above. "Any one man, or any of several men, acting independently, is power- less; but, when several combine and direct their united energies to the accomplishment of a bad pur- pose, the combination is formi- dable. Its power for evil increases as its numbers increase." State v. Glidden, 55 Conn. 46, 75; s. a, 8 Atl. Eep. 890 (1887). To similar effect, Arthur v. Oakes, 24 U. S. App. 239, 258; s. C, 63 Fed. Bep. 310, 321 (7th Cir., 1894) (as to which see, however, p. 18, above) ; United States v. Elliott, 64 Fed. Eep. 37, 83 (Cir. Ct. Mo., 1894). So in Toledo, Ann Arbor, etc. By. Co. V. Pennsylvania Co., 54 Fed. Bep. 730, 739 (Cir. Ct. Ohio, 1893), involv- ing the legality of a quitting of employment by railroad engineers, it is said: "Ordinarily the only ( difference between the civil liabil- ity for acts done in pursuance of a conspiracy and for acts of the same character done by a single person is in the greater probabil- ity that such acts, when done by many in a combination, will cause injury. . . . The difSculty in supposing or stating any civil lia- bility when the acts we have been discussing are done by a single en- gineer is in the improbability that either by singly refusing to handle the freight he could cause any in- jury to complainant, or by singly threatening to quit or by quitting he could procure his company to 16 COMBINATIOiT AS ELEMENT OF CIVIL LIABILITY. [§4. suiBciency of evidence. In this view also the doctrine seems to be merely a development of the doctrine already consid- ered, that an act otherwise lawful may be made unlawful by an intent to injure. This on the supposition that it is easier to show the intent of an act done in pursuance of a combi- nation of individuals to do the same act, than if done by a single individual.^ But, without adopting the suggestion that has been made, that the doctrine finds its origin in a mere misconception of the law of criminal conspiracy,^ we ven- ture to suggest that, until its precise warrant and ground are better defined, it should not be allowed a place in our jurisprudence. It has been especially applied to combina- tions to refuse to deal (boycotts), and to combinations to quit employment (strikes). But its existence has been thus do so. But when we suppose that all or nearly all the engineers on the eight different defendant com- panies combine with their chief to do these unlawful acts for the pur- pose of injuring complainant, the intended loss becomes, not only probable, but inevitable." See sim- ilar observations in State v. Bon- aldson, 33 N. J. Law, 151 (1867); and compare Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. Rep. 803, 831 (Cir. Ct. Ohio, 1894). iThus, in Gregory v. Duke of Brunswick, 6 Manning & Gr. 953, 959 (1844), which we have (see p. 15, above) referred to as perhaps the origin of the doctrine, it is said: "The act of hissing in a public theater is prima facie a lawful act; and even if it should be con- ceded that such an act, though done without concert with others, if done from a malicious motive, might furnish a ground of action, yet it would be very difficult to infer such a motive from the insulated acts of one person unconnected with others." So in Moores v. Bricklay- ers' Union (see p. 15, above), it is said that "the combination is material in being strong evidence of the mal- ice with which the act is done." In this connection we may note a dif- ferent, though somewhat analo- gous, ground suggested by Lord Bramwell, in Mogul S. S. Co. v. Mc- Gregor (see p. 15, above), that "the act when done by an individual is wrong, though not punishable, be- cause the law avoids the multi- plicity of crimes: de minimis non curat lex; while, if done by several, it is sufficiently important to be treated as a crime." ^ Thus, in Bohn Manuf. Co. v. Hol- lis, p. 17, below (p. 284), it is said of the authorities asserting the doctrine just considered, that "they evi- dently have their origin in a con- fused and inaccurate idea of the law of criminal conspiracy, and in failing to distinguish between an unlawful act and a criminal one. It can never be a crime to combine to commit a lawful act." See, how- ever, note 1, above. 5.] KELATION OF TRADE OOMPETITOE. 17 vigorously attacked : " What one man may lawfully do sin" ^ly, two or more may lawfully agree to do jointly. The number who unite to do the act cannot change its character from lawful to unlawful. The gist of a private action for the wrongful act of many is not the combination or conspir- acy, but the damage done or threatened to the plaintiff by the acts of the defendants. If the act be lawful, the combi- nation of many to commit it may aggravate the injury, but cannot change the character of the act." ^ § 5. Relation of trade competitor as justifying act in- juring another. — In all ages those engaged in trade have striven for success at the expense of their rivals. In ruder ages, as indeed still is the case in the newer and compara- tively unsettled regions open to trade, traders frequently resort to acts, not alone of fraud, but of violence, even to robbery and murder. Such acts are condemned by the com-' mon law of England, as indeed by the law of every civilized nation.^ There remain, however, many acts which, like Clemmitt v. Watson, 14 Ind. App. 38; s. c, 42 N. E. Rep. 367 (1895), where it was held not unlawful to cause a co-employee to be thrown out of work by agreeing to quit, the court say: "What each one could rightfully do, certainly all could do if they so desired, espe- cially when their concerted action was taken peaceably, without any threats, violence or attempt at in- timidation." 2 As instances are given "fraud, misrepresentation, intimidation, iBohn Manuf. Co. v. Hollis, 54 Minn. 328, 334; s. c, 55 N. W. Bep. 1119 (1893). The same doctrine was applied under similar conditions in Macauley v. Tierney, 19 R. I. 255; s. c, 83 Atl. Rep. 1 (1895), both being cases of refusal to deal. It is con- tended for with great force and eloquence in the dissenting opinion of Caldwell, J., in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 736 ; s. c, 83 Fed. Rep. 912, 930 (8th Cir., 1897). Compare Payne v. Western & At- lantic R. R. Co., 13 Lea (Tenn.), 507, 521(1884); Le win v.Welsbach Light coercion, obstruction or molesta- Co., 81 Fed. Rep. 904 (Cir. Ct. Pa., 1897); Delz v.Winfree, 80Tex. 400, 404; s. c, 16 S. W. Bep. Ill (1891); Olive V. Van Patten, 7 Tex. Civ. App. 630; s. C, 35 S. W. Rep. 438 .(1894): Continental Ins. Co. v. Board of Underwriters, 67 Fed. Eep. 310 (Cir. Ct. Cal., 1895). In 5 tion of the rival or his servants or workmen, and the procurement of violation of contractual relations." Macauley v. Tierney, 19 B. I. 255; s. c, 33 Atl. Bep. 1 (1895). Not all of the instances here given are, however, beyond the realm of de- bate; for instance, "the procure- 18 EELATION OF TEADE COMPBTITOE. [§5- those just considered, are done with intent to injure a trade rival, and yet are generally regarded as entirely lawful.* What is the test of separation between these classes? If the doctrine already contended for be correct, namely, that the test of liability for an act producing injury is in no case the intent of the act, but purely whether the act was the natural incident or outgrowth of some existing lawful re- lation, we may state, by way of application of this doctrine to the relation of competitor in trade, that the existence oftJie relation of trade competitor justifies acts that a/re the natural incident or outgrowth of such relation, whether or not done with the di/rect i/iitent to injure one's ri/oal? In this view, ment of violation of contractual relations." See § 13. iThe legality of such acts was very early established. Thus, in a case decided in 1410 (11 Henry 4, fol. 47, pi. 21), referred to fre- quently in Allen v. Flood, L. R. App. Gas. (1898), 1, and holding that a school-master setting up a school to the damage of an an- cient school, whereby the scholars were allured from the old school to come to his, committed no ac- tionable wrong. So it is said in Commonwealth v. Hunt, 4 Meto. (Mass.) Ill, 134 (1892): "We think that associations may be entered into, the object of which is to adopt measures that may have a tendency to impoverish another, that is, to diminish his gains and profits, and yet, so far from being criminal or unlawful, the object may be highly meritorious and public-spirited. The legality of such an association will therefore depend upon the means to be used for its accomplishment." To simi- lar effect, Bohn Manuf. Co. v. HoUis, 54 Minn. 223, 333; s. C, 55 N. W. Rep. 1119 (1893); Macauley v. Tier- ney, p. 17, above. See Walker v. Cronin, 107 Mass. 555, 564 (1871); Curran v. Treleaven, 2 L. R. Q. B.. (1891), 560; Mogul S. S. Co. v. Mc- Gregor, p. 20, below. 2 With this statement compare the following language in the dis- senting opinion of Holmes, J., m Vegelahn v. Guntner, 167 Mass. 92,. 106; s. a, 44 N. E. Rep. 1077 (1896): "The policy of allowing free com- petition justifies the intentional inflicting of temporal damage, in- cluding the damage of interference with a man's business by some means, when the damage is done not for its own sake, but as an in- strumentality in reaching the end of victory in the battle of trade. In such a case it cannot matter whether the plaintiff is the only rival of the defendant, and so is aimed at specifically, or is one of a class all of whom are hit. The only debatable ground is the nat- ure of the means by which such damage may be inflicted." It was in accordance with this doctrine that in Allen v. Flood, above § 5.] EELATION OF TBADE COMPETIT03E5. 19 acts that are not the natural incident or outgrowth of such relation are not justified. Or we may express the dis- tinction as one between " fair " and " unfair " competition. Thus, the acts of fraud and violence just considered do not, in any proper sense of the words, come under the descrip- tion of "fair competition," or of "natural incidents or outgrowths^" of the relation of trade competitor.^ On the other hand, there are acts that come so clearly under such description that their legality is generally conceded. "We may cite by way of illustration, setting up an opposition line of conveyance, or a rival hotel in the same town, intro- ducing improvements,^ and generally the manifold devices involved in modern methods of advertising. But there is a border class of cases as to which has existed consider- able difiference of judicial opinion. It may not be easy to conceive of an act done by a trade competitor that is not only the natural incident or outgrowth of his relation as such, but is also done purely with intent to injure his rivaly and without any intent to benefit himself. If there are such (pp. 103, 135), the court condemned in its infancy. Within the scope Carrington v. Taylor, 11 East, 571 of such competition fall a class of (1809), where a person was held cases that increasingly attract at- liable for injury resulting from tention, and involve what are called firing shots while in pursuit of his in Browne on Trade-marks^ "rights own occupation as hunter of wild analogous to those of trade-marks. "^ f owL In Ajello v. Worsley, 1 L. R. (See 3d ed., §§ 521-564.) On this sub- Ch. (1898), 374, an injunction was ject see articles by G. D. Custano refused against a dealer advertis-/ in 4 Harv. Law Be v. 331 (1891); by ing for sale goods manufactured! Rowland Cox in 5 Id. 139(1891); by by the plaintiff, though without'^ O. R. Mitchell in 10 Id. 275 (1896); having such in his possession. The also by J. F. Iselin on " The New court makes the distinction be- German Law of Unfair Competi- tween the case under considera-. tion," in 13 Law Quart. Rev. 156 tion, as one of an untrue state-; (1897). ment relating to the defendant's ^gge Commonwealth v. Hunt, 4 own business, and cases of untrue Mete. (Mass.) Ill (1842); Van Horn statements regarding the plaintiff'^ v. Van Horn, 56 N. J. Law, 818, 323 ; business. s. c, 28 Atl. Rep. 669 (1894); Barr v. 1 What we may call the doctrine Essex Trades Council, 53 N. J. Eq. of " unfair competition " is as yet 101, 116; s. c, 30 Atl. Rep. 881 (1894). 20 EELATION OF TEADE COMPETITOE. [§5. acts we submit that, within the doctrine above stated, they are entirely lawful.* Eut it will be found as a rule that an act done with intent to injure a trade rival is also done with the intent to benefit oneself; and we shall assume this to be true in the cases hereafter considered. The test that we consider the proper one to apply to every such case (ignoring entirely the existence or non-existence of intent), namely, whether the act is a natural incident or outgrowth of the re- lation of trade competitor,^ may not always be easy to apply iThe question as to the effect of notified the public that they had such an act was raised by Hannen, J., in Mogul S. S. Co. v. McGregor, note 3, below, but it was regarded as unnecessary to decide it, the in- tent of the defendants to benefit themselves being clear. See Vege- lahn V. Guntner, p. 18, above. 2 The extent to which such acts maybe done is well illustrated in Bowen v. Matheson, 14 Allen (Mass.), 499 (1867), where it was held that no action would lie in favor of a ship- ping-master to recover damages against persons who formed an as- sociation to control the business of the shipping-masters of a city, by requiring the members to con- form to certain rules and rates, and to use their best endeavors to pre- vent their boarders from shipping in any vessel where any of the crew were shipped from boarding- houses not in good standing with the association, and to abstain from shipping men from any office after the association should have suspended business with it, and who, in pursuance thereof, took their men out of ships because the plaintiff's men were in the same, and refused to furnish and ship men to the plaintiff, and prevented men from shipping with him, and laid him on the shelf (that is, were acting against him as a shipping- master), and notified his custom- ers and friends that he could not ship seamen for them, and pre- vented his getting seamen to ship, and thus broke up his business. The court say of the actions re- ferred to: "If their effect is to destroy the business of shipping- masters who are not members of the association, it is such a result as in the competition of business often follows from a course of proceeding that the law permits. New inventions and new methods of transacting business often de- stroy the business of those who adhere to old methods. Some- times associations break down the business of individuals, and some- times an individual is able to de- stroy the business of associated men." Another notable instance is furnished by Mogul S. S. Co. v. McGregor, L. R. App. Cas. (1893), 35, which affirmed 33 L. R. Q. B. D. 598 (1889), which had affirmed 31 Id. 544 (1888); and see prior decision in 15 Id. 476 (1885). The case is re- markable for the number of opin- ions delivered in its various stages, and has attracted wide attention, §5.] EELATION OF TRADE COMPETITOE, 21 to the complicated facts of a particular case ; but it does not seem practicable to lay, down a more precise rule. Much must depend on the character of the particular business. What is a natural incident or outgrowth of a wholesale though, as pointed out elsewhere (see § 19), it is not, as sometimes supposed, an authority as to the validity of contracts restraining competition. The facts are thus stated in the opinion of Lord Wat- son (p. 41): "The respondents are firms and companies owning steam vessels which ply regularly during the whole year, some of them on the Great River of China between Hankow and Shanghai, and oth- ers between Shanghai and Euro- pean ports. During the tea season, which begins in May and lasts for about six weeks, most shippers prefer to have their tea sent direct from Hankow to Europe; but it suits the respondents' trade better to have the tea which they carry brought down to Shanghai by their ordinary river service, and then transhipped for Europe. Accord- ingly, they do not send their ocean steamers up the river, except when they find it necessary in order to intercept cargoes which might otherwise have been shipped from Hankow in other than their ves- sels. The appellants are also a ship-owning company. They do not maintain a regular service either on the Great River or be- tween Europe and Hankow; but they send vessels to Hankow dur- ing the tea season, with the legiti- mate object of sharing in the profits of the tea-carrying trade, which appear, in ordinary circum- stances, to have been considerable. The respondents entered into an agreement, the avowed purpose of which was to secure for themselves as much of the tea shipped from Hankow as their vessels could con- veniently carry, which was practi- cally the whole of it, and to prevent the appellants and other outsiders from obtaining a share of the trade. The consequence of their acting upon the agreement was that the appellants, having sent their ships to Hankow, were unable to obtain cargoes at remunerative rates; and they claim as damages due to them by the respondents, the difference between their actual annual earn- ings and the freights which their vessels might have earned had it not been for the combined action of the respondents." Or, as thus stated by Lord Halsbury (p. 35): " An associated body of traders en- deavor to get the whole of a lim- ited trade into their own hands by offering exceptional and very favorable terms to customers who will deal exclusively with them; so favorable that, but for the ob- ject of keeping the trade to them- selves, they would not give such terms; and if their trading were confined to one particular period they would be trading at a loss, but in the belief that by such com- petition they will prevent rival traders competing with them, and so receive the whole profits of the trade to themselves." The facts relied on to show that 2^2 EELATION OF TEADE COMPETITOE. [§5. business operating throughout a country, or even the world, might not be a necessary incident or outgrowth of a retail business confined in its operations to a small country. So, as between the business of transportation by railroad or the competition was "unfair" are thus stated by Lord Watson (p. 43): "The respondents allowed a dis- count of five per cent, upon their freight accounts for the year to all customers who shipped no tea to Europe except by their vessels; whenever the appellants sent a ship to load tea at Hankow, the respondents sent one or more of their ocean steamers to underbid her, so that neither vessel could ob- tain cargo on renumerative terms; and lastly, the respondents took away the agency of their vessels from persons who also acted as shipping agents for the appellants and other trade competitors out- side the combination. I cannot for a moment suppose that it is the proper function of English courts of law to fix the lowest prices at which traders can sell or hire, for the purpose of protecting or ex- tending their business, without committing a legal wrong which will subject them in damages. Until that becomes the law of the land, it is, in my opinion, idle to suggest that the legality of mer- cantile competition ought to be gauged by the amount of the con- sideration for which a competing trader thinks fit to part with bis goods or to accept employment. The withdrawal of agency at first appeared to me to be a matter at- tended with diflBculty; but on con- sideration I am satisfied that it cannot be regarded as an illegal act. In the first place, it was im- possible that any honest man could impartially discharge his duty of finding freights to parties who oc- cupied the hostile position of the appellants and respondents; and in the second place, the respond- ents gave the agents the option of continuing to act for one or other of them in circumstances which placed the appellants at no disad- vantage. It has not been proved, and it has not been suggested, that the respondents used either mis- representation or compulsion for the purpose of attaining the object of their combination. The only means by which they endeavored to obtain shipments for their ves- sels, to the exclusion of others, was the inducement of cheaper rates of freight than the appellants were willing to accept." This decision was applied under very similar con- ditions in Lough v. Outerbridge, 143 N. Y. 271, 383; s. C, 38 N. E. Eep. 292 (1894X In Continental Ins. Co. v. Board of Fire Underwriters of the Pacific, 67 Fed. Rep. 310 (Cir. Ct. Cal.,1895), there was under consideration " The Board of Fire Underwriters of the Pacific," composed of repre- sentatives of certain fire insurance companies, and which had adopted a constitution providing for regula- tion of premium rates, prevention of rebates, compensation of agents, and non-intercourse with compa- nies not members. A fire insurance § 6.] EELATION OF EMPLOYEE OE EMPLOYEE. 23 otherwise, and the business of manufacturing. Little has been done as yet, however, to apply the test with reference to the character of the particular business in question.' § 6. Relation of employer or employee as justifying act injuring another ; lockouts; blacklisting. — The frequent controversies between "capital" and "labor" forcibly re- mind us how fruitful the relation between employer and employee is of opportunities for the commission of acts in- juring another. But, notwithstanding all the confusion that has been produced by the introduction of the doctrines al- lowing effect to "intent" and "combination," we find no obstacle to the application to these relations of the same test as before. The doctrine applied now is that the existence .of the relation to another as employer or employee, justifies acts that are the natural incident or outgrowth of such relation, whether or not done with the direct intent to injure the em- ployee or eTnployer (as the case may ie)? Eeserving for detailed consideration in the following sections the more numerous company not a member was not tising that they had authority to allowed an injunction against the cancel policies in the plaintiff com- association on the ground that it panies and certain other non-board had unlawfully combined to stifle companies; also against threats competition and to prevent the by the defendant against certain plaintiff from carrying on its busi- agents and customers of the plaint- ness, and that it did prevent it by iff. See, on the general subject, ar- coercing the plaintiff's agents and tide by W. H. Tuttle, in 43 Cent, customers, and by unjust discrimi- Law Jour. 302 (1896), on " Legiti- nation. This on the ground that the mate Competition." organization had been formed for i See further as to what consti- trade purposes and not with malice tutes a trade or business so as to against the plaintiff, there being no bring it within the rule, § 6. evidence of damage to the plaintiff 2 The courts generally have not by illegal means. Held, not such as yet advanced to the position damage for the board to dismiss that the same test is applicable its agent because an agent of the to the relations of employer and plaintiff, or to put him to an elec- employee as to that of trade oom- tion of service. So of a refusal to petitor. This seems, however, to place insurance for the plaintiff or have been clearly understood by its customers. But an injunction Holmes, J., who, in his dissenting was granted against agents of cer- opinion in Vegelahn v. Guntner,167 tain of the board companies adver- Mass. 93, 107; s. C, 44 N. E. Rep. 24 RELATION OF EMPLOYEE OE EMPLOYEE. [§6. complications involved in the relation, of employee, we here confine ourselves to a consideration of that of employer. Sometimes his relation, to the employee is contractual. In 1077 (1896), says: "I have seen the suggestion made that the conflict between employers and employed is not competition. But I venture to assume that none of my brethren would rely on that suggestion. If the policy on which our law is founded is too narrowly expressed in the term ' free competition,' we may substitute 'free struggle for life.' Certainly the policy is not limited to struggles between pei'- sons of the same class competing for the same end. It applies to all conflicts of temporal interests. "So in Allen v. Flood, L. R. App. Cas. (1898), 1, where the court, admit- ting, for the sake of argument, that the doctrine is confined to mere "acts which are done in further- ance of trade competition," apply it to inducing the discharge of fellow-employees, saying (p. 141): ' Why is not the present case within it? What was the object of the defendant and the workmen he represented but to assist them- selves in their competition with the shipwrights? A man is en- titled to take steps to compete to the best advantage in the employ- ment of his labor, and to shut out, if he can, what he regards as unfair competition, just as much as if he was carrying on the business of a shipowner." So it was said by Lord Shand (p. 164): "The case was one of competition in labor, which in my opinion is in all essentials anal- ogous to competition in trade, and to which the same principles must apply." See also p. 167, and dis- senting opinion of Caldwell, J., in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 746; s. C, 83 Fed. Eep. 913, 936 (8th Cir., 1897). On the other hand, in Barr v. Essex Trades Council, 53 N. J. Eq. 101, 124; s. c, 30 Atl. Rep. 881 (1894; for facts see § 12), where an injunction was al- lowed against a boycott of a news- paper by a number of labor unions, affiliated in a society or represent- ative body known as the "Essex Trades Council " (the members of only one of which had any griev- ance against the complainant, the action of the others being sympa- thetic), against the objection that the Council was a business institu- tion, and that what it had done had been in prosecution of its busi- ness, the court, after expressly dis- tinguishing Mogul S. S. Co. V. McGregor (see § 5) as a case of competition between parties en- gaged in the same character of business, say: "Neither does the claim of the Essex Trades Council that it is a business institution stand on any firmer ground. The only element of business which it is engaged in, would appear from the facts to be the furnishing to tradesmen of printed cards certi- fying that they are proper persons for the members of trades unions to deal with, suitable to be dis- played in conspicuous places in such tradesmen's places of business. This was supplemented by the issue, under date of March 31, 1894, §6.] EELATION OF EMPLOYEE OE EMPLOYEE. 25 such case, in accordance with what we have already seen,^ he clearly has the right to enforce the contract according to its terms, or to terminate it, without reference to the exist- ence of an intent to injure. His legal justification is that it is so " nominated in the hond." So where his relation is non-contractual, his right to terminate the relation, as by discharging the employee, is not impaired by the existence of such intent.^ JS'or does any different rule seem applicable to the case of a " lockout," which has been defined as " a re- fusal on the part of an employer to furnish work to his em- ployees in a body, intended as a means of coercion." ^ But, of the small pocket pamphlet en- titled 'The Fair List of Newark, N. J.,' containing the names and addresses of tradesmen and persons in business in Newark, with items of information and advice. Why this is called a business does not appear. It is not stated that any compensation is either required or received by the trades council from the trades people for granting or continuing those indorsements; but whether this is so or not, it is in no sense a competing business with the publication of a daily news- paper." 1 See § 3, note 8. 2 Thus, in Hey wood v. Tillson, 75 Me. 325, 237 (1883), the refusal of an employer to employ or retain in his service any person renting specified premises, was held to give no right of action to the owner of such premises, though such refusal was through malice or ill-will to such owner. To the contrary, however, is International & G. N. Ey. Co. V. Greenwood, 3 Tex. Civ. App. 76; s. C, 31 S. W. Eep. 559 (1893), where an action was sus- tained against an employer for dis- charging employees because of their patronage of the plaintiff. The court say: "The employees presumably had the right to eat and drink where they chose, so long as they violated no contract with their employer, and performed their service well; and the mali- cious use of such moral coercion upon them by the appellant for the purpose of injuring appellee was wrongful." s. P., Graham v. St. Charles Street E. E. Co., 47 La. Ann. 314; s. a, 16 So. Eep. 806 (1895). But in Payne v. Western & Atlantic E. E. Co., 13 Lea (Tenn.), 507 (1884), such an action was held not to lie, Heywood v. Tillson, above, being followed. It was, however, in Inter- national & G. N. Ey. Co. V. Green- wood, above, held otherwise of a refusal to employ. The validity of a statute making it unlawful for an employer to prohibit an em- ployee from belonging to a labor union, was denied on constitutional grounds in State v. Julow, 139 Mo. 168; s. C, 31 S. W. Eep. 781 (1895); but to the contrary seems Davis v. State, 80 Weekly L. Bull. 343 (Ham- ilton Co., Ohio, Com. PI., 1893). 8 Century Dictionary. 26 COMBINATIONS TO EAISE WAGES; TEADES UNIONS. [§ 7. the relation having once terminated, it is not so clear that the jpremously existing relation will justify such acts done with an intent to injure. Thus, in case of a " blacklist," which has been defined as "a list of persons marked out for special avoidance, antagonism or enmity, on the part of those who prepare the list or those among whom it is in- tended to circulate," and is said to be " most usually resorted to by combined employers, who exchange lists of their em- ployees who go on strikes, with the agreement that none of them will employ the workmen whose names are on the lists." 1 The general question of the legality of blacklist- ing seems thus far an unsettled one.^ If acts of blacklisting are to be sustained on any ground, it would seem to be that they are incidents or outgrowths of " solidarity of interest" among employers, justifying acts analogous to those em- ployed by combinations of tradesmen, to protect themselves against non-paying customers.^ § 7. Legality of combinatioas to raise wages; trades unions. — On principle, it is not apparent why the legality 1 Cogley on Strikes and Lockouts, C. & St. Louis Ey. Co. v. Jenkins, p. 293. This definition was applied 70 111. App. 415 (1897). In Blumen- in Mattison v. L. S. & M. S. Ry. Co., thai v. Shaw, 39 U. S. App. 490 ; 3 Ohio Dec. 526 (Lucas Co. Com. S. C, 77 Fed. Eep. 954 (3d Cir„ 1897), PI., 1895), sustaining an action for was sustained an action against a blacklisting. But in Jenkinson v. former employer for preventing Nield, 8 Times L. R 540 (1892), the plaintifi from obtaining em- blacklisting an employee was held ployment elsewhere, and causing not actionable, it not appearing his dismissal from places where he that " the defendants were actu- had procured work. This was done ated by any other motive than self- by merely requesting that he be interest." This on the ground not employed, such requests being that such action was within the complied with in pursuance of an limits of fair competition. See understanding among a number of also, as to liability for blacklisting, such employers not to employ an Bradley v. Pierson, 148 Pa. St. 502; apprentice belonging to another. s. C, 34 AtL Rep. 65 (1892). Com- 2 See note 1, above. But in sev- pare as to duty imposed on railroad eral States it is made unlawful by company by custom to give dis- statute. See Appendix. See as charged employee a " clearance to injunction against blacklisting, card," to enable him to obtain em- § 16. ployment elsewhere, Cleveland, C, 3 gee § 9. § 7.] COMBINATIONS TO EAISE WAGES; TEADES UNIONS. 27 of combinations among employees as such, should be sub- jected to any different test from that applied to combina- tions among emplajj^ers as such, or among tradesmen as such. Combinations among those having a common interest are numerous and cover an infinite variety of purposes ; witness, churches, clubs, lodges and other organizations for religious, social and business purposes. As a rule, the legality of such combinations, when unincorporated, is conceded on common- law principles, and at present much encouragement is fur- nished by statutes for their formation as corporations. But as to combinations among wageworkers, particularly for the purpose of obtaining an increase of wages, there has been sometimes announced the anomalous doctrine that such com- binations, are illegal as criminal conspiracies. The origin of this supposed doctrine appears on a consideration of the social conditions that had prevailed in England for centuries, produc- ing a series of statutes dating as far back as the fourteenth cen- tury, operating most oppressively upon the laboring classes.^ iThe doctrine has been thought corporation or partnership. The to find support in such decisions real motive for the decision was as KJng V. Journeymen Tailors of the fear that, by an application of Cambridge, 8 Modern, 10 (1721); the homely maxim that "what is King V. Mawbey, 6 T. E. 619, 636 sauce for the goose is sauce for the (1796). The sentiment among the gander," a decision sustaining the ruling classes who until recently legality of the agreement would controlled the courts as well as have been by analogy used to sus- Parliament, is strikingly reflected tain the legality of combinations in that remarkable and much mis- among workmen. Thus, it was said understood decision, Hilton v. Eck- byAlderson, J.,onappeal(p.76): "If ersley, 6 El. & Bl. 47 (1855), where a bond of this sort between masters a combination among a number of is capable of being enforced at law, mill owners, designed to secure an agreement to the same effect unity of management, was held amongst workmen must be equally illegal, though the element of legal and enforceable; and so we tendency to suppress competition shall be giving a legal efiEect to did not enter into the case. It combinations of workmen for the seems difficult to sustain the de- purposeof raising wages, and maM.e cision on any accepted principle their strikes capable of being en- of law, as the objections urged forced at law." And so the agree- against the combination seem ment was held unlawful, even on equally applicable to an ordinary the supposition that the object. 28 COMBINATIONS TO EAISE WAGES; TEADBS imiONS. [§ 7, But this doctrine never gained foothold in this country^ where it has been generally repudiated, and it may be re- garded as established here, as a common-law principle, that a combination among wageworkers for the purpose of ob- taining an increase of wages or for any other lawful purpose is entirely lawful,^ the only question of legality being as to viz., to protect against combina- tions of workmen, was lawful. As a logical result, this decision was followed in Hornby v. Close, 2 L. R. Q. B. 153 (1867), holding such com- binations of workmen to be illegal. But the advance in public opinion is shown by the decision of the same court two years later, its con- stitution having been changed in the meantime, the court being now equally divided on the question of the legality of such combinations. Farrer v. Close, 4 L. R. Q. B. 603 (1869). But as a result of recent elaborate investigation, it must be considered as settled that the doc- trine that a combination among workmen for the purpose of ob- taining an increase of wages, never existed in England, independently of statute. See Wright on Crimi- nal Conspiracies and Agreements, p. 44; Stephen's History of the Criminal Law of England, voL 3, pp. 203-327; Master Stevedores' Assoc. V. Walsh, 2 Daly, 1 (1867), Moreover, in England the question is at rest since the enactment in 1875 of the " Conspiracy and Pro- tection of Property Act," providing that "an agreement or combina- tion by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen, shall not be indict- able as a conspiracy if such act committed by one person would not be punishable as a crime." See English statutes and decisions re- viewed in an article by Clifford Brigham in 31 Am. Law Rev. 41 (1887). 1 Following King v. Journeymen Tailors of Cambridge, 8 Modern, 10 (1721); King v. Mawbey, 6 T. R. 619, 636 (1796), such a combination was held illegal in People v. Fisher, 14 Wend. (N. Y.) 1 (1885). which was, however, decided under the New York statute making it a misde- meanor to conspire to " commit any act injurious to trade or commerce." But People v. Fisher is not law in New York since the enactment of Penal Code, § 170. Johnston Har- vester Co. V. Meinhardt, 60 How.Pr. (N. Y.) 168 (Supm. Ct., Sp. T., 1880). See observations upon People v. Fisher in Commonwealth v. Hunt, 4 Mete. (Mass.) Ill, 135 (1842); Master Stevedores' Assoc, v. Walsh, 2 Daly, 1, 4 (1867). But the American au- thorities generally are to the effect as stated in the text. Thus, Mas- ter Stevedores' Assoc, v. Walsh, above, where the authorities are very critically examined, in a de- cision sustaining a by-law of an as- sociation of master stevedores pro- viding for fixing prices for which members should work. Here the question was simply between the 7.] COMBINATIONS TO EAISE WAGES; TRADES UNIONS. 29 the means employed. To such a combination may be ap- plied the genei-al term trade union, which has been defined as " a combination of workmen of the same trade or of sev- eral allied trades for the purpose of securing, by united action, the most favorable conditions as regards wages, hours of labor, etc., for its members." ^ As in the case of an indi- association and its members, in an action to enforce a penalty for violating the by-law. In view of the recent agitation against con- tracts in restraint upon competi- tion, it seems almost strange that the court did not consider the case from the standpoint from which a court would nowadays certainly -consider it, namely, whether the by-law was not void as tending to destroy competition. Other author- ities holding or declaring that com- binations to raise wages are not illegal are Moores v. Bricklayers' Union, 7 Ey. & Corp. L. J. 108 (Super. Ct. Cinn., 1889); Queen Ins. Co. V. State, 86 Tex. 350, 272; s. c, 34 S. W. Rep. 397 (1893); Longshore Printing Co. v. How- ell, 26 Oreg. 537; S. C, 38 Pac. Rep. 547 (1894; sustaining a by-law limiting the number of appren- tices to be employed in a news- paper oflBoe); Thomas v. Cincin- nati, N. O. & T. P. Ry. Co., 62 Fed. Rep. 803, 817 (Cir. Ct. Ohio, 1894); United States v. Cassidy, 67 Id. 698, 711 (D. Ct. Cal., 1895); Clem- mitt V. Watson, 14 Ind. App. 38; a C, 48 K. E. Rep. 367 (1895); Snow -V. Wheeler, 113 Mass. 179 (1873; sustaining association of workmen formed to protect themselves from " encroachments " from their em- ployers, and agreeing not to teach others their trade without the per- mission of the association). See also Commonwealth v. Carlisle, Brightly (Pa.), 36 (1821). In some States the validity of such combina- tions has, as in England (see above), been expressly declared by statute. See Appendix. See as to effect of Pennsylvania statutes. Common- wealth V. Sheriff, 15 Phila. 393 (1881). See also Cote v. Murphy, 159 Pa. St. 420; s, c, 28 Atl. Rep. 190 (1894; see as to whether such statutes are unconstitutional as class legislation). See, as to New York Penal Code, § 170, Johnston Harvester Co. v. Meinhardt, 60 How. Pr. (N. Y.) 168 (Supm. Ct., Sp. T., 1880; refusing injunction against a combination to entice from employment); People ex rel. Gill v. Smith, 5 N. Y. Crim. R. 509 (N. Y. Co. Oyer & Terminer, 1887; held not to legalize combination to compel discharge of employee, no question as to the rate of wages being involved); People v. Baron- dess, 133 N. Y. 649; s. C, 31 N. E. Rep. 340 (1893; dissenting opinion of Gray, J., in 45 N. Y. State Rep. 248), reversing 61 Hun, 571, 581; s. C, 16 N. Y. Suppl. 436 (1891); Curran v. Galen, 152 N. Y. 33; s. C, 46 N. E. Rep. 297 (1897); People v. Wilzig, 4 N. Y. Grim. R. 403 (N. Y. Co. Oyer & Terminer, 1886); People V. Kostka, Id. 429 (N. Y. Co. Oyer & Terminer, 1886); Rogers v. Evarts, 17 N. Y. Suppl. 364 (Supm. Ct., Sp. T., 1891). 1 Century Dictionary. The incor- poration of trades unions is some- 30 COMBINATIONS TO EAISE WAGES; TEADES UNIONS. [§ 7. vidual employee, to such a combination of employees is doubtless applicable the general doctrine already stated. As applied, it is that the exisienoe of the relation of employee justifies acts hy a cmribination of employees that are the nat- ural incident or outgrowth of such relation, whether or not done with direct intent to injure. It seems clear that the same general limitations apply to this relation as to the relation of trade competitor, excluding acts of fraud and violence as means of attaining the purposes of the union. But the application of this doctrine to special classes of cases, such as strikes and boycotts, will be hereafter consid- ered. Thus, as to methods adopted for the purpose of in- creasing or retaining membership or enforcing regulations of the union.' We exclude here from consideration, as only times provided for by statute. As to Maryland statute see Luoke v. Clothing Cutters', etc. Assembly, 77 Md. 396; s. c, 26 Atl. Eep. 505 (1893); as to act of congress (24 U. S. Stat, at Large) authorizing incorpora- tion of national trades unions, Ar- thur V. Gates, 24 TJ. S. App. 239, 262; S. c, 63 Fed. Rep. 310, 324 (7th Cir., 1894). iCurran v. Galen, 152 N. Y. 33; s. a, 46 N. E. Eep. 297 (1897). Here the court say: "The social prin- ciple which justifies such organ- izations is departed from when they are so extended In their op- eration as either to intend or to accomplish injury to others. Pub- lic policy and the interests of so- ciety favor the utmost freedom in the citizen to pursue his lawful trade or calling, and if the purpose of an organization or combination of workingmen be to hamper or to restrict that freedom, and, through contracts or arrangements with employers, to coerce other work- ingmen to become members of the organization, and to come under its rules and conditions, under the penalty of the loss of their position and of deprivation of employment, then that purpose seems clearly unlawful and militates against the spirit of our government and the nature of our institutions." The court approve of the following lan- guage used in Queen v. Rowlands, 17 Q. B. 671, 686 (1851), with reference to combinations of workingmen: " A combination for the purpose of injuring another is a combination of a different nature, directed per- sonally against the party to be in- jured; and the law allowing them to combine for the purpose of ob- taining a lawful benefit to them- selves, gives no sanction to combi- nations which have for their imme- diate purpose the hurt of another." In accordance with the view we have already advanced, we consider this statement open to criticism as making the " purpose " or intent § 8.] COMBINATIONS TO QUIT EMPLOYMENT; STRIKES. 31 tending to confuse our present discussion, an element that has to but a slight extent figured in the controversy, namely, the tendency of such combinations to destroy competition. This we shall consider hereafter in connection with combi- nations to increase prices.^ § 8. Legality of combinations to quit employment; strikes. — The right of a single individual, apart from con- tractual relations,^ to quit his employment, that is, to dis- continue working for a particular employer, seems never to have been seriously questioned.' The idea has been advanced the test of liability, instead of whether the act was the natural incident or outgrowth of the rela- tion in which the party stood. The force of this criticism will be more apparent upon a consideration of the facts of the case. See discus- sion thereof, § 15. In Longshore Printing Co. v. Howell, 36 Oreg. 527, 540; s. C, 38 Pac. Rep. 547 (1894), are thus stated the limita- tions upon the activities of such organizations : " These associations must depend for their membership upon the free and untrammeled choice of each individual member. No resort can be had to compulsory methods of any kind, either to in- crease, keep up or retain such mem- bership. Nor is it permissible for associations of this kind to enforce the observance of their laws, rules and regulations through violence, threats or intimidation, or to em- ploy any methods that would in- duce intimidation or deprive per- sons of perfect freedom of action. Such organizations may be pre- served and their membership aug- mented by reasoning and fair arguments, and even by persuasion and entreaty, and an observance of their adopted constitutions and by-laws may be exacted through the same peaceful means, but be- yond this it is not advisable, from a legal standpoint, to venture." See also United States v. Cassidy, 67 Fed. Rep. 698, 711 (D. Ct. Oal., 1895). J See §27. 2 See Commonwealth v. Hunt, 4 Mete. (Mass.) Ill, 130 (1843). In Arthur v. Cakes, 24 U. S. App. 339, 353; s. c, 63 Fed. Rep. 310, 317 (7th Cir., 1894), it is intimated that, in case of a breach by an employee of his contract of employment, he might be liable, "in some states of case, to criminal prosecution for loss of life or limb by passengers or others, directly resulting from his abandoning his post at a time when care and watchfulness were required upon his part in the dis- charge of a duty he had under- taken to perform." Such liability has, indeed, in some cases been de- clared by statute. See Appendix. 3 See Barr v. Essex Trades Coun- cil, 53 N. J. Eq. 101, 114; s. C, 30 Atl. Rep. 881 (1894); Clemmitt v. Watson, 14Ind. App. 38; S. C, 43 N. E. Rep. 367 (1895). 52 COMBINATIONS TO QUIT EMPLOYMENT; STEIKES. [§8. that the nature of the employment may create an implied agreement not to quit, at least, without reasonable notice,^ but this exception to the general doctrine remains to become generally established. It has been seriously questioned whether this right to quit one's employment equally exists in case of a combination to so quit employment or discon- tinue working. In other words, the question is whether st7'ikes are legal, for we define a sbriTce as a simultomeous quitting of employment hy a nuTnier of employees in pursii- ance of agreement? Apart from the lurking idea already 'This doctrine was applied in Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 746, 753 (Cir. Ct. Ohio, 1893), where it was said of railroad employees (in this particular case, a locomotive engineer), after referring to their presumed knowledge of the duty of their employers, both under the Interstate Commerce Law and an order of the court, to receive and haul interstate freight: "An im- plied obligation was therefore assumed by the employees, upon accepting service under such con- ditions, that they would perform their duties in such manner as to enable it not only to discharge its obligations faithfully, but also to protect it against irreparable losses and injuries and excessive damages by any acts of omission on their part. One of these implied conditions on their behalf was that they would not leave its service or refuse to perform their duties under circumstances when such neglect on their part would im- peril lives committed to their care, or the destruction of property in- volving irreparable loss and in- jury, or visit upon it severe penal- ties. In ordinary conditions, as between employer and employee, the privilege of the latter to quit the former's service at his option cannot be prevented by restraint or force. The remedy for breach of contract may follow to the em- ployer, but the employee has it in his power to arbitrarily terminate the relations and abide the conse- quences. But these relative rights and powers may become quite dif- ferent in the case of the employees of a great public corporation charged by the law with certain great trusts and duties to the pub- lic." See, as to violation of in- junction, § 16. See also Arthur v. Oakes, 24 XJ. S. App. 239, 354; s. C, 63 Fed. Rep. 810,318 (7th Cir., 1894). 2 The following definitions of a strike have been given: "A con- certed or general quitting of work by a body of men or women for the purpose of coercing their em- ployer in some way, as when higher wages or shorter hours are de- manded, or a reduction of wages is resisted; a general refusal to work as a coercive measure." Century Dictionary. " The act of combining and demanding higher wages for ■§ 8.] COMBINATIONS TO QUIT EMPLOYMENT; STRIKES. 33 -considered,' that an act entirely'lawful if done by a single individual may be unlawful by reason of being done in pur- work; cessation from labor or neg- lect of duty in a spirit of mutiny or revolt." Webster. " A cessation from work, as of workmen, in order to extort higher wages; — arevolt; a mutiny." Worcester. "A com- bination among laborers, those em- ployed by others, to compel an in- crease of wages, a change in the hours of labor, some change in the mode and manner of conducting the business of the principal, or to enforce some particular policy in the character or number of the men employed, or the like." Dela- ware, L. & W. R. E. Co. V. Bowns, ■58 N. Y. 573, 582 (1874). (This defini- tion was substantially adopted in Anderson's Law Dictionary.) "The act of a body of workmen employed by the same master, in stopping work all together at a pre-arranged time, and refusing to continue until higher wages or shorter time, or some other concession, is granted to them by the employer." Black's Law Dictionary. We consider all "these definitions open to criticism, as including intent in the concep- tion of a strike. More nearlyresem- bling the definition given in the text is that of Kay, J., in Lyons v. Wilkins, 1 L. R. Ch. (1896), 811, 839, ■"an agreement between persons who are working for a particular employer not to continue working for him." In Farrer v. Close, 4 L. R. q. B. 603, 612 (1869), the defini- tion given by Hannen, J., is "a si- multaneous cessation of work on the part of the workmen." The notion e^cpressed in Farmers' Loan 3 & Trust Co. V. Northern Pacific R. R. Co., 60 Fed. Rep. 803, 819 (Cir. Ct. Wis., 1894), that compulsion and force are essential elements of the definition of a strike, deserves se- vere condemnation. See modifica- tion of this decision in Arthur v. Cakes, 34 U. S. App. 339, 267; S. 0., 63 Fed. Rep. 310, 337 (7th Cir., 1894), holding that an order in broad terms restraining striken by em- ployees of a railroad operated by re- ceivers should be limited to " those designed to physically cripple the trust property, or to actually ob- struct the receivers in the opera- tion of the road, or to interfere with their employees who do not wish to quit, or to prevent by intimidation or other wrongful modes, or by any device, the em- ployment of others to take the places of those quitting, and not such as were the result of the ex- ercise by employees, in peaceable ways, of rights clearly belonging to them, and which were not designed to embarrass or injure others, or to interfere with the actual posses- , sion and management of the prop- erty by the receivers." See, on the general subject, article in 37 Am. Law Rev. 708 (1893), by U. M. Rose, on "Strikes and Trusts;" in 17 Crim. Law Mag. 1 (1895), by J. Z. Erwin, on "Are Strikes Prevent- able by Judicial Action? " As to effect of strike in excusing failure of a carrier to deliver, see text- books on the general subject of carriers. iSee§4. 34 COMBINATIONS TO QUIT EMPLOYMENT; STEIKES. [§S- suance of a combination of individuals to do the same act^ it is diflBcult, on principle, to discover any illegality in a strike, as we have just defined it, and this is the view that has been generally adopted in this country .^ In England, 1 Commonwealth v. Hunt, 4 Mete. (Mass.) Ill, 130 (1843); Carew v. Rutherford, 106 Mass. 1, 14 (1870); Barr v. Essex Trades Council, 53 N. J. Eq. 101, 114; s. C, 30 Atl. Rep. 881 (1894); Longshore Printing Co. V. Howell, 26 Oreg. 537, 543; s. G, 38 Pac. Rep. 547 (1894); Clemmitt V. Watson, 14 Ind. App. 38; S. C, 43 N. E. Rep. 367 (1895); Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 737 (Cir. Ct Ohio, 1893); Arthur v. Oakes, 24 U. S. App. 339, 353; S. C, 63 Fed. Rep. 310, 318 (7th Cir., 1894), modi- fying Farmers' Loan & Trust Co. V. Northern Pacific R. R. Co., 60 Fed. Rep. 803 (Cir. Ct. Wis., 1894); United States v. Elliott, 64 Fed. Rep. 27, 33 (Cir. Ct. Mo., 1894); Hopkins v. Oxiey Stave Co., 49 U. S. App. 709, 717; s. C, 83 Fed. Rep. 912, 917 (8th Cir., 1897). Alone to the contrary among recent decis- ions seems Mapstrick v. Ramge, 9 Neb. 390; s. C, 3 N. W. Rep. 739 (1879), but it is clear that the court did not consider the point. See § 4 In Arthur v. Oakes this doctrine was declared with great emphasis. There an injunction against em- ployees of the receiver of a railroad restraining them from "so quit- ting the service of the said receiv- ers, with or without notice, as to cripple the property, or to prevent or hinder the operation of said railroad," was refused, on the gen- eral ground that a court of equity •will not by injunction prevent one individual from quitting the per- sonal service of another. And this was held applicable though the employees were those of a railroad. The court say: " Undoubtedly the simultaneous cessation of work by any considerable number of the em- ployees of a railroad corporation, without previous notice, will have- an injurious effect, and for a time inconvenience the public. Butthese- evils, great asthey are, and although arising in many cases from the in- considerate conduct of employees and employers, both equally indif- ferent to the general welfare, are to be met and remedied by legisla- tion restraining alike employees^ and employers, so far as necessary adequately to guard the rights of the public as involved in the exist- ence, maintenance and safe man- agement of public highways. In the absence of legislation to the contrary, the right of one in the service of a quasi-public corpora- tion to withdraw therefrom at such time as he sees fit, and the right of the managers of such a corporation to discharge an em- ployee from service whenever they see fit, must be deemed so far ab- solute that no court of equity will compel him against his will to re- main in such service, or actually to perform the personal acts re- quired in such employments, or compel such managers against their will to keep a particular em- ployee in their service." Nor ia § 8.] OOMBINATIONS TO QTHT EMPLOYMENT; STRIKES. 35 however, as a logical application of the doctrine there an- nounced, that combinations among workmen are illegal as criminal conspiracies, the result was judicially reached that strikes are illegal,^ though perhaps without a very clear idea of the distinction between strikes that are, and those that are not, accompanied with unlawful methods. It will be noted that the conception of a strike, that is, a mere quitting of employment, in no sense covers acts performed by the em- ployees after they ha/oe quitted the em/ployment} Nor, in the view that we have taken, does it in any sense involve the intent with which they quit the employment. It is obvious the right affected by Re Debs, 158 U. S. 564, 598; S. c, 15 Supm. Ct. Eep. 900 (1895), notwithstanding what may have been said in the decision in 64 Fed. Rep. 724, 763 (Cir. Ct. III., 1894), here affirmed. See previous decision in 63 Fed. Rep. 486 (Cir. Ct. 111., 1894). This decision {i. e., in 158 U. S. 564) has only an indirect bearing upon the subject of labor combinations. The relief granted was simply against interference with inter- state commerce, and it is expressly stated that the object of the bill was not "to restrain the defendants from abandoning whatever em- ployment they were engaged in; " that " the right of any laborer or any number of laborers to quit work was not challenged." See as to effect of Federal Anti-trust Law, § 31. This overrules what was said in Waterhouse v. Comer, 55 Fed. Rep. 149, 157 (Cir. Ct. Ga., 1893), that in view of the Interstate Com- merce Act and United States Re- vised Statutes, section 5440, "a strike or 'boycott,' as it is popularly called, if it was ever effective, can be so no longer." See also Farm- ers' Loan & Trust Co. v. Northern Pacific R. R Co., 60 Fed. Rep. 803, 833 (Cir. Ct. Wis., 1894). The right to strike has in some cases been ex- pressly declared by statute. See Appendix. It scarcely needs add- ing that the announcement to the employer of the intention to quit is lawful. See Longshore Printing Co. V. Howell, 26 Greg. 537, 543; S. C, 38 Pac. Rep. 547 (1894). 1 Hornby v. Close, 3 L. R. Q. B. 153 (1867). See § 7, p. 38. But since the enactment in 1875 of the " Con- spiracy and Protection of Prop- erty Act" (see also § 14) strikes have been regarded as legal in England. See Gibson v. Lawson, 3 L. R. Q. B. (1891), 557; Tem- perton v. Russell, 1 L. R. Q. B. (1893), 715; Lyons v. Wilkins, 1 L. R. Ch. (1896), 811, 829. In Per- rault V. Gauthier, 28 Canada Supm. Ct. 341 (1898), it was held that no action would lie for a strike insti- tuted by the fellow-employees of the plaintiff because of his mem- bership in a rival organization, which resulted in his quitting em- ployment to avoid causing loss to his employers. 2See§14. 36 COMBINATIONS TO QUIT EMPLOYMENT; STRIKES. [§8. that the motives for so quitting may be various. There may be physical infirmity producing incapacity, the pros- pect of higher wages or more congenial surroundings in an- other place or line of employment, and so on. In such oases there is not necessarily involved any intent to inflict injury upon another person, save as an intent may be inferred to produce injury to the employer, by the inconvenience pro- duced by the withdrawal of an employee or a number of employees. And in such cases there is ordinarily involved no question of the legality of the quitting. But a combina- tion to quit employment very often involves a definite in- tent to inflict injury. Applying, however, what has already been said, we may say here that (apart from the existence of contractual liability) the existence of the relation of employee justifies, as a natural incident or outgrowth of such relation, the quitting of erwployment, whether si/ngly or in a conibina- tion, and whether or not with the intent to injure the employer {or any other person)} This statement of the doctrine covers what have been termed sympathetic strikes, the only dififer- 1 Thus, where the intent is to in- flict injury upon the employer to induce him to grant concessions, or in turn to injure a fellow-em- ployee by refusing to continue to deal with him, that is to discharge him. So where the intent was to enforce a rule as to the number of apprentices to be employed by the employer. Longshore Printing Co. V. Howell, 26 Oreg. 527; s. c, 38 Pac. Rep. 547 (1894). See § 10. In Arthur v. Oakes, 24 U. S. App. 289, 255; s. C, 63 Fed. Rep. 310, 319 (7th Cir., 1894), it is said: "The fact that employees of railroads may quit under circumstances that would show bad faith upon their part, or a reckless disregard of their contract or of the con- venience and interests of both employer and the public, does not justify a departure from the gen- eral rule that equity will not com- pel the actual aflSrmative perform ance of merely personal services, or (which is the same thing) re- quire employees, against their will, to remain in the personal service of their employer." But in To- ledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730 (Cir. Ct. Ohio, 1893), an injunction was granted against the chief ex- ecutive of an association of rail- road employees (the Brotherhood of Locomotive Engineers) to re- strain him from enforcing any rule requiring the employees of certain companies to refuse to handle and deliver freight trans- ported by or to a certain company. § 8.] COMBINATIONS TO QUIT EMPLOYMENT; STEIKES. 37 ence between these and ordinary strikes being that, in case of the former, the object is not necessarily to influence the action of the employer of the striking employees, but that of some other employer with some purpose of whose em- ployees the striking employees are in sympathy ; as, for in- stance, where strikes are inaugurated on a number of lines of railroad for the purpose of influencing the proprietors of only one of these lines to grant an increase of wages. and from inducing them to refuse to extend to such company facili- ties for exchange of traflSc. This was simply the case of the refusal of employees to do their work. It does not appear that they were under contract. But the court sought to justify the injunction on the ground that the intent of the employees was to induce their respective companies to refuse to deal with such other company, with the ultimate purpose of inducing the latter to discharge certain em- ployees (engineers not members of the Brotherhood). We have else- where fully considered the pro- priety of considering intent, in determining whether a right of action arises from an action pro- ducing injury. See § 2. In the case cited, the doctrine that it is to be considered was very broadly applied. The court say in reply to the claim that an employee has the right to quit his employment, apart from contractual liability (p. 737): " Generally speaking, this is true, but not absolutely. If he uses the benefit which his labor is or will be to another by threatening to withhold it or agreeing to bestow it, or by actually withholding it or bestowing it, for the purpose of inducing, procuring or compelling that other to commit an unlaw- ful or criminal act, the withhold- ing or bestowing of his labor for such a purpose is itself an unlaw- ful and criminal act." The de- cision was based not solely on the ordinary rules applicable to boy- cotts, but on the additional ground that the refusal to handle freight (being interstate freight) was in direct violation of the Interstate Commerce Law; hence the refer- ence to inducing another " to com- mit an unlawful or criminal act." We elsewhere consider the legal- ity of the acts intended, as distinct from the mere act of refusing to work. See § 13. So in Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 63 Fed. Eep. 803, 818 (Cir. Ct. Ohio, 1894; for facts see § 13), it was said of a boycott: "All the em- ployees had the right to quit their employment, but they had no right to combine to quit in order thereby to compel their employer to with- draw from a mutually profitable relation with a third person for the purpose of injuring that third person, when the relation thua sought to be broken had no effect whatever on the character or re- ward of their service." 38 EEFUSAL TO DEAL; BOYCOTTS. [§9. § 9. Liability for inducing refusal to deal ; boycotts.— No authority is needed to sustain the proposition that there is nothing inherently or necessarily illegal, either in refusing to deal or continue to deal, or in inducing a person to refuse to deal or continue to deal, with another. Thus there can, es- pecially in case of response to a request for advice, be nothing inherently or necessarily illegal in inducing a person not to patronize this or that doctor or grocer. Such inducement or advice is a part of the very web and woof of ordinary neighborly and social intercourse.^ In a sense, injury is done by such act of inducement, in causing a loss of patron- age. It seems at least doubtful, on principle, whether such injury is not too remote and contingent for the law to take into consideration.^ But supposing such injury to be done, 1 See observations of Lords Her- sohell and James, in Allen v. Flood, L. R. App. Cas. (1898), 1, 126, 179. In Ulery v. Chicago Live-stock Exchange, 54 III App. 233 (1894), the action of a live-stock exchange in requesting its members not "to employ the plaintiff in the live- stock commission business, or to transact any business with him at the Union Stock Yards," was held not unlawful, the court saying: "A person, with or without rea- son, may refuse to trade with an- other; so may ten or fifty persons refuse. An individual may advise his neighbor or friend not to trade with another neighbor; he may even command, when the com- mand amounts only to earnest ad- vice." It would seem scarcely necessary to argue that there is nothing inherently unlawful in merely refusing to deal with a per- son; but see People v. Duke, 19 Misc. (N. T.) 292, 298 (N. Y. Co. ■General Sessions, 1897). In Wood- ward V. Boston, 32 Am. Law Rev. 624 (Super. Ct. Mass., 1898), the dis- continuance by the mayor of a city of work under a public contract was held not justified on the ground of non-compliance with a provision in the contract that the contractors should give preference in employment to "members of the several trades unions." Such provision was held void, as an unlawful discrimination between workmen. But if the contractors had the right to refuse to deal with, i. e., refuse to employ, non-union workmen, why could they not bind themselves to so refuse to deal? - See § 13 ; Hughes v. McDonough, 43 N. J. Law, 459 (1881). In Mo- Donald V. Edwards, 20 Misc. 523; S. C, 46 N. Y. SuppL 672 (Supm. Ct, Sp. T., 1897), where the alleged in- jury consisted in making state- ments to a guaranty company by reason of which it refused to give a bond for the plaintiff's good con- §9-] EEFUSAL TO DEAL! BOYCOTTS. 39 and intentionally done, we may (ignoring the existence of the intent) still apply the test already stated, namely, whether the act was the natural incident or outgrowth of some existing lawful relation. We might perhaps content our- selves with asserting the general relation as a member of society, justifying such act as a natural incident or out- growth of ordinary neighborly or social intercourse.' But this general relation is commonly reinforced by a more spe- cial relation,^ like that of trade competitor or employer or duct to a party with whom the plaintiff was negotiating for em- ployment, whereupon such party refused to employ the plaintiff, no action was held to lie, the act com- plained of not being the proximate cause of the injury. The court say: "Between the wrong of the defendant and the damage to the plaintiff, the voluntary act of a third party intervened; and that act was the proximate cause of plaintiff's loss of employment." Moreover, the defendant did not volunteer his opinion of the plaint- iff to the company, which had been referred to the defendant by the plaintiff to furnish information as to his habits and character. 1 This view seems fully sustained by Boyson v. Thorn, 98 Cal. 578; S. c, 33 Pac. Eep. i93 (1893), (see § 13), which, although a case of induce- ment to break a contract, seems a fortiori applicable to the case of inducement not to deal. It must be admitted, however, that the au- thorities generally have not as yet gone to that extent. Thus, it was iroadly stated by Lopes, J., in Temperton v. Russell, 1 L. R. Q. B. <1893), 715, 731: "The result of the authorities appears to me to be that a combination by two or more per- sons to induce, others not to deal with a particular individual, or enter into contracts with him, if done with the intention of injur- ing him, is an actionable wrong, if damage results to him therefrom." In harmony with this view is Delz V. Winfree, 80 Tex. 400; S. C, 16 S. W. Rep. Ill (1891), holding it actionable for a combination of cattle dealers to induce others not to sell to a butcher, it appearing that their interference with his business was not to serve any legiti- mate purpose of their own, but was wanton and malicious, causing pe- cuniary loss to him, as they in- tended. Here the relation of the defendants does not appear; but compare subsequent decision. (See note 3, below.) 2 Thus, the interest common to a body of tradesmen to protect them- selves against dishonest debtors. On this ground have been sustained agreements among the members of such a body not to deal with a person indebted to any one of their number. Delz v. Winfree, 6 Tex. Civ. App, 11; s. C, 25 S. W. Rep. 50 (1894; see former decision, note 1, above); Brewster v. Miller, — Ky. — s. C, 41 S. W. Eep. 301 (1897). To similar effect, Schulten v. Ba- 40 EEFUSAL TO DEAL; BOYCOTTS. [§9- employee. The question of legality has more commonly arisen in case of the acts of combinations of individuals than of mere individuals.^ But as, according to authorities already considered,^ the act is not made illegal by the intent to injure, so according to others^ it is not made illegal by varian Brewing Co., 96 Ky. 334; s. C, 38 S. W. Rep. 504 (1894). In the case last cited, however, it was intimated that, if the plaintiff had not been intlebted, the action of the combination would have been un- lawful. But in Park v. National Wholesale Druggists' Assoc, 50 N. Y. Suppl. 1064 (Supm. Ct., Sp. T., 1896), an injunction was allowed against a combination of wholesale druggists and manufacturers of proprietary medicines, to prevent a customer of one from obtaining goods from the rest, because of vio- lation by such customer of an agree- ment as to prices of goods to be sold by the latter. Compare further decision in 30 N. Y. App. Div. 508; s. C, 53 N. Y. Suppl. 475 (1898); also Park V. Hubbard, 30 N. Y. App. Div. 517; s. C, 53 N. Y. Suppl. 481 (1898). Somewhat analogous is the case of the interest common to a body of employers in a contest with em- ployees. Thus, in Cote v. Murphy, 159 Pa. St. 430, 430 ; S. a, 38 Atl. Rep. 190 (1894), an action by a dealer in building materials was held not to lie against an association of per- sons engaged in the business of contracting and building, for in- ducing dealers in building materi- als not to sell to the plaintiff. The ground of this action of the asso- ciation was that the plaintiff had conceded the demands of work- men engaged in a general strike in the building trades. The courts considering it necessary to show the legality of the relation, after drawing a distinction between the rate of wages as fixed by the law of supply and demand in the ab- sence of combination, and the rate as fixed by a combination of work- men, justified the defendants' acts on the ground thus stated: "The combination of the employers was- not to interfere with the price of labor as determined by the com- mon-law theory, but to defend themselves against a demand made altogether regardless of the price as regulated by the supply." To similar effect is Buchanan v. Kerr, 159 Pa. St. 433; s. C, 38 AtL Rep. 195 (1894). 1 Though, as is well said by E. P. Cheyney, in 4 Pol. Sci. Quart 374 (1889), "a boycott might be initiated as well by a single person as by a combination." 2 See § 3. In Hopkins v. Oxley Stave Co., 49 U. S. App 709, 733; s. C, 83 Fed. Rep. 913, 931 (8th Cir., 1897. See § 15), a case of a threat- ened boycott by employees, the court called attention to the fact that one object was "to deprive the public at large of the benefits to be derived from a labor-saving machine, which seems to have beea one of great utility," sSee§4 §9.] REFUSAL TO DEAL: BOYCOTTS. 41 reason of being the act of a combination of individuals.^ "We have now reached the conception of a hoycott, which we may define as the act of a combination of persons in refusiny to deal or in inducing others not to deal with a third person? As in case of the definition of a strike,' we exclude from the 1 Even in Toledo, Ann Arbor, etc. Ey. Co. V. Pennsylvania Co., 54 Fed. Eep. 730 (Cir. Ct. Ohio, 1893), a con- spicuous illustration of the appli- cation of the doctrine that an act entirely lawful, if done by a single individual, may be unlawful by rea- son of being done in pursuance of a combination of individuals to do the same thing (see § 4), it seems to be held that there is nothing unlaw- ful in the mere combination, apart from the question of intent. Thus, it is said (p. 738): "Ordinarily, when such a combination of persons does not use violence, actual or threat- ened, to accomplish their purpose, it is difficult to point out with clearness the illegal means or end which makes the combination an unlawful conspiracy; for it is gen- erally lawful for the combiners tC withdraw their intercourse and its benefits from any person, and to announce their intention of doing so, and it is equally lawful for the others, of their own motion, to do that which the combiners seek to compel them to do. Such combi- nations are said to be unlawful conspiracies, though the acts in themselves and considered singly are innocent, when the acts are done with malice; i. e., ivith the intention to injure another without lawful excuse." This language was ap- plied in Barr v. Essex Trades Coun- cil, 58 N. J. Eq. 101, IIR; S. C, 30 Atl. Rep, 881 (1894). Another con- spicuous illustration of the doc- trine allowing effect to combina- tion as an element (both decisions being by the same judge) is Thomas- V. Cincinnati, N. O. & T. P. Ry. Co., 63 Fed. Rep. 803, 831 (Cir. Ct. Ohio, 1894), where a boycott of the Pull- man Palace Car Company by rail- road employees was declared ille- gal, not merely under the general law of boycotts, but on account of the gigantic character of a combi- nation relating to what was " neces- sary to life and health and comfort of the people of this country," the court saying (p. 807) : "As the lodges of the American Railway Union ex- tended from the Allegheny Moun- tains to the Pacific coast, it will be- seen that it was contemplated by those engaged in carrying out this plan that, in case of a refusal of the railway companies to join the union in its attack upon the Pull- man Company, there should be a paralysis of all railway traffic of every kind throughout that vast territory traversed by lines using Pullman cars." 2 The word " boycott " is of very recent origin, dating back only to about 1880. Century Dictionary. For an account of its origin, see Mr. Justin McCarthy's "England under Gladstone," and quotation therefrom in State v. Glidden, 55 Conn. 46, 76; S. C, 8 AtL Rep. 890' 3 See §8. 42 EEFUSAL TO DEAL; BOYCOTTS. [§9. defiaition the idea of intent to injure; so too the idea of coercion, though the view has been sometimes expressed <1887). In Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. .108 (Super. Ct. Cinn., 1889), reference is made to the oldest recorded case of boycotting as occurring in 1221, citing "vol. 1 of the publication of the Selden Society, p. 115, case 178, Pleas of the Crown." In Con- solidated Steel & Wire Co. v. Mur- ray, 80 Fed. Eep. 811, 819 (Cir. Ct. Ohio, 1897), State v. Glidden is said to be the first American case in -which the word is used. See,inBarr V. Essex Trades Council, 53 N. J. Eq. 101, 128; s. C, 30 Atl. Rep. 881 (1894), reference to article in 19 Irish Law Times, 572, suggesting that the method had its inspiration in the proceedings of excommunication practiced in ecclesiastical tribu- nals. The following are definitions of "boycott" (or "boycotting"): "To -combine in refusing to work for, buy from, sell to, give assistance to, or have any kind of dealings with, and in preventing others from working for, buying from, selling to, assist- ing or having any kind of dealings with (a person or company), on ac-) count of political or other differ-! ences, or of disagreements in busi^ ness matters, as a means of inflict-' ing punishment, or of coercing or intimidating." Century Diction- ary. "A combination between persons to suspend or discontinue dealings or patronage with another person or persons because of refusal to comply with a request made of him or them." Anderson's Law Dictionary. "A conspiracy formed and intended, directly or indi- rectly, to prevent the carrying on of any lawful business, or to in- jure the business of any one, by wrongfully preventing those who would be customers, from buying anything from or employing the representatives of said business, by threats, intimidation or other forcible means." Black's Law Dic- tionary. "The withdrawal for a certain purpose of the patronage of the person or persons initiating it, and of as many others as he or they can induce to join them." E. P. Cheyney in 4 Pol. Sci. Quart. 274 (1889). In Moores v. Bricklay- ers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn., 1889), it is said: " The essential feature of (boycot- ting) is the exclusion of the em- ployer from all communication with former customers and mate- rial-men, by threats of similar ex- clusion to the latter, if dealings are continued." In Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 738 (Cir. Ct. Ohio, 1893), it is said: "As usually un- derstood, a boycott is a combina- tion of many to cause a loss to one person, by coercing others against their will to withdraw from him their beneficial business inter- course, through threats that, unless those others do so, the many will cause similar loss to them." In Crump V. Commonwealth, 84 Va. 927, 940; s. C, 6 S. E. Rep. 620 (1888), it is said: "The essential idea of boycotting, whether in Ire- land or the United States, is a confederation, generally secret, of many persons whose intent is to injure another by preventing any §9-] 43 that coercion is an essential element of the definition.^ It is to be noted that, leaving out of consideration the special case of inducing an employee to leave his employment, there is little if any authority for the proposition that a boycott, as we have defined it, is illegal.^ As a rule, it is not boy- cotts 3.S thus defined, but acts of coercion accompanying boycotts, that have been held illegal.' On the other hand, and all persons from doing busi- ness with him, through fear of incurring the displeasure, persecu- tion and vengeance of the conspira- tors." See also Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 717; s. C, 83 Fed. Rep. 912, 917 (8th Cir., 1897). 1 See definitions, p. 43, above. In State V. Glidden, 55 Conn. 46, 77; s. C, 8 Atl. Rep. 890 (1887), after referring to the account of the origin of the word (see p. 41, above), it is said: "If this is a correct pic-, ture, the thing we call a boycott originally signified violence if not murder; " also: "Instances are not. wanting in our own country where the boycott has been attended with more or less violence; and it can- not be denied that the natural tendency is, especially when ap- plied by the ignorant and vicious, to attempt to make it successful by force. It too often leads to serious disturbances of the peace." So in Brace v. Evans, 3 Ry. & Corp. L. J. 561 (Allegheny Co., Pa., Com. PL, 1888), among the acts declared illegal was the issue of circulars bearing the words " Boycott Brace Bros." This on the theory that the word "boycott " by its very defini- tion includes acts which tend to violence, the court saying: "The use of the word ' boycott ' is in it- self a threat." This decision was applied in Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135, 143 (Cir. Ct. Ohio, 1891); Barr V. Essex Trades Council, 53 N. J. Eq. 101, 131; s. C, 30 AtL Rep. 881 (1894). 2 It was indeed said in Thomas v. Cincinnati, N. O. &T. P. Ry. Co., 63 Fed. Rep. 803, 819 (Cir. Ct. Ohio, 1894), that "boycotts, though un- accompanied by violence or in- timidation, have been pronounced unlawful in every State of the United States where the question has arisen, unless it be in Minne- sota, and they are held to be un- lawful in England." The reference probably is to Bohn Manuf. Co. v. Hollis, 54 Minn. 233; S. C, 55 N. W. Rep. 1119 (1893; see §11). In Thomas V. Cincinnati, N. O. & T. P. Ry. Co., the action condemned was referred to as a " boycott," though it wap un-. necessary to base the decisii^ on;, that ground, especially as the boy-f cotted party was not a complain- ; ant or otherwise a party to the ' action. Had the boycotted party been the complainant, the case would then have been similar to that under consideration in Hop- kins V. Oxley Stave Co., 49 U. S. App. 709; S. C, 83 Fed. Rep. 913 (8th Cir., 1897; see § 15). 3 See § 14. But in Barr v. Essex 4A UJDirCING TO' QTJiT EMPLOYMENT. [§10, boycotts that have been held legal have, as a rule, been inci- dents or outgrowths of some special relation, commonly that of trade competitor.' § 10. Liability for inducing employee to quit employ- ment, or employer to discharge employee. — We have al- ready stated that there is nothing inherently or necessarily illegal in inducing one person to refuse to deal or continue to deal with another;^ and that, according to authorities already considered, the act is not made illegal by an intent to injure.^ On principle it would seem clear that the same doctrine should cover and apply to the case of inducing one person to refuse to continue to deal with another, as e?n- jployee with employer; in other words, to quit his employ- ment. But the accepted doctrine is otherwise, and we find the prevailing rule to be that " any person who knowingly entices away the servant of another, and thereby induces him to violate his contract with his master, or who thereby deprives the master of the services of one then actually in his service, whether under a contract to serve or not, is liable to the master for his actual loss therefrom." * • "We understand Trades Council, 53 N. J. Eq. 101, way of illustration. Old Dominion 132; s. c, 30 Atl. Eep. 881 (1894), Steamship Co. v. McKenna, 30 Fed. where an injunction was granted Eep. 48 (Cir. Ct. N. Y., 1887). A against boycotting the proprietors conspicuous instance of the suc- of a newspaper by labor unions, the cessf ul maintenance of such an ao- only injury, so far as the complain- tion is Walker v. Cronin, 107 Mass. ants were concerned, was indue- 555, 567 (1871), where a cause of ing persons to refuse to deal with action was held stated in a decla- ithem, there being concededly "no ration setting forth contracts of public disturbance, no physical the plaintiffs with their workmen injury, no direct threats of per- for the performance of certain sonal violence, or of actual attack work in the manufacture of boots on or destruction of tangible prop- and shoes; and alleging that the erty as a means of intimidation or defendant, " well knowing thereof, coercion." with the unlawful purpose of hin- 1 See § 11, dering and preventing the plaint- 2 See § 9. iffs from carrying on their busi- ' See § 3. ness, induced said persons to refuse *So stated inWood on Master and and neglect to perform their con- Servant (3d ed.), § 380. See by tracts, whereby the plaintiffs suf- 10.] INDUCING TO QUIT EMPLOYMENT. 45 the origin of this anomalous doctrine on learning that at the time of such origin servants were in effect, if not in a strict legal sense, serfs or slaves, so that an inducement to leave one's employment was not a mere inducement to refuse to ■continue to deal, but was an interference with a chattel be- longing to the employer, being thus tantamount to trespass or larceny.' If such inducement is wrongful when the act of a single individual, it is, according to authorities already considered, a fortiori wrongful when done in pursuance of a combination to do such act.^ In this view proof of the com- f ered great damage in their busi- ness." So, too (p. 563), of merely in- ducing " persons who were in the employment of the plaintiffs," and others "who were about to enter into " their employment, " to leave and abandon " it. Another conspic- uous instance is Thomas v. Cincin- nati, N. O. & T. P. Ry. Co., 62 Fed. Eep. 803, 816 (Cir. Ct. Ohio, 1894), where punishment was allowed for contempt for inducing the em- ployees of a railroad receiver to leave his employ. This on the ground that any unlawful inter- ference with the operation of a road in the hands of a receiver is a ■contempt, and that, if the receiver had been a private corporation, he could have recovered damages for the injury thus inflicted on the business of the road. Compare, however, Farmers' Loan & Trust Co. V. Northern Pacific E. B. Co., 60. Fed. Rep. 803, 833 (Cir. Ct. Wis., 1894). In State v. Stewart, 59 Vt. 273, 291; s. C, 9 Atl. Rep. 559 (1887), though a criminal proceeding, it was held not necessary to aver that the employer desired or in- tended to employ a person induced not to enter his employment; an allegation that such employer was in fact prevented from employing him being held, ex vi termini, to imply a purpose to employ him, which had been met and thwarted; there being also an allegation that the defendants conspired to hinder and prevent such employment. In Carew v. Rutherford, 106 Mass. 1, 13 (1870), an action was sustained for the recovery back of money paid in response to a demand made in pursuance of a' conspiracy to in- duce the employee so paying to quit his employment and deter others from entering it. See Bour- lier V. Macauley, 91 Ky. 135; s. c, 15 S. W. Rep. 60 (1891), as to appli- cation of Kentucky statute forbid- ding inducing the abandonment of a contract to labor for a fixed period. 1 It seems clear that the doctrine can be traced to the English Stat- ute of Laborers of the fourteenth century. See the elaborate dis- senting opinion of Coleridge, J., in Lumley v. Gye, 3 El. & Bl. 216, 253 (1853). 2 See § 4. In Webber v. Barry, 66 Mich. 137; s. C, 33 N. W. Rep. 389 (1887), it was held a trespass to 46 INDUCING TO QUIT EMPLOYMENT. [§10. bination is superfluous so far as the mere question of civil liability is concerned. Though the mere inducement to quit employment seems of itself to create no criminal liability,* yet, in accordance with the general doctrine of conspir- acy to do a merely unlawful act not criminal,^ conspiracies to induce employees to quit their employment have been held to create a criminal liability.' As already noted, the rule applies whether the employee is at the time under a con- tract to serve or not.* There is doubtless a growing con- sciousness in the judicial mind that a doctrine so anomalous,, and originating in conceptions of social relations that are utterly repugnant to those now prevailing, is ill adapted to present conditions.* Even long ago it was settled that an enter with a body of men upon the premises of an employer, with the purpose of inciting his employees to strike. 1 See Wood on Master and Serv- ant (2d ed.), § 239, 2 See § 3. 3 Reg. V. Duffield, 5 Cox C. C. 404 (1851); State V.Stewart, p. 45, above. * See note 4, p. 44, above. Thus, in Walker v. Cronin, 107 Mass. 555, 566 (1871), it was said, refer- ring to Gunter v. Astor, 4 Moore, 12 (1819): "The discussion indi- cates that damages were consid- ered to be recoverable for the breaking up or disturbance of the business of the plaintiff, whereby he suffered the loss of his usual profits for a long period. The' grounds of damage were appar- ently regarded as altogether inde- pendent of the mere loss of any contracts with the workmen. " So, too, the liability was declared, not- withstanding the absence of con- tract, in Johnston Harvester Co. v. Meinhardt, 60 How. Pr. (N. Y.) 168 (Supm. Ct., Sp. T., 1880); Lucke v. Clothing Cutters', etc. Assembly, 77 Md. 396; s. C, 26 AtL Eep. 505 (1893), the latter a case of the notification to an employerby a labor union that in case of his retention in his em- ploy of the plaintiff, a "customs cutter," all labor organizations in the city would be notified that his house was a non-union house. So in Vegelahn v. Guntner, 167 Mass. 93; s. a, 44 N. E. Eep. 1077 (1896), the liability was declared in the case of persons seeking to enter the em- ployment, as well as of those al- ready in it. See also Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811, 828 (Cir. Ct. Ohio, 1897), and cases of inducing em- ployer to discharge employee (note S, p. 48, below). But see Chipley v. Atkinson, 23 Fla. 206 ; s. C, 1 So. Rep. 934 (1887); Lucke v. Clothing Cut- ters', eta Assembly, above, to the effect that if the plaintiff allege* employment for a fixed period he must prove the allegation. ' For instance, in Rogers v. Ev- arts, 17 N. Y. Suppl. 264 (Supm. Ct.,. Sp. T., 1891), the court questioned §10.] INDUCING TO QUIT EMI'LOYMENT. 47 exception should be made of cases of ignorance by the in- ducing party of the relationship of employee and employer.^ And there is perhaps observable a tendency to introduce, by way of modification, a rule that when fully developed wilt be as follows: The test of liability for inducing an employee to quit his employment is whether the act of inducement was the incident or outgrowth of some existing lawful relation!^ But inasmuch as the doctrine is so deeply imbedded in the ^1. the soundness of the doctrine, and refused an injunction against acts within such doctrine, on the ground that the case was one of doubtful right. iWood on Master and Servant (3d ed.), § 338. 2 Thus, the relation ot party to a contract. This seems to be the ground of the decision in Rayoroft V. Tayntor, 68 Vt. 319; s. C, 35 Atl. Rep. 53 (1896), holding that no action would lie for causing the discharge of an employee, by threat- ening the employer to terminate a contract that the defendant had the right to terminate at any time. See also § 3, p. 8, above. So the rela- tion of employee. Thus, in Rogers V. Evarts, 17 N. Y. Suppl. 264(Supm. Ct., Sp. T., 1891), it was held lawful for striking workmen to induce others to leave their employment by "persuasion and entreaty," the court saying that their action was " for an advantage in their business, which they had the right to seek by all lawful means." It was also held not unlawful to offer money as an inducement to quit. In Clem- mitt V. Watson, 14 Ind. App. 38; s. a, 43 N. E. Rep. 367 (1895), it was held not actionable, in the ab- sence of contractual relations, for two or more employees (in a coal mine) to cause the discharge of a co-employee by agreeing to quit work and thus stop the working of the mine, unless he was dis- charged; or to cause the stop- ping of such work, so that he was thrown out of employment, by quitting work pursuant to agree- ment, upon the refusal of the em- ployer to discharge him. In Chip- ley V. Atkinson, 33 Fla. 306; s. C, 1 So. Rep. 934 (1887), it does not clearly appear what the relation of the defendant to the matter was. This is distinguishable from Lucke V. Clothing Cutters', etc. As- sembly, 77 Md. 396; s. C, 36 Atl. Rep. 505 (1898), (which followed Chipley v. Atkinson), where the de- fendants were a labor union com- posed of persons engaged in the same line of occupation as the plaintiff. The question might have been raised whether, assuming the absence of coercion, the similarity or solidarity of interest did not fur- nish a sufficient basis for the legal- ity, of the action. See § 13. The same observations seem applicable to Coons V. Chrystie, N. Y. Law Jour., July 31, 1898 (Supm. Ct, Sp. T.), where an organization of master plumbers and its officers were enjoined from " calling out " the plaintiff's employees on the 48 INDUCING TO QUIT EMPLOYMENT. [§10. law, it is better to obtain relief against it by means of legis- lation' than by the slow process of judicial modification. The practical mischief produced by allowing this doctrine to stand we shall presently consider, when we find that it has been extended from the mere relation of employer and em- ployee to the relations of life generally.^ In this connection, however, we may note its converse application, namely, so as to create a liability for inducing an employer to refuse to continue to deal with an employee; in other words, to dis- charge him from employment.' ground that he was not a member of the organization. It was so held against the contention that "the workmen had agreed with the defendant society that they ■would not accept employment from unafiSliated persons, such. as the plaintiff, and that by causing them to cease work the defendants merely caused the workmen to keep their promise," the court say- ing: "It may be true that such an agreement would be valid as be- tween the society and its mem- bers." In Walker v. Cronin, 107 Mass. 555, 563 (1871), it was intimated that the inducement is not unlaw- ful if merely in the course of the exercise of the right to employ workmen in one's own business. 1 See, for instance, Appendix, and particularly New Jersey act of 1883 (oh. 287). See Mayer v. Jour- neymen Stonecutters' Assoc, 47 N. J. Eq. 519, 531; s. C, 20 Atl. Rep. 492 (1890); Barr v. Essex Trades Council, 53 N. J. Eq. 101, 119; S. a, 30 Atl. Rep. 881 (1894); Farmers' Loan & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. Rep. 803, 815 (Cir. Ct. Wis., 1894). 2 See § 13. ^Hollenbeck v. Ristine, — Iowa, — ; s. C, 75 N. W. Rep. 355 (1898). So notwithstanding the absence of a contract for any fixed period. Chipley v. Atkinson, 28 Fla. 206; s. C, 1 So. Rep. 934 (1887); Danner- berg V. Ashley, 10 Ohio Cir. Ct. 558 (1894); Perkins v. Pendleton, 90 Me. 166; S. C.,38 Atl. Rep. 96(1897; here, however, there was an ac- companiment of threats, etc., as to which see § 15). So in Connell V. Stalker, 20 Misc. 423; S. C, 45 N. Y. Suppl. 1048 (N. Y. City Ct, 1897), affirmed in 21 Misc. 609; s. c, 48 N. Y. SuppL 77 (1897), where it does not appear that there was such a contract. So in State v. Donaldson, 32 N. J. Law, 151 (1867), it was held an indictable offense for workmen to combine to com- pel their employer to discharge certain of their fellow-workmen, the means adopted to enforce this concession being an announced determination to quit their em- ployment in a body and by a simul- taneous act. The authorities re- lied on are two English nisi prius cases, where the point was but briefly considered. Rex v. Fergu- son, 2 Starkie, 431 (1819); Rex v. § 11-] BOYCOTT BY TEADE OOMPETITOE. 49 § 11. Boycott Iby trade competitor. — We have already asserted the doctrine that itAe existence of the relation of trade competitor justifies acts that are the natural incident or out- growth of such relation, whether or not done with the direct intent to injure one^s rival} As the very essence of com- petition in trade consists in the e£fort to divert business to oneself at the expense of one's rivals,^ it seems almost Bykerdike, 1 Moody & Eob. 179 <1833). Compare People v. Tre- quier, 1 Wheeler Cr. Cas. (N. Y.) 143 (1823); People v. Melvin, 2 Id. 362 (1810); Master Stevedores' Assoc, v. Walsh, 2 Daly, 1, 13 (1867); Reg. v. Hewitt, 5 Cox C. C. 163 (1851); Reg. V. Bunn, 12 Id. 316 (1873). To similar effect with State v. Don- aldson is State v. Dyer, 67 Vt. 690; ■s. c, 33 AtL Eep. 814 (1895), though here it does not appear that the guilty parties were employees; nor indeed does it appear what was their previous relation to the matter. On the other hand, in Commonwealth v. Hunt, 4 Mete. -(Mass.) Ill, 138 (1843), it was held not unlawful for employees to " form themselves into a society and agree not to work for any per- son who should employ any jour- neyman or other person not a member of such society, after no- tice given him to discharge such workman." (The court, however, interpreted such agreement as not applying to the discharge of a per- son " engaged by contract for a cer- tain time, in violation of such con- tract "), (p. 130). And this accords with what is now the settled law in England. See Allen v. Flood, L. R. App. Cas. (1898), 1. See §§ 6, 13. Commonwealth v. Hunt is in State -V. Donaldson, 33 N. J. Law, 151, 4 157 (1867), distinguished on what seems to us to be the unsubstantial ground, that the agreement to quit employment was in the form of a regulation of the society, and not speoiflcally directed against any particular individual, or, to use the language of the court: "The force of this association was not concen- trated with a view to be exerted to oppress any individual." Com- monwealth v. Hunt is distin- guished on the same ground in Crump V. Commonwealth, 84 Va» 937, 943; s. C, 6 S. E. Rep. 620 (1888). In an action for causing discharge from employment, recovery was allowed for the amount of wages that the plaintiff would have earned during the period that he was deprived of employment, and he was held not obliged to seek employment elsewhere. Connell v. Stalker, 20 Misc. 433; s. 0., 45N. Y. Suppl. 1048 (N. Y. City Ct., 1897); affirmed in 31 Misc. 609: S. c, 48 N. Y. Suppl. 77 (1897). 1 See § 5. 2 Very suggestive is the following statement in the dissenting opin- ion of Holmes, J., in Vegelahn v. Guntner, 167 Mass. 93, 106; s. c, 44 N. E. Eep. 1077 (1896), with refer- ence to the limits of lawful inter- ference with the business of a trade rival "We all agree, I pre- 50 BOYCOTT BY TEADE COMPETITOE. [§ir- difficult to understand how there ever originated the idea that there is anything inherently unlawful in an individual, or a combination of individuals, inducing others to refrain from dealing with a competitor in trade. But perhaps it may be said of the authorities that apparently go to that length, that they proceed on the supposition of the exist- ence of coercion, as an element in addition to the mere in- ducement to refrain from dealing.^ Furthermore they pro- ceed on the basis of the doctrine already considered, that an act entirely lawful, if done by a single individual, may be unlawful by reason of being done in pursuance of a combi- nation of individuals to do the same act.^ Hence the ques- tion usually arises in connection with the operations of those who, by virtue of their numbers or the extent of their oper- ations, or both, control business throughout a wide area, and within such limits, at least, are able to drive from the field of competition the person against whom the boycott is di- rected.' Sometimes the inducement is of refusal to Imy, sume, that it may be done by per- suasion to leave a rival's shop and come to the defendants'. It may be done by the refusal or with- drawal of various pecuniary ad- vantages which, apart from this consequence, are within the de- fendants' lawful control. It may be done by the withdrawal, or threat to withdraw, such advan- tages from third persons who have a right to deal or not to deal with the plaintifiE, as a means of induc- ing them not to deal with him either as customers or servants." 1 See §14. 2 See g 4 3 On this subject the authorities, all very recent, are in apparently hopeless conflict. In harmony with the views stated in the text is the well-considered case of Bohn Manuf. Co. v. HoUis, 54 Minn. 333; S. C, 55 N. W. Rep. 1119 (1893), involv- ing the legality of an agreement contained in the by-laws of an asso- ciation composed of from twenty- five to fifty per cent, of the retail lumber dealers in Iowa, Minnesota, Nebraska and the Dakotas, not to deal with any wholesale dealer or manufacturer selling directly to customers, not dealers, at a point where a member of the association might be doing business, such agree- ment providing for notice being given to all the members whenever a wholesale dealer or manufacturer made such sale. An application: by a wholesale manufacturer "and dealer in lumber for an injunction against issuing such notice, and from stating or mailing any matter that might injure its trade or busi- ness, and from combining with others to hinder or limit its sales §11-] BOYCOTT BY TBADE COMPETITOE, 51 sometimes of refusal to sell; but it does not appear that, as between these classes of cases, there is any difference as to the rule of liability applicable. and transactions, was refused. This decision was followed in Ma- cauley v. Tierney, 19 R. I. 355; S. C, 33 Atl. Rep. 1 (1895), sustain- ing an agreement by an association of master plumbers not to deal with dealers in plumbing materials sell- ing to other than master plumb- ers, in a suit by plumbers, not members of the association, to re- strain the performance jot acts under the agreement. See criti- cism of Bohn Manuf. Co. v. Hol- lis, in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 731; s. 0., 83 Fed. Rep. 913, 920 (8th Cir., 1897). But there are decisions in conflict with those just considered. Thus, in Jackson v. Stanfield, 137 Ind. 593, 607; s. c, 36 N. E. Rep. 845 (1894), an agreement contained in the constitution of an association of about one hundred and fifty re- tail lumber dealers provided thus, as stated by the court: "The reg- ular dealer, when his territory is encroached upon by a wholesale dealer or manufacturer, is author- ized to notify the person so oflEend- ing that he has a claim against him for such sale or shipment, and to make a demand therefor. If the parties cannot adjust it, it is made the duty of the member to notify the secretary of the facts in the case, who shall refer the matter to the executive committee, whose duty it is to hear the grievances and determine the claim. If the wholesaler or manufacturer ig- nores the decision of the commit- tee, it is the duty of the secretary to notify the members of the asso- ciation of the name of the person so ofifending, and of the members to no longer patronize him. If they continue to deal with the offender, they shall be expelled from the association; and if any member refuses to abide by the decision of the executive commit- tee, his name is to be stricken from the membership of the society. The facts found by the court dis- close that the appellees, as members of the combination complained of, availed themselves of the means provided for in § 3, to destroy the business of the appellants (plaintiffs) as brokers in lumber, be- cause they were not retail dealers within the definition of the term, and that they effectuated their pur- pose. The special findings of fact clearly show it to be a compact to suppress the competition of those dealers who did not own yards with an adequate stock on hand, by driving them out of busi- ness. By this plan they reach the wholesale dealer and compel him to pay an arbitrary penalty, under a threat of financial injury, and they force him to assist in ruining the dealer who does not own a yard. " An action for an injunction and for damages as for conspiracy, was sustained by a broker who had purchased from a wholesale dealer against whom the association en- forced the penalty, and which, fearing a repetition thereof, re- 52 BOYCOTT BT EMPLOYEE. [§12. § 13. Boycott by employee. — Again assuming the neces- sity of some special relation, to justify inducing a refusal to deal, it would seem on principle that the relation of em- ployee is sufficient. That is to say, the relation of employee to employer is, if not strictly that of a competitor in trade, yet sufficiently analogous to it to justify the employee, in case of dispute with his employer, in inducing third persons to refuse to deal with the employer, as a means of inducing the employer to yield to the demands of the employee. That there is nothing necessarily unlawful in this seems to be the rule.^ fused to again deal with the plaint- iff. So in Olive v. Van Patten, 7 Tex. Civ. App. 630; s. C, 25 S. "W. Rep. 428 (1894), the decision in Delz V. Winf ree, 80 Tex. 400 ; s. C, 16 S. W. Rep. Ill (1891) (see § 9, p. 39, above), was followed in sustaining an ac- tion by a lumber dealer against an association of such, it being alleged that, because of his refusal to join such association, they maliciously distributed circulars asking that patronage be withdrawn from him until he agreed not to sell to others than dealers, thereby influencing others not to deal with him. On the same principle is sustainable, if at all, Dueber Watch-case Co. v. Howard Watch & Clock Co., 3 Misc. 583; s. c, 24 N. T. SuppL 647 (Supm. Ct, Sp. T., 1893). But see § 29. Compare People v. Duke, 19 Misc. (N. Y.) 292 (N. T. Co. General Sessions, 1897). 1 Thus, where a controversy was in existence between a combina- tion of employers and one of em- ployees, an injunction against the issuance by such employees of cir- culars requesting the customers of certain members of the combina- tion of employers not to deal with them was refused, there being no proof of " violence, injury to prop- erty, threats or intimidation." The court say: "At best the circu- lars were but one of the instru- ments used by the defendants in their contest with the association of which the plaintiffs were mem- bers." Sinsheimer v. United Gar- ment Workers, 77 Hun, 215; s. C, 28 N.T. SuppL 321 (1894). The court broadly declare the right of the defendants "to endeavor to per- suade those who had been accus- tomed to deal with " members of the association (to which the plaint- iffs belonged) to discontinue their trade. The decision seems, how- ever, to mainly rest on the fact that the plaintiffs did not come into court "with clean hands," being members of a combination of employers who had employed methods similar to those that they now complained of. Compare, as to methods adopted by way of retalia- tion, Barr v. Essex Trades Council, 53 N. J. Eq. 101, 126 ; s. C, 30 Atl. Rep. 881(1894). There is a dictwm (in Sins- heimer V. United Garment Workers) that the combination of employers " had the right to lock out all opera- tives connected with the defend- ants' association because of de- § 12.] BOYCOTT BY EMPLOYEE. 53 But the question of greatest difficulty arises in applying the rule to what we may consider as a conflict of the " solidarity of interest " of a number of employees as against one or more employers. Conceding that, in case of dispute between an employee and his immediate employer, it is lawful for the former to employ the boycott as a weapon, is it lawful for others, not employees of such employer, but moved by the solidarity of interest of a body of employees engaged in the same general occupation, to employ the same weapon in the same dispute? For instance, the employees in an iron mill engage in a dispute with their employer, and lawfully, as we here assume, employ the boycott as a weapon. Is it likewise lawful for other members of a union, say of all em- ployees in iron mills throughout the country, to intervene in this particular dispute and boycott this particular employer, though, apart from their relation as members of this union, having no dispute with this employer or any other em- ployer ? Thus far it would seem that the judicial mind has not risen to the point of regarding this solidarity of interest of a large number of employees engaged in the same gen- eral occupation, as constituting a sufficient basis on which to establish the legality of a boycott.^ It would seem, however, mands, which they considered un- the employment of a person against just, made by the defendants upon whom a strike had been declared one of their number." This was a was held unlawful under the prohi- reversal of 5 Misc. 448; s. a, 26 N. Y. bition of the Conspiracy and Pro- Suppl. 153 (1893), holding that "it tection of Property Act of 1875, was clear that it was an unlawful against " watching and besetting " injurytoplaintiffs'propertytosend a residence or place of business. circulars to their customers which i That, however, there is a tend- would tend to induce such ^custom- ency in that direction appears era to discontinue business with from what will doubtless be the the plaintiff." This decision we celebrated case of Allen v. Flood, regard as a sound one and in har- L. R. App. Cas. (1898), 1, where the mony with modern requirements, defendant, a " delegate " of a trade but it seems doubtful whether it is union, procured the discharge of in harmony with the current of the plaintiffs, day laborers (with a authority. See note 1, below. In promise not to employ them again), Lyons v. Wilkins, 1 L. B. Ch. (1890), by stating to the employers that 811, inducing persons not to enter members of the union in their em^ oi BOYCOTT BY EMPLOYEE. [§12. that the subject deserves a fuller examination before the law on this subject is allowed to be settled in the lines thus far tentatively established, especially as in somewhat analogous ploy would quit employment un- less the plaintiffs were discharged. The plaintiffs had become offen- sive to ironworkers who were not only members of the union, but also their fellow-employees, by rea- son of having, though shipwrights, previously worked for certain em- ployers on "ironwork." The de- cision proceeded on the express supposition that this was not a case of breach of contract, but merely of discharge from employment (pp. 97,118,147). The court say (p. 133): " The object which the defendant and those whom he represented had in view throughout was what they believed to be the interest of the class to which they belonged; the step taken was a means to that end." See also p. 163. Allen V. Flood has already been followed in this country, as applicable to the case of a labor union procur- ing the discharge of a non-union employee, by an announcement of an intention to order members of the union to leave the employment of the same employer. Davis v. United Portable Hoisting Engi- neers, 38 N. T. App. Div. 396; s. C, 61 N. Y. Suppl. 180 (1898). So the announcement of such intention under such conditions was, in Peo- ple V. Davis, 57 Alb. Law Jour. 170 (Cook Co., IlL, Crim. Court, 1898), following Allen v. Flood, held not within the prohibition of a statute against "conspiring or agreeing together with the fraudulent or malicious intent wrongfully and wickedly to injure the person, character, business, or employment or property of another." Here, how- ever, it did not appear that there was any contract of employment for any definite period. Compare, however, Connell v. Stalker, 30 Misc. 433; s. C, 45 N. T. SuppL 1048 (N. Y. City Ct, 1897); affirmed in 31 Misc. 609; s. C, 48 N. Y. Suppl. 77 (1897). See also, as to the soli- darity of interest of employees, the vigorous argument of Cald- well, J., dissenting in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 745; s. 0., 83 Fed. Rep. 913, 935 (8th Cir., 1897). But in Toledo, Ann Arbor, etc Ey. Co. v. Pennsylvania Co., 54 Fed. Rep. 730 (Cir. Ct. Ohio, 1893), an injunction was granted against the enforcement of any rule of a labor union (The Brother- hood of Locomotive Engineers) re- quiring railroad employees to re- fuse to handle and deliver freight transported by or to a certain com- pany, and against inducing them to refuse to extend to such com- panies facilities for exchange of traffic. This was simply the case of the refusal of employees to do their work. It does not appear that they were under contract. The court sought to justify the in- junction on the ground that the intent of the employees was to in- duce their respective companies to refuse to deal with such other com- pany, with the ultimate purpose of inducing the latter to discharge certain employees (engineers) not '§ 13.] INDUCING BEEACH OF OONTKAOT. 55 cases solidarity of interest has been recognized as constitut- ing such a sufficient basis.^ § 13. liability for inducing breach of contract. — The anomalous doctrine that it is actionable to induce an em- members of the Brotherhood. In the view we have elsewhere taken the intent should have been disre- garded. But, waiving that point, the question is whether the intent was to do anything unlawful. Stress was laid on the circum- stance that the employees taking such action " were not dissatisfied with the terms of their employ- ment." But the point was, not what were their relations to their imme- diate employers, but what to the boycotted company. Was not their interest as members of a large labor organization suiflcient to justify the boycott, because of the refusal of the boycotted company to dis- charge persons objectionable to them as not being members of the union? Thedecision,however,was based, not solely on the ordinary rules applicable to boycotts, but on the additional ground that the re- fusal to handle interstate freight was in direct violation of the Inter- state Commerce Law. Judge Taft, who made the decision herein, had also made the decision in Moores V. Bricklayers' Union, 7 Ey. & Corp. L. J. 108 (Super. Ct. Cinn., 1889), where an action was sustained against a labor union and mem- bers thereof, for damage consisting of withdrawal of custom caused by sending to the plaintiff's custom- ers notice that members of the union would not use material sup- plied by the plaintiff, the motive of such action being the refusal of the plaintiff to accede to the de- fendants' request to refuse to deal with persons (P. Bros.) with whom, as employees, they had a contro- versy. Here again we submit that the real question was whether the relation between the defendants and P. Bros, was not such as to justify the defendants in using the boycott as a weapon. In this view the following considera- tions advanced by the court seem to us to be entirely irrelevant: "The dealings between P. Bros, and their material-men, or between such material-men and their cus- tomers, had not the remotest nat- ural connection either with de- fendants' wages or their terms of employment. There was no com- petition or possible contractual relation between plaintiffs and de- fendants, where their interests were naturally opposed. The right of the plaintiffs to sell their mate- rial was not one which in its exer- cise brought them into legitimate conflict with the right of defend- ants to dispose of their labor as they chose." But, as in the authori- ties just considered, the mere rela- tion of membership in the same 1 Thus, the interest of a number of tradesmen to protect themselves a.gainst dishonest debtors, and the interest of a number of employers in a contest with employees. (See § 9, pp. 39, 40, above.) 56 INDUCING BKEACH OF CONTEAOT. [§13. ployee to break his contract of employment, has within a comparatively recent period been enlarged into the doctrine labor organization with an em- ployee having a dispute with his em- ployer has thus far been generally regarded as an insuflScient basis for the right to boycott such employer. Thus, in Old Dominion Steamship Co. V. McKenna, 30 Fed. Rep. 48 (Cir. Ct. N. Y., 1887), where the boycott was by what was known as the "Executive Board of the Ocean Association of the Long- shoremen's Union." It would seem, though it does not distinctly so appear, that the employees in whose behalf the boycott was in- stituted were members thereof, but the court say that the defend- ants were "not in plaintiff's em- ploy," and acted "without any legal justification, so far as appears, — a mere dispute about wages, the merits of which are not stated, not being any legal justi- fication." So in Barr v, Essex Trades Council, 53 N. J. 101, 115, 136; S. C, 30 Atl. Rep. 881 (1894), an injunction was allowed on com- plaint of the proprietors of a newspaper (the " Newark Times ") against a boycott by a number of labor unions representing different trades In Newark, and aflSliated in a society or representative body. The members of only one of these unions had any grievance against the complainant, the action of the others being sympathetic. The injunction was one "restraining them from distributing or circu- lating any circulars, printed reso- lutions, bulletins or other publica- tions containing appeals or threats against the Newark Times or thfr complainants, its publishers, with the design and tending to interfere with their business in publishing^ said paper, and from making any threats or using any intimidation to the dealers or advertisers in such newspaper, tending to cause them to withdraw their business- from such newspaper." The griev- ance against the Times was it& refusal to discontinue the use of "plate matter" for its paper (p. 106). Such boycott was held not legalized by the New Jersey act of 1883. See § 10. So in Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135 (Cir. Ct. Ohio^ 1891), an injunction was granted under similar conditions, the griev- ance being the refusal of the pro- prietor to " unionize " his office, that is to say, publish his paper according to the customs and regu- lations laid down and prescribed by the union, and pay wages at the rates fixed by it, and discharge all persons not members thereof. So in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 738; s. C, 83 Fed. Rep. 912, 931 (8th Cir., 1897), a case of a "threat," or announcement of intention to boycott (see § 15), the court say: "With one exception the members of the combination were not in the employ of the plaint* iS company; " and it is also stated that no reduction of wages had been threatened by the company. A conspicuous instance of a boycott by employees, declared illegal, is- Thomas v. Cincinnati, N. O. & T. §13.] INDUCING BREACH OF CONTKAOT. sr that it is actionable to induce another to break his contract ; > that is to say, the doctrine has been extended from contracts of employment to contracts generally. The objections to such a doctrine on principle are serious and have been clearly P. Ry. Co., 63 Fed. Rep. 803, 807 (Cir. Ct. Ohio, 1894). The plan of the boycott is thus set forth: " Pullman oars are used on a large majority of the railways of the country. The members of the American Railway Union whose duty it was to handle Pullman cars on such railways were to re- fuse to do so, with the hope that the railway companies, fearing a strike, would decline further to haul them in their trains, and in- flict a great pecuniary injury upon the Pullman company. In case the railway companies failed to yield to the demand, every effort was to be made to tie up and crip- ple the doing of any business what- ever by them, and particular atten- tion was to be directed to the freight traffic, which it was known was their chief source of revenue. . . , It was to be accomplished, not only by the then members of the union, but also by procuring, through persuasion and appeal, all employees not members, either to join the union or to strike without joining, by guaranteeing that, if they would strike, the union would not allow one of its members to return to work until they also were restored." The decision might, it would seem, have been sustained solely on the ground of the illegal- ity of inducing employees to quit their employment. (See § 10, p. 45, above.) In this view it was unnec- essary to inquire into the intent of the act of inducing, which was to induce the employer to refuse to deal with, in other words, to boy- cott, a third person. If, accord- ing to the authorities just consid- ered, the relation of membership in the same labor organization is an insufficient basis for a boycott, a fortiori was the boycott illegal in that case, as it was instituted ia behalf of persons (employees of the Pullman Palace Car Company)- who were not members of the Rail- way Union. This decision was ap- plied to the same general state of facts in United States v. Cassidy^ 67 Fed. Rep. 698, 763 (D. Ct. Cal., 1895). Compare as to threats to boy- cott, cases considered in § 15. Boy- cotts by employees were held in Brace v. Evans, 3 Ry. & Corp. L. J. 561 (Allegheny Co., Pa., Com. PI., 1888), not to be legalized by Pennsylvania legislation of 1869,. 1873, 1876 (see Appendix), except by relieving the persons commit- ting the acts specified, from the penalties of crime. iln accord with the view ex- pressed in the text is Boyson v.. Thorn, 98 CaL 578; S. O., 38 Pac. Rep. 493 (1893), where it was held broadly that no action lies against one " who, from malicious motives, but without threats, violence, fraud, falsehood, deception or ben- efit to himself, induces another to- violate his contract with the plaint- iff." So in Ashley v. Dixon, 48 N.Y. 430 (1873), it was held broadly that S8 INDUCING BREACH OF CONTEACT. [§13. seen. It violates the fundamental maxim that only the prox- imate, and not the remote, cause of an injury is to be con- sidered by the law. Furthermore, the legal remedy against no action lies in such case, in the absence ot fraud or misrepresenta- tion. It is to be noted that the cases holding it actionable to in- d\ice,bjfraudor misrepresentation, non-fulfillment by a third person of his contract have been regarded as standing on a different basis from those already considered, though perhaps, even as to cases of fraud and misrepresentation, the theo- retical objections stated in the text apply. Such cases are Benton v. Pratt, 3 Wend. (N. Y.) 385 (1829); Rice V. Manley, 66 N. Y. 83 (1876); Snow V. Judson, 38 Barb. (N. Y.) 310 (1863); Angle v. Chicago, St. Paul, etc. Ry. Co., 151 U. S. 1, 13; s. c, 14 Supm. Ct. Rep. 240 (1894); Morgan V. Andrews, 107 Mich. 33; s. C, 64 N. W. Rep. 869 (1895); Green v. Button, 3 Crompton, M. & R. 707 (1835); Lally v. Cantwell, 30 Mo. App. 534 (1888). Compare Cham- bers V. Baldwin, 91 Ky. 131; s. a, 15 S. W. Rep. 57 (1891). But on the other hand, the following authori- ties hold that it is actionable to in- duce another to break his contract: Lumley v. Gye, 3 El. & Bl. 816 (1853); Bowen v. Hall, 6 L. R Q. B. D. 333 (1881): Jones v. Stanly, 76 N. C. 355 (1877); Walker v. Cronin, 107 Mass. 555, 567 (1871); Gore v. Condon, — Md. ; s. C, 39 Atl. Rep. 1043 (1898, inducing tenants to refuse to pay rent); Doremus v. Hennessy, 62 111. App. 391 (1895); McDonald v. Edwards, 20 Misc. 523; S. C, 46 N. Y. Suppl. 672 (Supm. Ct., Sp. T. 1897, dictum. But see Ashley V. Dixon, above). See Perkins v. Pendleton, 90 Me. 166; s. a, 38 Atl. Rep. 96 (1897). In Nashville, Chat- tanooga, etc. Ry. Co. v. MoConnell, 82 Fed. Rep. 65, 71 (Cir. Ct. Tenn., 1897), an Injunction was granted on the application of a railroad company, against the action of ticket-brokers in procuring the use by third persons of special con- tract tickets issued by the com- pany, such use being in violation of the contract under which the tickets were issued, which confined such use to the original purchasers. See, as to liability to landlord for ouster of tenant, Walden v. Conn, 84 Ky. 312; s. C, 1 -S. W. Rep. 537 (1886); Aldridge v. Stuyvesant, 1 Hall (N. Y.), 310 (1838). Sometimes the doctrine is by the terms of its statement limited to maliciously inducing, but, as elsewhere seen, this apparent qualification is of little practical consequence. In Nashville, etc. Ry. Co. v. McCon- nell, above, it was declared that there was no malice in the case, beyond the desire " to make an un- lawful gain to the deti'iment of one of the parties to the contract." But, notwithstanding the decisions in Lumley v. Gye and Bowen v. Hall, which originated the doc- trine, both in this country and in England, it may be doubted, in view of the decision in Allen v. Flood, L. R. App. Cas. (1898), 1, 123, 151, 171, whether that doctrine now prevails in England. See, on the general subject, note in 83 Cent. 13.] INDUCING BKEAOH OF OONTEACT. 59 the party breaking the contract is ample.^ Assuming, how- ever, that it is otherwise actionable to induce another to break his contract, there is yet room for the doctrine (which we may consider as an application of the more gen- eral doctrine already stated) that the act of inducing an- other to ireah his contract is justifiable, if such act is the natural incident or outgrowth of some existing lawful rela- tion^ conspicuously those of trade competitor ' and of em- Law Jour. 275 (1891); article by A. L. Tidd in 40 Id. 86 (1895); article in 31 Am. Law Rev. 764 (1887), by J. H. Wigmore, on "Interference with Social Relations." As to ne- cessity of proving actual damage in such case, see Exchange Tele- graph Co. V. Gregory, 1 L. R. Q. B. (1896), 147. 1 See Vicars v. Wilcocks, 8 East, 1 (1806), and note thereto in 3 Smith's Leading Cases, 1807 (9th Am. ed.); also the elaborate dissent- ing opinion of Coleridge, J., in Lumley v. Gye, 3 EL & Bl. 216 (1853); also dissenting opinion of Coleridge, J., the younger, in Bowen v. Hall, 6 L. R. Q. B. D. 333 (1881); also Van Horn v. Van Horn, 52 N. J. Law, 284; s. C, 20 AtL Rep. 485 (1890); Lynch v. Knight, 9 House of Lords Cases, 577 (1861). 2 See § 3. As illustrating the extent to which this element of the relation of the plaintiff has been ignored by the courts, it is inter- esting to compare Boyson v. Thorn, 98 Cal. 578; s. c, 33 Pac. Rep. 492 (1893), with Jones v. Stanly, 76 N. C. 355 (1877). In the former the agent of a hotel proprietor in- duced him to break his contract to furnish accommodations in the hotel. What the relation of the agent was does not otherwise ap- pear. In the latter the president, who was also the superintendent of a railroad corporation, induced it to break its contract for the transportation of railroad ties. Here too the relation of the presi- dent does not otherwise appear. In these two cases the relations of the parties were very similar. In neither was the relation discussed as bearing on the question of lia- bility. In Walker v. Cronin, 107 Mass. 555 (1871), where the general subject was very elaborately dis- cussed, there is nothing to show what the relation of the defendant was, nor does it seem to have oc- curred to the court or any one else connected with the case, that it was at all worth the while to in- quire. 3 Directly in point as sustaining the text is Chambers v. Baldwin, 91 Ky. 131; s. C, 15 S. W. Rep. 57 (1891), where a trade competitor caused the breach of a contract to sell goods, with the design of him- self becoming purchaser, and the decision is in part at least expressly based on the ground that the act was in the course of trade compe- tition. The court say (p. 130): "If the motive influencing every busi- ness transaction that may result in injury or inconvenience to a busi- 60 INDUCING BEEAOH OF CONTEAOT. [§13. ployee.^ In accordance with what has already been said, the intent of the act should be entirely ignored.* break up the sale unless the plaint- iff paid him such commission, thus depriving the plaintiff, a real-es- tate broker who had negotiated the sale, of his commission. It would seem that, according to some authorities, this was a malicious act, though malice was not in terms charged. In each of the following cases the act of inducement was- by a competitor in trade, though no attention was paid by the court to that circumstance: Lumley v. Gye, 3 EL & Bl. 316 (1853); Dore- mus V. Hennessy, 63 111. App. 391 (1895; defendants members of a trade organization, and actuated by the refusal of the plaintiffs to. increase her prices to those fixed by the association). 1 In Temperton v. Russell, IKE. Q. B. (1893), 715, the defendants. ness rival was made the test of its legality, litigation and strife would be vexatiously and unneces- sarily increased, and the sale and exchange of commodities very much hindered." So in Bourlier v. Macauley, 91 Ky. 135; s. C, 15 S. W. Rep. 60 (1891), it was held proper for a rival theatrical manager to induce an actress to break her en- gagement at another theater for the purpose of performing at his own. Compare Lumley v. Gye, 3 El. & BL 316 (1853). On the same ground is perhaps to be sustained McCann v. Wolff, 38 Mo. App. 447 (1888), where the action was held not maintainable, on the ground that there was neither malice nor fraud. Here the defendant, claim- ing a commission on a sale of real estate, carried out his threat to 2 The doctrine is commonly lim- ited in its statement to malicious inducement. Thus, in Temperton v. Russell, 1 L. R. Q. B. (1898), 715, it is said that "it is actionable to maliciously induce a person to break a contract." See remarks of Lord Esher in Flood v. Jackson, 3 L. R Q. B. (1895), 31; reversed in Allen V. Flood, L. R App. Cas. (1898), 1, where, though the case was one of merely inducing a re- fusal to deal, it was argued that liability for inducing breach of a contract does not depend on the existence of malice, it being enough that the breach is " wilfully and knowingly procured." As seems clear, however, from the applica- tion of the doctrine to the acts of trade competitors, for instance, (see note 3, p. 59, above), malice includes cases where the motive is to obtain a benefit for oneself^ Indeed, it is said in Bowen v. Hall, 6 L. R. Q. B. D. 333, 838 (1881) : "If the persuasion be used for the indirect purpose of injuring the plaintiff,. or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it." s. P., Walker v. Cronin, 107 Mass. 555 (1871). In this view, the only possible case of inducing the breach of a contract without malice would seem to be where the offending party, ignorant of the eocistence of a contract, supposes that he ia merely inducing refusal to deaL ;§ 14.] ACTS ACCOMPANYING STRIKES AND BOYCOTTS. 61 § 14. Legality of acts accompanying strikes and boy- cotts and producing injury.— In the view already taken, a strike is entirely lawful, as a mere refusal to continue to deal, more specifically as a quitting of employment ; a boycott is entirely lawful, as a mere inducing to refuse to deal or to continue to deal. Nevertheless the idea has extensively pre- vailed that strikes and boycotts are inherently unlawful. This idea has largely resulted from the circumstance that the acts aGcompmiying strikes and boycotts are frequently unlawful. That, so far as legal liability is concerned, there is no necessary connection between a strike or a boycott and an act accompanying the same, is easily shown by illustra- tion. An employee refuses to continue to deal with his em- ployer, his motive being to induce the employer to pay higher wages. The employer continues to refuse to pay higher wages, and, after an interval, the employee, either with the same motive, to induce the employer to pay higher wages, or from the pure motive of revenge, commits a physical though not employees, stood in plaintiff continued to supply build- / front of a man's shop may be f; guilty of intimidation, though / they never raise a finger or utter a word. Their attitude may never- theless be that of menace. They may intimidate by their numbers, their methods, their placards, their circulars and their devices." So in People v. Kostka, 4 N. Y. Crim. R. 429, 437 (N. Y. Co. Oyer & Ter- miner, 1886), the following action was declared by Barrett, J., in charging the jury, unlawful as de- signed to injure the business of another: "Congregating in num- bers near the doors of the person to be injured, printing circulars descriptive of the supposed griev- ances in more or less emphatic language, and distributing such circulars near and about his doors to his customers and to passers-by."" See as to what constitutes " force or violence," or a " threat to use force or violence," under the Utah statute. People v. O'Loughlin, 3 Utah, 133; s. C„ 1 Pac. Rep. 653 (1882). In Reg. v. Druitt, 10 Cox C. C. 593, 602 (1867), it was stated by Bramwell, B., in, charging the jury, that if the system of "picket- ing," "though not carried beyond watching and observation, was still so serious a molestation and ob- struction as to have an effect v^oni the minds of the working people,'f it was a punishable offense. Com- pare Reg. V. Shepherd, 11 Id. 825 (1869). In Reg. v. Hibbert, 13 Id. 83 (1875), it was stated by Cleasby, B., in charging the jury, that " picketing, that is, the watching and speaking to the workmen as they come and go from their employment, to in- duce them to leave their service, is- not necessarily unlawful; nor is it unlawful to use terms of persuasion towards them to accomplish that object; but if the watching and besetting is carried on to such a length and to such an extent that it occasions a dread of loss, it would be unlawful." As to " watch- ing " and " besetting " under Eng- lish statute, see Reg. v. Bauld, Id. 283 (1876). "With Reg. v. Hib- bert compare Rogers v. Evarts, 17 §14.] ACTS ACCOMPANYING STRIKES AND BOYCOTTS. 6T to business. But, in accordance with what we have else- where seen, a fear of injury to business has, no more than an injury to business, any independent existence.^ Assum- ing, as we must, that an act of violence to person or prop- erty, preventing such person from carrying out his intention to deal with another person, creates a civil liability, to whom is the wrong-doer liable? Clearly he is to the party injured in person or property; but is he also liable to the person with whom the injured party intended to deal ? It seems to have been generally assumed, though without considera- tion, that he is.^ Eut if we assume that an injury to busi- N. Y.'Suppl. 264 (Supm. Ct., Sp. T., 1891), where an injunction to re- strain strikers from inducing other employees to leave their employ- ment was refused, "picketing," under the circumstances of the case, being held not unlawful, the pickets employing merely persua- sion and entreaty, but not violence, threats or intimidation. And held not unlawful to post the names of those contributing and those not contributing funds for the support of the strike. So in Perkins v. Rogg, 28 Weekly L. Bull. 33 (Cinn. Super. Ct., 1392), "picketing," for the pur- pose of reporting the number of men employed, was held not unlaw- ful. In Old Dominion Steamship Co. V. McKenna, 30 Fed. Rep. 48 (Cir. Ct. N. Y., 1887), an action was held maintainable for a boycott of the plaintifE's business by send- ing notices to his customers, de- signed to intimidate them from dealing with it, by threat of loss and expense, whereby various per- sons were so intimidated into refus- ing to deal with the plaintiff. Such acts were said to be not merely actionable, but misdemeanors at common law and under N. Y. Penal Code, § 168. This illus- trates a class of cases above re- ferred to, it being diflScult to determine whether the threat of " loss and expense " produced a fear of violenoe or merely of loss of custom. If of violence, the case was probably rightly decided; if merely of loss of custom, in our view, wrongly. See § 15. iSee§l. 2 See, for instance, cases consid- ered in note 1, p. 64, above. Even in Allen v. Flood, L. R. App. Cas. (1898), 1, where the unsoundness of the doctrine of independent injury to business, was so learnedly and, in our view, so unanswerably shown, the court were clearly of the view that a liability exists in the case supposed. Thus, Lord Herschell recognizes the authority of Tarleton v. MoGawley, Peake N. P. 205 (1793), where intending cus- tomers were frightened away by an act of violence resulting in the death of one of them, and the party with whom they intended to deal, was held to have a right of action. See also remarks of Lord Davey 68 ANNOUNCEMENTS OF INTENTION TO DO INJ0ET. [§ 15. ness has no independent existence, as distinct from an injury to person or property, there would seem to be, on principle, serious objection to sustaining in such case a liability in favor of one person, merely because another person failed, even though as a result of violence, to carry out his intention to deal with him. § 15. Legality of threats or annonucements of inten- tion to do injury. — In the application of the rule just con- sidered, namely, that acts producing a reasonahle fea/r of violence to jperson or, property are illegal, the courts have frequently overlooked the distinction between acts produc- ing a fear of unlawful injury, and acts producing a fear of lawful injury. As an act producing a reasonable fear of unlawful injury is itself unlawful, so there is nothing neces- sarily unlawful in an act producing a fear of lawful injury. Such act may be the announcement of an intention to do the injury. To illustrate : The proprietor of a business es- tablishment employing many workmen, desires to discontinue business and close his establishment. It will not be pre- tended that there is anything unlawful in his so discon- tinuing business, though great injury may result to the employees in the form of loss of employment. And is it not equally clear that his announcement of his intention to discontinue business and close his establishment, is equally lawful, though producing the fear of great injury, that is, of loss of employment ? But, clear as is the distinction when thus stated and illustrated, the appreciation of it has been much obscured by the ambiguity of the word " threat," as used in (p. 173). But assuming the absence son with whom the party actually of injury or fear of injury to the injured in person or property in- person or property of such person, tended to deal — whether the inten- and assuming, according to the tion was frustrated by violence or doctrine of Allen v. Flood, that by mere change of intention? We there is no injury to business that submit this question in the hope the law recognizes as distinct from that future decisions will furnish injury to person or property, what a satisfactory answer. See discus- difiference does it make — so far sion by J. H. Wigmore in 31 Am. as concerns the rights of the per- Law Rev. 510, 520 (1887). § 15.] ANNOITNCEMENTS OF INTENTION TO DO INJUET. statutes, pleadings and judicial decisions. Clearly the word applies to an announcement of an intention to do an unlaw- ful injury. "Whether it shall be regarded as also applying to an announcement of an intention to do a lawful injury, is a mere question of the use of language. But the important point to notice is, that an announcement of an intention to do a lawful act, is not made unlawful merely by calling it a " threat." ^ And indeed, until recently at least, it seems to- iThus, it is said in Payne v. Western & Atlantic R. E. Co., 13 Lea (Tenn.), 507, 521 (1884): "In law a threat is a declaration of an intention or determination to in- jure another by the commission of some unlawful act; and an intimi- dation is the act of making one timid or fearful by such declara- tion. If the act intended to be done is not unlawful, then the dec- laration is not a threat in law, and the effect thereof is not intimida- tion in a legal sense." So it is said by Lord Herschell in Allen v. Flood, L. B. App. Cas. (1898), 1, 129 (and compare remarks of Lord Shand, p. 165) : " The terms ' threat,' 'coercion,' and even 'intimidation,' are often applied in popular lan- guage to utterances which are quite lawful, and which give rise to no liability either civil or crim- inal. They mean no more than this: that the so-called threat puts pressure, and perhaps extreme pressure, on the person to whom it is addressed, to take a particular course. . . . Everything depends on the nature of the representation or statement by which the pressure was exercised. The law cannot regard the act differently because you choose to call it a threat or coercion instead of an intimation or warning." In the dissenting opinion of Holmes, J., in Vegelahn V. Guntner, 167 Mass. 93, 107; S. C, 44 N. E. Rep. 1077 (1896), it is said: " The word ' threats ' often is used as if, when it appeared that threats had been made, it appeared that unlawful conduct had begun. But it depends on what you threaten. As a general rule, even if subject to some exceptions, what you may do in a certain event you may threaten to do, that is, give warn- ing of your intention to do in that event, and thus allow the other person the chance of avoiding the consequences. So as to 'compul- sion,' it depends on how you ' com- pel.' So as to ' annoyance, ' or ' in- timidation.' " See also dissenting opinion of Caldwell, J., in Hopkins V. Oxley Stave Co., 49 U. S. App. 709, 737, 745; s. C, 83 Fed. Rep. 912, 934, 935 (8th Cir., 1897); and on the general subject, article by J. H. Wigmore in 31 Am. Law Rev. 509, 529 (1887). The following seem to be cases where the use of the word " threat " or " threaten " in a stat- ute has misled courts into applying it to the announcement of an in- tention to do a lawful act. See State V. Stewart, 59 Vt. 373, 291 ; s. c, 9 Atl. Rep. 559 (1887), where, in case of an indictment under a statuta TO ANNOUNCEMENTS OF INTENTION TO DO INJUET. [§ 15. have been a well settled rule that there is nothing unlawful in an a,nnouncement of intention (or, if you please, a threat) to do what one has a perfect right to do ; in other words, what it is lawful to do.^ ISTordoes there seem to be, on prin- ciple, any ground for refusing to apply this rule to acts ac- companying strikes or boycotts. The rule, with this special application, thus becomes: Though hy way of incident to a sl/rike or a hoycott, it is not unlawful to announce on^s inten- tion {or threateri) to do a la/wful act, though such announce- ment of intention [or threat) produce injury or a fear of injury? It would seem hardly worth the while to devote prescribing punishment for using tlireats or intimidation to prevent a person from accepting or con- tinuing employment in a mill, etc., it was held unnecessary to set out specifically the kind of threats or intimidations made use of. The court follow Queen v. Rowlands, 17 Q. B. 671 (1851). See State v. Glidden, 55 Conn. 46, 69; s. c, 8 AtL Bep. 890 (1887), as to Connecticut statute making it a punishable offense to "threaten or use any means to intimidate any person, to compel such person, against his will, to do or abstain from doing any act which such person has a legal right to do, or persistently follow such person in a disorderly manner, or injure or threaten to injure his property, with intent to intimidate him." See Farmers' Loan & Trust Co. v. Northern Pa- cific R. R. Co., 60 Fed. Rep. 803, 817 (Cir. Ct. Wis., 1894), as to Wiscon- sin statute making it a punishable offense to "by threats, intimida- tion, force, or coercion of any kind, hinder or prevent any other person from engaging in or continuing in any lawful work or employment, either for himself or as a wage- worker." For other similar stat- utes see Appendix. 1 Thus, it was said in Hackley v. Headley, 45 Mich. 569, 576 (1881), by Cooley, J., in a well considered opinion : " Where the party threat- ens nothing which he has not a legal right to perform, there is no duress." s. p.. Puller v. Roberts, 35 Fla. 110, 117; s. C, 17 So. Rep. 359 (1895). See cases cited in 6 Am, & Eng. Enc. of Law, p. 71, under article " Duress." 2 The following decisions we re- gard as sound, as supporting the rule stated in the text In Payne V. Western & Atlantic R R. Co., 13 Lea (Tenn.), 507, 531 (1884), an ac- tion by a merchant against a rail- road company, for notifying its employees that it would discharge them if they traded with the plaint- iff, was held not to lie, notwith- standing allegations of threats and intimidation. In Bohn Manuf. Co. V. Hollis, 54 Minn. 323; S. C, 55 N. W. Rep. 1119 (1893), was sustained an agreement contained in the by- laws of an association of retail dealers, not to deal with a whole- § 15.] ANNOUNCEMENTS OF INTENTION TO DO INJUET. 71 SO much space to the enunciation of so obvious and funda- mental a doctrine, were it not that the present tendency of judicial decisions in this country seems to be to establish, as sale dealer dealing directly with customers not dealers, at a point where a member of the association might be doing business. Here the existence of such by-law may be regarded as an announcement of intention. So held, notwith- standing a demand by the associa- tion, in accordance with its by-laws, for a percentage on sales made. So the by-law was declared not to operate as coercion upon the members of the association. Com- pare Jackson v. Stanfield, 137 Ind. 692; s. c, 36 N. E. Rep. 345 (1894), p. 76, below. Bohn Manuf. Co. v. Hollis was followed in Macauley V. Tierney, 19 E. I. 255; S. C, 83 Atl. Rep. 1 (1895), as applicable to a similar agreement contained in resolutions adopted by an associa- tion of master plumbers, it being held not illegal for them to send no- tices to dealers not to sell to plumb- ers not members of the association, under penalty of withdrawal of patronage. Bohn Manuf. Co. v. Hollis was also applied in Cote v. Murphy, 159 Pa. St. 420, 431; S. C., 28 Atl. Rep. 190 (1894), sustaining an agreement among employers not to sell to persons who had con- •ceded demands of striking em- ployees; also to dissuade others from dealing with him. See also Buchanan v. Kerr, 159 Pa. St. 438; S. C, 28 Atl. Rep. 195 (1894). The rule was well illustrated in Long- shore Printing Co. v. Howell, 26 Oreg. 527, 544; s. C, 38 Pac. Rep. •547 (1894), where the Oregon stat- ute making it a misdemeanor to " by force, threats or intimidation, prevent or endeavor to prevent any person employed by another, from continuing or performing his work, or from accepting any new work or employment," was held to have no application to a case of officers of a labor union entering upon an employer's premises, and ordering members of the union then at work under contract with it, to cease work "under penalty of being dealt with according to the laws and regulations of said union," or to a resolution of such union ordering all union men work- ing for such employer to cease working for it. The court say (p. 546) : " No intimidation is spe- cifically alleged or shown, unless it can be inferred that, by a refusal to quit, the members of the union would subject themselves to the charge of insubordination to the order, and it does not appear that there was sufficient odium attached to this, to put the members in fear, or that compliance with the order and resolution was induced there- by." So held, notwithstanding alle- gations in the complaint here held bad oxi demurrer, that by the first order the employees " were intimi- dated and influenced and without delay immediately obeyed;" that, "being intimidated," they obeyed the second order, and " ceased to ful- fill their contracts with plaintiff." Furthermore, the rules of the union provided for suspension or expul- T2 ANNOUNCEMENTS OF INTENTION TO DO INJUEY. [§ 15^ especially applicable to acts accompanying strikes and boy- cotts, a doctrine directly opposed to it. Such tendency has,, however, been recently abruptly checked in England.^ sion for failure to comply with such an order. So, too, statutes making it a misdemeanor to " wilfully and wrongfully commit any act which grossly injures the property of an- other," or to "either verbally, or by any written or printed commu- nication, threaten any injury to the person or property of another . . . with intent thereby to ex- tort any pecuniary advantage or property from such other, or with intent to compel such other to do any act against his will," were held to have no application. So in Com- monwealth V. Sheriff, 15 Phila. (Pa.) 393 (1881), the prohibition of the Pennsylvania statute of 1876 against hindering persons from laboring, by "the use of force, threat, or menace of harm to per- sons or property," was held not to cover the case of persons who, in behalf of a labor organization, de- manded of employers an increase of wages of certain employees, and notified them that a refusal would result in a strike of theniselves, followed by notifying such employ- ees that a strike was ordered. Com- pare with People v. Barondess, note 1, below. By the English Con- spiracy and Protection of Property Act of 1875, it is forbidden to "wrongfully and without legal authority " do any of certain speci- fied acts, " with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing." One such class is " using violence to, or intimidating, such other person or his wife or children, or injuring his property." Held in Gibson v, Lawson, 3 L. E. Q. B. (1891), 557, not to apply to the action of a member of a labor union, in announcing to the complainant's employer that the union had resolved to strike unless the complainant joined the union. There was no violence or threat of violence to his person or property, but merely fear of loss of employment, produced by the ac- tion of the union. It seems that " intimidation," as the word is here used, is limited to "such intimidar tion as implies a threat of personal violence." See also Curran v. Tre- leaven. Id. 560. Compare Judge V. Bennett, 86 Weekly Eep. 103 (1887> Under a former statute, "threats or intimidation " had been held to cover the case of announce- ment of intention to leave employ- ment in a body. Walsby v. Anley,. 3 El. & El. 516 (1861). See Skinner V. Kitch, 2 L. E. Q. B. 893 (1867). 1 The following are illustrations: In People v. Barondess, 133 N. Y. 649; s. 0., 31 N. E. Eep. 340 (1893), adopting opinion of Daniels, J., in 61 Hun, 571, 581 (1891), it was held a "threat to do an unlawful injury to property," to "threaten " , to prevent persons who had beeI^\l on strike from returning to their | employment. What the defendant actually told the employer was that he would have to pay him a certain sum "to have his peo- §16.] EEMEDIES; INJUNCTION. 73 § 16. Kemedies; injunction. — Grenerally speaking, for any of the injuries thus far discussed, an action at law for damages is an available remedy ,i though sometimes, as in pie back again to work;" that if he did not pay it "he could not have his people back again to work." This was a decision by four judges against three, reversing a decision made by two judges against one. The dissenting opinion of Gray, J., reported in 45 N. Y. State Reporter, 348, furnishes the better reason. In Curran v. Galen, 152 N. Y. 33; s. C, 46 N. E. Rep. 297 (1897), an action was sustained against members of a labor union, for conspiring to in- jure the plaintiff by taking away his means of earning a livelihood, and preventing him from obtain- ing employment, by threatening to procure his discharge, and prevent him from obtaining employment elsewhere, unless he joined the union; it being held no defense that their action was in pursu- ance of an agreement between the union and an association of em- ployers, whereby all employees of such employers should be mem- bers of such union, no employee to work for more than four weeks without becoming a member. Held illegal, as "a plan of compelling workingmen not in affiliation with the organization to join it, at the peril of being deprived of their employment and of the means of making a livelihood." Compare People ex rel. Gill v. Smith, 5 N. Y. Grim. R. 509 (N. Y. Co. Oyer & Ter- miner, 1887), and N. Y. Penal Code, § 168, subd. 5, forbidding the use of force, threats or intimidation "to prevent another from exercising a lawful trade or calling." Curran V. Galen would seem in essence to be merely the case of a request to comply with an agreement for exclusive employment of per- sons of a specified class. As ad- mitted by the demurrer, there was no "intent or purpose to injure plaintiff in any way," nor does it ap- pear that, otherwise than as above stated, any unlawful means were employed to effect the object. Though not so distinctly stated, the existence of the oomMnation seems to have largely influenced the decision. It was also intimated that there was a violation of the constitutional guaranty of the right freely to pursue a lawful avocation and of freedom in the pursuit of happiness. See also Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811, 823 (Cir. Ct. Ohio, 1897). In Barr v. Essex Trades Council, 53 N. J. Eq. 101, 123; s. C, 30 Atl. Rep. 881 (1894), the injury complained of was in- ducing persons to refuse to deal with the complainant. So far as the establishment of the cause of action is concerned, it seems irrele- vant, as alleged, that his customers and employees were intimidated. They were not before the court as complainants. But, waiving this point, we submit that there was no intimidation; at the utmost there 1 See in 34 Am. Law Reg. & Rev. 102 (1895), an article by S. B. Stan- ton, on "Mandamus as a Means of Settling Strikes." 74 EEMEDIES; INJDNCTION. [§16. case of murder, robbery or violent assault, the remedy by indictment exists, either concurrently or exclusively. So, too, in case of conspiracy.^ But a detailed discussion of the teas injury or fear of injury result- ing from the doing of lawful acts or the threat or announcement of intention to do lawful acts. As to his employees, members of labor unions, the " threat " was at most merely to enforce against them the rules of the union, if they should continue to patronize the plaintiff, and it was not contended that such rules were illegal, nor was such enforcement illegal, even if these results were as thus de- scribed: "A member of a labor oi> ganization who does not submit to the edict of his union, asserts his independence of judgment and ac- tion at the risk, if not the absolute sacrifice, of all association with his fellow-members. They will not eat, drink, live or work in his company. Branded by the peculiarly offen- sive epithets adopted, he must exist ostracised, socially and in- dustrially, so far as his former as- sociates are concerned. Freedom of will, under such circumstances, cannot be expected." Compare Temperton v. Eussell, 1 L. R. Q. B. (1893J, 715 (p. 75, below). So, as to the customers, the "threat" was merely to refuse to deal with them ; nor does the application of the rule seem affected by the mere extent of the organization concerned in the boycott, representing a pur- chasing power of $400,000 a week. The same general observations apply also to Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135 (Cir. Ct. Ohio, 1891), a case very similar on the facts. In Vegelahn v. Guntner, 167 Mass. 92; s. 0., 44 N. E. Rep. 1077 (1896), was enjoined the mainte- nance of a patrol in front of the plaintiff's place of business, for the purpose of inducing persons to leave or refrain from entering his employment, under the conditions thus stated (p. 97): "Following upon a strike of the plaintiff's workmen, the defendants conspired to pre- vent him from getting workmen, and thereby to prevent him from carrying on his business, unless and until he should adopt a cer- tain schedule of prices. The means adopted were persuasion and social pressure, threats of personal in- jury or unlawful harm conveyed to persons employed or seeking employment, apd a patrol of two men in front of the plaintiff's fac- tory, maintained from 6:30 A. M. until 5:30 P. M., on one of the busi- est streets of Boston. The number of men was greater at times, and at times showed some little dispo- sition to stop the plaintiff's door. The patrol proper at times went further than simple advice, not obtruded beyond the point where the other person was willing to listen, and it was found that the patrol would probably be contin- ued if not enjoined. There waS'i also some evidence of persuasion^ to break existing contracts." So ' far as these acts constituted an iSee§3. 16.] EEMBDIES; INJUNCTION. 75 application of these remedies belongs to the subject of pro- cedure, and lies beyond the scope of this treatise.^ The ques- tions of greatest difficulty in this connection are as to the enticement to leave employment, the decision might be sustained under the doctrine considered in § 10. There were dissenting opin- ions by Field and Holmes, JJ., the latter of which is especially in- structive. See as to reference to Massachusetts and other statutes making it " a criminal offense for one by intimidation or force to prevent or seek to prevent a person from entering into or continuing in the employment of a person or corporation." In Hopkins v. Oxley Stave Co., 49 U. S. App. 709; s. 0., 83 Fed. Rep. 912 (8th Cir., 1897), members of labor organizations {lodges of the "Coopers' Interna- tional Union" and the "Trades Assembly of Kansas City") were enjoined from conspiring to com- pel a corporation engaged in the manufacture of barrels and casks for packing purposes, to abandon the use of hooping machines, this object to be accomplished by dis- suading the customers of the cor- poration from buying machine- hooped barrels and casks, such customers to be so dissuaded through fear, inspired by concerted action of the two organizations, that the members of all the labor organizations throughout the coun- try, would be induced not to pur- chase any commodity that might be packed in such machine-hooped barrels or casks. The dissenting opinion of Caldwell, J., though too declamatory in style for a judicial opinion, nevertheless seems to us toJurnish by far the better reason, and is rich in suggestion. In Tem- perton v. Russell, 1 L. R. Q. B. (1893), 715, 726, where an action against members of a joint com- mittee of trades unions, for induc- ing breaking of a contract with the plaintiff, was sustained, the action of the committee in notifying members of the union to withdraw from the employment of the per- son with whom the plaintiff had contracted, was declared illegal. 1 The free application of the rem- edy of injunction to labor dis- putes, producing what has been characterized as " government by injunction," has been subjected to fierce criticism, involving a con- troversy which we consider it need- less to here enter upon. Suggestive articles bearing on the subject are those by C. C. Allen on " Injunc- tion and Organized Labor," in 38 Am. Law Rev. 838; 50 Alb. Law Jour. 140 (1894); by F. J. Stimson, on "The Modern Use of Injunc- tions, in 10 Pol. Sci. Quart. 189 (1895); by W. H. Dunbar, on " Gov- ernment by Injunction," in 13 Law Quart. Rev. 347 (1897); by C. N. Gregory, on "Government by Injunction," in 11 Harv. Law Rev. 487 (1898). For a vigorous state- ment of objections arising under constitutional provisions securing the right of trial by jury, see dis- senting opinion of Caldwell, J., in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 729; s. C, 83 Fed. Rep. 913, 935 (8th Cir., 1897). (O EEMEDIES; INJUNCTION. [§16. availability of the remedy by injunction in particular cases. The circumstance that the injuries in question are frequently the acts of considerable numbers of persons, and cover a though, as we have intimated with regard to similar cases, the point was not in the case. The court say: " These men had bound them- selves to obey; and they knew that they had done so, and that if they did not obey, they would be fined or expelled from the union to which they belonged." But it may be said of this case, as of Barr v. Essex Trades Council, p. 74, above, that this was merely the enforc- ing against such men, of a contract that, so far as appears, was legal and voluntarily entered into. So in the following cases, notwith- standing the bewildering verbi- age concerning " conspiracy," " threats," " coercion^" and the like, the action declared unlawful was merely that of employees in an- nouncing their intention to induce persons not to deal with their em- ployers or their customers, and it does not appear that there was any injury or threat of injury to person or property. Crump v. Commonwealth, 84 Va. 937, 940; s. C, 6 S. E. Eep. 620 (1888; see opinion of court below in 11 Va. Law Jour. 834); State v. Glidden, 55 Conn. 46, 69; S. C, 8 Atl. Rep. 890 (1887). Compare Old Domin- ion Steamship Co. v. McKenna, 80 Fed. Rep. 48 (Cir. Ct. N. Y., 1887). However it may have been as to the evidence, the court in Crump V. Commonwealth were, in our view, clearly in error in refusing to charge as requested, for in- stance, that if "the alleged con- spirators confined themselves to merely announcing to the patrons of B. Bros, (the employers) that they had stopped dealing with that firm, and would not deal with the patrons of said firm, and would get their friends to agree with them in their course," then the prisoner was not guilty. In Jackson v. Stan- field, 137 Ind. 592; s. C, 86 N. E. Rep. 845 (1894), the facts were sub- stantially the same as in Bohn Manuf. Co. v. HoUis, 54 Minn. 333; s. c, 55 N. W. Rep. 1119 (1893) (see p. 70, above), but a contrary result was reached, and the by-law held to operate as unlawful " coercion " upon the wholesale dealers, the court disapproving Bohn Manuf. Co. V. HoUis. Compare People v. Duke, 19 Misc. 293; s. C 44 N. Y, Suppl. 336 (N. Y. Co. General Ses- sions, 1897). In Jackson v. Stan- field there is a dictum that the by-law operated as coercion upon the members of the association. In Perkins v. Pendleton, 90 Me. 166; s. c, 38 Atl. Rep. 96 (1897), an action for inducing a discharge from employment was sustained on allegations of "wilfully threat- ening, persuading, inducing and, by other overt acts, compelling" the employer, "against its will and without any desire on its part so to do, to discharge the said plaintiff from its employ." As urged by counsel, there was no allegation of " any threat of injury " or use of intimidation or force. §16.] EEMEDIES; INJUNCTION. Y7 considerable extent of territory, besides being frequently repeated, has within a comparatively recent period ^ led to the extensive use of injunctions in the case of strikes and boycotts, and acts accompanying the same.^ The rules ap- iThus, in Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811, 827 (Cir. Ct. Ohio, 1897), it is said, citing Stimson's hand-book of the "Labor Law of the United States," that the remedy by injunction, as applied to labor disputes, is traced back to Springhead Spinning Co. v. Riley, 6 L. R. Eq. Cas. 551 (1868). And in so recent a decision as Mayer v. Journeymen Stonecutters' Assoc, 47 N. J. Eq, 519, 527; S. C, 20 Atl. Rep. 492 (1890), it is said with reference to ^' the effort to control employment and wages, by labor organizations," that "the industry, research and learning of the distinguished coun- sel of the complainants has fur- nished but one reported case where a court of equity has interfered to prevent or control the action of such organizations. All of the re- ported cases save three, referred to by counsel, were proceedings of a criminal nature, either by in- formation or indictment." Bearing in mind that the word " boycott " was not used in any American de- cision prior to 1887 (see § 9, p. 43, above), there seems to be but a limited scope for the application of the following statement in Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135, 143 (Cir. Ct. Ohio, 1891): "No case has been cited where, upon a proper showing of facts, an unsuccessful appeal has been made to a court of chancery to restrain a boycott." 2 It being as a rule lawful, apart from contractual relations, to quit one's employment, an injunction against so quitting will not be granted. In Reynolds v. Everett, 144 N. Y. 189; s. C, 39 N. E. Rep. 72 (1894), the discretion of the court below was held properly exercised in refusing an injunction in favor of an employer against a strike, in the absence of elements of intimi- dation, especially as the acts com- plained of had been discontinued. But, proceeding on the theory of an implied agreement not to quit em- ployment under certain conditions (see § 8), in Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 746 (Cir. Ct. Ohio, 1893), an injunction restraining railroad companies and their employees from refusing to extend to an- other railroad facilities for inter- change of freight, was held vio- lated by an engineer in the employ of one of the companies, in quitting his train on a main track ten miles from its destination. This is carry- ing the remedy to an extreme length, and goes far toward justi- fying the complaints against "gov- ernment by injunction." The pro- priety of an injunction against inducing to quit employment has been recognized. Thus, in Toledo, Ann Arbor, etc. Ry. Co. v. Penn- sylvania Co., 54 Fed. Rep. 730, 744 (Cir. Ct. Ohio, 1893), though the injunction was granted on the theory that the acts com- plained of constituted a boycott. 78 KEMEDIES; INJUNCTIOir. [§16. plicable to injunctions generally are applicable here. A question of some difficulty has arisen in connection with the rather than a strike or a quitting of employment (for facts, see § 13), yet the court say that an in- junction might have been granted against "directing the engineers to quit work, for the purpose of co- ercing the defendant companies to violate the law and complainant's rights." An injunction in this form, however, was not asked for. An injunction against inducing to quit employment was also granted in Coons v. Chrystie, N. Y. Law Jouij, July 21, 1898 (Supm. Ct., Sp. T.). So in Vegelahn v. Gunt- ner, 167 Mass. 92; s. a, 44 N. E. Rep. 1077 (1896; for facts, see § 15), the acts enjoined include,d inducing to quit employment. So injunctions have been granted against induo- ing persons not to enter one's em- ployment. Vegelahn v. Guntner, above; Blindell v. Hagan, 54 Fed. Rep. 40 (Cir. Ct. La., 1893); affirmed in Hagan v. Blindell, 13 TJ. S. App. 354; s. C, 56 Fed. Rep. 696 (5th Cir., 1893). Compare, under English statute against "watching or be- setting," Lyons v. Wilkins, 1 L. R. Ch. (1896), 811 (and see § 14). So against boycotts) or inducing a refusal to deal (or threats thereof). Brace v. Evans, 3 Ry. & Corp. L. J. 561 (Allegheny Co., Pa., Com. PI., 1888; for facts, see g 14); Hop- kins V. Oxley Stave Co., 49 U. S. App. 709; s. G, 83 Fed. Rep. 913 (8th Cir., 1897 ; for facts, see § 15 ; applying the rule that, where the cause of action arises ex delicto, the injured party may sue either one or more of the joint wrong-doers) ; Toledo, Ann Ar- bor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 744 (Cir. Ct- Ohio, 1893), above. In the case last cited the court say: "The in- terstate business of complainant will be interrupted and interfered with at every hour of the day and at every point within a radius of many miles." The case against th& party seeking to enforce the rule, was strengthened by the fact that, at the time he issued or was about, to issue his order, the injunction under consideration in 54 Fed. Rep. 746 (see above), had issued. A no- table decision under this head is Barr v. Essex Trades Council, 53 N. J. Eq. 101, 127; S. c, 30 Atl. Rep. 881 (1894), where an injunction was allowed against the boycott of a daily newspaper by an exten- sive combination of labor unions. The court say: " Representations^ calculated to reduce the paper's circulation with the public, or to influence, by fear of loss of custom- ers, the number or extent of adver- tisements, operate, not once for all, but, as it were, day by day, as the paper goes to and comes from the press, and each loss will be a dis- tinctive cause of action. . . . When opposition through the agency of already-established or- ganizations, reaching in their local- ity every part of the county, and in their membership almost every industry in prominent operation^ comprising, in the territory in which the paper must look for its support, operatives of a purchasing power of $400,000 a week, is put on §16.] EEMEDIES: INJUNCTION. ^9- application of this remedy to injuries consisting of the mere use of words, whether spoken or written. It is obvious that such use of words may do great injury, so as to be action- foot, — when such an organization, not satisfied with its potential au- thority over its own members, appeals to the public to boycott the paper, to cease buying or ad- vertising in it, with the significant suggestion that disregard of the appeal will bring upon such person the like opposition of the organiza- tions, — who can estimate or ap- proximate the natural damage short of ruin? The legal remedy in this case thus not only involves multiplicity of suits, but the threat- ened damage seems irreparable." So the boycott of a newspaper was enjoined under similar conditions in Casey v. Cincinnati Typograph- ical Union, 45 Fed. Rep. 135 (Cir. Ct. Ohio, 1891), it being held no defense that the representations of fact were true. On the other hand, in Longshore Printing Co. v. Howell, 36 Oreg. 527; s. C, 38 Pac. Rep. 547 (1894), an injunction against a boy- cott by members of trades unions, of the business of " lithographing, engraving, printing and publishing journals, newspapers, etc.," was re- fused on the ground that there did not appear such threatened and imminent injuries to the plaintiflE's business and property, as would re- sult in its irreparable detriment and loss, while conceding that the defendant might be liable in an action at law or criminally. There were allegations of a conspiracy between the ofiicers and members of the union to compel the plaint- iif to submit to its dictation, upon pain of being boycotted; of entry on the plaintiflE's premises and or- dering union men to cease work under penalty of being dealt with according to the regulations of the union; that the plaintiff lost, and apprehended loss of, impor- tant business through the wilful and malicious acts of the defend- ant; of circulation of facts of the plaintiff's employees being called off and ordered to stop work, and the plaintiff's oflSce left without hands, it not being shown how these facts were circulated, or to whom they were communicated; of posting the following notice in conspicuous places: "Owing to the Longshore Printing Com- pany breaking the rules of the Multnomah Typographical Union, all members of the union were withdrawn March 16, 1893." The court say (p. 552): "This mayor may not have been detrimental to plaint- iff's business, and would depend somewhat upon the state of sieg& existing at the time." So allega- tions of " secret assaults " upon the plaintiflf, and of its patrons being "harassed" and "boycotted," were held insufiicient as unaccompanied with statements of definite facts and circumstances. An injunction against a boycott was refused on the ground that the plaintiff did not come into court with clean hands, in Sinsheimer v. United Gar- ment Workers, 77 Hun (N. Y.), 215; S. C, 28 N. Y. Suppl. 321 (1894; see § 12); but see decision below in 80 remedies; iNJUNOTioir. [§16 able at law.^ And the remedy by injunction has been ex- tended beyond mere bodily acts producing injury, to the use of words producing injury. But we are here confronted with the rule, supported by much authority, that an injunc- 5 Misc. 448; S. C, 26 N. Y. Suppl. 153 (1893). It was refused in Sweeny v. Torrenoe, 11 Pa. Co. Ct. 497 (1893); Manufacturers' Outlet Co. V. Longley, — R. L — ; S. C, 37 Atl. Eep. 535 (1897), on the ground that the acts complained of w ere pasi acts. See also, as to in- junctions against boycotts, Lewin V. Welsbach Light Co., 81 Fed. Rep. 904 (Cir. Ct. Pa., 1897). In Worthington v. Waring, 157 Mass. 431; s. C, 33 N. E. Rep. 744 (1892), an injunction against the hlaeklisting of employees was re- fused; but see explanation of the decision in 30 L. E. A. 342, note. Injunctions have been granted against the unlawful acts of striking employees or those acting in sym- pathy with them. Thus, in Cceur D'Alene Consolidated & Mining Co. V. Miners' Union, 51 Fed. Rep. 260 (Cir. Ct. Idaho, 1892), against labor unions and members thereof, re- straining them from entering upon the complainant's mines or from interfering with the working thereof, or by the use of force, threats or intimidations, or by other means, from interfering with or preventing the complainant's employees from working upon its mines. The court say (p. 263) : "The evidence justifies the conclusion that defendants are organized into associations wherein submission to stringent and arbitrary rules is re- quired; that, by means approach- ing dictation, they have attempted to control employers in the selec- tion of laborers and the wages to be paid them, and have discour- aged and, as far as they could, pre- vented those who do not belong to their societies from procuring work; that by force, in one in- stance, they took complainant's laborers from its mine to their hall, where, upon such laborers so re- fusing to comply with their de- mands to join them and abide by their laws, they actually ordered their banishment from the State, and, in a manner deserving the most severe condemnation, en- forced their lawless decree, and against men who, by reason of their birth and not through the grace of the government, were en- titled to all the rights of American citizenship; that, in such numbers and under such circumstances as were menacing, they have re- quested non-union men to cease work, and to such have applied in an offensive and threatening manner most opprobious epithets, and in other ways have annoyed and vexed laborers who refused to join their associations." The court say (p. 265): "The threatened acts are such that their frequent occur- rence might be expected, and to 1 See, for instance, Ryan v. Burger, etc. Brewing Co., 18 N. Y. SuppL 660 (Supm. Ct., Gen. T., 1891). §16.] EEMEDIES; INJUNCTION. 81 tion will not be granted against a mere libel. A distinction has been sought to be maintained between an injunction obtain legal redress therefor the annoyance of a multiplicity of suits would follow; also it is al- leged that defendants are insolv- ent — both of which are among the prime reasons that appeal to a court of equity for its preventive relief." So in Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811 (Cir. Ct. Ohio, 1897), an injunc- tion was granted against labor unions and members thereof, it appearing that they, for the pur- pose of compelling the adoption of ^ particular sdale of wages, were guilty of acts of intimidation and violence, assembling near the en- trance to the complainant's mill, preventing its employees from going to their work, assaulting and wounding them. Other in- stances of the granting of injunc- tions against threats or intimida- tion by striking employees are: N. Y., Lake Erie & W. E. R Co. V. Wenger, 17 Weekly L. Bull. 306 {Cuyahoga Co., Ohio, Com. PI., 1887; there being also present the ele- ment of trespassing upon the plaint- iff's premises); Perkins v. Eogg, 28 Id. 32 (Cinn. Super. Ct. 1893); Lake Erie & Western Ry. Co. v. Bailey, 61 Fed. Rep. 494 (Cir. Ct. Ind., 1893); Bruschke v. Furniture Makers' Union, 18 Chicago Legal News, 306 (Super. Ct. Cook Co., 1886 ?). In Ar- thur V. Oakes, 24 U. S. App. 839, 344; s. C, 63 Fed. Rep. 310, 313 (7th Cir.; 1894; for facts, see § 14), the decision was based on the general " power of a court of equity, hav- ing custody by receivers of the 6 railroad and other property of a corporation, to enjoin combina- tions, conspiracies or acts upon the part of the receivers' employees and their associates in labor organ- izations, which, if not restrained, would do irreparable mischief to such property, and prevent the re- ceivers from discharging the du- ties imposed by law upon the corporation." So, acts producing fear of violence upon the minds of employees of a railroad in the hands of a receiver, were held an unlawful interference with the management of the road and a contempt of court, in Re Wabash R. Co., 34 Fed. Rep. 317 (Cir. Ct. Mo., 1885); United States v. Kane, 23 Fed. Rep. 748 (Cir. Ct. Colo., 1885). In Re Debs, 158 U. S. 564, 598; s. c, 15 Supm. Ct. Rep. 900 (1895), af- firming 64 Fed. Rep. 724, 765 (Cir. Ct. 111., 1894) (see § 8, p. 35, above), the injunction was sustained on the ground of the right of the gov- ernment to enjoin interference with interstate commerce. In Arthur v. Oakes, above; Con- solidated Steel & Wire Co. v. Mur- ray, 80 Fed. Rep. 811 (Cir. Ct. Ohio, 1897), above; Vegelahn v. Guntner, 167 Mass. 93; s. c, 44 N. E. Rep. 1077 (1896), was applied the rule that an injunction may be granted against an act that is also punishable as a crime. So in Hamilton-Brown Shoe Co. V. Saxey, 131 Mo. 312; s. c, 32 S. W. Rep. 1106 (1895); Davis v. Zimmerman, 91 Hun, 489; s. c, 36 N. Y. Suppl. 303 (1895), both oases of acts of striking employees. In 82 REMEDIES ; INJUNCTION. [§16: against the use of words producing a fear of injury, and an injunction against mere libelous words.^ But we submit Perkins v. Rogg, 28 Weekly L. Bull. 33 (Cinn. Super. Ct, 1893), an in- junction was granted against a part only of the defendants. 1 In Springhead Spinning Co. v. Riley, 6 L. R. Eq. Cas. 551 (1868), an injunction was granted to re- strain officers of a trade union from printing or publishing pla- cards or advertisements for the purpose of intimidating workmen from entering the service of the plaintiff. So held under a statute, though the acts were declared to be unlawful at common law. So in Sherry v. Perkins, 147 Mass. 212; s. c, 17 N. B. Rep. 307 (1888), against displaying banners with devices, as a means of threats and intimida- tion, to prevent persons from en- tering into or continuing in the employment of the plaintiffs. In Coeur D'Alene Consolidated & Min- ing Co. V. Miners' Union, 51 Fed. Rep. 360, 267 (Cir. Ct. Idaho, 1892), it is said: "A clear distinction will be observed between the two classes of cases above noted. In the one, when the acts complained of consist of such misrepresentations of a business that they tend to its injury, and damage to its propri- etor, the offense is simply a libel; and in this country the courts have, with great unanimity, held that they will not interfere by in- junction, but that the injured party must rely upon his remedy at law. On the contrary, when the attempt to injure consists of acts or words which will operate to intimidate and prevent the customers of a party from dealing with or labor ers from working for him, the- courts have, with nearly equal unanimity, interposed by injunc- tion." See further, as illustrat- ing this distinction. Sherry v. Per- kins, above; Emack v. Kane, 34 Fed. Rep. 46 (Cir. Ct. 111., 1888); Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135 (Cir. Ct. Ohio, 1891. Here the authorities are quite carefully considered). See also Vegelahn v. Guntner, 167 Mass. 93; s. C, 44 N. E. Rep. 1077 (1896); Shoemaker v. South Bend Co., 135 Ind. 471; S. C, 35 N. E. Rep. 380 (1893); Francis v. Flinn, 118 U. S. 385; s. c, 6 Supm. Ct. Rep. 1148 (1886); Arthur v. Oakes, 24 U. S. App. 239, 256; S. c, 63 Fed. Rep. 310, 320 (7th Cir., 1894). For instances of statements held to- be mere libels and not furnishing ground for injunctions as against injuries to business, see Mayer v. Journeymen Stonecutters' Assoc, 47 N. J. Eq. 519; S. C, 30 Atl. Rep. 493 (1890). In Richter v. Journey- men Tailors' Union, 24 Weekly L. Bull. 189 (Franklin Co., Ohio, Com. PI., 1890), a case of the circulation and posting, by members of a labor union, of circulars and posters claimed to contain statements in- jurious to the plaintiff's business. Sherry v. Perkins, above, was distin- guished on .the ground that there,, in addition to the display of the- banner, there was the element of intimidation of the plaintiff's employees. Springhead Spinning Co. V. Riley, 6 L. R. Eq. Cas. 551 §16.] EEMBDIES; INJUNCTION. 83 that the distinction is scarcely a substantial one. It is easy to see how the rule that an injunction •will not be granted against a mere libel, originated under conditions in which a libel was commonly the act of a single individual. But if the doctrine becomes established that an injunction is an available remedy against the use of words producing a fear of injury, it is difficult to see on principle why it should not be an available remedy against such use of words as consti- tutes a libel, when frequently repeated by large numbers of persons over a considerable extent of territory.^ (1868) (see p. 8-2, above), is said, in Mayer v. Journeymen Stonecut- ters' Assoc, 47 N. J. Eq. 519; s. c, 30 AtL Eep. 493 (1890), to have been overruled in Prudential Assurance Co. V. Knott, 10 L. E, Ch. App. 143 (1875). iThus, in Gilbert v. Mickle, 4 Sandf. Ch. (N. Y.) 357 (1846), the jurisdiction to enjoin the continu- ous display of a placard containing offensive words was recognized, even on the supposition that the placard was a libel. See also 3 High on Injunctions.(3d ed.), § 1015; 1 Jaggard on Torts, p. 353. The illogical character of the distinc- tion is fully demonstrated in an article by W. D. Lewis on " Injunc- tions to Restrain Libels, and Courts of Criminal Equity," in 31 Am. Law Reg. & Rev. 783 (1893). It seems t& be the common practice in Eng- land to grant injunctions against libels. Thus, in TroUope v. London Building Trades Federation, 73 L. T. R. 343 (1895), a case of a trade libel. But as to whether this practice is not based on legislation, see above article (p. 793) and Kidd v. Horry, 38 Fed. Rep. 773 (Cir. Ct. Pa., 1886); De Wick v. Dobson, 18 N. Y. App. Div. 399; s. C, 46 N. Y. Suppl. 390 (1897). PART II. COMBINATIONS PKODUCING PUBLIC INJURY. § 17. The doctrine of public policy. — The wrongs hith- erto considered have been wrongs that the law regards as committed merely against an individual. But we pass now to a consideration of wrongs that the law regards as far more extensive in their operation, namely, as committed not merely against an individual, but against a large number of individuals, constituting that vague combination known as " the public," that is to say, the inhabitants of a given town, city, State or country, as the case may be, or even of a region not limited by mere political boundaries. The needs and capacities of different individuals are so infinite in their variety that a wrong measured by the needs and capacities of a large number must, of necessity, be somewhat indeter- minate in its character, to say nothing of the indefiniteness of the number affected. Hence, it is not surprising that so in- determinate a test of liability has at times encountered strong disapproval.! Nevertheless it is a test that we must regard as, for the present at least, firmly established in our juris- 1 Such disapproval is manifested Manuf. Co. v. Hollis, 54 Minn. 223, in the frequent quotation of the 231; s. C, 55 N. W. Rep. 1119 (1893), remark of Burrough, J., in Rich- it is said: "There is perhaps dan- ardson v. Mellish, 3 Bingham, 229, ger that, influenced by such terms 252 (1824), that "public policy is of illusive meaning as 'monopo- a very unruly horse." See, for in- lies,' 'trusts,' 'boycotts,' 'strikes,' stance, Chappel v. Brookway, 21 and the like, they (the courts) may Wend. (N. Y.) 157, 164 (1839). For be led to transcend the limits of criticisms of the doctrine, see re- their jurisdiction, and, like the marks of Campbell, C. J., in Hilton court of King's Bench, in Bagg's v.Eckersley,6EL&B1.47,64(1855); Case, 11 Coke, 936, 98a (1615), as- also Kellogg v. Larkin, 3 Pinney sunie that, on general principles, (Wis.), 123, 136 (1851). In Bohn they have authority to correct or §17.] PUBLIC POLICY. 85 prudence.^ A wrong of this character is commonly known as an act against public policy. Any definition of such an act would seem to be of necessity unsatisfactory,^ and, without attempting to frame one, we content ourselves with the suggestion that an act illegal as against public pol- reform everything which they may deemi wrong, or, as Lord Ellsmere puts it, ' to manage the State.' " 1 In Bishop v. Palmer, 146 Mass. 469; s. a, 16 N. E. Rep. 299 (1888), the invalidity of a contract in re- straint of trade was said to rest on the same ground " as if such con- tracts were forbidden by positive statute." That the court will rjiise the question that a contract is ille- gal as against public policy, though it has not been raised by the par- ties, see Wright v. Cudahy, 168 111. 86; s. C, 48 N. E. Rep. 39 (1897). But an appellate court should not consider the objection, raised for the first time on appeal, unless such illegality appear from the pleadings, the face of the contract, or the confessed facts of the case. Carter-Crume Co. v. Peurrung, — U. S. App. — ; s. c, 86 Fed. Rep. 439 (6th Cir., 1893). The rule that the question whether an agreement is contrary to public policy, is one, of law for the court has been applied to agreements in restriction upon competition. Thus, in Cummings V. Union Blue Stone Co., 15 N. Y. App. Div. 603; s. C, 44 N. Y. Suppl. 787 (1897; holding a request to go to the jury properly denied). So in Kellogg V. Larkin, 8 Pinney (Wis.), 123, 135 (1851), holding that, in an action on an agreement, judgment for the defendant on demurrer to the plea was not made proper by mere averments in the plea to the effect that the agreement tended to stifle competition, etc. The court say: "No averment could give to the agreement a character which it had not, and no admis- sion could take from it the char- acter which it had." To similar effect, Hoffman v. Brooks, 23 Am. Law Reg. (N. S.) 648 (Super. Ct. Cinn., 1884). But in South Flor- ida R. R. Co. V. Rhodes, 25 Fla. 40, 46; s. c, 5 So. Rep. 633 (1889), the question whether an agreement was "bona fide and not entered into for the pUrpose of an oppres- sive monopoly " was held a mixed one of law and fact, and for the jury. See, as to pleading defense to contract valid on its face as al- leged and proved by the plaintiff, Drake v. Siebold, 81 Hun (N. Y.), 178; s. c, 30 N. Y. Suppl. 697 (1894). 2 It was said by Kekewich, J., in Da vies v. Davies, 36 L. R. Ch. D. 359, 364 (1887), that " public policy does not admit of definition." But in People ex rel. v. Chicago Gas Trust Co., 130 111. 268, 394; s. C, 32 N. E. Rep. 798 (1889), public policy is de- fined as "that principle of the law which holds that no subject or cit- izen can lawfully do that which has a tendency to be injurious to the public or against the public good." See also Greenhood on Public Policy, p. 3. M PFBLIO POLICY. [§17. icy involves, as an essential element, the idea of a wrong committed against a considerable number of persons, such number being commonly incapable of precise determination. It is important to note that so different are the conditions of existence, comparing one time or country with another, that an act, illegal as against public policy, under the con- ditions of a given time and country, may not be so under the conditions of another.^ Hence, in applying this test of liability, precedents based, on different conditions of time and place should be employed with great caution.^ So, too, the lack of precedents furnishes no sufl5cient ground for re- fusal to pronounce illegal, acts performed under radically 1 Thus, it is said in United States V. Trans-Missouri Freight Assoc, 19 U. S. App. 36, 53; s. C, 58 Fed. Eep. 58, 68 (8th Cir., 1893), with refer- ence to public policy in connection with contracts in restraint of trade : "Public policy changes with the changing conditions of the times. It ia hardly to be expected that a people who are transported by steam with a rapidity hardly con- ceived of a century ago, who are in constant and instant communi- cation with each other by electric- ity, and who carry on the most im- portant commercial transactions by the use of the telegraph, while separated by thousands of miles, will entertain precisely the same views of what is conducive to the public welfare in commercial and business transactions as the peo- ple of the last century, who lived when commerce crept slowly along the coasts, shut out of the interior by the absence of roads, and ham- pered by an almost impassable ocean. , . . It is with the public policy of to-day, aa illustrated by public statutes and judicial decis- ions, that we have now to deal. In considering that subject we are not to be governed by our own views of the interests of the peo- ple, or by general considerations tending to show what policy would probably be wise or unwise. Such a standard of determination might be unconsciously varied by the per- sonal views of the judges who con- stitute the court. The public policy of the nation must be determined by its constitution, laws and judi- cial decisions. So far as they dis- close it, it is our province to learn and enforce it; beyond that it is unnecessary and unwise to pursue our inquiries." See also Davies v. Davies, 86 L. R. Ch. D. 859 (1887). 2 This is peculiarly applicable to precedents concerning the validity of contracts in restraint of trade. See note 1, above; also, Nordenfelt V. Maxim Nordenfelt Guns & Am- munition Co., L. R. App. Cas. (1894), 535, 558; Diamond Match Co. v. Roeber, 106 N. Y. 478; S. a, 13 N. E. Rep. 419 (1887). §!«•] MONOPOLIES. 87 new conditions of time and place.^ Obviously, the public policy of a given jurisdiction may be determined by the legislative power, subject to constitutional restriction, if any.^ § 18. Nature and definition of monopolies. — Competi- tion, especially among sellers, is so universal as to be com- monly regarded as a part of the normal condition of things. Until within a comparatively recent period, absence of com- petition has usually been the result, not of the acts of mere individuals, but of a grant that is the act of government, conferring upon a single individual or set of individuals the exclusive right of buying or selling a given article within a given area. This exclusive right of selling is known as a monopoly? In England the power of creating monopo- 1 This is peculiarly applicable to the development of the doctrine forbidding monopolies that result from the mere acts of private par- ties. 2 People ex rel. v. Chicago Gas Trust Co., 130 111. 268, 396; s. C, 33 N. E. Rep. 798 (1889). Thus, in Stewart v. Erie & Western Transp. Co., 17 Minn. 373, 396 (1871), a traffic contract entered into by a railroad corporation, that it was authorized to make, was held not illegal, though resulting in a practical monopoly. See, how- •ever, as to grant of exclusive privi- lege to manufacture and sell gas, City of St. Louis v. St. Louis Gas- light Co., 70 Mo. 69, 119 (1879). In Cameron v. N. Y. & Mt. Vernon Water Co., 63 Hun (N. Y.), 369; s. C, 16 N. Y. Suppl. 757 (1891), it was said: "The consolidation of cor- porations engaged in the same gen- eral line of business is not against public policy. The legislature has permitted it for years and still per- mits it. There is a great differ- ence between the consolidation of two corporations into one new cor- poration, and the combination be- tween two existing corporations for the prevention of competition. The former is permitted and the latter is condemned. It is not nec- essary to point out the distinction so far as the public or private good is concerned. It is enough that the legislature has drawn the dis- tinction." Notwithstanding the general rule of public policy con- demning restrictions upon competi- tion, patent-rights furnish conspic- uous instances of such restrictions expressly legalized by the legisla- tive power. See § 18. 3 Until recently the accepted defi- nitions of a monopoly have been confined to such as are created by act of government. Thus, it is defined in 4 Blackstone's Com- mentaries, p. 159, as " a license or privilege allowed by the king for the sole buying and selling, mak- ing, working or using of anything whatsoever, whereby the subject 88 MONOPOLIES. [§18. lies was for a long time in the crown, but was so abused by the appointing power that, by virtue of statute, it is now solely in Parliament.^ Similarly in this country the power is in the legislatures,^ subject to such constitutional restric- tions as exist.^ It is to be noted that the legal conception in general is restrained from that liberty of manufacturing or trad- ing which he had before." So in the dissenting opinion of Story, J., in Charles River Bridge v. Warren Bridge, 11 Peters (U. S.), 420, 607 (1837), citing East India Co. v. Sandys, 10 Howell's State Trials, 371, 386, 425 (1684), as "an institu- tion by the king, by his grant, com- mission or otherwise to any persons or corporations of or for the sole buying, selling, making, working or using of everything, whereby any persons or corporations are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade." See also Darcy v. AUein, 11 Coke, 846 (1802); United States v. E. C. Knight Co., 156 U. S. 1, 9; s. C, 15 Supm. Ct. Rep. 249 (1895). iBy 21 Jas. 1, c. 3 (1624), declar- ing that all monopolies, grants, let- ters patent, etc., for the "sole buy- ing, selling, making, working or using of anything " should be void. But there had been much earlier legislation directed against monop- olies. See 9 Edw. 3, c. 1 (1335), cited in Darcy v. AUein, 1 1 Coke, 846 (1602). As is said by Blackstone (4 Commentaries, p. 159), such mo- nopolies " had been carried to an enormous height during the reign of Queen Elizabeth." For a vivid characterization of the evils lead- ing to the popular agitation in England against monopolies, about the beginning of the seventeenth century, see argument of counsel in the Slaughter-House Cases, below (pp. 45-48), and quotation therein from Macaulay's History of Eng- land. Such monopolies had pre- viously to the act of 1634, however,, been declared illegal on common- law grounds. See § 19. 2 Slaughter-House Cases, 16 WalL 86, 66 (1873); Stewart v. Erie & Western Transp. Co., 17 Minn- 872, 395 (1871); Bancroft v. Thayer, 5 Sawyer, 503 (1879). But legis- lative grants creating monopolies are construed strictly. See, for instance, Saginaw Gas-Light Co. V. City of Saginaw, 38 Fed. Rep. 529, 535 (Cir. Ct. Mich., 1886); Ap- peal of Scranton Electric Light & Heat Co., 123 Pa. St. 154; s. 0., 15 Atl. Rep. 446 (1888). Sometimes an exclusive right is created by a municipal corporation under the authority of statute. See as to the power of a municipal corporation to create exclusive rights, 1 Dillon on Municipal Corporations (4th ed.), §§ 363, 874, 380, 385. The un- usual case of a monopoly by a State of a private business was under consideration in Lowenstein V. Evans, 69 Fed. Rep. 908 (Cir. Ct. So. Car., 1895), where the Federal anti-trust act was held inapplica- ble to the monopoly of the liquor trafKo by the State of South Caro- lina under a statute of that State. ^ Thus, the provision of the Texas- §18.] MONOPOLIES. 89^ of a monopoly, as created by act of government, is confined to such monopolies as result from the absorption by one individ- ual or set of individuals of a right previously possessed by the community at large, and does not include the vesting in such individual or set of individuals of a new right not previously possessed by the community at large.^ It may perhaps constitution (art. 1, § 36), that "perpetuities and monopolies are contrary to the genius of a free government and shall never be al- lovped." For other provisions see Appendix. But such a provision does not apply to a restriction cre- ated in the exercise of the police power. See, for instance, State v. Call, 121 N. C. 643; s. a, 38 S. E. Rep. 517 (1897); People v. Warden of City Prison, 26 N. Y. App. Biv. 228; s. C, 50 N. Y. Suppl 56 (1898), and cases cited; also 2 Hare's Ameri- can Constitutional Law, p. 779. In the same spirit have been estab- lished constitutional prohibitions against granting exclusive " privi- leges." See Stimson's American Statute Law, § 17; Matter of Union Ferry Co., 98 N. Y. 139 (1885). Under such provisions have been held invalid legislative grants of the exclusive privilege to supply gas to cities; thus, in St. Louis Gas- Light Co. V. St. Louis Gas, Fuel, etc. Co., 16 Mo. App. 52 (1884); Citi- zens' Gas-Light Co. v. Louisville Gas Co., 81 Ky. 263 (1883). These pro- visions, occasioned by the frequent and gross abuses perpetrated by specially chartered corporations, especially, perhaps, banking corpo- rations, have led to the enactment of general laws authorizing the formation of corporations, which are a creation of the present cent- ury, and have been generally en- acted in this country, as well as in- Great Britain. See Diamond Match Co. V. Roeber, 106 N. Y. 478, 481; S. c, 13 N. E. Rep. 419 (1887). In Nor- wich Gas-Light Co. v. Norwich City Gas Co., 25 Conn. 19, 38 (1856), a monopoly created by legislative grant was held illegal, even in the absence of constitutional restric- tion. See, however, Saginaw Gas- Light Co. V. City of Saginaw, 28 Fed. Rep. 529, 535 (Cir. Ct. Mich., 1886; see note 3, p. 88, above). Though legislative grants condemned as monopolies have, as a rule, been special laws, yet the condemnation was extended to exclusive privi- leges sought to be secured under a general law, in People ex rel. v.. Chicago Gas Trust Co., 130 111. 368, 297; s. C, 22 N. E. Rep. 798 (1889), a case of a corporation formed with power to purchase and hold the capital stock of any gas company in Chicago. Control of liquor traffic by the State itself was held not objectionable as a monopoly in Guy V. Commissioners of Cumberland Co., — N. C. — ; S. C, 29 S. E. Rep. 771 (1898). iSee definitions, note 8, p. 87, above; also dissenting opinion of Story, J., in Charles River Bridge V. Warren Bridge, 11 Peters (U. S.), 420, 607 (1837). See also Patterson V. Wollman, 5 N. D. 608; S. 0., 67 90 MONOPOLIES. [§18. be doubted whether the definition of a monopoly as thus stated includes patents granted to an inventor or discoverer. N. W. Rep. 1040 (1896), sustaining a grant of an exclusive ferry fran- chise, as not being within a con- stitutional prohibition against a grant to any citizen of " privileges or immunities vrhioh upon the same terms shall not be granted to all citizens." So has been sustained a grant of the right to supply gas to a municipality. Nevr Orleans Gas Co. V. Louisiana Light Co., 115 U. S. 650, 659; S. a, 6 Supm. Ct. Kep. 253 (1885); but see Norwich Gas- Light Co. V. Norwich City Gas Co., 25 Conn. 19, 38 (1856; see note 3, p. 89, above). So has been sustained a grant of the right to so supply water. New Orleans Water-works Co. V. Rivers, 115 U. S. 674, 681 ; s. C, 6 Supm. Ct. Rep. 273 (1885); Barthol- omew V. City of Austin, 52 U. S. App. 513; S. C, 85 Fed. Rep. 359 (5th Cir., 1898) ; but see City of Bren- ■ham V. Brenham Water Co., 67 Tex. 543; s. C, 4 S. W. Rep. 143 (1887); Altgelt V. City of San Antonio, 81 Tex. 436; s. c, 17 S. W. Rep. 75 (1891); Edwards County v. Jen- nings, 89 Tex. 618; s. c, 35 S. W. Rep. 1053 (1896). So a grant of a ferry franchise was sustained in City of Laredo v. International Bridge & Tramway Co., 30 U. S. App. 110; s. C, 66 Fed. Rep. 346 (5th Cir., 1895), where, however, the court fall into considerable con- fusion, through failure to apply the definition of a monopoly as above given. This seems to be the most appro- priate place for considering cer- tain classes of cases that have, in our view, been erroneously placed under the definition of monopo- lies. Owing, it would seem, to a fail- ure to distinguish between the duty of a carrier to the general public, and the right of the carrier to select the instrumentalities to be employed in serving the pub- lic, such right of selection has in certain cases been denied. Thus, grants of exclusive privileges to hack proprietors were held void in McConnell v. Pedigo, 93 Ky. 465; s. c, 18 S. W. Rep. 15 (1893); Kala- mazoo Hack & Bus Co. v. Sootsma, 84 Mich. 194; s. c, 47 N. W. Rep. 667 (1890); Montana Union Ry. Co. V. Langlois, 9 Mont. 419; s. C, 34 Pac. Rep. 209 (1890); Cravens v. Rodgers, 101 Mo. 347; s. a, 14 S. W. Rep. 106 (1890; under constitu- tional prohibition against "discrim- ination in charges or facilities in transportation . . . between transportation companies and in- dividuals, or in favor of either " ). So, privileges to express compa- nies. Sandford v. Railroad Co., 34 Pa. St. 378 (1855); New England Express Co. v. Maine Central R R. Co., 57 Me. 188, 196 (1869); or to con- necting steamboat company. In- dian River Steamboat Co. v. East Coast Transp. Co., 38 Fla. 387; S. a, 10 So. Rep. 480 (1891). But the granting of such an exclusive priv- ilege is a mere incident of the gen- eral power of transportation, and is no more open to objection as a monopoly than is the lease or grant of specific property, as the exercise § 18.] MONOPOLIES. 91 H o wever this may be on common-law principles, the legality of -such patents has long been declared by statute.'- But the mo- ot a power incident to the owner- ship of such property. Thus, it is said in United States v. Addyston Pipe & Steel Co., 54 U. S. App. 723, 755; s. c, 85 Fed. Rep. 271, 287 (6th Cir., 1898): "There is hardly more objection on the ground of public policy, to such a restriction upon a railway company in cases like these, than there would be to a re- striction upon a lessor not to allow the subject-matter of the lease to be enjoyed by any one but the les- see during the lease. The privilege when granted is hardly capable of other than exclusive enjoyment." As to agreements with sleeping-car companies, Chicago, St. Louis, etc. R. E. Co. V. Pullman Southern Car Co., 139 TJ. S. 79; S. a, 11 Supm. Ct. Eep. 490 (1891), is here cited; as to those with express and stock-yard delivery companies. Express Cases, 117 U. S. 1; S. C, 6 Supm. Ct. Eep. 542, 628 (1886); Covington Stock- Yards Co. V. Keith, 139 U. S. 128; s. c, 11 Supm. Ct. Rep. 461 (1891); Butchers' & Drovers' Stock-yard Co. V. Louisville & N. R. R. Co., 31 U. S. App. 253; s. C, 67 Fed. Rep. 35 (6th Cir., 1895). In the Express Cases, above cited, where railroad companies were held not bound to furnish independent express com- panies with equal facilities for doing an express business on their passenger trains, the court say (117 U. S. 24): "The public require the carriage, but the company may choose its own appropriate means of carriage." A satisfactory dis- cussion of the authorities is con- tained in Brown v. N. Y. Central, etc. R. R. Co., 75 Hun (N. Y.), 355; s. c, 27 N. Y. Suppl. 69 (1894), sustaining a grant by a railroad company of exclusive privileges to a coach company. In Alexandria Bay Steamboat Co. v. N. Y. Cen- tral, etc. R R. Co., 18 N. Y. App. 1 21 Jas. 1, c. 3 (1624), saving from the operation of the act " any let- ters patents and grants of privi- lege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use, so as also they be not contrary to the law nor mischievous to the State, by raising prices of com- modities at home, or hurt of trade, or generally inconvenient." (§ 5.) By art. 1, § 8, of the Federal con- stitution, Congress has exclusive power "to promote the progress of science and useful arts by secur- ing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Laws have been en- acted to carry this provision into effect. As to extent of right of owner of patent to impose restric- tions in granting licenses to use, compare American Rapid Tele- graph Co. V. Connecticut Telephone Co., 49 Conn. 353 (1881), with State ex rel. v. Bell Telephone Co., 36 Ohio St. 296 (1880). 92 MONOPOLIES. [§18. nopoly enjoyed by the owner of a patent does not, any more than the monopbly enjoyed by the owner of a specific piec& Div. 537; S. 0., 45 N. Y. Suppl. 1091 (1897), an arrangement by a rail- road company with one of two competing steamboat companies connecting with it at its terminus, by which one of such companies was given the advantage over the other in transportation, was sus- tained as legal, notwithstanding the prohibition of L. 1890, ch. 564; L. 1893, ch. 688, against combina- tions of corporations to prevent competition. So in Wiggins Ferry Co. V. Chicago & Alton R. R. Co., 73 Mo. 389, 410 (1881), was sustained an agreement by a railroad com- pany to employ but one ferry at a given point. So in Old Colony R. R. Co. V. Tripp, 147 Mass. 35; s. c, 17 N. E. Rep. 89 (1888), a grant of the exclusive right to solicit baggage or merchandise from passengers at a given station. See also as to dis- crimination between connecting railroads, Prescott & Arizona Cen- tral R. R. Co. V. Atchison, Topeka & Santa Fe R. R. Co., 73 Fed. Rep. 438 (Cir. Ct. N. Y., 1896). As to New York statute (L. 1890, ch. 565) for- bidding preferences by railroad company as between carriers trans- acting business on its premises, see N. Y. Central, etc. R. R. Co. v. Flynn, 74 Hun (N. Y.), 134; s. C, 36 N. Y. Suppl. 859 (1893); N. Y. Central, etc. R. R. Co. v. Sheeley, 37 N. Y. Suppl. 185 (N. Y. Supm. Ct., Sp. T., 1893). See as to agi-ee- ment giving elevator exclusive right to handle grain transported over railroad, Richmond v. Du- buque & Sioux City R. R. Co., 26 Iowa, 191, 301 (1868). As before intimated, discriminations by car- riers as between members of the general public seeking accommo- dations, stand on a different ground. See as to such, Scofleld v. Railway Co., 43 Ohio St. 571, 600; s. c, 8 N. E. Rep. 907 (1885); Hays v. Penn- sylvania Co., 13 Fed. Rep. 309 (Cir. Ct. Ohio, 1882); Burlington, C. & N. Ry. Co. V. Northwestern Fuel Co., 31 Fed. Rep. 653 (Cir. Ct. Minn., 1887); Kinsley v. Buffalo, N. Y. & P. R. R Co., 87 Fed. Rep. 181 (Cir. Ct. Pa., 1888). A reason for con- demning them has been found in their tendency to build up monop- olies. This was conspicuously the case in Scofleld v. Railway Co., above cited, a case of discrimina- tion in favor of the Standard Oil Company; and see Messenger v. Pennsylvania R. R. Co., 37 N. J. Law, 531, 535 (1874); Louisville, Evansville, etc. R. R. Co. v. Wil- son, 132 Ind. 517; s. c, 38 N. E. Rep. 311 (1892). See prohibition of § 3 of the Interstate Commerce Act against discriminations by carriers. Similar provisions exist in many of the States. The whole subject of such discriminations is, how- ever, outside the scope of this trea- tise. Another class of cases errone- ously placed under the definition of monopolies is that of grants by a railroad corporation of the exclu- sive right of establishing lines of telegraphic communication along its right of way. Such grants were held void as monopolies ia §18.] MONOPOLIES. 93 of property, as, for instance, a factory, prevent the applica- tioQ to combinations among such owners, of the rules appli- Western Union Tel. Co. v. Amer- ican Union Tel. Co., 65 Ga. 160 <1880); Western Union Tel. Co. v. Burlington & S. W. Ry. Co., 11 Fed. Rep. 1 (Cir. Ct. Iowa, 1882); Baltimore & Ohio TeL Co. v. West- ern Union Tel. Co., 24 Fed. Eep. 319 (Cir. Ct. La., 1884). Compare West- ern Union Tel. Co. v. Baltimore & Ohio Tel. Co., 33 Fed. Rep. 12 (Cir. Ct. Ind., 1885). See, however, West- ern Union Tel. Co. v. Atlantic & Pacific Tel. Co., 7 Bissell, 367 (1877). But, assuming the railroad corporation to otherwise have the power to make such a grant, the objection that it creates a monop- oly would seem to be equally ap- plicable to, for instance, a lease of its road that otherwise it has power to make. The real question in these cases was whether the grant was within the corporate powers, and indeed it would seem that the decisions (or at least that in 11 Fed. Rep.) might have rested solely on the ground thatthe grants ■were in conflict with the act of Congress of July 34, 1866. See also, as to the prohibition con- tained in such act, Pensacola Tel. Co. V. Western Union Tel. Co., 96 U. S. 1 (1877); Western Union TeL Co. V. American Union Tel. Co., 9 Bissell, 73 (1879); Western Union TeL Co. V. Baltimore & Ohio TeL •Co., 19 Fed. Rep. 660 (Cir. Ct. N. Y., 1884); Mercantile Trust Co. v. At- lantic & Pacific R. R. Co., 63 Fed. Rep. 513 (Cir. Ct. CaL, 1894); Union Trust Co. V. Atchison, Topeka & Santa Fe R. R. Co., 43 Pac. Rep. 701 (Supm. Ct. N. M., 1895). See as to prohibition in Texas act. Western Union TeL Co. v. Baltimore & Ohio Tel. Co., 32 Fed. Rep. 133 (Cir. Ct. Tex., 1884). In a note by Francis Wharton to Western Union Tel. Co. V. Burlington & S. W. R. Co. (11 Fed. Rep. 1), above, it is said (p. 12): " If an opposition company could run its wires on a parallel line, without incurring an expense which would be prohibitive, it is hard to see why the railroad company that makes a contract of this kind should not be bound to it." And in Western Union TeL Co. v. Chicago & Padu- cah E. R. Co., 86 111. 246, 352 (1877), the validity of such a contract was sustained, the court saying: "So long as any other company is left free to erect another line of poles, we see no just ground of complaint on the score of monopoly or the re- pression of competition." In Pacific Postal Tel. Cable Co. v. Western Union TeL Co., 50 Fed. Rep. 493 (Cir. Ct. Wash., 1893), a telegraph com- pany having a grant of such exclu- sive right was not allowed an in- junction against the construction of another telegraph line on the same road. In Canadian Pacific Ey. Co. V. Western Union Tel. Co., 17 Canada Supm. Ct. 151, 161 (1889), a grant of such exclusive right was sustained against the objection that it created a monopoly. The court say: " The argument that an exclusive right to erect a tele- graphic line along the line of rail- way is against public policy would seem to rest necessarily on this de- lusion, if it has any foundation at all, that the public generally have 94 MONOPOLIES. [§ 18. cable generally to restrictions upon competition.^ Within a comparatively recent period, the conception of a monopoly has been extended from a right created by government to a a right to erect telegraphic lines along and on the line of railroad, and therefore their exclusion of any such right may cripple and prevent competition and tend to create monopolies; but as the pub- lic have clearly no such rights, and as there is nothing to prevent telegraph lines from being erected contiguous to and parallel with railroads, provided the right of way is secure, how can it be said to crip- ple and prevent competition, and tend to create monopolies, any more than the erection of the line of telegraph unconnected with the railway by private individuals for their own exclusive use, on a line they have procured at their own expense, would prevent competi- tion on a line parallel or contig- uous thereto? What is there to prevent the erection of a dozen dififerent lines by a dozen different companies for their own exclusive use respectively? " Another class of cases, some- times erroneously classed with re- strictions illegal as tending to produce monopolies, is that of agreements not to bid at public sales. See, for instance, Cleveland, Columbus, Cincinnati, etc. Ry. Co. V. Closser, 126 Ind. 348, 361; s. C, 36 N. E. Rep. 159 (1890). How su- perficial the analogy is may be seen from the circumstance that while restrictions tending to pro- duce monopolies are regarded as objectionable on the ground that they advance prices, agreements not to bid are so regarded on the ground that they reduce them. The true ground of the condemnation of agreements hot to bid seems to- be that they operate as a fraud upon the person for whose benefit the sale is made. See 1 Bigelow on Fraud, ch. 8, § 3, p. 580; 1 Story's Equity Jurisprudence, § 393. In United States v. Addyston Pipe & Steel Co., 54 U. S. App. 733, 764; S. c, 85 Fed. Rep. 371, 293 (6th Cir., 1898), however, the term " conspir- acy in restraint of trade," as used in the Federal anti-trust act, was. held to apply to an agreement not to bid at a public letting. ' National Harrow Co. v. Quick, 67 Fed. Rep. 130 (Cir. Ct. Ind., 1895); National Harrow Co. v. Hench, 76 Fed. Rep. 667 (Cir. Ct. Pa., 1896); affirmed in 55 U. S. App. 53; s. C.,. 83 Fed. Rep. 36 (3d Cir., 1897; hold- ing it no justification that the par- ties are exposed to litigation); Na- tional Harrow Co. v. Bement, 31 N. Y. App. Div. 290, 297; S. c, 47 N. Y. Suppl. 462 (1897); Strait v. National Harrow Co., 18 N. Y. SuppL 234 (Supm. Ct., Sp. T., 1891; with a query whether the sama rule would apply to an agreement limited to the life-time of the pat- ents); Vulcan Powder Co. v. Her- cules Powder Co., 96 CaL 510; S. c, 31 Pac. Rep. 581 (1892; distinguish- ing the case of an agreement by the seller of a patent-right). For instance of such combinations held illegal, see § 22. But to the contrary is Columbia Wire Co. v^ §18.] MONOPOLIES. 95 condition produced by the acts of mere indiv^iduals; thus, where, within a given area, all sales of a given article are made by a single individual or set of individuals.^ Freeman Wire Co., 71 Fed. Rep. 303 (Cir. Ct Mo., 1895), where a corpo- ration organized under the laws of Illinois, for acquiring patents and granting licenses thereunder, and in possession of many, if not all, of the valuable patents for the manu- facture of barbed wire, and the machines for so doing, and which had granted a large number of li- censes under its patents, was held not subject to the anti-trust laws of Illinois, so as to defeat a suit by- it for infringement of a patent. The court doubt National Harrow Co. V. Quick, above, but hold it per- haps distinguishable on the ground that' in the case at bar the licensees were not restricted as to prices for wire manufactured under their licenses. Compare American Soda- Fountain Co. v. Green, 69 Fed. Rep. 333 (Cir. Ct. Pa., 1895); Central Shade Roller Co. v. Cushman, 148 Mass. 353; s, C, 9 N. E. Rep. 629 (1887). As to patentee so contract- ing with reference to his monopoly as to create another monopoly in an unpatented article, see Heaton- Peninsular Button Fastener Co. v. Eureka Specialty Co., 47 U. S. App. 146; s. C, 77 Fed. Rep. 288 (6th Cir., 1896). 1 Of course, this enlarged concep- tion of a monopoly calls for a new definition thereof. Thus, it is said in Herriman v. Menzies, 115 Cal. 16, 20; S. C, 46 Pac. Rep. 730 (1896): *' A monopoly exists where all or so nearly all of an article of trade or commerce within a community or dis.trict is brought within the hands of one man or set of men, as to practically bring the handling or production of the commodity or thing within such single control, to the exclusion of competition or free traffic therein. Anything less than this is not a monopoly." So it is de- fined in People v. North River Sugar Refining Co., 54 Hun (N. Y.), 354, 377; s. c, 7 N. Y. Suppl. 406 (1889), as " any combination the tendency of which is to prevent competi- tion in its broad and general sense, and to control, and thus at will en- hance prices, to the detriment of the public, is a legal monopoly." See also San Diego Water Co. v. San Diego Flume Co., 108 Cal. 549, 559; S. C, 41 Pac. Rep. 495 (1895); Cali- fornia Steam Nav. Co. v. Wright, 6 Cal. 258 (1856); United States v. Trans-Missouri Freight Assoc, 19 U. S. App. 36, 73; S. C, 58 Fed. Rep. , 58, 83 (8th Cir., 1893). In the case last cited it was held that no mo- nopoly of trade was evidenced by the contract, each member being left to compete with every other for its share of the traffic, and com- peting companies not parties to the arrangement, being in opera- tion in the same region. But see reversal in 166 U. S. 290; s. c, 17 Supm. Ct. Rep. 540 (1897). See also Re Greene, 53 Fed. Rep. 104, 115 (Cir. Ct. Ohio, 1893). So revolu- tionary has been the recent exten- sion of the meaning attached to the word " monopoly " that there is even a tendency to wholly exclude 96 BESTEICTIONS TTPON COMPETITION. [§19. § 19. Origin and Ibasis of doctrine against restrictions upon competition. — Though for centuries monopolies have been condemned by the common law of England/ it follows from what we have seen that such condemnation was, until recently, limited in its scope to monopolies created by the crown. Stating here by way of anticipation that the con- demnation now comprehends monopolies created merely by the acts of private parties, we proceed to consider the grounds on which it is based. The most obvious ground is the power of the monopolist to raise prices, thus producing injury to the public, especially in case of a monopoly in a necessary of life.^ So the opportunity and temptation to produce com- modities of an inferior quality are largely increased.' Aa- what was originally covered by the term. With reference to the use of the term " monopolize " in the Fed- eral and Louisiana anti-trust acts, it is said in American Biscuit & Manuf. Co. v. Klotz, U Fed. Eep. 731 (Cir. Ct. La., 1891): " In construing the Federal and State statutes we exclude from consideration all mo- nopolies which exist by legislative grant; for we think the word ' mo- nopolize ' cannot be intended to be used with reference to the acquisi- tion of exclusive rights under gov- ernment concession, but that the lawmaker has used the word to mean 'to aggregate' or 'concen- trate ' in the hands of few, practi- cally, and as a matter of fact, and according to the known re- salts of human action, to the ex- clusion of others; to accomplish this end by what, in popular lan- guage, is expressed in the word 'pooling.'" 1 Thus, in the " Case of Monopo- lies" (Darcy v. AUein), 11 Coke, 846 (1602), a grant by the crown of the exclusive right to make cards within the realm was held void as "a monopoly and against the com- mon law." 2 Thus, it is said in Darcy v. Al- lein, note 1, above (p. 866), that, as one of '■ three inseparable incidents to every monopoly against the com- mon wealth," "the price of the same commodity will be raised, for he who has the sole selling of any commodity may and will make the price as he pleases; and this word Monopolium, dicitur aito tov fiovov Kai TtcoXsao quod est, cum unus solus aliquod genus mereatu- rm universum emit, pretium ad suum libitum statuens." See also Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666 (1880); United States V. Trans-Missouri Freight Assoc, note 1, p. 97, below. But the doc- trine seems capable of application to a reduction of prices injurious to producers. See, for instance, Texas Standard Oil Co. v. Adoue, 83 Tex. 650; s. 0., 19 S. W. Eep. 374 (1893). 3 Thus, in Darcy v. Allein, note 1, above, it is said that, as another § 19.] BESTEIOTIONS UPON COMPETITION. 97 other ground not so commonly relied on, but still one on which considerable stress has been laid, is the injury to those forced out of or prevented from entering the same line of business.^ It may be a question for the economist, rather than the jurist, whether, from the standpoint of the public interest, this injury is outweighed by benefits.^ These being the commonly accepted grounds of the condemnation of monopolies, it now concerns us to note that this condemna- tion, originally confined to monopolies created by the crown, has, within a very recent period, been extended to other re- strictions upon competition not amounting to monopolies, " inseparable incident," " after the monopoly granted, the commodity is not so good and merchantable as it was before; for the patentee, having the sole trade, regards only his private benefit, and not the common wealth." See also People ex rel. v. American Sugar Refining Co., 7 Ry. & Corp. L. J. 83 (Super. Ct. San Francisco, 1890). 1 Thus, in Darcy v. Allein, note 1, p. 96, above, it is said that, as another " inseparable incident," "it tends to the impoverishment of divers artificers and others, who before, by the labor of their hands in their art or trade, had maintained themselves and their families, who now will of neces- sity be constrained to live in idle- Bess and beggary; and the com- mon law . . . agrees also with the civil law." In State ex rel. v. Standard Oil Co., 49 Ohio St. 137, 187; s. C, 30 N. E. Rep. 379 (1892), it is said, referring to this ground as stated in Darcy v. Allein: "The third objection, though frequently overlooked, is none the less im- portant. A society in which a few 7 men are the employers and the great body are merely employees or servants, is not the most desir- able in a republic; and it should be as much the policy of the laws to multiply the numbers engaged in independent pursuits or in the profits of production, as to cheapen the price to the consumer. Such policy would tend to an equality of fortunes among its citizens, thought to be so desirable in a re- public, and lessen the amount of pauperism and crime." Similar views were expressed in Lufkin Rule Co. V. Fringeli, — Ohio St. — ; s. C, 49 N. E. Rep. 1030 (1898). So, in United States v. Trans-Missouri Freight Assoc, 166 U. S. 290, 334; s. c, 17 Supm. Ct. Rep. 540 (1897), is emphasized the public misfor- tune caused by the loss of the "services of a large number of small but independent dealers." 2 For an argument that combina- tions in restriction upon competi- tion work no substantial injury to the public, see Stickney's "State Control of Trade and Commerce," ch.8, 98 EESTEICTIONS UPON COMPETITIOIT. [§19„ and created merely by the acts of private parties.^ Th& propriety of this extension of the condemnation is generally recognized, in this country at least, but has in some quarters been denied, though it is not always clear whether the de- nial is based on the impropriety of allowing any such exten- sion, or on the impropriety of allowing it in the particular 1 How recently is indicated by so comparatively recent a decision as Kellogg V. Larkin, 3 Pinney (Wis.), 123, 147 (1851), where an agreement was sustained as not tending to create a monopoly, the court say- ing: "The cases cited all arose upon royal grants or by-laws, and consequently were cases of invol- untary restraints. They do estab- lish the doctrine that the grant of a monopoly is void; but they do not support the averment of the plaintiff in error. ... I assert that the right to stifle competition by contract, so far as it is injuri- ous to the parties contracting, has not before been denied or ques- tioned for two hundred years, un- less two cases reported in 4 Denio, 349, and 5 Denio, 434, are to be con- sidered as denying the right." (Re- ferring to Hooker v. Vandewater and Stanton v. Allen, respectively.) It is asserted by Francis Wharton in 3 Crim. Law Mag. 1, 5 (1883), that, "in this country, the right of indi- viduals to buy up staples, provided no fraud or coercion be practiced, was not, at least between 1820 and 1875, questioned." Compare Queen Ins. Co. V. State, 86 Tex. 250, 269; s. 0., 34 S. W. Rep. 397 (1893). But on the other hand it is said in Peo- ple V. North River Sugar Refining Co., 54 Hun (N. Y.), 354^ 377; S. C, 7 N. T. Suppl. 406 (1889): "The mo- nopoly with which the law deals is not limited to the strict equiva- lent of royal grants or people's pat- ents." So in State ex rel. v. Stand- ard Oil Co., note 1, p. 97, above : "The- objections lie not to the manner in which the monopoly is created.. The effect on industrial liberty and the price of commodities will be the same, whether created by pat- ent, or by an extensive combination among those engaged in similar in- dustries, controlled by one manage- ment. By the invariable laws of human nature, competition will be excluded and prices controlled in. the interest of those connected with the combination or trust." Here it was also said (p. 186): " Mo- nopolies have always been regarded as contrary to the spirit and policy of the common law," the only au- thority cited on this point being Daroy v. AUein, a case, as we have seen, of a monopoly created by act of government In Stickney's " State Control of Trade and Com- merce," which contains an elabo- rate criticism of the prevalent doctrine in condemnation of re- strictions upon competition, the point that its true basis is the doctrine against monopolies is not . considered. See, however, pp. 94, 95, §19.] EESTEICTIONS UPON COMPBTITIOK. 99^ case.^ But, in any view, it is clear that the condemnation cannot be extended to even all monopolies (to say nothing of mere restrictions upon competition, not amounting to iThus, in Kellogg v. Larkin, 3 Pinney fWis.), 123, 150 (1851), re- covery was allowed on a lease of a warehouse, though to the knowl- edge of the plaintiff, executed in furtherance of an agreement be- tween proprietors of six wheat mills on the one hand, and the pro- prietors of twelve warehouses on the other, whereby the warehouse- men were to give the former "full, absolute and uninterrupted control of the Milwaukee wheat market, so far as they shall be able to do so, by virtue of their capacity as warehousemen or vessel and dock owners." But, as said in United States V. Addyston Pipe & Steel Co., 54 U. S. App. 733, 753; s. G, 85 Fed. Rep. 271, 285 (6th Cir., 1898), this decision cannot be upheld in view of the more modern author- ities. Although other grounds are relied on, the court (in Kellogg v. Larkin) thus vigorously attack the maxim that " competition is the life of trade " : " If it be true that competition is the life of trade, it may follow such premises that he who relaxes competition commits an act injurious to trade; and not only so, but he commits an act of overt treason against the common- wealth. But I apprehend it is not true that competition is the life of trade. On the contrary, that maxim is one of the least reliable of the host that may be picked up in every market place. It is in fact the shibboleth of mere gambling spec- ulation, and is hardly entitled to take rank as an axiom in the juris- prudence of this country. I be- lieve universal observation will attest that for the last quarter of a century competition in trade has caused more individual dis- tress, if not more public injury, than the want of competition. In- deed, by reducing prices below or raising them above values (as the nature of the case prompted), com- petition has done more to monopo- lize trade, or to secure exclusive ad- vantages in it, than has been done by contract." Similar views as to the evils of competition had been expressed in Palmer v. Stebbins, 3 Pick. (Mass.) 188 (1835); Chappel v. Brockway, 21 Wend. (N. Y.) 157, 165 (1839). In Pierce v. Fuller, 8 Mass. 233 (1811), an agreement be- tween proprietors of two rival stages between Boston and Provi- dence, that one should not run a stage between those points, was sustained. The court say: "The public appear to have no interest in this question." In a note by Francis Wharton in 11 Fed. Rep. 11, it is suggested that this de- cision, and that in Perkins v. Lyman, 9 Mass. 522 (1813), may be explained on the ground that the acts complained of were breaches of trust. In Whitney v. Slayton, 40 Me. 224 (1855), the tend- ency in this country to excessive competition in business, was re- garded as ground for liberally con- struing exceptions to the com- mon-law rule against contracts in 100 EESTEICTIONS UPON COMPETITION. [§19. monopolies).^ The sole ownership of any particular piece of property involves the idea of a monopoly of the right to restraint of trade. In Central Shade Roller Co. v. Cushman, 143 Mass. 353; S. C, 9 N. E. Rep. 629 (1887), a combination among man- ufacturers and sellers of curtain fixtures known as " wood balance shade rollers," to sell at a .uniform price for their common benefit, di- viding the profits, was sustained, they being the principal dealers and substantially supplying the market, though others were en- gaged in the business " in a small •way." The court say: "The gen- eral purpose of the combination •was to prevent, or rather to regu- late, competition between the par- ties to it in the sale of the particu- lar commodity which they made. This is a lawful purpose. . . . Even if such an agreement tends to raise the price of the commodity, it is one which the parties have a right to make. To hold otherwise would be to impair the right of per- sons to make contracts, and to put a price on the products of their own industry." In Skrainka v. Schar- ringhausen, 8 Mo. App. 532 (1880), an agreement among twenty-four proprietors of stone-quarries in a portion of St. Louis, pro'viding for the sale of all the rubble building- stone of such quarries by a com- mon agent for a period of six months, at prices fixed by the agree- ment, was sustained. By its terms the agreement was designed to pre- vent the depression of prices re- sulting from competition, making it impossible to work quarries at a profit We shall show elsewhere 1 A very little consideration will show the uutenability of, for in- stance, the following oft-quoted statement in Hooker v. Vandewater, 4Denio(N.Y.),349(1847): "Compe- tition is the life of trade. It follows that whatever destroys or even re- laxes competition in trade is inju- rious, if not fatal, to it." It is said in Oakdale Manuf. Co. v. Garst, 18 R. I. 484; s. C, 28 Atl. Rep. 973 (1894): "It does not follow that every combination in trade, even though such combination may have the effect to diminish the number of competitors in business, is there- fore illegal. Such a rule would produce greater public injury than that which it would seek to cure. It would be impracticable. It would forbid partnerships and sales by those engaged in a com- mon business. It would cut off consolidations to secure the advan- tages of united capital and econ- omy of administration. It would prevent all restrictions and exclu- sive privileges, and hamper the familiar conduct of commerce in many ways. There may be many such arrangements which will be beneficial to the parties and not in- jurious to the public." In Oakes V. Cattaraugus Water Co., 143 N. Y. 430; s. C, 38 N. E. Rep. 461 (1894), it was held not illegal for a person whose business is threatened with competition, to persuade his com- petitor to abandon his business and take employment with the other, at a stated compensation. §19.] EESTEIOTIONS UPON COMPETITION. 101 use and dispose of such property, and to create restrictions upon the use thereof.' So of a contract for exclusive dealing, (§ 21) that here the court improp- erly applied the test of space limit. In Smith v. Scott, 4 Paton (Scot- land), 17 (1798), a combination among those engaged in the busi- ness of chaise hirers or post-mas- ters in Edinburgh, to raise the price of service, was declared ille- gal by the House of Lords, on ap- peal from Scotland. The court say: "The case is very different whether an individual might or might not ask what rate for post- ing he thought fit; but he must not make a party business of it." But this decision seems to have been generally overlooked ; and not- withstanding that in this country restrictions upon competition cre- ated merely by the acts of private parties have, as a rule, been so un- hesitatingly condemned, they seem thus far to have, as a rule, escaped condemnation in England, where restrictions that would now at least be held illegal in most of our States have been sustained, as ap- pears from the following instances : In Hearn v. Griffin, 2 Chitty, 407 (1815), an agreement between two rival coach proprietors not to run in opposition to each other, and to charge the same prices, was sus- tained by the King's Bench against the objection that it was void as " in restraint of that competition in trade which is so conducive to the interest of the public." It was said by Lord Ellenborough: "This is merely a convenient mode of arranging two concerns which might otherwise ruin each other." In Wickens v. Evans, 3 Younge & J. 318 (1829), an agreement among three persons, rivals in the busi- ness of selling trunks and boxes in different parts of England, entered into in view of the inconvenience and loss resulting from rivalry, and whereby each should have the right to do business in certain districts to the exclusion of the others, was held not illegal as " in restraint of trade. " It isclearly shown in United States V. Addyston Pipe & Steel Co., 54 U. S. App. 723, 750; s. c, 85 Fed. Eep. 271, 284 (1898), that this decis- ion is opposed to later ones, in this country at least. In Shrewsbury & Birmingham Ry. Co. v, London & Northwestern Ry. Co., 16 Jurist, 311 (1851), an agreement between two iln Molly neaux v. Wittenberg, 39 Neb. 547; s. c, 58 N. W. Rep. 205 (1894), the prohibition of the Ne- braska statute against " pools " and " trusts " was held not to apply to an agreement in a deed that the vendee should not use the property described for "hotel purposes for two years." So in United States Chemical Co. v. Provident Chem- ical Co., 64 Fed. Rep. 946 (Cir. Ct. Mo., 1894), a covenant in a lease not to engage in the business cov- ered by the lease, was held valid as a restraint of trade, but to contain " none of the elements of a trust or combination." Compare decisions as to right of carrier to select in- strumentalities for service of the public, and as to grants by railroads of exclusive privileges to telegraph, companies, § 18, above. 102 EESTEICTIONS UPON COMPETITION. [§19- service or agency.' So in smaller communities, where the exercise of a given trade or profession is confined to a single individual, be he butcher, grocer, tailor or builder, there exists a monopoly. And in such a case the monopoly is railway companies tending to pre- vent competition, was held not un- lawful, the operation of the agree- ment being, however, limited to one particular line of road. So in Hare v. London & Northwestern Ry. Co., 2 Johnson & Hemming, 80, 103 (Eng. Ch., 1861), an agreement among competing railroad compa- nies for a division of profits in cer- tain fixed proportions, was held not illegal, as preventing competition, in the absence of statutory provis- ions. The court say: " It is a mis- taken notion that the public is bene- fited by pitting two railway compa- nies against each other till one is ruined, the result being at last to raise the fares to the highest possi- ble standard." So far as such re- strictions are held illegal in Eng- land, it would seem to be according to the test of reasonableness. See Collins v. Locke, § 33, below. On the other hand, as is pointed out in United States v. Addyston Pipe & Steel Co., above (54 U. S. App. 753), the decision in Mogul S. S. Co. v. McGregor, L. R. App. Cas. (1893), 25, is not in point on this branch of our subject. iln EUerman v. Chicago Junc- tion Railways, etc. Co., 49 N. J. Eq. 217, 252; s. C, 23 AtL Rep. 387 (1891), an agreement between pro- prietors of stockyards and their principal patrons, whereby the lat- ter were to deal with the former exclusively, and not engage in the same business, was sustained. The court say: " The non-competition was but an incident subsequent to the affirmative agreement to re- main the customers and patrons of the transit company; but if the purpose of the agreement had been the prevention of competition, such a purpose would have been lawful." In Matthews v. Associ- ated Press of N. Y., 136 N. Y. 333; s. C, 32 N. E. Rep. 981 (1893), was sustained a by-law of an as- sociation of members of the press forbidding any member to "re- ceive or publish the regular news dispatches of any other news asso- ciation covering a like territory and organized for a like purpose." So in Woods v. Hart, 50 Neb. 497, 504; s. c, 70 N. W. Rep. 53 (1897), of an agreement for an exclusive agency for the sale of real estate, the appointment as agent not being for a fixed or definite period. So in Welch V. Phelps & Bigelow Wind- mill Co., 89 Tex. 653; s. c, 36 S. W. Rep. 71 (1896), the Texas anti-trust act of 1889 was held not to apply to a mere arrangement between principal and agent, though giving the exclusive right to sell in cer- tain territory and fixing prices, but not investing the agent with title to the goods sold. But in Texas Brewing Co. v. Anderson, 40 S. W. Rep. 737 (Tex. Civ. App., 1897), the contract was held to be one of sale and not of agency, notwithstanding the use of the word " agents," and to be in contravention of such act. Agreements for exclusive trade were sustained in Catt v. Tourle, ^ 19.] EESTEICTIONS UPON COMPETITION. 103 frequently the direct result of efforts to drive all other com- petitors from the field. Nor is the monopoly necessarily illegal because exercised by a combination of individuals. A partnership of butchers, grocers, tailors or builders in a small community is not necessarily regarded as illegal, though having a monopoly of its line of business in that community, and though having secured such monopoly as a result of efforts to drive all other competitors from the field.' It has been declared that the very existence of a monopoly involves a presumption that the monopoly is illegal,^ but it 38 L. J. Ch. 665 (1869); Clark v. Crosby, 37 Vt. 188 (1864); Keith v. Herschberg Optical Co., 48 Ark. 138 ; s. C, 2 a W. Eep. 777 (1887); Live- stock Assoc, of Nl Y. V. Levy, 54 N. Y. Super. Ct. 33 (1886); George v. East Tennessee Coal Co., 15 Lea (Tenn.), 455 (1885); Schwalm v. Holmes, 49 Cal. 665 (1875); Brown v. Eoun- savell, 78 111. 589 (1875); Bald Eagle Valley E. R. Co. v. Nittany Valley E. E. Co., 171 Pa. St. 284; s. C, 33 Atl. Eep. 239 (1895); Palmer v. Stebbins, 3 Pick. (Mass.) 188 (1825). Agreements for exclusive employ- ment were sustained in Pilkington V. Scott, 15 M. & W. 657 (1846); Hartley v. Cummings, 5 C. B. 247 <1847); Carnig v, Carr, 167 Mass. 544; s. c, 46 N. E. Eep. 117 (1897). Compare Morris v. Colman, 18 Vesey, 437 (1812; sustaining agree- ment with theater proprietors not to write dramatic pieces for any •other theater). So even of an agree- ment to serve for life. Wallis v. Day, 2 M. & W. 273 (1837). But an agreement for exclusive trade, though legal considered by itself, may yet be illegal as a part of a scheme illegal as in restriction upon competition. This principle seems ■to have been overlooked in the cases involving the legality of the methods of the " Distilling & Cat- tle Feeding Company; " but see on this point, § 30. 1 The difficulty of establishing a sharp line of distinction in such cases, was seen in Marsh v. Russell, 66 N. Y. 288 (1876), where a distinc- tion is taken between a partner- ship formed for the honest purpose of carrying on a joint business, with the incidental effect of preventing competition, and a, partnership the primary object of which is to pre- vent competition. But this intro- duces the uncertain test of intent, as to which see § 2. In Ontario Salt Co. V. Merchants' Salt Co., 18, Grant (Ontario), 540, 544 (1877), the court answer the objection that an agreement among manufact- urers of salt for sale of their stock through a common agency, tended to create a monopoly, by saying: " If the effect was to constitute a partnership, there can be nothing objectionable in the stipulation that all the salt produced — which is to form the partnership stock — should be sold through the agency of the trustees." Compare as to "pools," §26. 2 " The presumption is always 104 EESTEICTIONS UPON COMPETITION. [§19l seems doubtful whether such presumption is of substantial service. Certainly it would be difficult to apply it to the monopolies we have instanced as existing in smaller com- munities, and, in case of the more extensive monopolies, the evidence of illegality is commonly sufficient without the aid of any such presumption. But while here contenting ourselves with the assumption that the doctrine condemning monopO' lies, originally confined to^those created by the crown, now extends to some hut not all monopolies, or other restrictions upon competition created by the acts of private parties, we reserve for consideration elsewhere the question of the test to be applied in determining what restrictions upon com- petition are legal, and what not. It may be added that this against the validity of such agree- ments," i. e., in prevention of compe- tition. Hoffman v. Brooks, 23 Am. Law Reg. (N. S.) 648 (Super. Ct. Cinn., 1884). So in Morris Run Coal Co. V. Barclay Coal Co., 68 Pa. St. 173, 185 (1871), such presumption was applied, but under the mistaken supposition, elsewhere considered, that the doctrine against restric- tions upon competition, is based on that against contracts in restraint of trade. In Cleveland, Columbus, Cincinnati, etc. Ry. Co. v. Closser, 126 Ind. 348, 360, 363; s. c, 26 N. E. Rep. 159 (1890), the presumption was applied to a combination among competing carriers. But the existence of such a presump- tion was denied in United States V. Trans-Missouri Freight Assoc, 19 U. S. App. 36, 68; S. C, 58 Fed, Rep. 58, 78 (8th Cir., 1898); and see Leslie v. Lorillard, 110 N. Y. 519, 533; s. c, 18 N. E. Rep. 363 (1888); Herriman V. Menzies, llSCal. 16, 21; s. C, 46 Pac. Rep. 730 (1896). So in Ives V. Smith, 3 N. Y. Suppl. 645, 653, affirmed in 8 Id. 46 (Supm. Ct., Gen. T., 1889), where were sus- tained traffic contracts between railroad companies, the court say: " A court should not stamp with invalidity contracts which have existed for years, and under which rights have been created and ob- ligations assumed, without the clearest conviction that they come within the condemned or illegal class. The avoidance of contracts^ on the ground that they are against public policy, is reluctantly or- dered by the courts." Compare the frequently quoted remarks of Jessel, M. R, in Printing & Numer^ ical Registering Co. v. Sampson, 19 L. R Eq. Cas. 463 (1875), that " if there is one thing which, more than another, public policy re- quires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their con- tracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced bjr courts of justice." §20.] LEGISLATION. 10& extensiorl of the doctriae seems to have made it an academic question of little practical importance, whether what ar& known as forestalling, regrating and ingrossing are illegal at common law or by statute ; ^ such cases are clearly covered by the doctrine against monopolies as extended.^ § 20. Legislation against restriction upon competi- tion — Scope of Federal and State legislation respect- ively. — Legislation against restrictions upon competition, commonly called " anti-trust legislation," is a growth of the last ten years, but already exists in a majority of the States of the Union,' and, indeed, most of the questions presented iln 3 Stephen's History of the Criminal Law of England, ch. 30, p. 199, it is said: "Forestalling, in- grossing and regrating was the of- fense of buying up large quantities of any article of commerce for the purpose of raising the price. The forestaller intercepted goods on their way to market and bought them up, so as to be able to com- mand what price he chose when he got to the market. The ingros- ser or regrator — for the two words had much the same meaning — was a person who, having bought goods wholesale, sold them again wholesale. This was regarded as a crime." These offenses are said, in 3 Wharton's Criminal Law (10th ed.), § 1849, to have been taken from the Roman law. It will be noted that these offenses could be committed by a single individual. In Pettamberdass v. Thaokoorsey- dass, 7 Moore P. C. C. 239, 263 (1850), it is said that "ingrossing can be committed only with re- spect to the necessaries of life;" and see article by W. F. Dana in 7 Harv. Law Rev. 338, 344 (1894). See as to such statutes, Queen Ins. Co. v. State, 86 Tex. 350, 369; s. a, 24 S. W. Rep. 397 (1893). In Oliver v. Gilmore, 53 Fed. Rep. 563, 565 (Cir. Ct. Mass., 1893), a case of an agreement to close manufacturing works, it is said that "the con- tract would seem to be in violation of the old rules of the common law (i. e., against forestalling and in- grossing), intended to prevent the gathering up of the control of commodities into few hands." But query in the absence of evidence tending to show monopoly? See, on the general question whether such acts were illegal at common law, article by Prof. T. W. Dwight in 3 Pol. Sci. Quart. 593, 609 (1888). 2 Though in Queen Ins. Co. v. State, note 1, above, the view was expressed that the doctrine of the illegality of such monopolies has its origin in these rules. ' See Appendix. See such legis- lation epitomized and criticised by S. C. T. Dodd, in 7 Harv. Law Rev. 157, 164 (1893). For a reference to some ancient legislation against monopolies, see article by C. C. Allen in 38 Am. Law. Rev. 838, 831 (1894). 106 LBGISLATIOK. [§20. to the courts for decision respecting the validity of such re- strictions now arise under such statutes. Questions involving the construction of such statutes, so far as they fall within the proper scope of this treatise, will be considered in their appropriate places. Of course, such legislation is subject to the constitutional limitations,! and governed by the rules of iln Anheuser-Busch Brewing Assoc. V. Houck, 27 S. W. Rep. 693 where a restriction as to beer was held unlawful under the stat- ute, it is said that it would not have been invalid at common law, the policy of the laws of the State not being toward the unre- stricted or general sale of beer. Compare Nester v. Continental Brewing Co., above. In Cummings V. Union Blue Stone Co., 15 N. Y. App. Div. 603; s. a, 44 N.Y. Suppl. 787 (1897), a combination to control the bluestone trade was held void, though there is no such general need or demand for bluestone, as to bring it within the categox-y of ar- ticles of necessity, in the ordinary sense. The court say: "Neverthe- less, a production the sales of which in this State in a single year amount to $1,500,000, is sufficiently useful and important to the community to bring it within the operation of that rule of law which invalidates agreements to prevent competition in trade." In Texas & Pacific Coal Co. V. Lawson, 89 Tex. 394, 400; s. C, 34 S. W. Rep. 919 (1896), reversing 10 Civ. App. 491; s. C, 31 S. W. Rep. 843 (1895), the broad language of the Texas anti-trust act was de^ clared to ignore the distinction. 1 People ex rel. v. Chicago Gas Trust Co., 130 111. 368, 298; S. C, 32 N. E. Rep. 798 (1889). Here the de- cision might well have rested on Ui PUBLIC OE PEIVATE BUSINESS. [§25. what a business of a "public character" is, has perhaps not been very clearly defined, but it seems to involve the conception of a business the right to exercise which de- the ground that the acts com- plained of were ultra vires (see note 2, p. 146, below); or on the ground that the restriction was an unreasonable one. In any view it was unnecessary to apply the test thus indicated : " Whatever tends to prevent competition between those engaged in a public employment, or business impressed with a pub- lic character, is opposed to public policy and therefore unlawful." In many cases where the doctrine is ■recognized as applying to "con- tracts in restraint of trade," we are to understand the statement as intended to apply to restrictions upon competition, in view of the frequent confounding of these two classes of cases; or if this be not the case, the courts applying it to contracts in restraint of trade would doubtless apply it to restric- tions upon competition pure and simple. In Gibbs v. Consolidated Gas Co. of Baltimore, 130 U. S. 396, 408; S. 0., 9 Supm. Ct. Rep. 553 (1889), the rule is thus stated: "In the in- stance of business of such charac- ter that it presumably cannot be restrained to any extent what- ever, without prejudice to the pub- lic interest, courts decline to en- force or sustain contracts imposing such restraint, however partial, because in contravention of public policy." To similar effect, West Virginia Transp. Co. v. Ohio River Pipe Line Co., 23 W. Va. 600, 635 (1883). And the same doctrine was recognized or applied in Queen Ins. Co. V. State, 86 Tex. 250, 269, 374; s. c, 24 S. W. Rep. 397 (1893); Texas & Pacific Ry. Co. v. Southern Pa- cific Ry. Co., 41 La. Ann. 970 ; s. c, 6 So. Rep. 888 (1889); Cowan v. Fairbrother, 118 N. C. 406; s. c, 34 S. E. Rep. 213 (1896); South Chicago City Ry. Co. v. Calumet Electric Street Ry. Co., 171 111. 391, 397; s. c, 49 N. E. Rep. 576 (1898). It seems to be recognized in United States v. Trans-Missouri Freight Assoc, 166 U. S. 390, 335; s. C, 17_Supm. Ct. Rep. 540, 556 (1897), though there the re- striction under consideration was held illegal by virtue of statute. Here, where the question was as to the legality of an agreement among railroad companies for the establishment of rates, the court say: "The general reasons for hold- ing agreements of this nature to be invalid, even at common law, on the part of railroad companies, are quite strong, if not conclu- sive." Compare Dueber Watch-case Manuf. Co. v. Howard Watch & Clock Co., 35 U. S. App. 16, 28; s. c, 66 Fed. Rep. 637, 644 (3d Cir., 1895). In Cleveland, Columbus, Cin- cinnati, etc. Ry. Co. v. Closser, 126 Ind. 348, 360; s. a, 26 N. E. Rep. 159 (1890), the court, while in- clined to take the same view, con- tent themselves with the presump- tion that the restriction in that case (upon competition by common carriers) was illegal. See dissent- ing opinion of Shiras, J., below, in United States v. Trans-Missouri Freight Assoc., 19 U. S. App. 36, 75; § 2-5.] PUBLIC OE PEIVATE BUSINESS. U5 pends on a legislative grant.' In this "view a restriction upon competition by one engaged in such business is neces- sarily illegal, not upon the general grounds of the illegal- ity of such restrictions, but upon the distinct ground that the business is one of a public character. But in our view this distinction has no existence. A business of a public character, as we have defined it, is universally (though not in the nature of things necessarily) carried on under the authority of a corporate character, that is, by a corporation. The validity of an act of a corporation is, generally speak- ing, determined by whether it is within the authority con- ferred by the charter. If, for instance, such act is one imposing a restriction upon competition, and is legal accord- ing to the tests applicable to such restrictions generally, the further test, in our view, is whether it is within the au- thority conferred by the charter, without reference to the character of the business as public.^ The existing principles s. 0., 58 Fed. Rep. 58, 84 (8th Cir., 1893). See also National Benefit Co. v. Un- ion Hospital Co., 45 Minn. 272; S. C, 47 N. W. Rep. 806 (1891): Meredith V. N. J. Zinc & Iron Co., 55 N. J. Eq. 211, 221; s. c, 37 Atl. Rep. 589 (1897). 1 Thus, supplying illuminating gas by means of pipes laid in the streets of a city. People ex rel. v. Chicago Gas Trust Co., note 3, p. 143, above (p. 293); Gibbs v. Con- solidated Gas Co. of Baltimore, note 3, p. 144, above (p. 411). In the case last cited it is said : " These gas companies entered the streets of Baltimore, under their charters, in the exercise of the equivalent of the power of eminent domain, and are to be held as having as- sumed an obligation to fulfill the public purposes to svibserve which they were incorporated." So, trans- portation of oil in tubes. West Vir- ginia Transp. Co. v. Ohio River Pipe 10 Line Co., 22 W. Va. 600 (1883). So, transportation by railroad. Texas & Pacific Ry. Co. v. Southern Pa- cific Ry. Co., 41 La. Ann. 970; S. C, 6 So. Rep. 888 (1889); United States V. Trans-Missouri Freight Assoc, note 3, below. 2 As was said in the dissenting opinion of White, J., in United States V. Trans-Missouri Freight Assoc, 166 U. S. 290, 373; s. a, 17 Supm. Ct. Rep. 540 (1897): "The fallacy consists in overlooking the distinction between acts of a pub- lic corporation which are ultra vires and those which are not. If the contract of such a corporation which is assailed be ultra vires, of course the question of reasonable- ness becomes irrelevant, since the charter is the reason of the being of the corporation." And it is here pointed out that in Gibbs v. Consoli- dated Gas Co. of Baltimore, above, 146 PUBLIC OE PEIVATE BUSINESS. [§25. of law being suflScient to determine the question of legality in such case, it only serves to produce confusion, to introduce a further and unnecessary test. Co., 130 111. 368; S. C, 33 N. E. Eep. 798 (1889), can be explained on the ground of the absence of power in the defendant corporation to hold the stock of other gas companies, in the absence of express statutory au- thority. In 36 Am. Law Beg. & Rev. 307, 319 (1897), the authorities are discussed by G. 8. Patterson, and the conclusion reached that " there is no business, whatever be the pub- lic interest therein, that any re- straint thereon is ipso facto void; but if the effect of the restraint be to form a monopoly of such busi- ness, or to prevent a public corpo- ration from the performance of its chartered functions, then the agreement is void." In San Diego Water Co. v. San Diego Flume Co., 108 Cal. 549; s. C, 41 Pac. Rep. 495 (1895), where the restriction was- held valid as reasonable, it would seem that it would have been held invalid, had the doctrine under con- sideration been applied, it being created by an agreement between a " water company " and a " flume company." So it may be of cases sustaining agreements by railroad companies for the location of a route; as, for instance, Baltimore & Ohio R. R. Co. V. Ralston, 41 Ohio St. 573, 588 (1885) ; or of a station ; as, for instance, Louisville, New Albany, etc. Ry. Co. v. Sumner, 106 Ind. 55, 59; s. c, 5 N. E. Rep. 404 (1886); Texas & St. Louis R. R. Co. v. Ro- bards, 60 Tex. 545 (1883). And for in- stances of restrictions upon compe- tition by carriers, sustained under the test of reasonableness, see § 23. and cases therein cited, ultra vires contracts were under considera- tion. Chicago, St. Louis, etc. R. R. Co. V. Pullman Southern Car Co., 139 U. S. 79; s. C, 11 Supm. Ct. Rep. 490 (1891), is cited as a case where such a restraint was upheld. So in the decision below in United States V. Trans-Missouri Freight Assoc, 19 U. S. App. 36, 63; s. C., 58 Fed. Rep. 58, 74 (8th Cir., 1898), it is contended that restrictions upon competition among railroad corporations are subject to the test of reasonable- ness. See this decision as to the effect of the Interstate Commerce Act. This view (of White, J.) is sus- tained by the facts in the cases wherein the doctrine has been laid down. Thus, in Gibbs v. Consoli- dated Gas Co. of Baltimore, the restriction in question, created by a contract between two gas com- panies, was expressly prohibited by statute. Or the decision might have rested on the ground that the con- tract provided for the abandon- ment by one of the companies of the discharge of its duties to the public, to say nothing of the general rules applicable to restrictions upon com- petition. On the same general ground may doubtless be explained West Virginia Transp. Co. v. Ohio River Pipe Line Co., 23 W. Va. 600 (1883), where it was held illegal for the corporation to make a grant of an exclusive right of way and privi- lege, to construct and maintain lines of tubing, for the transporta- tion of oil through certain lands. So People exrel. v. Chicago Gas Trust § 26.] AGEBEMENTS IN EESTKIOTION OF COMPETITION. 147 § 26. Agreements in restriction of competition; ** pools;" "trusts." — A restriction upon competition is commonly, but not necessarily, the result of an agreement between two or more persons. We say, not necessarily, be- cause it is obvious that there is in the nature of things no reason why a restriction upon competition, amounting even to an absolute monopoly, should not result from the efforts of a single individual.^ The precise legal status of an indi- 1 See, however, Ontario Salt Co. V. Merchants' Salt Co., 18 Grant (Ontario), 540 (1871), where, assum- ing the legality of the doctrine con- demning the enhancing of prices, it was held that it did not apply to an agreement among manufactur- ers. The, court say (p. 544): "The article was not to be purchased in the market, but was actually to be produced by the parties themselves, and this product they could not be compelled to part with, except on their own terms." The so-called anti-trust acts are not, however, ordinarily directed against acts re- sulting from the efforts of a single individual; for instance, the prohi- bition of the Texas act of 1889 against a " combination of capital, skill or acts," to prevent compe- tition, etc., as to which see An- heuser-Busch Brewing Assoc, v. Houck, 37 S. W. Rep. 693 (Tex. Civ. App., 1894); aflSrmed as Houck V. Anheuser-Busch Brewing Assoc, in 88 Tex. 184; s. C, 30 S. W. Rep. 869 (1895); Texas & Pacific Coal Co. V. Lawson, 89 Tex. 394; S. C, 84 8. W. Rep. 919 (1896); re- versing 10 Civ. App. 491; S. c, 31 S. W. Rep. 848 (1895); Fuqua v. Pabst Brewing Co., 90 Tex. 398; S, C, 38 S. W. Rep. 39 (1897); Texas Brewing Co. v. Templeman, 90 Tex. 377; s. a, 38 S. W. Rep. 37 (1896); Texas Brewing Co. v. Meyer, — Tex. Civ. App. — ; s. C, 38 S. W. Rep. 363 (1896); Gates v. Hooper, 90 Tex. 563; s. C, 39 S. W. Rep. 1079 (1897); reversing Id. 186 (Tex. Civ. App., 1897); Texas Brewing Co. v. Anderson, — Tex. Civ. App. — ; S. C, 40 S. W. Rep. 737 (1897). The word combination, as used in this act, is held to mean "union" or "association." Texas & Pacific Coal Co. V. Lawson; Gates v. Hooper, both above. In Gates v. Hooper, where it was held not to cover the case of an agreement by the seller of a business to retire from that line of business, the court say: "If there be no union or association by two or more of their 'capital, skill or acts,' there can be no ' combination,' and hence no 'trust.' When we consider the purposes for which the 'combina- tion' must be formed to come within the statute, the essential meaning of the word 'combina- tion,' and the fact that a punish- ment is prescribed for each day that the trust continues in existence, we are led to the conclusion that the union or association of ' capital, skill or acts,' denounced is where the parties in the particular case designed the united co-operation of 14:8 AGEEEMENTS IN EESTEICTION OF COMPETITIOKT. [§ 26. vidual in this situation has not been clearly defined, save so far as it may be inferred from the doctrines declared with reference to corporations, the legal status of which we shall consider hereafter. But if the restriction results from the joint efforts of two or more individuals, it seems a necessary conclusion that it also results from some agreement between them, express or implied. At any rate, we shall for the pres.ent confine our attention to restrictions upon competi- tion resulting from agreement. Leaving out of considera- tion mere agreements to fix price, to be hereafter consid- ered,^ agreements resulting in a restriction upon competition seem to be governed by the rules applicable to agreements generally, as to form and construction.^ So far as the nature such agencies, which might have been otherwise independent and competing, for the accomplish- ment of one or more of such pur- poses." So the word combination, as thus used, was held not to cover the case of a mere agreement be- tween jDrincipal and agent, in Welch V. Phelps & Bigelow Wind- mill Co., 89 Tex. 653; s. C, 36 S. W. Eep. 71 (1896); Gates v. Hooper, above, where the agreement of the seller to exert himself to aid the buyer in securing patronage, was held to merely constitute the for- mer the agent of the latter for that purpose. See also in American Fire Ins. Co. v. State, — Miss. — ; S. C, 23 So. Eep. 99 (1897), the pro- hibition of the Mississippi act (Code, § 4487, subd. 9) against any combination, etc., designed to place the control of any business in the hands of trustees, applied to a com- bination among fire insurance cor- porations. 1 See § 27. 2 Thus, the agreement held ille- gal as restricting competition was in form a lease, in Field Cord- age Co. V. National Cordage Co., 6 Ohio Cir. Ct. 615 (1892); Clancey V. Onondaga Salt Manuf. Co., 63 Barb. (N. Y.) 395 (1862); a cove- nant in a deed against the sale of liquor, in Chippewa Lumber Co. V. Tremper, 75 Mich. 36; s. C, 43 N. W. Eep. 532 (1889). So tfie agree- ment consisted of a by-law (or by-laws) or a rule (or rules) of an association, in Sayre v. Louis- ville Union Benev. Assoa, 1 Du- vall (Ky.), 143 (1868); More v. Ben- nett, 140 111. 69; s. C, 29 N. E. Eep. 888 (1893); Urmston v. White- legg, 63 L. T. E. N. S. 455 (1891); Milwaukee Masons' & Builders' Assoc. V. Niezerowski, 95 Wis. 129; s. c, 70 N. W. Eep. 166 (1897). See People ex rel. v. N. Y. Board of Underwriters, 54 How. Pr. (N. Y.) 240 (Supm. Ct., Sp. T., 1875). So of articles of voluntary association. Central Ohio Salt Co. v. Guthrie, 85 Ohio St. 666 (1880). So of regu- lations of " exchange " composed of dealers. People v.Sheldon, 139 N.Y. 261; S. C, 34 N. E. Eep. 785 (1893); § 26.] AGEEEMENTS IN EESTEICTION OF COMPETITION. 149 of things is concerned, there might be an infinite variety in such agreements, as to form. Nevertheless, the conditions of business have in practice reduced such agreements to a few generally recognized forms, prominently what are known as "pools" and "trusts." A "pool" may be de- fined as an agreement for the division of profits, illegal as restricting competition.^ It will be noted that, apart from Drake v. Siebold, 81 Hun (N. Y.), 178; s. c, 30 N. Y. Suppl. 697 (1894). So of the constitution and by-laws ofan association of dealers. United States V. Coal Dealers' Assoc, 85 Fed. Rep. 252 (Cir. Ct. Cal., 1898). For an application of the rule al- lowing a resort to the surrounding circumstances, for the purpose of construing an agreement in writ- ing, see People v. North River Sugar Refining Co., 54 Hun (N. Y.), 354, 377; s. C, 7 N. Y. Suppl. 406 (1889). In United States v. Hopkins, 82 Fed. Rep. 529 (Cir. Ct. Kan., 1897), the monopoly condemned resulted mainly from the enforcement of a "rule of an exchange" composed of persons engaged in the live- stock commission business. Such rule prohibited any member from dealing with any person violating any of the rules or regulations of the exchange, or an expelled or suspended member, after notice of such suspension had been issued by the secretary or board of di- rectors. The court, in determining the qtiestion of the existence of an illegal monopoly, considered not only "what appeared upon the face of its (the exchange's) pream- ble, rules and by-laws," but "the entire situation and the practical working and results of the de- fendants' methods of doing busi- ness." It appeared that the en- forcement of such rule operated as a " boycott," to drive out of busi- ness all independent dealers. In Field Cordage Co. v. National Cord- age Co., 6 Ohio Cir. Ct. 615 (1893), similar agreements with others en- gaged in the same business, were considered. See also as to read- ing different instruments together, Judd V. Harrington, 139 N. Y. 105; S. C, 34 N. E. Rep. 790 (1893). As to the question of legality being one of law rather than of fact, see § 17. That a contract in restric- tion of competition is to be strictly construed as against a party com- plaining of violation, see Wiggins Ferry Co. v. Ohio & Mississippi Ry. Co., 72 111. 360 (1874). In Standard Oil Co. V. Scofield, 16 Abb. N. C. (N. Y.) 373 (Supm. Ct., Sp. T., 1885), the rule that all reasonable in- tendments are to be indulged in, in support of a pleading demurred to, was applied, sustaining the com- plaint in an action based on a con- tract claimed to be illegal as " in restraint of trade," i. e., as creating an unlawful restriction upon com- petition. 1 In American Biscuit & Manuf. Co. V. Klotz, 44 Fed. Rep. 721 (Cir. Ct. La., 1891), "pooling" is defined as " an aggregation of property or capital belonging to different per- 150 AGEEEMENTS IN EESTEICTION OF COMPETITION. [§ 26. the element of illegality, there seems to be no difference in kind between a pool and an ordinary partnership. The dis- tinction between a pool and a trust is artificial rather than substantial.^ In case of a trust, in addition to the agree- ment for division of profits, the parties to the agreement (commonly, but not necessarily, corporations or stockhold- ers therein) surrender the direct control of the management of the business covered by the agreement, to a central board of " trustees," ^ the interest of such parties being commonly ties, and to carry at reasonable rates, for, under its provisions, a company is entitled to its full per- centage of gross earnings, even though it does not carry a pound of freight. The necessary and in- evitable result of such a contract is to foster and create poorer serv- ice and higher rates." See note on " Syndicates and Pools " in 16 Abb. N, C. 380. 1 It is said in Spelling on Trusts and Monopolies, § 109, that " the lat- ter-day ' trust ' is but an adaptation of the railroad pool to manufactur- ing and trading corporations." 2 See Cook on Stock, Stockhold- ers, etc., § 503a, quoted and applied in State ex rel. v. Standard Oil Co., 49 Ohio St. 137, 185; S. C, 30 N. E. Rep. 279 (1892); also article by Prof. T. W. Dwight in 3 PoL Sci. Quart. 592, 611 (1888), with a discussion of the "SugarTrust"deed; article by U. M. Rose on " Strikes and Trusts " in 37 Am. Law Rev. 708 (1893); arti- cle by S. 0. T. Dodd in 7 Harv. Law Rev. 157 .(1893). In 1 Harv. Law Rev. 133 (1887), F. J. Stimson de- fines a trust as " a combination of property, real or personal, with powers of management or absolute disposal, or of stock in corporations, in the hands of a few persons," and sons, with a view to common lia^ bilities and profits," and it is said that the expression in the Fed- eral anti-trust act, "combination in the form of trust," " would seem to point to just what in popular language is meant by pooling." By g 5 of the Interstate Com- merce Act of 1887, it is forbidden to "any common carrier subject to the provisions of this act, to enter into any contract, agreement or combination with any other com- mon carrier or carriers, for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof." See as to pooling contracts at com- mon law and under this provision, United States v. Trans-Missouri Freight Assoc, 58 Fed. Rep. 58; S. C, 19 U. S. App. 36 (8th Cir., 1893). A pooling agreement among such carriers, entered into prior to such act, was condemned in Chi- cago, Milwaukee & St. Paul Ry. Co. V. Wabash, St. Louis & Pacific Ry. Co., 27 U. S. App. 1; s. C, 61 Fed. Rep. 993 (8th Cir., 1894). The court say: " The contract removed every incentive to the companies to afford the public proper facili- § 26.] AGEEEMENTS IN EESTEIOTIOST OF COMPETITION. 151 represented by "trust certificates" received in lieu of stock in the corporations.^ The legal effects produced in such case by the character of the parties as stockholders, we shall says that " the origin of the word 'trust ' seems to have been the well- known Standard Oil monopoly." In People ex rel. v. American To- bacco Co., 2 Chicago L. J. Weekly 349 (Cook Co. Cir. Ct., 1897?), a "commercial trust" is defined as " a combination of persons, copart- nerships or coi'porations engaged in similar industries, for the pur- pose of uniting their respective in- terests under one governing body, invested with the power to limit the production, dictate the sales, and regulate the prices of the arti- cles produced by its agents and members, thereby tending to de- stroy competition." The so-called " trust " agreements are all essen- tially similar in form. The follow- ing, under consideration and thus described in Bishop v. American Preservers' Co., 157 III. 284, 311 ; s. C, 41 N. E. Rep. 765 (1895), is here presented by way of illustration: " The agreement recites that it is designed by its signers to form a trust for the purpose of securing co-operation in the business of manufacturing preserves, etc., and of selling and dealing in the same in home and foreign markets." There were nine trustees, six desig- nated by name and authorized to elect three others. " Such trustees are empowered to organize corpo- rations with all or any of the pow- ers specified in the purposes of the agreement: and the stock of such corporations is to be issued to or purchased by said trustees. For this stock the trustees are to issue certificates of trust. The agree- ment is to go into effect within sixty days from the time those holding the majority of the stock in seven specified corporations, formed or to be formed, shall trans- fer the same to the trustees. Each signer of the agreement agrees to assign and transfer to said trustees absolutely, all the shares which he may own in said corporations formed or to be formed, and is to iJn State v. American Cotton Oil Trust, 40 La. Ann. 8; S. C, 3 So. Eep. 409 (1888), an injunction was refused against dealing in the shares of the American Cotton Oil Trust, the court saying: "If these certificates have been taken as the price or in exchange for $10,000,000 of propei'ty transferred to the trust, then, whatever be their validity and effect as shares of stock, whether or not they confer on the holders the privileges of corporate stockholders, and whether or not they confer any right to partici- pate in the carrying on of any illegal business, yet they undoubt- edly do represent an interest in the property referred to, and as such have a legal and real value; and we cannot understand how such property rights can be placed hors de commerce by an injunc- tion." See also, as to the rights of a transferee of a Standard Oil Trust certificate. Rice v. Rocke- feller, 184 N. Y. 174; s. a, 31 N. E. Rep. 907 (1893). 152 AGEEEMENTS IN PESTEIOTION OF COMPETITION. [§26. hereafter consider.^ The legal difficulties experienced in the organization and conduct of such trusts, have led to their disuse, and combined action to restrict competition is now commonly through the medium of corporate organiza- tion. The original term " trust " is, however, commonly ap- plied to the new forms of combination. receive therefor, not money, but trust certificates, equal to the ap- praised amount of the earning capacity of his stock, as fixed by the trustees and the stockholder. The trustees are authorized to pur- chase in the same way, by the issue of trust certificates, other stocks of the same companies, and also the property and business of any firm or individual engaged in the business of manufacturing and dealing in said products. The trustees are to exercise supervis- ion over the corporations whose stocks are transferred to them, and are empowered to elect themselves directors and ofiicers in such cor- porations, and procure such man- agement of the same as will be conducive to the interests of the holders of the trust certificates. These trust certificates are divided into shares of the par value of $100 each and are prepared by the trust- ees. They provide that the holders thereof shall be bound by the terms of the trust agreement, and of the by-laws passed in pursuance thereof, and are intended to show the interest of each beneficiary in the trust. The trustees hold the stocks transferred to them, in trust for the holders of the certificates, and are to receive and hold the dividends or interest upon said stocks, and are to distribute the same by declaring dividends upon the certificates. The stocks so transferred to the trustees are to be held by them for the benefit of all the owners of the trust cer- tificates. The trust is to continue for twenty-five years, subject to the right of seventy-five per cent, of the holders of the certificates to terminate it after the expiration of one year, and of sixty-five and two-thirds per cent, of such hold- ers to terminate it at the end of five years; and the trustees cannot sell or surrender any of the stocks held by them, during the continu- ance of the trust, without the con- sent of a majority in number and value of the holders of the trust certificates." See also descriptions of the agreements under considera- tion in State ex rel. v. Standard Oil Co., 49 Ohio St. 137; s. a, 30 N. E. Rep. 279 (1892); People v. North River Sugar Refining Co., 121 N. Y. 582; s. 0., 24 N. E. Rep. 834 (1890); Distilling & Cattle Feeding Ca v. People, 156 111. 448; s. C, 41 N. E. Rep. 188 (1895); Gould v. Head, 38 Fed. Rep. 886 (Cir. Ct. Colo., 1889); Same v. Same, 41 Id. 240 (Cir. Ct. Colo., 1890); and see Spelling on Trusts and Monopolies, ch. 12. What are known as " car trusts " resemble in name only the trusts now under consideration. See, generally, Ray on Contractual Limitations, p. 248. 1 See § 31. § 27.] AGEBEMENTS TO FIX PEICE. 153 § 27. Agreements to fix price or wages ; " corners."— Leaving for the present out of consideration agreements generally that tend to restrict competition, we confine our attention to agreements to fix price. The fixing of the price of a commodity by a single individual engaged in busi- ness, is one of the ordinary incidents of commercial inter- course. But, though the price is fixed by his immediate agency, it is, speaking generally, in reality fixed by conditions beyond his control, that is, by the forces of competition, so that it would be idle for him to seek to establish a price materially exceeding the price so fixed. There is an obvious distinction between such a case, and that of a single individ- ual fixing the price in the absence of any effect produced by the forces of competition. ISTow in case of an agreement , to fix the price of a commodity, if the parties to the agree- ment do not constitute so substantial a portion of the whole number of those dealing in such commodity, that the agree- ment, if executed, can have any material effect upon the price generally, it would seem to follow that there is no illegality in such agreement, there being neither actual in- jury nor tendency to injury .^ But where such parties are 1 This is the view taken in Na- insignificant fraction of those en- tional Distilling Co. v. Cream City gaged there in the business. So Importing Co., 86 Wis. 353; s. C, under the Federal anti- trust act, in 56 N. W Rep. 864 (1893) ; Herriman United States v. Nelson, 53 Fed. Rep. V. Menzies, 115 Cal. 16; s. C.,46Pao. 646 (Cir. Ct. Minn., 1892); Dueber Rep. 730 (1896). In Herriman v. Watch-case Manuf. Co. v. Howard Menzies it was applied to an agree- Watch & Clock Co., 55 Fed. Rep. 851 ment of an association of steve- (Cir. Ct. N.Y.,1893); 35U. S. App. 16, dores in San Francisco, " to govern 38; s. C, 66 Fed. Rep. 687, 644 (2d Cir., and control the business of master 1895); though see United States v. stevedores, to be carried on by its Trans-Missouri Freight Assoc, be- members," with a provision for fix- low. But under an express statu- ing prices to be charged by mem- tory prohibition of such agree- bers, it not appearing that the men ts, it seems immaterial whether parties controlled the business of or not the parties constitute so sub- stevedoring in San Francisco, to stantial a portion. For instances of the extent of ability to exclude such prohibition see Clancey v. competition or control prices, or Onondaga Salt Manuf. Co., 62 Barb, that they comprised more than an (N. Y.) 395 (1862); also Beechley v. 154 AGEEBMENTS TO FIX PEICE. [§27. the sole dealers in the commodity, or constitute so substan- tial a portion thereof that the agreement, if executed, will affect or tend to affect the price otherwise fixed by the forces of competition, it would seem to follow that the agree- ment is illegal, as producing the evils in view of which the doctrine against monopolies was established.^ On this gen- Mulville, 103 Iowa, 603; s. C, 70 N. W. Rep. 107 (1897; applying the prohibition of MoClain's Code, § 5454, against fixing "the price of oil, lumber, coal, grain, flour, pro- visions, or any other commodity or article whatever," to a combination among fire Insurance companies and agents to fix rates of insur- ance). So in United States v. Trans- Missouri Freight Assoc, 166 U. S. 390; s. C 17 Supm. Ct. Rep. 540 (1897), an agreement among rail- road corporations to establish and maintain rates was held to be " in restraint of trade or commerce," under the Federal anti-trust act. 1 Thus, in Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173, 186 (1871), the five coal companies which combined to fix the price of coal were the sole dealers in the region affected. The court say: "Singly each might have suspended deliveries and sales of coal, to suit its own interests, and might have raised the price, even though this might have been detrimental to the public interest. . . . But . . . this combination has a power in its confederated form which no in- dividual action can confer. The public interest must succumb to it, for it has left no competition free to correct its baleful influence." So in Drake v. Siebold, 81 Hun (N. Y.), 178; S. C, 30 N. Y. Suppl. 697 (1894), the agreement to fix the price of coal, held illegal, was among all the coal dealers in Rochester, except a few small dealers who sold by the bushel. So held under the statute (now Penal Code, § 168, subd. 6) against a conspiracy "to commit any act injurious to trade or commerce." So in Hoffman v. Brooks, 33 Am. Law Reg. (N. S.) 648 (Super. Ct. Cinn., 1884), the agree- ment held illegal was among the owners of the leaf-tobacco ware- houses in Cincinnati, for fixing rates of service, the business being of great magnitude in that city, and that being the largest market for such business in the United States. So in People v. Milk Ex- change, 145 N. Y. 267; s. c, 89 N. E. Rep. 1063 (1895), though it does not clearly appear how large a per- centage of the dealers were in- cluded in the combination in ques- tion, yet the prices of milk as fixed by it had " largely controlled the market in and about the city of New York, and of the milk-produc- ing territory contiguous thereto." To the same rule seems referable Lovejoy v. Michels, 88 Mich. 15; S. C, 49 N. W. Rep. 901 (1891), where, in applying the rule that, in the absence of agreement as to the price of goods sold, the price shall be a reasonable one, it was held error to allow as the price, or even § 27.] AGKEEMENTS TO FIX PEICE. 155 €ral ground is based the condemnation of what are known as " corners." ' Obviously the answer to the question whether the parties constitute so substantial a portion of the dealers consider as evidence of value, the price fixed' by a combination of manufacturers, to which the plaint- iff belonged, and which substan- tially controlled the supply. And the following are cases of agree- ments held illegal as fixing prices, where the parties seem, though it does not always clearly appear, to have constituted a substantial portion of the dealers in the com- modity. But, if otherwise, they are to be classed with the cases cited in note 1, p. 156, below. Leonard V. Poole, 114 N. y. 371; s. C, 31 N. E. Rep. 707 (1889; lard); De Witt Wire-Cloth Co. v. N. J. Wire- Cloth Co., 16 Daly, 529; s. C, 14 N. Y. Suppl. 277; affirmed, it seems, in 38 N. Y. State Reporter, 1023 ■(1891; wire-cloth); Eichardson v. Buhl, 77 Mich. 633, 657; s. c, 43 N. W. Eep. 1103 (1889; friction matches); Cummings v. Foss, 40 111. App. 523 (1891); confirmed in subsequent decision in Foss v. Cummings, 149 111. 353; s. C, 36 N. E. Eep. 558 (1894; corn; the opin- ion was here expressed that the combination was in violation of the Illinois statute making it a penal ■offense to "corner the market or attempt to do so);" United States F. Addyston Pipe & Steel Co., 54 U. S. App. 723, 756; S. C, 85 Fed. Eep. 371, 288 (6th Cir., 1898). In National Harrow Co. v. Bement, 31 N. Y. App. Div. 390, 294; s. 0., 47 N. Y. Suppl. 463 (1897), a provision in a license to manufacture and sell under a patent, whereby the licensor reserved the right to de- crease the prices as fixed, was held illegal, against the contention that authority was not given to in- crease the price, it appearing that the prices as fixed were far ^above the selling price. - On the contrary, there are some comparatively early decisions that go to the extent of holding that an agreement to fix prices is not illegal, even if among those con- stituting a substantial portion of the dealers in the commod- ity. Thus, in Ontario Salt Co. V. Merchants' Salt Co., 18 Grant (Ontario), 540 (1871; salt), notwith- standing the admission that " prices might possibly be affected by it." So in Central Shade EoUer Co. V. Cushman, 143 Mass. 353; s. C, 9 N. E. Eep. 629 (1887), of a combi- nation among manufacturers and sellers of curtain fixtures known as "wood balance shade rollers," though they were the principal dealers and substantially supplied the market. So held even on the assumption that the agreement tended to raise the price. So in Dolph V. Troy Laundry Machinery Co., 28 Fed. Rep. 553 (Cir. Ct. N. Y, 1886), was sustained an agreement between two manufacturers of washing-machines, they being the principal, but not the only, manu- facturers in this country, for a division of profits on sales, upon the basis of a fixed price. It is clear that these authorities would not now be generally followed. 1 The transactions condemned as " cornering," in Samuels v. Oliver, loG AGEEBMENTS TO FIX PEICE. [§27. that the agreement, if executed, will affect or tend to affect the price, must frequently depend on the circumstances of the case. The distinction above stated has sometimes, how- ever, been ignored, and the doctrine broadly stated that any agreement to fix the price of a commodity, at least of an article of necessity, is illegal.^ We have still another class of cases that ignore the distinction and apply the test oi reasonableness to the price as fixed, that is to say, uphold the agreement if the price as fixed is reasonable.^ But in 130 111. 73; S. C, 22 N. E. Eep. 499 (1889)i consisted of buying all the market supply of an article of sta- ple necessity, and entering into con- tracts for the delivery of a larger amount than could, in the state of the market supply, be delivered. Here it was testified by the presi- (1869; railroad stock); Foss v. Cum- mings, 149 IlL 353; s. c, 36 N. E. Eep. 553 (1894; corn); Wells v. Mo- Geoch, 71 Wis. 196; s. C, 35 N. W. Rep. 769 (1888). A corner is essen- tially the same as a pool or trust. But in a comer the element of rais- ing price seems predominant; in a dentof the Chicago Merchants' Ex- ^jooZ, that of dividing profits; in a change (p. 84): " By 'cornering the market,' I mean when parties have contracts on hand for a greater amount than the sellers have cash grain to deliver." In Wright v. Cudahy, 168 111. 86; s. C, 48 N. E. Kep. 39 (1897), a contract was, held illegal, as in violation of § 130 of the Criminal Code, making it a crime to " forestall the market by spreading false rumors, to influence the price of commodities therein, or corner the market, or attempt to do so." In the testimony a corner was defined as " where somebody succeeds in buying for future de- livery more property of a given kind, than is possible for the seller to deliver before the day of the maturity of the contract." Simi- larly a corner in wheat was con- demned as illegal in Raymond v. Leavitt, 46 Mich. 447 (1881). See further as to corners, Wright v. Crabbs, 78 Ind. 487 (1881; wheat); Sampson v. Shaw, 101 Mass. 145 trust, the particular relation of the parties. iThis seems to be the ground of the decision in More v. Bennett, 140 111. 69; s. c, 39 N. E. Rep. 888 (1892), declaring illegal an associa- tion of law stenographers, having as its object to control the prices to be charged by its members for stenographic work, by restraining all competition among them. And in the following cases it does not appear that the agreements con- demned were among persons con- stituting a substantial portion of the dealers: Urmston v. White- legg, 63 L. T. E. (N. S.) 455 (1890; manufacturers of mineral waters); Sayre v. Louisville Union Benev. Assoc, note 2, p. 157, below. 2 Thus, in Herriman v. Menzies, 115 Cal. 16; s. C, 46 Paa Rep. 730 (1896), the agreement was sus- tained, it not appearing that the prices fixed were unreasonable, or the restriction "such as to §27.] AGEEEMENTS TO FIX PEIOE 157 such cases, contranr to a rule already considered, the immedi- ate and present effect seems to be relied on, without reference to remote and distant effects. In this connection we may profitably consider the true basis of the doctrine of the in- validity of agreements to fix wages, that is, the price of labor. The doctrine was originally established as an appli- cation of the general law of conspiracy. So far as it rests on that ground, it is, as we have elsewhere seen, been repu- diated, if indeed it is to be regarded as ever having existed.^ But there seems to be ground for saying that the validity of an agreement to fix wages, that is,the price of labor, should be determined like that of agreements generally to fix prices, that is, by determining whether the parties to the agreement constitute so substantial a portion of those furnishing the preclude a fair competition with others engaged in the business," though there is another and dis- tinct ground for the decision, namely, that the parties did not control the business. See note 1, p. 153, above. So, in Sayre v. Louis- ville Union Benev. Assoc, 1 Duvall (Ky.), 143 (1863), where a by-law of an association of captains and owners of steamboats on the Ohio and Mississippi rivers, forbidding any member to carry freight for " less than the established rate in the trade," was held illegal. Such rate seems to have been fixed by the association. The court say: "The members agreed that no one should carry freight for less than the rate fixed by the association, without reference to the question whether the rate was reasonable or not." So, in Ontario Salt Co. v. Merchants' Salt Co., 18 Grant (On- tario), 540, 544 (1871), the agreement was sustained as having for its object, " not unduly to enhance the price, but to enable the parties by concerted action to combat an at- tempt on the part of foreign pro- ducers and manufacturers unduly to depreciate it." As a rule, how- ever, attempts to fix prices have been by legislatures rather than courts. That the existence of a monopoly in a business furnishes constitutional ground for legis- lation fixing prices therein, see Budd V. New York, 143 U. S. 517, 533; s. C, 13 Supm. Ct. Rep. 468 (1893). Compare Ladd v. Southern Cotton Press, etc. Co., 53 Tex. 173 (1880); Seeligson v. Taylor Com- press Co., 56 Id. 319, 337 (1883). See, as to limits upon jurisdiction of States to control rates of transpor- tation, in view of commerce clause of Federal constitution, Gulf, Col- orado & Santa Fe Ey. Co. v. State, 73 Tex. 404; s. 0., 10 S. W. Rep. 81 (1888), and of prohibition of four- teenth amendment, Smyth v. Ames, 169 U. S. 466; s. 0., 18 Supm. Ct. Rep. 418 (1898). 1 See § 7. 158 CEIMINAL LIABILITY. [§ 28. supply of labor, that the agreement, if executed, will affect or tend to affect the rate of wages otherwise fixed by the forces of competition.^ § 28. Criminal liability for restricting competition. — In the view we have taken, an act illegal as against public policy involves the idea of a wrong committed against a considerable number of persons, vaguely designated as " the public." ^ The same may be said of an act illegal as a crim- inal act.' But not all acts illegal as against public policy are criminal. The precise line of distinction may not be easy to draw; the distinction seems to be one of degree rather than of kind. The border territory of doubtful cases includes, to some extent at least, acts illegal as producing or tending to produce restrictions upon competition. It seems clear, however, that not all such acts are criminal; and, in- deed, the question of criminality has been raised only as to such acts as come under the description of forestalling, en- grossing and regrating, which were for centuries statutory iln this connection see Sayre v. was, however, disregarded in People Louisville Union Benev. Assoc, 1 v. Fisher, 14 Wend. (N. Y.) 9 (1835), Duvall (Ky.), 143 (1863), where, holding unlawful a combination though the question was as to to raise wages. There was nothing prices rather than wages, the court to show that such combination doubt the soundness of the extreme tended to create a monopoly. The positions, on the one hand, that court state several hypothetical combinations to raise wages are cases of monopolies produced by legal, and, on the other hand, that combinations to raise wages, and they are not, applying the test of add: "Such consequences would reasonableness of the wages sought follow were such combinations uni- te be obtained as a result of the versal. It is true that no great combination. Here a by-law of an danger is to be apprehended, on ac- assooiation forbidding members to count of the impracticability of carry freight for less than the rate such universal combinations. But fixed by the association, was held if universally, or even generally, illegal, on the ground that the entered into, they would be preju- agreement had no reference to the dicial to trade and to the public, question whether the rate was rea- they are wrong in each particular sonable or not. Compare Queen case." Ins. Co. V. State, 86 Tex. 250, 272; 2 See g 17. s. c, 24 8. W. Rep. 397, 405 (1898). » See 1 Bishop's New Criminal The distinction stated in the text Law, g§ 231, 232. §28.] CEIMINAL LIABILITY. 159 offenses in England, a decision of the question whether they were criminal acts at common law being thus precluded.^ In this country there seems to have been no serious attempt to enforce on common-law grounds any criminal liability for acts producing or tending to produce restrictions upon competition, though the opinion has frequently been ex- pressed that such a liability exists.^ Another source of such 1 Though the question was not in the case, it seems to have been the view of the court in Mogul S. S. Co. V. McGregor, L. R. App. Cas. (1893), 85, 46, 58, that what are here called agreements "in re- straint of trade " were not indict- able at common law, questioning remarks of Crompton, J., in Hilton V. Eckersley, 6 El. & Bl. 47 (1855). Of forestalling, engrossing and regrating it is said in Bishop's New Criminal Law, § 518: "These are kindred offenses, indictable both under the ancient common law and by early English statutes, yet seldom made the subject of a criminal prosecution in modern times. And in England they were abolished in 1844* by 7 & 8 Vict., c. 24, both as common-law offenses and as statutory." The statutes against these offenses had been re- pealed by 13 Geo. 3, c. 71 (1772), but, according to King v. Wad- dington, 1 East, 143 (1800), they con- tinued as common-law offenses. See also 2 Wharton's Criminal Law (10th ed.), §§ 1849-51. In On- tario Salt Co. V. Merchants' Salt Co., 18 Grant (Ontario), 540 (1871), an agreement among manufact- urers of salt was held not ille- gal on the ground that its object was to raise the price, but the view is taken that, even if such acts were once illegal at common law, "long usage" has brought about a change in the common law in this respect. See Story on Sales (4th ed.), § 490; also article by W. F. Dana in 7 Harv. Law Rev. 338 (1894), where it is said that " at com- mon law there was no such offense as ' monopolizing ' " (p. 342), and it is denied that " engrossing " at com- mon law had any relation to " mo- nopolizing." 2 See, for instance, Raymond v. Leavitt, 46 Mich. 447 (1881); Cum- mings V. Foss, 40 111. App. 528; af- firmed in 149 III. 353; S. C, 36 N. E. Rep. 553 (1894); Strait v. National Harrow Co., 18 N. Y. Suppl. 224 (Supm. Ct, Sp. T., 1891). These were all proceedings to enforce a civil liability. It is said in Bish- op's New Criminal Law, § 520: " It is reasonably plain that the com- mon law of our States has not adopted these offenses in terms as thus defined, yet it does not fol- low that the principle from which the law proceeded has not become an inheritance with us. Modified, therefore, and thus adapted to our altered situation and circum- stances, there is ground for deem- ing them criminal misdemeanors in States that recognize common- law crimes." See the elaborate discussion in Stickney's "State 160 CIVIL EEMEDIE8. [§29. opinion seems to be the exploded doctrine, elsewhere con- sidered, of a criminal liability for combinations to raise wages.' Criminal liability for acts producing or tending to produce restrictions upon competition, now very generally exists in this country by virtue of statute.^ § 29. Civil remedies in case of restriction upon competi- tion; proceeding on behalf of public. — Leaving out of con- sideration remedies as between parties to an agreement in Control of Trade and Commerce." In 2 Wharton's Precedents, No. 658, is a case of an indictment for a conspiracy among carriers to regulate the prices of transporta- tion, sustained by Judge Grier, afterwards of the United States Supreme Court. ' See, for instance, Morris Run Coal Co. V. Barclay Coal Co., 68 Pa. St 173, 187 (1871). 2 In Leonard v. Poole, 114 N. Y.~ 371; s. c, 21 N. E. Rep. 707 (1889), is a dictum that a combination to advance the price of lard was in- dictable as a conspiracy to " com- nait any act injurious to trade or commerce " under the New York statute; and see cases cited. But the recent anti-trust acts much more explicitly create a criminal liability. See for instance as to indictment for conspiracy under the Mississippi act (Code, §g 1007, 4437, subd. 9), American Fire Ins. Co. V. State, — Miss. — ; s. C, 32 So. Rep. 99 (1897). So, mere contracts in restraint of trade, though creating no criminal liability at common law, commonly do, under the provis- ions of the anti-trust acts. Thus, under the Federal anti-trust act. See Re Greene, 52 Fed. Rep. 104, 111 (Cir. Ct. Ohio, 1892); United States V. Addyston Pipe & Steel Co., 54 U. S. App. 723, 743; s. C, 85 Fed. Rep. 271, 379 (6th Cir., 1898). See § 21. See as to requisites of indictment under such act. United States v. Greenhut, 50 Fed. Rep. 469 (D. Ct. Mass., 1893); Re Greene, above; United States v. Patterson, 55 Fed. Rep. 605, 641; Same v. Same, 59 Id. 380 (Cir. Ct. Mass., 1893). It is not sufficient to merely follow the words of the act. United States V. Nelson, 53 Fed. Rep. 646 (Cir. Ct. Minn., 1893); United States v. Patterson, 55 Fed. Rep. 605, 638 (Cir. Ct. Mass.. 1893); Re Greene, above. That as a penal statute it is to be strictly construed, see § 30. Anti- trust acts commonly contain pro- hibitions of conspiracies to commit the acts in question. See gener- ally, as to the doctrine of criminal conspiracy, § 8. In Hathaway v. State, 36 Tex. Crim. Rep. 361; S. c, 36 S. W. Rep. 465 (1896), a mere agent was held improperly con- victed for engaging in a " conspir- acy against trade," in violation of the Texas Penal Code, § 981. In Re Grice, 79 Fed. Rep. 637, 638 (Cir. Ct. Tex., 1897), the provision of the Texas anti-trust act of 1889, by which it is attempted to claim ju- risdiction for offenses committed outside the State, was held inoper- ative and void. .§ 29.] CIVIL REMEDIES. 161 restriction of competition, as a rule no civil liability results merely from the existence of such a restriction.^ It is true that an injury is regarded as resulting to a large number of persons vaguely designated as "the public;" nevertheless, I See Olmstead v. Distilling & Cat- tle-Feeding Co., 77 Fed. Rep. 265 (Cir. Ct. 111., 1896). So held that no action would lie against the members of a combination illegal as in restric- tion of competition, for a refusal to sell to the plaintiff. Brewster V. Miller, — Ky. ; s. C, 41 S. W. Rep. 301 (1897). Analogous are the decisions to the effect that a con- tract in restraint of trade is not actionable at the instance of third parties; thus, Bohn Manuf. Co. v. HoUis, 54 Minn. 223, 234; s. C, 55 N. W. Rep. 1119 (1893), where the court say: "The courts sometimes call such contracts 'unlawful' or 'ille- gal,' but in every instance it will be found that these terms were used in the sense merely of 'void' or ' unenforceable ' as between the parties; the law considering the disadvantage so imposed upon the contract a sufBoient protection to the public." See also remarks of Lord Watson in Mogul S. S. Co. v. McGregor, L. R. App. Cas. (1892), 25, 43; also Continental Ins. Co. v. Board of Fire Underwriters, 67 Fed. Rep. 810, 318 (Cir. Ct. CaL, 1895); Dueber Watch-case Manuf. Co. V. Howard Watch & Clock Co., 3 Misc. (N. Y.) 582 (Supm. Ct., Sp. T., 1893); United States v. Addyston Pipe & Steel Co., 54 U. S. App. 723, 743; s. C, 85 Fed. Rep. 271, 279 (6th Cir., 1898). By the Federal anti- trust act a right of action is given to "any person who shall be injured in his business or property by any 11 other person or corpoi-ation by rea- son of anything forbidden or de- clared to be unlawful " by such act (§7). In such an action it must appear that the plaintiff is or has been engaged in interstate trade and commerce. Dueber Watch- case Manuf. Co. v. Howard Watch & Clock Co., 55 Fed. Rep. 851 (Cir. Ct. N. Y., 1893). In Bishop v. American Preservers' Co., 51 Fed. Rep. 272 (Cir. Ct. 111., 1893), such an action was held not maintainable, the only ground thereof being the bringing of two suits that had not been decided, there being no alle- gation that the goods manufact- ured by the plaintiff were a sub- ject of interstate commerce, and it not appearing that the suits com- plained of had anything to do with an alleged contract in restraint of trade. The declaration was also defective for omitting averments of requisite citizenship. In Dueber Watch-case Manuf. Co. v. Howard Watch & Clock Co., 35 U. S. App. 16, 33; s. c, 66 Fed. Rep. 637, 641 (3d Cir., 1895), a complainant declaring under this act was not allowed to turn the action into a common-law one, for the purpose of claiming ju- risdiction over the defendant. For another instance of an unsuccessful action brought under such act, see Lowenstein v. Evans, 69 Fed. Rep. 908 (Cir. Ct. So. Car., 1895). Bratt V. Swift, — Wis. — ; s. a, 75 N. W. Rep. 411 (1898), furnishes an in- stance of an action held maintain- 162 CIVIL EEMEDIES. [§29. the injury to any given individual is comparatively insignifi- cant, and great inconvenience would result from the recog- nition of a remedy in favor of each one of so large a number.' But, in accordance with the general doctrine allowing, on be- half of the public, a remedy against an act producing injury to the public, as in case of what is known as a public nuisance,^ it would seem to follow that a proceeding may be main- tained on behalf of the public for relief against such restric- tion. The attorney -general is the proper officer to institute such a proceeding. Earely, if ever, would an action at law for damages be an adequate remedy in such a case, and, in ac- cordance with the rules applicable to the granting of injunc- tions, an injunction on the application of the attorney -general is ordinarily the proper proceeding.' This proceeding has. able under the Wisconsin anti- trust act for damages caused by a " conspiracy in restraint of trade." The damages recoverable by the plaintiff were declared to be " such sum as he had suffered in his busi- ness, and the consequent dimin- ished value of the use of his prop- erty, by, reason of the wrongful acts of the defendants; " but it wa§ held error to admit evidence, as bearing on the . question of dam- ages, of the value of the several articles or pieces of property vfhich he sold, and the prices for which he sold them when he sold out his business. 1 Thus it is said in 4 Blackstone's Commentaries, p. 167: "It would be unreasonable to multiply suits, by giving every man a separate right of action, for what damnifies him in common only, with the rest of his fellow subjects." 2 As to the remedy in case of a public nuisance, see 1 High on In- junctions (3d ed.), §§ 759-771. 'Thus, in Attorney-General v. Great Northern Ey. Co., 1 Drewry & Smale, 154 (1860), a railway com- pany was enjoined from cari-ying on the business of coal merchants, the court saying: "These compa- nies being armed with the power of raising large sums of money, if they were allowed to apply their funds to purposes other than those for which they were constituted, might acquire such a preponderat- ing influence and command over some particular branch of trade or commerce, as would enable them to drive the ordinary private traders out of the field, and create in their own favor a practical monopoly, whereby the interests of the public would be most seriously injured." Similarly, in Stockton v. Central R. E. Co. of N. J., 50 N. J. Eq. 52; S. C, 24 Atl. Rep. 964 (1892), an in- junction was granted, on the ap- plication of the attorney-general, against a railroad corporation leas- ing its road to another, such lease §29.] CIVIL EEMEDIES. 163 however, been rarely resorted to, a preference being shown for the more drastic remedy of a proceeding for the dissolu- tion of the corporation or corporations, which, as we shall see elsewhere, is ordinarily the agency producing the restric- tion.i But, as the application of this severe remedy deprives being part of a scheme to secure a monopoly of the Pennsylvania an- thracite coal traffic. But the distinction between an injury to a mere individual, and an injury to the public, veas overlooked in Queen Ins. Co. v. State, 22 S. W. Eep. 1048 (Tex. Civ. App., 1893); re- versed, however, in 86 Tex. 250, 374; s. C, 34 S. W. Eep. 397 (1893). Here, in a proceeding by the State, the combination to which the cor- poration in question was a party, was held not to be illegal. But, on the assumption that it was a com- bination illegal as in restriction of competition, the relief demanded, for forfeiture of the right to do business in Texas, and for an in- junction against carrying out the agreement, was regarded as im- proper. This on the general ground that granting such relief would be a departure from the rule that a court of equity will leave parties to an illegal contract as they have left themselves. The distinction was also overlooked in Stockton v. American Tobacco Co., 55 N. J. Eq. 353; s. C, 36 AtL Eep. 971 (1897), where an injunction to restrain a corporation from conducting its business in a certain manner, was refused on the ground that it would have been lawful for an in- dividual to conduct his business in the same manner. It disposed of its goods through "consignment agreements" with "jobbers." The court say (p. 363): "Assume that it appears that the company has so enforced its consignment agree- ment as to make it practically im- possible for any jobber to handle its goods, and at the same time to deal in goods made by others; and assume that from such conduct the alleged consequences flow, the query remains, what power has this court to interfere at the in- stance of either the attorney-gen- eral or of any jobber? If the con- duct now the subject of complaint had been that of an individual manufacturer instead of a corpora- tion, I do not imagine that any lawyer would think of pressing be- fore any court the proposition that such conduct could be enjoined. An individual manufacturer can sell his manufactured stock to whom he pleases, on any terms he pleases, and can refuse to sell to any one with whom, for his own rea- sons, however capricious, he does not care to deal. He can select his agents to sell his goods, and fix any rate of commissions. He can accom- pany his consignment to such agen t with such restrictions as to the price or the terms of sale, or in re- spect to the parties to whom he naay sell, as he pleases. Within these limits the power of an owner of manufactured goods is absolute." But suppose such individual man- 1 See §31. 164 CIVIL EEMEDIES. [§29. the corporation of power for good as well as for ill, there would seem to be, on principle, strong grounds for applying the remedy by injunction, so that the corporate existence may be preserved for legitimate purposes. uf acturer, by the extent and variety of his operations, to be able to con- trol the trade? The question might then well arise whether an injunc- tion might not issue against him. As it is, the case supposed by the court is not parallel with that be- fore it. The court distinguish cases wherein a court of equity has enjoined the acts of a corpora- tion as cases (p. 365) " where quasi- public corporations have acted outside of the scope of their char- ter privileges, or have violated an implied limitation upon its general power, so as to create a nuisance or a public injury." (Distinguish- ing Stockton V. Central R. E. Co., p. 162, above, as a case of an ultra vires agreement.) But is this not begging the question? Whatever the character of the business, is it not outside the scope of the char- ter powers, to constitute a monop- oly? Furthermore, although the question has generally arisen in connection with guasi-public cor- porations, it is clear that the de- cisions have not, as a rule, been based on the circumstance of a corporation being a guasi-public one, nor even, it would seem, on the circumstance of the acts in ques- tion being those of a corporation. The court held that the result could not be evaded by enjoining the officers individually, instead of restraining the corporation. But in People ex rel. v. American To- bacco Co., 2 Chicago L. J. Weekly (Cook Co. Cir. Ct., 1897?), an injunc- tion was granted to restrain the same corporation (here a foreign one) from transacting business. By the Federal anti-trust act the circuit courts have jurisdiction to "prevent and restrain violations" of the act, such proceedings to be instituted by "the several district attorneys of the United States in their respective districts under the direction of the attorney-gen- eral." (§ 4.) Injunctions under this provision were allowed in United States v. Elliott, 63 Fed. Rep. 801 (Cir. Ct. Mo., 1894); United States V. Trans-Missouri Freight Assoc, 166 U. S. 290; s. c, 17 Supm. Ct. Rep. 540 (1897); United States V. Coal Dealers' Assoc, 85 Fed. Rep. 252, 259 (Cir. Ct. Cal., 1898). In the case last cited, it was intimated that under this provision a temporary restraining order may be issued without notice, " under the circum- stances sanctioned by the estab- lished usages of equity practice," with a query whether, for the pur- pose of obtaining such an order, it is necessary to show that irrepa- rable injury will result from delay, the case involving a question of monopoly and restraint of trade. See as to the application of the rule allowing some of numerous parties to be brought in as representing the whole. So, in United States v. Debs, 64 Fed. Rep. 724 (Cir. Ct. 111., 1894), the defendant was held guilty of contempt for violating such an injunction. But the right to an injunction under this pro- §30.] REMEDIES AS BETWEEN PARTIES. 165 §30. Th,e same; remedies as between parties. — The remedy just considered is available against a corporation or a mere individual, independently of whether the restriction is the result of an agreement. But such restrictions are com- monly the result of agreement, and the existence of such an agreement gives rise to the question of the existence of rem- edies as between such parties.^ In accordance with the doc- trine applicable generally to agreements illegal as against public policy, no proceeding, whether legal or equitable, can be maintained, as between such parties, to enforce any pro- vision of the agreement,^ though it may be otherwise as to Tision is limited to tlie govern- ment; it cannot be exercised by a private citizen, his remedy being limited to an action for damages under § 7. (See note 1, p. 161, above.) Blindell v. Hagan, 54 Fed. Rep. 40 (Cir. Ct La., 189S); affirmed as Hagan v. Blindell, in 13 U. S. App. 354; s. C, 56 Fed. Rep. 696 (5th Cir., 1893); Pidcock v. Harrington, 64 Id. 831 (Cir. Ct. N. Y., 1894); Greer V, StoUer, 77 Id. 1 (Cir. Ct. Mo., 1896); Gulf, Colorado & Santa Fe Ry. Co. V. Miami Steamship Co., 53 U. S. App. 783, 758; s. C, 86 Fed. Rep. 407, 420 (5th Cir., 1898). Under the requirement of § 6 of the act, as to seizure and condemna- tion of property in transportation from one State to another, or to a foreign country, held, that prop- erty could not be forfeited in a proceeding under the statute for an injunction. The court say: "This involves a trial by jury." United States V. Addyston Pipe & Steel Co., 54 U. S. App. 723, 776; S. C, 85 Fed. Rep. 271, 301 (6th Cir., 1898). See Currier v. Concord R. R. Co., 48 N. H. 331 (1869), as to relief in equity to an individual under the New Hampshire statute against railroad monopolies. 1 Of course such questions do not arise in case of a restriction result- ing solely from the action of an individual, as distinguished from a combination. See Oliver v. Gil- more, 53 Fed. Rep. 563 (Cir. Ct. Mass., 1893). 2 Judd V. Harrington, 189 N. Y. 105; s. C, 34 N. E. Rep. 790 (1&93); Richardson v. Buhl, 77 Mich. 633, 651; s. C, 43 N. W. Rep. 1103 (1889; action for amount claimed to be due under an agreement among stockholders for winding up the business of a corporation, for the purpose of uniting it with other in- terests); Hartford & Nevr Haven R. R. Co. V. N. Y. & New Haven R. R. Co., 3 Robt. (N. Y.) 411 (1865); Bur- lington, C. R. & N. Ry. Co. v. North- western Fuel Co., 31 Fed. Rep 653 (Cir. Ct. Minn., 1887); National Harrow Co. v. Bement, 31 N. Y« App. Div. 390, 397; S. C, 47 N. Y. Suppl. 462 (1897); National Harrow Co. V. Hench, 76 Fed. Rep. 667 (Cir. Ct. Pa., 1896); Central Ohio Salt Co. V. Guthrie, 35 Ohio St. 666 (1880); More v. Bennett, 140 111. 69; 166 EEMEBIES AS BETWEEN PARTIES. [§30. a proceeding in disaffirmance of the agreement.' It is some- times a matter of difficulty to determine whether a person S. C, 29 N. E. Rep. 888 (1893); Chip- pewa Lumber Co. v. Tremper, 75 Mich. 36; s. c, 42 N. W. Rep. 533 (1889; covenant in deed against sale of liquor); Urmston v. White- legg, 63 L. T. R. (N. S.) 455 (1890). Thus, recovery for profits or earn- ings claimed to be due, was refused in Hooker v. Vandewater, 4 Denio (N. Y.), 349 (1847); Stanton v. Allen, 5 Denio (N. Y.), 434 (1848); Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173, 188 (1871); Craft v. McConoughy, 79 111. 346 (1875); Nester v. Continental Brewing Co., 161 Pa. St. 473; s. C, 29 Atl. Rep. 102 (1894); Texas & Pacific Ry. Co. V. Southern Pacific Ry. Co., 41 La. Ann. 970; s. C, 6 So. Rep. 888 (1889); Emery v. Ohio Candle Co., 47 Ohio St. 820; S. C, 34 N. E. Rep. 660 (1890); Vulcan Powder Co. v. Her- iSee generally, as to proceed- ings in disaffirmance of an illegal agreement, Clark on Contracts, § 312. See Strait v. National Har- row Co., 18 N. Y. Suppl. 224 (Supm. Ct., Sp. T., 1891). In Phoenix Bridge Co. V. Keystone Bridge Co., 142 N. Y. 425, 431; s. c, 37 N. E. Rep. 562 (1894), relief as between parties to a combination concededly illegal as in restriction of competition, was denied on the ground that there appeared no disaffirmance of the agreement by the plaintiff. Recovery back of money depos- ited and forfeited under such an agreement, was not allowed in De Witt Wire-Cloth Co. v. New Jersey Wire-Cloth Co., 16 Daly, 529; s. c, 14 N. Y. Suppl. 277; affirmed, it seems, in 38 N. Y. State Reporter, 1033 (1891). So of money advanced in promotion of an illegal cornering transaction, in Raymond v. Leav- itt, 46 Mich. 447 (1881; where it seems that the party advancing the money was to share in the prof- its); Cummings v. Foss, 40 111. App. 523(1891); confirmed in subsequent decision in Foss v. Cummings, 149 UL 853; a C, 36 N. E. Rep. 553 (1894; so also as to services rendered). So of amounts paid as membership fees in association, in Griffin v. Piper, 55 111. App. 213 (1894). In Pittsburg Carbon Co. v. McMillin, 119 N. Y. 46; s. C, 23 N. E. Rep. 530 (1890), as against the receiver of an illegal trust combination, a party to the combination, who had as- signed a contract to the combina- tion, was held not entitled to the proceeds of the contract. This on the ground that the receiver united in himself, not only the right of the trust combination, but the right of creditors. In Merz Capsule Co. V. United States Capsule Co., 67 Fed. Rep. 414 (Cir. Ct. Mich., 1895), one party was held not entitled to relief founded on the contract, but, upon the restoration by it of what it had received under the contract, it was held entitled to have such of the other parties as threatened to invade its property, restrained from interfering therewith. See also as to the duty to restore, West- ern Union TeL Co. v. Burlington & S. W. Ry. Co., 11 Fed. Rep. 1 (Cir, Ct. Iowa, 1883). §30.] EEMEDIES AS BETWEEN PARTIES. 167 is a party to the agreement, for the purpose of the applica- tion of this rule. Obviously, as a general rule, remedies as cules Powder Co., 96 Cal. 510; s. C, 31 Pac. Rep. 581 (1893); Texas Standard Oil Co. v. Adoue, 83 Tex. 650; S. C, 19 S. W. Rep. 274 (1898); Chicago, Milwaukee & St. Paul Ry. Co. V. Wabash, St. Louis & Pacific Ry. Co., 27 U. S. App. 1; s. C, 61 Fed. Rep. 993 (8th Cir., 1894). In the case last cited the court condemn, as "not supported by the authorities " and as " unsound in principle," Central Trust Co. v. Ohio Central Ry. Co., 23 Fed. Rep. 806 (Cir. Ct. Ohio, 1885), where recov- ery was allowed for the amount due under a railroad pooling contract, "without regard to the questions made as to the original validity of the contract." The court say: "The contract itself was a customary one among railroads, and the re- ceiver believed it to be reasonable and fair, and that it was expedient to continue it in force. Good faith requires that the proceeds arising from its operation, and which, by its terms, belong to the petitioner, should be paid over to it." Com- pare, as to right to share in profits of such a contract. Cutting v. Florida Ry. & Nav. Co., 48 Fed. Rep. 508 (Cir. Ct. Fla., 1891). The doctrine is sometimes declared by statute, as in the provision of the Texas anti-trust act that " any con- tract or agreement in violation of the provisions of this act shall be absolutely void, and not en- forceable at law or in equity." For applications thereof see Texas <& Pacific Coal Co. v. Lawson, 89 Tex. 894; S. C, 84 S. W. Rep. 919 (1896); reversing 10 Civ. App. 491; s. c, 31 S. W. Rep. 843 (1895); Fuqua v. Pabst Brewing Co., 90 Tex. 298; s. C, 38 S. W. Rep. 29 (1897); Texas Brewing Co. v. Tem- pleman, 90 Tex 277; s. C, 38 S. W. Rep. 27 (1896). On the same general ground the right to maintain a proceeding to enforce the provisions of an agree- ment, was, under varying condi- tions, denied in i;he following cases : In Unckles v. Colgate, 148 N. Y. 529; S. c, 48 N. E. Rep. 59 (1896), the holder of a certificate issued by a trust, was not allowed to main- tain an action for winding up the afifairs of the trust, an accounting by the trustees under the trust agreement, the appointment of a receiver, and the distribution through the receiver of all moneys, and of the proceeds of property, that came into the defendant's hands. Here the plaintiflP had purchased the certificates subse- quently to the formation of the trust, and it is intimated that his position was less favorable than that of one a stockholder and party to the original agreement. The de- cision was based on the ground that, having voluntarily made him- self a party to a scheme under an executed agreement, which he al- leged to be illegal, he could not claim the benefit of such illegal agreement. In Greer v. Payne, 4 Kan. App. 153; s. c, 46 Pac. Rep. 190 (1896), a suit by a member of an unincorporated voluntary asso- ciation of live-stock dealers, to en- 168 EEMEDIES AS BETWEEN PAE'nES. [§30. between a third person and a party to an agreement in re- striction of competition, are enforceable, notwithstanding join the enforcement against him of penalties imposed by the rules of the association, was held not maintainable. This on the ground that the contract of membership was an unlawful combination, under L. 1891, ch. 158, and no rights could grow out of it, even member- ship therein being a misdemeanor. So held, notwithstanding the con- tention that the granting of the relief would be a virtual wiping out of the illegal by-laws of the as- sociation, leaving the exchange, with its members, to conduct their business under valid and lawful rules and regulations. In Greer v. StoUer, 77 Fed. Eep. 1 (Cir. Ct. Mo., 1896), the same result was reached on the same state of facts, but on a somewhat different ground, namely, that the plaintiff could not claim the rights of membership, without submitting to the rules which, on becoming a member, he had agreed to observe, the validity of the contract of membership not being involved. In Milwaukee Masons & Builders' Assoc, v. Nieze- rowski, 95 Wis. 129; s. c, 70 N. W. Rep. 166 (1897), an action was held not maintainable on a note given by a member of an associa- tion of mason contractors, the only consideration therefor being the benefits and advantages (such as rebates on material) which he was entitled to receive as a member, as a result of conducting its busi- ness, which was illegal as prevent- ing competition. In American Biscuit & Manuf. Co. v. Klotz, 44 Fed. Rep. 731 (Cir. Ct. La., 1891), the illegality of a trust combination was held ground for refusing its application for the appointment of a receiver, in a proceeding against a constituent concern for an ac- counting. Opposed to the authori- ties generally seems to be National Wall Paper Co. v. Hobbs, 90 Hun, 288; s. c, 35 N. Y. SuppL 932 (1895), holding that the defendant could not, while retaining the fruits of the contract, set up that it was an unlawful conspiracy to raise the price of goods and lower wages. This decision was followed in Noble V. McGurk, 16 Misc. (N. Y.) 461 ; s. c, 89 N. Y. SuppL 921 (Supm. Ct., Sp. T., 1896), a case of an alleged agree- ment not to bid at a partition sale. The rule that relief may be granted as between parties not in pari de- licto, seems to have been applied in an extreme case, in Manchester & Lawrence R. R. v. Concord R. R., 66 N. H. 100, 131; s. c, 20 Atl. Rep. 383 (1890), where, as between railroad companies, parties to an agreement invalid as a monopoly by statute, but not at common law, relief was granted. If, as between the parties, an agreement in restric- tion of competition is non-enforce- able, it seems to follow that its existence furnishes no obstacle to one of such parties entering into an agreement with a third party in conflict with the provisions of the original agreement. Thus, in Cleveland, Columbus, Cincinnati, etc. Ry. Co. v. Closter, 126 Ind. 848, 359; s. C, 36 N. E. Rep. 159 (1890), 30.] EBMEDIES AS BBTWEBN PARTIES. 16& such agreement.^ And this is so whether or not the remedy sought is for breach of an agreement. But an agreement a combination among carriers, illegal as restricting competition, was held to create no legal obstacle to a contract between a shipper, and one of the parties to the com- bination, providing for a rate lower than that provided by the agree- ment among the carriers. iThus, the remedy for infringe- ment of a patent, is not impaired by the circumstance that the holder of the patent is a party to an agree- ment in restriction of competition in the business to which the patent relates. Strait v. National Harrow Co,, 51 Fed. Eep. 819 (Cir. Ct. N. Y., 1892; injunction to restrain such a suit denied); Sawyer-Man Elec- tric Co. V. Edison Electric Light Co., 11 U. S. App. 713, 747; S. C, 53 Fed. Rep. 593, 598 (3d Cir., 1893). So held no defense to a proceeding to enforce liability for services ren- dered by tugs, that the tug-owners were parties to such an agreement. The Charles E. Wisewall, 74 Fed. Rep. 803 (D. Ct. N. Y., 1896); af- firmed in 57 U. S. App. 179; S. C, 86 Fed. Rep. 671 (3d Cir., 1898). So such a defense is not available in a proceeding to enforce liabil- ity to pay for goods purchased. National Distilling Co. v. Cream City Importing Co., 86 Wis. 353; s. C, 56 N. W. Rep. 864 (1893). On the same principle in Dennehy v. McNulta, — U. S. App. — ; s. C, 86 Fed. Rep. 825 (7th Cir., 1898), was denied the right to recover back money paid to an illegal combina- tion. But such a defense has in some cases been made available by statute. See, in Ford v. Chicago Milk Shippers' Assoc, 155 111. 166; S. c, 39 N. E. Rep. 651 (1895), an appli- cation of the provision of the Illi- nois anti-trust act of 1891, that the purchaser from one transacting business contrary to its provisions, should not be liable for payment. See, however, Wiley v. National Wall Paper Co., 70 111. App. 543 (1896). The provision of the Kan- sas anti-trust act of 1889, making it a defense that the plaintiff is a member or agent of a combination unlawful under the act, was held, notwithstanding the generality of the language, not to apply, where it did not appear that the contract and transactions upon which the action was based, formed any part of the illegal combination, or pro- moted it in effect or design; and, furthermore, the plaintiff was merely a small stockholder in a corporation that was a party to the combination. Barton v. Mul- vane, — Kan. — ; s. a, 53 Pac. Rep. 883 (1898). In an action by a for- eign corporation to enforce a stock- holder's liability held, that the question whether it had forfeited its franchises by entering into an illegal trust combination, could not be raised. United States Vinegar Co. V. Schlegel, 67 Hun (N. Y.), 356; S. c, 33 N. Y. Suppl. 407 (1893). Held, also, that it could not be .shown that it was orally agreed among the promoters, that the organiza- tion should be for an illegal pur- pose. Id.; Globe Sewer Pipe Co. v. Otis, 32 N. Y. Suppl. 411 (Supm. Ct., Gen. T., 1893). 170 EEMEDIES AS BETWEEN PAETIES. [§30. between a third person and a party to the agreement in re- striction of competition, may be so related to the latter agreement, as to make such third person a party to it, within the operation of the rule preventing the maintenance of a proceeding between parties to enforce such an agreement.^ edge of the seller, the design of the buyer was to control the supply and price of coal, and but for that purpose the buyer would not have entered into the agreement. The product of the seller largely ex- ceeded two thousand tons a month. The court say: "Under certain lim- itations, a vendor of goods may re- cover for their price, notwithstand- ing that he knows that the vendee intends an improper use of them, so long as he does nothing to aid in such improper use, or in the ille- gal plan of the purchaser. But if the vendor does anything beyond making the sale, to aid the illegal scheme of the vendee, he renders himself particeps criminis, and can- not recover for the price." In Clanoey v. Onondaga Salt Manuf. Co., 62 Barb. (N. Y.) 395 (1862), re- covery was not allowed for the price of salt sold to a corporation formed ostensibly for the purpose of manufacturing salt, but in real- ity to form a combination to fix and control the price, it appear- ing that the sellers knew that the object of the combination was to increase the price, and that they were to receive the benefit of it. But in Carter-Crume Co. V. Peurrung, — U. S. App. — ; S. C, 86 Fed. Eep. 439 (6th Cir., 1898), was sustained an agreement for the sale of the entire product of the seller, in the absence of knowledge by him that this was 1 lu Bishop V. American Preserv- ers' Co., 1 57 la 284, 306 ; s. a, 41 N. E. Eep. 765 (1895), in an action of re- plevin, it appearing that the plaint- iff was a party to an illegal combina- tion in restraint of trade, held error to exclude evidence offered to sus- tain a defense that " the transfer of defendant's goods and machinery and business, by means of a bill of sale to the plaintiff, and the deliv- ery of the shares of stock to de- fendant, and the redelivery thereof to the trustees of the combination in exchange for trust certificates, and the appointment of defendant as custodian of the property and agent to carry on the business, theretofore exclusively his own, were all parts of the illegal scheme, and aids in the accomplishment of the unlawful objects of the trust." So, in Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558, 566 (1877), recovery was not allowed for coal sold under an agreement that was part of an illegal scheme of the buyer to enhance prices. It bound the buyer to take all the coal that the seller might desire to send " north of the State line," to the extent of two thousand tons a month, it being, however, optional with the seller to deliver, and the only consideration for the agree- ment of the buyer being the agree- ment of the seller not to sell coal to any other party, to come north of the State line. To the knowl- § 30.] EEMEDIES AS BETWEEN PAETIES. 171 So, as a rule, an agent of a party to an agreement in restric- tion of competition, is not himself a party, so as to be within the operation of the rule just considered.' Besides the diffi- culty of determining whether a person is a party to the agreement, it is sometimes a matter of difficulty to deter- intended by the buyer as but one step in such an illegal combina- tion. And in Van Marter v. Bab- cock, 23 Barb. (N. Y.) 633 (1857), an agreement of sale was held not illegal merely by reason of a pro- vision that it should be void, pro- vided the other growers of the same product should not enter into an agreement with the buyer. In Anheuser-Busch Brewing Assoc, v. Houck, 37 S. W. Rep. 693 (Tex. Civ. App., 1894); affirmed as Houck v. Anheuser-Busch Brewing Assoc, in 88 Tex. 184; s. C, 30 S. W. Eep. 869 (1895), the illegality of an agree- ment, under the Texas anti-trust act of 1889, was held to justify a refusal to carry out an agreement to sell to such parties, but not to prevent recovery for goods sold, though with knowledge that they were to be used for the purposes of such combination. This on the ground that the buyer could claim no benefits under the contract, though it might be valid as to the seller. See as to efiEect of knowledge of seller that goods are to be used for an unlawful pur- pose, Oliver V. Gilmore, 53 Fed. Eep. 563 (Cir. Ct. Mass., 1893). money was paid on an agreement illegal as in restriction of competi- tion. In Wright v. Crabbs, 78 Ind. 487 (1881), recovery was allowed for services as broker in procuring contracts for the purchase of wheat, in ignorance of the fact that the employer was utilizing such contracts for creating a "cor- ner " in the wheat. But in Samuels V. Oliver, 130 111. 73; s. C, 33 N. E. Rep. 499 (1889), recovery was not allowed, either by agent against principal, or vice versa, for money received or advanced in promotion of a " cornering " transaction. And in Gibbs v. Consolidated Gas Co. of Baltimore, 130 U. S. 396; s. C, 9 Supm. Ct. Rep. 553 (1889), recovery was not allowed for services ren- dered in negotiating a contract known by the plaintiff to be illegal. And in Leonard v. Poole, 114 N. Y. 371 ; s. c, 31 N. E. Rep. 707 (1889), an action for an accounting was held not maintainable, notwithstanding the objection that the parties from whom the accounting was sought, were mere agentsofthe others; this on the ground that the parties, being engaged in a criminal scheme to advance prices, were all principals. 1 See generally as to liability of But this reasoning seems inconclu- agents of such parties, Clark on Contracts, § 313. In Murray v. Vanderbilt, 39 Barb. (N. Y.) 140, 153 (1863), recovery was allowed against an agent for money re- ceived by him for the principal's use, against the objection that the sive, the proceeding being for the enforcement, not of a criminal, but of a civil liability. See also Keene V. Kent, 4 N. Y. State Reporter, 431 (Supm. Ct., Gen. T,, 1886), where the same contract was involved. 172 EEMEDIES AS BETWEEN PAETIES. [§30. mine whether an agreement is such as to be within the op- eration of the rule. Ordinarily this is to be determined by the rules generally applicable in determining whether an agreement is illegal as in restriction of competition. But where there exists a conoededly illegal restriction upon compe- tition, the question sometimes arises whether an agreement is so related to the illegal restriction, as to partake of its ille- gality. If so, it comes within the operation of the rule above considered ; ' otherwise, not.^ 1 See on the general subject of agreements partly illegal, Clark on Contracts, § 204, and other treat- ises on contracts generally. Thus, in Santa Clara Valley Mill & Lum- ber Co. V. Hayes, 76 Cal. 387; s. a, 18 Pac. Rep. 391 (1888), recovery was not allowed for breach of an agree- ment by a manufacturer of lumber for sale thereof, it appearing that the agreement was part of a scheme on the part of the plaintiff, to form a combination among all the manu- facturers of lumber in the vicinity, for the purpose of increasing the price, limiting the supply, and giv- ing the plaintiff the control thereof. By the agreement the defendant was not to manufacture other lum- ber to be sold in the region, under a penalty. The scheme included similar contracts between the plaintiff and other manufacturers in the region. So in Pacific Factor Co. V. Adler, 90 CaL 110; s. C, 27 Pao. Rep. 36 (1891), recovery was not allowed for breach of an agree- ment to sell and deliver 187,50(> grain bags or burlaps, it appearing that the agreement was part of a scheme on the part of the plaintiff to control the supply of grain bags within the State, for the purpose of increasing the price. In Drake V. Siebold, 81 Hun (N. Y.), 178; s. c, 30 N. Y. Suppl. 697 (1894), a case of 2 For examples of provisions held enforceable as separable from agreements in restriction of com- petition, see Hartford & New Haven R. R. Co. v. N. Y. & New Haven R. R. Co., 3 Robt. (N. Y.) 411 (1865); Western Union Tel. Co. V. BuElington & S. W. Ry. Co., 11 Fed. Rep. 1 (Cir. Ct. Iowa, 1883). See Hoffman v. Brooks, 28 Am. Law Reg. (N. S.) 648 (Super. Ct. Cinn., 1884). For a case where an accounting was allowed for money received as profits on an illegal cornering contract, see Wells v. McGeooh, 71 Wis. 196; s. c, 35 N. W. Rep. 769 (1888). In Sampson v. Shaw, 101 Mass. 145 (1869), where the agreement between parties to a cornering agreement was, that one should apply the funds of the other already in his hands, so far as should be necessary for the pay- ment of the latter's share of the expenses, the latter was held not precluded from recovering the un- expended balance of the fund, but not allowed to recover for what had actually been expended. §31.] COEPOKATIONS. 173 § 31. Restrictions by corporations upon competition. — Formerly, at least, an illegal restriction upon competition was commonly the result of acts of a combination of individuals, partnerships or corporations. But it is frequently overlooked an illegal combination among coal dealers to fix the price, a contract between two parties thereto for the sale of coal at the price fixed by the combination, was held non- enforceable, though it was inti- mated that the seller was not nec- essarily precluded from all remedy for non-payment of coal delivered under the contract. So in Burling- ton, C. R. & N. Ey. Co. v. North- western Fuel Co., 31 Fed. Eep. 653